Military Law and the Constitution

The military fills a special place in American society. As imagined by the Founders, the military would be an institution of the people. But in many ways, particularly after the Second World War, the military also stands apart as a separate society. Military activities also impact civilian life just as the evolving legal norms that govern civilian life invariably pose conundrums for a military that must maintain the martial values necessary to fighting wars. Whether it is drone strikes, the draft, or the environmental impact of military operations, civilians must contend with the needs of the military. And in matters of constitutional rights, whether it is the right to engage in private sexual relationships or to have due process in criminal trials, the military must contend with the expectations that have become implicit in a modern free society.

This course examines the under-explored constitutional framework by which the military operates in the United States and how military law fits within the Constitution's guarantee of a republican democracy. The course will cover the fundamentals of military justice, including key concepts like "good order and discipline" and the "chain-of-command." And it will evaluate the historical development the military's special place in the American constitutional system, including how deep suspicions of a standing army have yielded to the modern preeminence of military interests in a variety of legal contexts.

Students will be given the option of choosing between an exam or a paper, which may be used to the the Minor/Major writing credits.