By 1806, judge advocates were introduced as a mandatory aspect of courts-martial. Sort of. And only on the prosecution side. Sort of. Military defendants were, though, allowed to hire a civilian lawyer to represent them. Not really. But when they could, the lawyer usually wasn’t allowed to speak. . . .
The Continental Congress enacted the first Articles of War under fire. British troops occupied Boston. The British Navy blockaded Boston Harbor. The “Shot Heard ‘Round the World” was fired at Lexington. Neighboring colonies sent militia to assist the Massachusetts response. The Siege of Boston was underway. The colonies were at war with Great Britain.
To understand courts-martial at the time of the Founding, one must also understand the military (or organized violence more broadly) of the same period and the greater society within which it existed. And to do that, one must forget all you know of the modern military and instead imagine a completely foreign idea.
You know, Thomas Edison tried and failed nearly 2,000 times to develop the carbonized cotton-thread filament for the incandescent light bulb.
And when asked about it, he said “I didn’t fail; I found out 2,000 ways how not to make a light bulb,” but he only needed one way to make it work.
— Benjamin Franklin Gates
National Treasure (2004)
Chalk up launching C4SMJ to one of the 2,000 ways how not to make a light bulb. Ultimately, there were hurdles we weren’t quite ready to overcome.
So, C4SMJ is back on the drawing board for now and I’ll be re-focusing on this blog.
More to come soon!
If you are like me, there is a never ending list of books you keep adding to but can’t get to. For me, that often also leads to a similar stack of books on my bookshelf bought in excitement, just waiting to be read. The Gentlemen and the Roughs, by Professor Lorien Foote, is one of those books. I’ve finally been able to dive into it and what a consuming read it has been so far.
It has been a little time since my last post on my research. My foray into military justice scholarship began with a theory that the Supreme Court is largely hands off toward the military justice system because Congress has organized this jurisdiction akin to state jurisdictions, in contrast to other specialized subject areas, such as patents and trademarks. Assuming that to be true, substantial questions follow that have been largely ignored by scholars. I have chosen to start with the effectiveness and efficiency of the institutions within this jurisdiction. This begins with how the Supreme Court interacts with this community, one of three (inmates, students, military) in America that do not enjoy the full panoply of constitutional rights. After some initial background posts, here I dive into the leading case concerning the relationship between the inmate community and the Constitution.
A bit further along in Preparing for War: The Emergence of the Modern U.S. Army, 1815-1917, by J.P. Clark. I’m always looking to steal some time to get in a little reading every day, but it is a continual struggle–particularly after long days of reading at my day job.
Clark has done an excellent job so far of leading me through the army culture’s evolution as it responded to its experience, as well as its parent society.
Take this excerpt, for example, as Clark discusses the late 1800s:
But underneath political deadlock, society was undergoing a profound change from traditional personalized customs to new impersonal systems. That was, in broad terms, the difference between the Gilded Age and the Progressive Era. Naturally, such a momentous transition was neither instantaneous nor absolute. The broad trend, however, manifested itself in different ways across all aspects of society: in government, the patronage of party machines slowly yielded to an impartial bureaucracy manned by civil servants; in the private sector, unregulated free practitioners were subsumed by national credentialing associations for professions such as law and medicine; in the army, individual autonomy would be slowly subordinated to a general staff dictating a centrally determined notion of professionalism.
Beyond the clear and vivid, well-researched writing, I am particularly intrigued by Clark’s thesis.
Though still working through the details of my thesis, I believe a similar argument can be made about the evolution of military justice, both within the parent society and the law that governs its people.
Reading books like Clark’s, and other well researched and written articles, help refine the questions to be asked and hypotheses to test, even though they might not directly reference military justice. My intent is to share and celebrate these works on this blog . . . and to take good notes . . .
I picked up Preparing for War: The Emergence of the Modern U.S. Army, 1815-1917, by J.P. Clark, a few weeks ago and added it to my reading rotation.
The inside jacket cover was particularly appealing.
