The first ten amendments to the United States Constitution, ratified in 1791 and known as the Bill of Rights, create the core of what people today consider their most basic freedoms. Without these rights, and consistent judicial adherence to them, most Americans would not feel secure. There are two major sources of danger to these basic rights: internal and external. Internally, we must protect ourselves from our own infringement of these rights through the firm restrictions that the Constitution places on the government in its treatment of the people. Externally, we must protect our system of maintaining these freedoms from foreign parties who may wish to take over and change our government. Both safeguards are extremely important, but either is worthless without the other. In other words, these goals are entirely dependant on one another. When we spend our resources on the national defense, we must ask ourselves just what it is that we are protecting. At the same time, we must also accept that occasionally it will be necessary to ask that individuals make personal sacrifices in order to protect the entire set of freedoms for the whole. It is the role of the Supreme Court to balance these interests and determine the extent to which the military may limit certain liberties in order to protect the nation. More specifically, it is the Court's duty to limit the military's unconstitutional acts to those in which it simply must engage. Certainly no one would argue that the military should be completely unbound by the Constitution. The disputed issue merely goes to how it is to be kept in check, by whom, and to what extent. In Part I of this Article, I will discuss the Court's practice of deferring to the military's judgment regarding this balance, which prevents it from being properly struck. The Framers clearly thought about this balance when authoring the Bill of Rights. Indeed, while the focus of these amendments was on individual freedoms, the need for urgent exceptions for the military was addressed where necessary. The ultimate question this Article seeks to address is to what extent the Framers intended the Court to bend the rules for the military above and beyond the leeway already provided. I will investigate this in Part II through a combination of textual, historical, and structural analysis. This investigation and analysis will demonstrate that the Court has granted the military a degree of power well beyond that contemplated by the Framers. This analysis is important because original intent has not been taken into consideration sufficiently with regard to the level of autonomy the military is allowed. There have been many arguments based on policy, necessity, and even justiciability, but it seems that judges and scholars have forgotten about the Framers altogether. If we are to continue to live in a government that they structured, there must be some limitation on the extent to which we deviate from their carefully thought-out plan. Every word in the Constitution had a purpose, and in other areas of inquiry we treat that as an important factor to this day. This Article could include many long sections on modern issues and advisable policy, and it does marginally address these issues, but its focus is on the Framers, the way they structured our government, and their placement of the military within that scheme. One of the sources of the Court's inability to conduct proper constitutional analysis in military cases is its lack of access to complete and unbiased information upon which to base that analysis. In Part III, I will make an effort to suggest methods for addressing this problem alternative to simply letting the military use its special knowledge as a source of power over the Court. Part IV will demonstrate a modern example of where the problem of excessive deference can lead, and present the Court with a suggestion to use this as a context for change. Finally, the Article will conclude by summarizing the need for change and urging the Court to reconsider its policy of deference.
Framers’ Intent and Military Power: Has Supreme Court Deference to the Military Gone Too Far?
, 78 Or. L. Rev. 767
Available at: http://ecollections.law.fiu.edu/faculty_publications/258