Structures of American Military Justice

Abstract

In a course of decisions stretching back 100 years, the United States Supreme Court has struggled to formulate an analysis of the military justice system.1 While taking into account the needs of the military, such an analysis would have to be, in addition, both explicable and acceptable to the civilian population and legal tradition. Although it had decided individual cases, until the 1974 case of Parker v. Levy2 the Court was not forced to articulate a complete analysis of why the military justice system should be treated differently from a civilian system. Prior cases provided hints, but their facts allowed the Court to limit its decisions and appear to be merely fine tuning a system that differed from our civilian system only in certain narrow aspects required by the nature of any military operation. Levy will not bear such an easy and accommodating construction. The Supreme Court there upheld the two so-called general articles of the Uniform Code of Military Justice (UCMJ).3 These provisions have no American civilian counterpart and on their face appear to outlaw anything and everything that a commanding officer dislikes. The Levy majority tried to explain the validity of such rules in the military context, but failed to articulate its view of the social structure underlying the military justice system and of the Constitution's place in it. Any justification of the result in Levy, however, requires a radically