Countenancing Corruption: A Civic Republican Case Against Judicial Deference to the Military

Abstract

In recent years, courts have increasingly deferred to military decisionmakers in judicial review of servicepersons' claims that the armed forces have constrained or abridged their constitutional rights. Courts have failed to declare unconstitutional regulations prohibiting political rallies or speeches on bases, barring the distribution of political pamphlets or circulating petitions directed to Congress without prior approval, and forbidding symbolic headgear such as yarmulkes. Courts have also deferred to the judgment of "military experts" that exclusion of gay and lesbian citizens from military service and women from combat positions serves important military goals. Judicial deference to the military takes place on two levels. Some decisions defer to the military on the merits of a particular case. In addition, the judiciary increasingly fails to engage in any analysis or balancing of military needs against individual constitutional claims and is moving toward creation of a doctrine that military matters are non-justiciable. Those who defend judicial deference argue that since national security depends on an effective fighting force, governmental measures that are indefensible in any other societal sphere are defensible and appropriate for the "unique institution" of the military.