Service members in the United States military are not excluded from the constitutional protections they swear an oath to protect; it’s just that “military necessity” requires these protections be applied differently to this community. There are individual situations that arise in the general population which necessitate an exception to an otherwise constitutional requirement (a search warrant or rights advisement, for example). But “military necessity” appears different. It is essentially a blanket exception for an entire community of people.

I began researching other communities whereby some reason justified a similar blanket exception to compare how this principle is applied. I found two—inmates and students.

I published an article in the University of Memphis Law Review[1] that examined the legal landscape in these three communities. The Supreme Court of the United States (“Court”) has held that individuals in these communities do not give up their constitutional rights simply because they belong to their respective communities. But the same general reasons require a different application to these communities: order, discipline, and safety. The gravity of these needs, and the complexity of these specialized communities, requires a somewhat substantial deference to those who administer them.

In spite of these circumstances, the Court has actively supervised and engaged with the inmate and student communities. Using a well-understood framework, it applies strict scrutiny (see here for a brief introduction) to statutes and regulations that purport to infringe upon a community member’s constitutional rights. The military community gets something less.

Unlike the inmate and student communities, in which cases and controversies arise in multiple state and federal courts, courts-martial are limited to the military justice system. Like the federal and many state systems, the military justice system has three levels of courts. The highest is the United States Court of Appeals for the Armed Forces (“CAAF”), a five member civilian Article I court. One, but certainly not the only, explanation for the Court’s substantial hands-off approach to the military community is the existence of CAAF. It arguably serves as a court of last resort, much like state supreme courts.

A second observation is the absence of any established framework to analyze constitutional questions in the military community. It isn’t defined; judges just know it when they see it.

These two observations seem a good place to start delving into deeper. After comparing and contrasting the similarities and differences in the judicial institutions in which cases and controversies in these communities arise, we’ll start a little tour of the inmate community first.

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[1] 46 U. Mem. L. Rev. 61 (2015).