Legal Scholarship
 

Abstract

[Excerpt] “Despite the generous inclusion by President Reagan of the many soldiers, sailors, airmen, and marines in the concept of "the people" of this republic, it is not altogether dear whether one whose status has changed from ordinary "citizen" to "a member of the armed forces" can legitimately claim any of the constitutional protections of citizenship until he or she is no longer a member of the armed forces. In the course of this nation's history the Supreme Court has denied some or all of the protection of the Constitution to many groups of people, including African-Americans, 2 women,3 Native Americans, 4 Americans of Japanese ancestry,5 aliens, 6 and more recently to members of the armed forces.

Just six months after President Reagan spoke the words quoted above, the Court overturned a precedent of nearly twenty years and held, in Solorio v. United States,7 that a member of the armed forces could be tried by a court-martial for virtually any offense without regard to the impact the alleged offense may, or may not, have had on the military or the ability of that service member to function in the military. While the decision may seem fairly innocuous at first blush, this article will demonstrate that the judicial mindset demonstrated by the Solorio holding is ill-conceived from the point of view of the soldier8 who is the accused at a court-martial. Moreover, the Supreme Court has demonstrated a judicial myopia which threatens the very form of government conceived by the framers of the Constitution. The decision perpetuates legal class distinctions which should not play a part in a democracy or in the administration of criminal justice and it paves the way for the creation of a "warrior class" with fewer rights in criminal proceedings.”

Publication Date

1-1-1991

Journal Title

Harvard Blackletter Journal

Document Type

Article

Additional Information

Article originally appeared in the "Harvard Blackletter Journal."