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First Amendment and the UCMJ, Part 2

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This is the second in a series of comments from this AP report. Part one is here, and part three here.

At some point you have a responsibility to do some work for yourself. I had years of work as an army officer learning and teaching rules for soldiers so you can spend 5 minutes on google looking up the UCMJ and court cases.

You're telling someone who took the time to read the Constitution in its entirety (not the first time, it's always enlightening), along with every single amendment (yes, there are a heck of a lot more than the bill of rights) to do more research? I played my part my friend. There are no exceptions in the Constitution for the UCMJ; it trumps all. If you know of and can cite a court case precedent that provides evidence to the contrary, then by all means I'm open to it. I suspect you won't find any, though. None that support the military's unprecedented ability to ignore the highest law. I mean really, do you know what you're suggesting? It's unfathomable.

Now this isn't to say that the UCMJ doesn't exist in violation of the Constitution, it very well may. It's existence doesn't mean it's legal though. And honestly, single instances of courts saying otherwise isn't proof either. Every state in the union that has a law on the books that allows it to ignore same-sex marriages from Mass. and other states (should there be more in the future) is in direct violation of the Full Faith and Credit clause of the Constitution, as is the federal Defense of Marriage Act, which hasn't been struck down yet.

You can find such instances everywhere, and you have to look at the bigger picture of precedence, what has been challenged and what has not, and what the specific situations were to understand their scope. A plain reading of the constitution makes it painfully clear that nothing conceived by man is above itself, save for amendments.

I suspect this is simple confusion about the differences between regulation and prohibition, much like how you can restrict the manner and time of abortions, but you can't prohibit them.

And what would be the constitutional difference between regulation and prohibition of free speech for a soldier?

Regulation would be requiring you to wear your uniform while on duty. Prohibition would be forbidding you from wearing it while off duty. The first is legal, the latter is not. This is similar to getting a permit to protest in a given area. An outright ban on protesting would be the unconstitutional prohibition, but a permit process that regulates it is permissible because you can still speak.

Constitution+Amendments->Congress->Acts of Congress (UCMJ)
Constitution+Amendments->Executive->Military (UCMJ)

Think about how absurd the notion is. The Congress created the UCMJ and only the Congress can change it. You assert that the UCMJ is exempt from the Constitution, which means that Congress can write laws that are exempt from the Constitution. It's end game, right there, the Constitution is useless. Under your theory or understanding, any law or action of Congress can simply ignore the Constitution, and we know that isn't true, and nobody would ever argue that it is, so what is the UCMJ so magical? It isn't.

Paul - I think your argument is at an ideal level. The application is different. Find some soldiers and ask them what they can and can't do while in uniform or out of uniform. You'll find that the application of the constitutional rights you are arguing for is non-existent in the military.

That's an impossible situation. If any person or organization were allowed to simply disregard the Constitution, it would be worthless and unenforceable. The bill of rights and the Constitution are universal, subject only to amendment and interpretation. (Interpretation is how you get laws that make death threats and obscenity unprotected speech, even though a plain reading of the Constitution makes clear that they actually are.)

I understand the concepts of not being allowed to physically speak, act on your own, and the such, but those laws and regulations must still conform to the Constitution. You can't speak up any time you please, but you can write letters. You can still speak, it's just controlled. The rationale for that I'm sure is buried in the code and within court cases dealing with their validity, but under no circumstances can the UCMJ just ignore or be exempt from the Constitution. It's not special in any way shape or form, as far as the law and Constitution is concerned, it's just another of the hundreds of thousands of laws the Congress has passed over time.

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The text of this article is Copyright © 2006,2007 Paul William Tenny. All rights reserved. This work is licensed under a Creative Commons Attribution-Share Alike 3.0 United States License. Attribution by: full name and original URL. Comments are copyrighted by their authors and are not subject to the Creative Commons license of the article itself.