In 1796 George Washington, arguably America’s greatest military leader, hoped in his farewell address as president that his successors would “avoid the necessity of those overgrown military establishments, which under any form of government are inauspicious to liberty, and are regarded as particularly hostile to republican liberty.” For much of its history, the United States has avoided such an “overgrown military,” but because the price of liberty is eternal vigilance, the armed forces have been a major component of the national government since World War II.
Democracy and a strong military are not incompatible. In ancient Athens, the cradle of democracy, every Athenian citizen—only adult males—could expect to serve in either the army or the navy. Plato, the ancient Greek philosopher (ca. 427–347 b.c.e.), proposed in his last work, The Laws, that “[t]he Guardians of the Laws must compile a preliminary list of candidates, restricted to citizens, and the Generals should then be elected from this list by all those who have served in the armed forces at the proper age, or who are serving at the time.”
The constitutions of most countries deal with the military to a greater or lesser degree. The constitution of Japan (1947), for example, written after the country’s defeat in World War II, renounces war and declares that “land, sea, and air forces, as well as other war potential, will never be maintained.” According to the German constitution (1949), “Men who have attained the age of eighteen may be required to serve in the Armed Forces, in the Federal Border Police, or in a civil defense organization.”
America’s Constitution refers to the military in several provisions. Article I, section 8, grants Congress the power to “declare War” and to “raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; to make Rules for the Government and Regulation of the land and naval Forces; and To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Section 8 also empowers Congress to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
Article II, section 2, designates the president “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” The language of section 2 also authorizes the president, with the Senate’s advice and consent, to appoint military officers. The president’s authority over the military granted by the Constitution represents the basic principle of constitutional democracy that the military should always be subordinate to civilian political authority. The president generally exercises his authority over the armed forces through the secretary of defense (see Cabinet).
The monarchs of England have had the power not only to declare war but also to raise armies and direct their activities—a power that was not always exercised wisely or in the best interests of the English people. Even today, the queen is the titular head of the British armed forces. The Framers of the Constitution were also familiar with the English Declaration of Right (1688), which made Parliament’s consent a requirement for the monarch to maintain a standing army. The framers therefore split the power over the new nation’s armed forces between Congress and the president, a dual responsibility that has caused tension and disputes between the two branches of government (see Separation of Powers). In times of WAR, however, Congress tends to delegate more powers to the president than in peacetime. The Supreme Court has tried to maintain the separation of powers contemplated by the framers even during wartime.
The Supreme Court has also had to protect the fundamental rights of citizens from unconstitutional measures taken in time of war. During the Civil War (1861–65), the Court unanimously rejected the president’s power to establish a military tribunal to try civilians. But when Congress was forced to make treasury notes (government IOUs called greenbacks) legal tender in order to be able to keep paying the troops during the war, the Court approved the measure when it was challenged in Knox v. Lee and Parker v. Davis (both 1871), known as the Legal Tender Cases, on the grounds that greenbacks did not have the equivalent value in gold or silver. The Court majority found that the exigencies of war made the act of Congress constitutional under the Necessary and Proper Clause of the Constitution, which authorizes the legislature to “make all Laws which shall be necessary and proper for carrying into Execution...all...Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
As commander in chief of the armed forces—made up of the army, navy, air force, and marines—the president may commit troops to battle without a formal declaration of war by Congress. A major showdown between the president and Congress over this provision resulted in enactment of the War Powers Act (1973) over the veto of President Richard M. Nixon (1913–94). The rancor over the Vietnam War—undeclared by Congress—moved Congress to try to limit this presidential power. As the preamble of the bill stated, its aim was “to fulfill the intent of the framers of the Constitution...and ensure that the collective judgment of both the Congress and the President will apply to the introduction of U.S. armed forces into hostilities....” The act’s major provision allowed Congress at any time, by a majority vote of both houses, to order the president to disengage troops involved in an undeclared war and to require withdrawal of American armed forces from a conflict within a set number of days. Presidents continued to commit troops on their own, and only when President Ronald Reagan (1911–2004) deployed marines in Lebanon in 1982 and 1983 was it necessary for the president and Congress to negotiate the limits of the military action. The invasion of Iraq in 2003 and the ensuing military occupation of that country for a period longer than World War II at a great cost in human life and American tax dollars—without a formal declaration of war by Congress— has again raised questions concerning the proper role of Congress and the president in initiating military action under the Constitution.
