In all the debate over the state of military justice, little, if any, attention is paid to the society it governs. This society is seemingly treated as a monolith, ever constant over periods of great change within itself and broader society over centuries. I’ve continually believed that to understand the evolution of military law, one must also understand the evolution of military society.
The Supreme Court of the United States’ view of military society epitomizes the prevailing view:
This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.” United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). In In re Grimley, 137 U.S. 147, 153 (1890), the Court observed: “An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier.” More recently we noted that “the military constitutes a specialized community governed by a separate discipline from that of the civilian,” Orloff v. Willoughby, 345 U.S. 83, 94 (1953), and that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty . . . .” Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion).
The two world wars and the ensuing Cold War marked a distinct departure in the way America trains, equips, and deploys its armed forces. Though the nature of our military and its society seems to have dramatically changed, the language used to describe the society in which military law governs has largely remained the same. Often, as demonstrated above, language in modern judicial decisions are pulled from older decisions that arguably describe a considerably different society. To understand this phenomenon, and thus better understand the evolution of military criminal law and its proper application, I have turned to social histories of the United States military. In particular, I am most interested in the colonial/revolutionary era and the Civil War era. These periods parallel two important events in military legal history. The Continental Congress enacted the Articles of War and the Rules for the Governance of the Navy in 1775, which to a large extent remained the same until Congress enacted the revolutionary Uniform Code of Military Justice in 1950. The social history of the army and navy of that period provide context to understanding the needs of military discipline in the services.
Relatedly, Colonel William Winthrop, United States Army, authored perhaps the most consequential military law treatise, Military Law and Precedents, in the decades following the Civil War. This compendium of JAG opinions covering military criminal law from antiquity to the Civil War era not only provides an authoritative study of military criminal law historically, it is also a commentary on the needs of discipline for the military society of its time. Notably, the Supreme Court of the United States has described Colonel Winthrop as the Blackstone of military law and military appellate decisions are replete with references to his monumental work.
I have undertaken to read social histories of these two periods, when time and work permits, and am fascinated by what I have learned. There is far too much to cover in a blog post, so I have included just an partial list of books and articles at the bottom of this post that I have devoured. The anecdotal tidbits that follow come from these works.
In both periods, conventional wisdom and traditional teaching seem inconsistent with reality. We are taught in school that the American Revolution was fought by farmers who put aside their pitchforks for the common cause of liberty. But that was only the case for the first year of the war. Short enlistments and the needs of an agrarian society required commanders to recruit laborers, tradesmen, city-dwellers, second sons, and foreigners. Though hardworking individuals willing to commit to longer enlistments in exchange for steady pay, housing, and food, they were far from the citizen-soldiers heralded in popular culture. A century later, not much changed. Though popular culture heralds devoted families going off to war to defend states’ rights or to oppose slavery, those who actually signed up for lengthy enlistments were remarkably were remarkably similar to those who served in the Continental Army. With such characteristics and more not included here, this provides some context to the needs of military justice during this time.
Desertion was perhaps the most popular offense during both periods. Camp life was hard. Those who got tired of sporadic pay, non-existent equipment, terrible food, and terrible hygiene simply left. Others were more opportunistic. Willing to sign up for longer terms of enlistment in exchange for larger bonuses, some deserted only to re-enlist in another unit to double or triple up on enlistment bonuses.
More fun to talk about is perhaps the second most common offense—public drunkenness. An enlisted method of rebellion against officers, the rigidity of camp life and the erratic provision of promised benefits, soldiers often lined up on “payday” to spend their earnings at the camp sutler accompanying the unit.
On a side note, commissaries were created in order to try and ration how much alcohol was available to soldiers. To be fair, soldiers weren’t the only ones frequently drinking to excess. The phrase “groggy” originates in the Navy. Well into the mid-1700s, sailors received a daily ration of half a pint of undiluted rum. For similar reasons, sailors often drank it all in one sitting, resulting in excessive drunkenness. To reduce the instance of public drunkenness in the Navy, Captains ordered the daily ration to be diluted with a quart of water. Often called, “Old Grog,” sailors still drank to excess. The consequent after effects were often referred to as being “groggy.”
Then and Now
Some have argued that the “specialized” nature of military society has diminished over the years, and that civilian and military societies are far more similar than previously understood. Regardless of one’s opinion concerning the truth of this assertion, it is safe to say that understanding the evolution of military society informs the proper understanding of both military legal history, and the future of military criminal law and procedure.
Kevin Adams, Class and Race in the Frontier Army: Military Life in the West, 1870-1890 ( University of Oklahoma Press 2009)
Edward M. Coffman, The Old Army: A Portrait of the American Army in Peacetime, 1784-1898 (Oxford University Press 1986)
Mark E. Lender & James K. Martin, A Respectable Army: The Military Origins of the Republic, 1763-1789 (Harlan Davidson, Inc., 2d ed., 2006)
Charles P. Neimeyer, America Goes to War: A Social History of the Continental Army (New York University Press 1996)
 Parker v. Levy, 417 U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439, 1974 U.S. LEXIS 81 (U.S. 1974)
 Reid v. Covert, 354 U.S. 1, 20 n.38 (1957).
 See, e.g., Edward F. Sherman, Military Justice Without Military Control, 82 Yale L.J. 1398 (1972); Donald N. Zillman & Edward J. Imwinkelried, Constitutional Rights and Military Necessity: Reflections on the Society Apart, 51 Notre Dame L. Rev. 396 (1976).