If time begins for us in 1950, this was said,
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.
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.
“[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.
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.
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