Military Law

The body of laws, rules, and regulations that have been developed to meet the needs of the military. It encompasses service in the military, the constitutional rights of service members, the military criminal justice system, and the INTERNATIONAL LAW of armed conflict.

The Framers of the Constitution vigorously debated the necessity and advisability of a standing army. Federalists such as ALEXANDER HAMILTON and JAMES MADISON argued that a standing army was needed for the maintenance of a unified defense. Others, like THOMAS JEFFERSON and GEORGE MASON, were fearful of instituting a military establishment that could be an instrument of governmental abuse. They argued that the Constitution should prohibit, or at least limit, the size of the armed forces. The opposing sides compromised by approving a standing army but limiting appropriations for its support to two-year terms, thereby imposing a continual check on the military's activities.

The authority of the government to maintain a military and to develop rules and regulations governing it is found in Article I, Section 8, of the Constitution, which grants Congress the power to provide for the common defense and to raise and support armed forces.

The U.S. Supreme Court confirmed the legality of the standing army in EX PARTE MILLIGAN, 71 U.S.(4 Wall.) 2, 18 L. Ed. 281 (1866). It held that the Constitution allows Congress to enact rules and regulations to punish any member of the military when he or she commits a crime, in times of war or peace and in any location. The Court further confirmed the constitutionality of MARTIAL LAW in situations where ordinary law is insufficient to secure public safety and private rights.