Document Type

Article

Publication Date

Fall 2002

Abstract

This Article argues that judicial deference to the military, at least as the principle is understood in contemporary decisions of the Court, is surprisingly recent and not at all constitutionally established. In fact, this deference departs from constitutional text and from a line of Supreme Court precedent concerning civilian-military relations extending back before the Civil War. Broad judicial deference to military discretion is only a creation of the post-Vietnam, all-volunteer military and, more specifically, only a creation of one single Justice of the Supreme Court, William H. Rehnquist.

In Greer v. Spock, First Amendment values were displaced narrowly in the service of a greater constitutional good-civilian control of the military-that could be achieved only through maintenance of political neutrality. Today, in contrast, the Court's identification of the military as pointedly not neutral, but as separate, morally superior, and politically partisan, is offered as a reason why the military should not be subject to constitutional limitation at all. Judicial deference to the military can never be constitutionally effective when the military is politically partisan, or when the military is used for politically partisan purposes. Rehnquist's transformation of our constitutional understanding of civilian-military relations has achieved, with uncanny precision, the worst possible combination of constitutional anomalies. He has encouraged the military to see itself as politically partisan, enabled Congress to use the military for politically partisan purposes, and then awarded an all-encompassing judicial deference that insulates both from serious review. This is how, thirty years later, Rehnquist finally won the Vietnam War.

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