The Supreme Court and Military Justice

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Jonathan Lurie

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    Series Editor

    Melvin I. Urofsky Virginia Commonwealth University

    Acknowledgements

    For Mac—45 years and still counting

    Foreword

    Scholars of the Supreme Court have long known that while a particular opinion may contain powerful and even eloquent language, the words themselves mean nothing until translated into action. Chief Justice Earl Warren declared in Brown v. Board of Education (1954) that “in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal,” but it took more than two decades of congressional and executive action before legalized segregation disappeared from the states. In Gideon v. Wainwright (1963), the Court expanded the right of counsel, but the ruling meant nothing until the states actually implemented it.

    Most studies of the Court are doctrinal: they view the decisions of the Court in a particular area to see how they have developed, what rules have been created, what arguments and precedents are established. This analysis is legitimate; in fact, it is primarily what is done in law schools. Historians and political scientists, however, also look at the impact Court decisions have had on different groups and agencies. They want to know how the Court’s decisions affected the actions of the states, the president, Congress, and other parts of government and of the society—that is, how words translated into action.

    The books in this series—The Supreme Court’s Power in American Politics—do not ignore doctrinal issues but focus primarily on how Court decisions are translated into practice. What does it mean, for example, in actual police work when a court says that officers must follow certain rules in gathering evidence or making arrests? What does it mean to a state legislature when the High Court holds current schemes of apportionment to be unconstitutional? How does an administrative agency respond when courts hold that it has overstepped its authority?

    In some areas, the responses have been simple if not always straightforward. For all the furor raised by critics of the ruling in Miranda v. Arizona (1966), within a relatively short time police departments made the Miranda warning part of the routine for an arrest. On the other hand, decisions regarding school prayer and abortion have met with opposition, and the responses of state and local governments have been anything but simple and straightforward.

    Judges, like the president and members of Congress, take an oath to preserve, protect, and defend the Constitution. Though the Constitution is quite explicit in some areas (such as the length of a term of office), the framers deliberately wrote other provisions in broad strokes, so the document could grow and adapt to the needs of future ages. Determining what specific meanings should be attached to various constitutional clauses is a task that falls not only to the courts but to the other branches of government as well. The meaning of the Constitution in our times is the result of the interaction of the three branches of the American government.

    This impact is occasionally difficult to trace. In the area of military justice, the Court has on more than one occasion declared that the rules governing military conduct are outside the purview of judicial review, since Article I, Section 8, specifically gives Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” The Constitution, however, also prohibits the federal government from denying anyone the due process of law and quite clearly gives the civilian officers of the government control over the military.

    Beginning in the Civil War era, Congress, the president, and the courts began to look more closely at what criteria should apply to military justice comporting to the needs of the army and navy, civilian control, and standards of due process, as well as the institutions through which military justice should operate. It is an often convoluted trail from the early questions of military versus civilian jurisdiction down to issues surrounding the treatment of detainees at the Guantánamo Naval Base. In much of this time, the old motto of inter arma silent leges—in wartime the laws are silent—seems to have prevailed.

    When I invited Jonathan Lurie to do this volume in the series, I knew that the reader would have an experienced guide through the labyrinth of military law and its intersection with the rulings of the High Court. No one outside of the military understands the military justice system better than he does, as evidenced by his two published volumes on the subject. He is also extremely knowledgeable about the U.S. Supreme Court, and only someone with mastery of these two areas could do justice to the complexities of their intersections. The work that follows proves that faith was not misplaced.

    Melvin I. UrofskyMarch 2013

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