How far have we come

If time begins for us in 1950,  this was said,

1975

Although many questions in this area have now come to be settled, there has been much controversy throughout our history as to which provisions of the Constitution relate to the military and which are concerned only with civilian trials.
. . . 
​​With regard to those provisions of the Fifth Amendment other than trial by jury, however, the same unanimity of agreement is not found. Judge Frank, speaking for the second circuit, said simply: “The Fifth and Sixth Amendments are, of course, inapplicable to a courtmartial.” Other courts have been equally certain that the provisions of both the Fifth and Sixth Amendments are applicable to military trials. Regardless of language to the contrary in some cases, it seems clear that at least some provisions of these two Amendments are generally deemed applicable to court-martial trials. Certainly the reasoning of such a position is more tenable than that of the cases which deprive a person of the protection of the Constitution at a timewhen he has taken up arms to defend it.

Such statements as that of Judge Frank above quoted may be taken to mean only that there is no blanket application of the Amendments to court-martial proceedings. If this is their meaning, the positiontaken is tenable but not well-stated. Such categorical statements should not be used unless they are intended to mean what they say[.]

Ernest L. Langley, Military Justice and the Constitution--Improvements Offered by the New Uniform Code of Military Justice? MIL. L. REV. (Bicentennial Issue) Sept. 1975 at 77.

Compare with,

2020ish

“[T]here has been substantial scholarly debate on applicability of the Bill of Rights to the American servicemember.”  United States v. Graf, 35 M.J. 450, 460 (C.M.A. 1992), cert. denied, 510 U.S. 1085 (1994); see, e.g., Gordon D. Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv. L. Rev. 293 (1957); Frederick B. Wiener, Courts-Martial and the Constitution: The Original Practice pts. 1 & 2, 72 Harv. L. Rev. 1, 266 (1958).  The Bill of Rights itself includes one exception for military justice cases:  the Fifth Amendment’s grand jury provision does not apply to “cases arising in the land or naval forces, or in the Militia, when in actual service, in time of War, or public danger.”  The Supreme Court has held that the Sixth Amendment’s right to trial by jury is similarly inapplicable to courts-martial.  The Supreme Court has recognized the applicability of some other portions of the Bill of Rights to the military justice system, though that application is often different than that in a civilian context.  It has reserved judgment on the applicability of some other Bill of Rights provisions.
 
The Court of Appeals for the Armed Forces’ case law recognizes the general applicability of the Bill of Rights to the military justice system[.] See generally, United States v. Easton, 71 M.J. 168 (C.A.A.F. 2012).

Dwight H. Sullivan, The Bill of Rights' Application in the Military Justice System. The paper was originally written for presentation at the Joint Proceedings Panel.