Both the Supreme Court of the United States and military courts have struggled to formulate an adequate constitutional framework for military society. The simplest explanation may be that these courts have so far failed to articulate an appropriate legal framework that works in military society. This focus is on the “law side” of the equation. There is certainly much truth to this statement. But perhaps there should be more focus on the nature of the military society courts are to oversee. Perhaps practitioners and scholars have failed to properly describe the particular military society at issue.

The nature of military society necessitates different applications of constitutional law; thus, the doctrine of military necessity. But it seems that, though often asserted, no one defines military necessity. Associate Judge Matthew Perry (not that Matthew Perry) noted that “[w]hile the term ‘military necessity’ has appeared in many cases in [CAAF] as well as in civilian appellate courts, discussion of its meaning has been rare.”[1] I can’t help but think of Inigo Montoya in the Princess Bride when thinking of assertions of military necessity:

I propose that there is no such thing as a monolithic military society. To start with, a general military society mirrors the broader society within which it exists rather than some generalized society common amongst all militaries. Furthermore, not only do the land, sea, and air services have separate societies characterized by different norms and values, but each service itself is composed of numerous sub-societies. Note that this proposes that the Marine Corps has more in common with the Army, while the Navy has more in common with the Coast Guard than the Marine Corps. Trigger-pullers are different than support staff. Fighter pilots are different than heavy pilots, who are all different than true close air support pilots. A deployed military is a different society than one in garrison. To further complicate things, military of 1775 was different than the military of 1861, which was different than the military of 1942, which is different than the military of today.

So, how can military society (and consequently military necessity) be understood? Social histories are critical for military legal history scholars. In those few moments of recreational reading, I’ve been reading through General Lee’s Army by Joseph T. Glatthaar. It provides great insight on who signed up to join this army, and what army life was like. Silly as it may sound, even movies such as Gods and Generals, directed by Ted Turner, provide fun (though not necessarily scholarly) insight into civil war military life.

But in the trenches of military trial and appellate practice, practitioners in the several services remain in the best position to articulate to a court exactly why their particular community requires a different rule. That seems the best way for the judiciary to properly understand the subtleties of that complex organism generally referred to as “military society.”

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[1] United States v. Harris, 5 M.J. 44, 64 n.28 (C.M.A. 1978) (overruled on other grounds by United States v. Jones, 24 M.J. 294, 296 (C.M.A. 1987)