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Journal Article

The Bill of Rights and the military

01 Jan 1988-Journal on firearms and public policy (Second Amendment Foundation)-Vol. 1, Iss: 1, pp 56-62
TL;DR: The problem of determining the proper role to assign to the military in a democratic society has been a troublesome problem for every nation that has aspired to a free political life as mentioned in this paper.
Abstract: It is almost a commonplace to say that free government is on trial for its life. But it is the truth. And it has been so throughout history. What is almost as certain: It will probably be true throughout the foreseeable future. Why should this be so? Why is it that, over the centuries of world history, the right to liberty that our Declaration of Independence declares to be "inalienable" has been more often abridged than enforced? One important reason, surely, is that the members of a free society are called up-on to bear an extraordinarily heavy responsibility, for such a society is based upon the reciprocal self-imposed discipline of both the governed and their government. Many nations in the past have attempted to develop democratic institutions, only to lose them when either the people or their government lapsed from the rigorous self-control that is essential to the maintenance of a proper relation between freedom and order. Such failures have produced the totalitarianism or the anarchy that, however masked, are the twin mortal enemies of an ordered liberty. Our forebears, well understanding this problem, sought to solve it in unique fashion by incorporating the concept of mutual restraint into our Nation's basic Charter. In the body of our Constitution, the Founding Fathers insured that the Government would have the power necessary to govern. Most of them felt that the self-discipline basic to a democratic government of delegated powers was implicit in that document in the light of our Anglo-Saxon heritage. But our people wanted explicit assurances. The Bill of Rights was the result. This act of political creation was a remarkable beginning. It was only that, of course, for every generation of Americans must preserve its own freedoms. In so doing, we must turn time and again to the political consensus that is our heritage. Nor should we confine ourselves to examining the diverse, complicated, and sometimes subordinate issues that arise in the day-to-day application of the Bill of Rights. It is perhaps more important that we seek to understand in its fullness the nature of the spirit of liberty that gave that document its birth. Determining the proper role to be assigned to the military in a democratic society has been a troublesome problem for every nation that has aspired to a free political life. The military establishment is of course, a necessary organ of government; but the reach of its power must be carefully limited lest the delicate balance between freedom and order be upset. The maintenance of the balance is made more difficult by the fact that while the military serves the vital function of preserving the existence of the nation, it is, at the same time, the one element of government that exercises a type of authority not easily assimilated in a free society. The critical importance of achieving a proper accommodation is apparent when one considers the corrosive effect upon liberty of exaggerated military power. In the last analysis, it is the military--or at least a militant organization of power--that dominates life in totalitarian countries regardless of their nominal political arrangements. This is true, moreover, not only with respect to Iron Curtain countries, but also with respect to many countries that have all of the formal trappings of constitutional democracy. Reprinted by permission of New York University Law Review 1962, 37(181): 181-185.
Citations
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Book
14 Mar 2019
TL;DR: The Nature of Constitutional Rights examines what must be true about constitutional rights for them to be identified and enforced via "strict scrutiny" and other, similar, judge-crafted tests as mentioned in this paper.
Abstract: What does it mean to have a constitutional right in an era in which most rights must yield to 'compelling governmental interests'? After recounting the little-known history of the invention of the compelling-interest formula during the 1960s, The Nature of Constitutional Rights examines what must be true about constitutional rights for them to be identified and enforced via 'strict scrutiny' and other, similar, judge-crafted tests. The book's answers not only enrich philosophical understanding of the concept of a 'right', but also produce important practical payoffs. Its insights should affect how courts decide cases and how citizens should think about the judicial role. Contributing to the conversation between originalists and legal realists, Richard H. Fallon, Jr explains what constitutional rights are, what courts must do to identify them, and why the protections that they afford are more limited than most people think.

16 citations

Journal ArticleDOI
TL;DR: After 9/11, President George W. Bush authorized the creation of military tribunals to try those who assisted in the terrorist attacks on New York City and Washington, DC as discussed by the authors.
Abstract: After 9/11, President George W. Bush authorized the creation of military tribunals to try those who assisted in the terrorist attacks on New York City and Washington, DC. His military order closely tracked the model established by President Franklin D. Roosevelt, who appointed a military tribunal in 1942 to try eight German saboteurs. In Ex parte Quirin (1942), the Supreme Court unanimously upheld Roosevelt’s tribunal. The Bush administration relies heavily on this judicial precedent, but military tribunals in U.S. history have generally been hostile to civil liberties, procedural due process, and elementary standards of justice.

5 citations

Book
31 Dec 2012
TL;DR: Fallon, Jr. as mentioned in this paper provides an engaging, sophisticated introduction to American constitutional law and discusses contemporary constitutional doctrine involving such issues as freedom of speech, freedom of religion, rights to privacy and sexual autonomy, the death penalty, and the powers of Congress.
Abstract: In this revised and updated second edition of The Dynamic Constitution, Richard H. Fallon, Jr provides an engaging, sophisticated introduction to American constitutional law. Suitable for lawyers and non-lawyers alike, this book discusses contemporary constitutional doctrine involving such issues as freedom of speech, freedom of religion, rights to privacy and sexual autonomy, the death penalty, and the powers of Congress. Through examples of Supreme Court cases and portraits of past and present Justices, this book dramatizes the historical and cultural factors that have shaped constitutional law. The Dynamic Constitution, 2nd edition, combines detailed explication of current doctrine with insightful analysis of the political culture and theoretical debates in which constitutional practice is situated. Professor Fallon uses insights from political science to explain some aspects of constitutional evolution and emphasizes features of the judicial process that distinguish constitutional law from ordinary politics.

2 citations

Journal ArticleDOI
TL;DR: The authors examines specific restrictions promulgated and practiced during the Persian Gulf War, provides a brief historical analysis of how the United States and other nations have traditionally accommodated the religious activities of their military personnel, and addresses the question of how far we can constitutionally limit the free-exercise rights of the people in the military in light of current Supreme Court jurisprudence.
Abstract: This article examines specific restrictions promulgated and practiced during the Persian Gulf War, provides a brief historical analysis of how the United States and other nations have traditionally accommodated the religious activities of their military personnel, and addresses the question of how far we can constitutionally limit the free-exercise rights of the people in the military in light of current Supreme Court jurisprudence.

1 citations