The Supreme Court has generally given Congress great freedom in governing the armed services, made up of men and women who are essential to the maintenance of the freedom and democracy that citizens of the United States so highly prize. In Parker v. Levy (1974), the Court concluded that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian,” adding that “Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing rules by which [the military] shall be governed than when it is prescribing rules for [civilian society].” Moreover, in 2006 the Supreme Court declined to review a military court decision that confirmed that, in cases arising outside the military justice system, Supreme Court decisions interpreting the Constitution are to be applied as precedents unless such decisions can be distinguished based on unique military justice considerations.
The Court has upheld male-only registration for the draft and allowed the banning of speeches and demonstrations of a political nature and distribution without the approval of military post headquarters of literature that might endanger military personnel’s loyalty, discipline, or morale. To benefit service personnel, their tangible personal property may be barred from taxation by the state in which they are stationed if they are domiciled elsewhere. Congress may allow the designation of an insurance beneficiary regardless of state law and exempt the proceeds from creditors. And Congress has moved to ban bordellos in the vicinity of places where military personnel are stationed.
The Supreme Court in O’Callahan v. Parker (1969) held that service personnel could not be tried by court-martial for crimes that are not “service-connected.” In this case, the crime had been committed against a civilian, in peacetime, in the United States, away from the military base while the serviceman was officially off duty. But in Solorio v. United States (1987), the Court overruled O’Callahan because of confusion about the nature of “service-connected” crimes. If court-martialed, service men and women are entitled to roughly the same due process rights as civilians. The Uniform Code of Military Justice, however, permits superior officers to influence court-martial proceedings; unlike civilian judges, persons with judicial functions in a court-martial are appointed by their superiors and may be removed at will. Only one-third of a court-martial panel may be enlisted personnel, if requested by the accused, whereas the rest of the court is made up of officers. And because the review authority of the Court of Military Appeals is more restricted than a civilian appellate court, parties often challenge the constitutionality of court-martial proceedings in the federal courts. Not all cases involving military personnel may be so reviewable, however. In 2001 the U.S. Court of Appeals for the Eleventh Circuit held that a suit by military personnel for injunctive relief for service-connected injuries was nonjusticiable (not reviewable). The split in the federal appeals courts on this issue means that it may have to be resolved by the Supreme Court.
The Supreme Court’s treatment of the armed forces as a specialized community with its own rules has led at various times to the virtual legalization of discrimination against blacks, women, homosexuals, and other minorities in the military services. Even though President Harry S. Truman (1884–1972) ordered the armed forces desegregated in 1948, integration did not occur until the Korean War (1950–53) (see Segregation). The military has made attempts to deal with discrimination against women—admitting them into the service academies beginning in 1976—but women are still barred from combat positions. The policy toward Homosexuals in the service of their country is described as “Don’t ask, don’t tell.” That is, the military will not ask applicants or service personnel if they are homosexuals, but those who announce or otherwise make known their homosexuality may be discharged.
Few Supreme Court cases have addressed sex discrimination in the military. In Frontiero v. Richardson (1973), the Court held that a law allowing only the spouses of male members of the uniformed services to receive increases in some benefits (such as allowances for quarters and health benefits) unconstitutionally denied due process of law under the Fifth Amendment (1791) to a married woman air force officer. But in Personnel Administrator of Massachusetts v. Feeny (1979), the Court found that a state law granting an absolute lifetime preference to veterans, which a female state employee argued favored men because there were more men in the military than women, did not violate the Equal Protection clause of the Fourteenth Amendment (1868). The military’s history and methods of fighting wars have at times precluded the women and men of the armed forces from being able to enjoy the same constitutional rights and freedoms they safeguard for other citizens.
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