The author, an active duty Army officer and former faculty at the United States Military Academy, “traces the evolution of the Army between the War of 1812 and World War I. . . .” But this was the part that hooked me:
Nineteenth-century officers believed that generalship and battlefield command were more a matter of innate ability than anything institutions could teach. They saw no benefit in conceptual preparation beyond mastering technical skills like engineering and gunnery. Thus, preparations for war were largely confined to maintaining equipment and fortification and instilling discipline in the enlisted ranks through parade ground drill. By World War I, however, Progressive Era concepts of professionalism had infiltrated the Army. Younger officers took for granted that war’s complexity required them to be trained to think and act alike—a notion that would have offended earlier generations.
Does that sound cool or what???
I’m a little over ninety pages in so far, and it is fascinating. This “industrialization” of American though on command, mobilization, organization, and training promises to be a fascinating insight on this aspect of the evolution of military society, and the broader society in which it exists. I’m hopeful that this will add to how best to understand the proper evolution of military law. So far, this book does not disappoint.
Check it out, share your thoughts, and pass along recommendations!
My initial foray into military justice scholarship began a number of years ago with a general hypothesis:
The Supreme Court of the United States is today, in part, largely hands off toward the military justice system because of the existence of the United States Court of Appeals of the Armed Forces, a civilian court sitting atop a three-tiered judicial system. Though it is perceived, and perceives itself, as a court of last resort, it does not appear to often act like one. This is because the military jurisdiction created by the Uniform Code of Military Justice in 1950 was a compromise between those advocating for the elimination of command control of the military justice system and those advocating maintaining the existing system.
It is interesting because the military justice system is a decently sized jurisdiction compared to the fifty states. And if the United States Court of Appeals for the Armed Forces were an Article III intermediate appellate court, hearing every court-martial appeal as a matter of right, its workload would most closely mirror that of the United States Court of Appeals for the First Circuit.
Not only is it a sizeable jurisdiction, Congress used the military justice system as the framework for creating the military commissions system to prosecute certain “enemy belligerents” (think 9/11, War on Terror type folks). But Congress provided noticeably more due process to those belligerents than it provided American service members subject to military justice. Fewer than ten military commissions have reached completion in the nearly two decades of their existence, yet commissions enjoy considerably more attention in academic journals.
I have enjoyed testing this hypothesis over the past several years. I’ll be sharing that experience on these pages for a while. Some of my research culminated in published articles, some I will share for the first time here. Along the way, I’ll let my mind wander and go on a few tangents and down some rabbit holes.
Military justice is understood and studied by too few, and largely neglected by academia. Even top students at elite law schools cannot reasonably be expected to grasp the breadth of American law to adequately assess the sheer volume of legal scholarship submitted for publication consideration annually to determine which is truly novel, non-obvious, useful, and sound.
Discriminators are natural. Some examples include a preference for professors (preferably from elite schools) and judges, those with long established records of publication, and “hot” topics. All of this, of course, is driven by a desire to select articles likely to be cited.
This alone puts military justice scholarship at a disadvantage. And even more so because this area of law appears unapproachable to many scholars and the general public.
One way toward remedying this disadvantage is to de-mystify military justice and society. Through this blog, my academic writing, and elsewhere, I enjoy examining military justice and telling its story.
Another is to cultivate, encourage, and recognize outstanding scholarship in military justice and related disciplines. That is the space I hope the Center for the Study of Military Justice (C4SMJ) will fill.
C4SMJ is a recently formed 501(c)(3) non-profit organization dedicated to the cultivation and encouragement of the study of military justice. This is an interdisciplinary approach that includes encouraging and supporting research that informs the proper understanding and study of military justice.
C4SMJ will be rolling out its initial program over the next several months. Information can and will continue to be found on this blog (here) and C4SMJ’s website, which is currently under development.
C4SMJ is classified a public charity and, because of my day job, will not solicit nor accept federal funding. So, broad based public support is vital to C4SMJ’s success. And, because of its 501(c)(3) status, contributions may be completely tax deductible.
Those interested in learning more and staying up to date can visit C4SMJ’s page on this blog. Better yet, why not sign up to automatically receive updates! Visit C4SMJ’s page or, to make things even easier, simply fill out the form below and keep an on your inbox over the next several months!
** C4SMJ does not share, nor will it sell, any contact information**