The recent ruling by the Federal District court in California that gays must be allowed to serve in the military and the companion injunction ordering the military to implement her ruling immediately world-wide is very concerning. If you think this is going to be a rant against gays you are reading the wrong blog. Basically I believe folks can do whatever they want behind closed doors with a willing adult partner. That doesn’t mean I approve it or condone it but it is not my business as long as such behavior doesn’t harm children or third parties. Hey, if some like to get their kicks with hand-cuffs, bull whips and lots of leather then that is their affair but that doesn’t mean I would allow such activity to be done in front of a 10 year-old child. The concern with the ruling is the encroachment of the judiciary into areas not authorized by the Constitution and specifically reserved to other branches of the government.
From the inception of our nation, during the Revolutionary War, the question of who would get to appoint officers and develop and code of military conduct was contentious. Even before we won our freedom the Continental Congress and Washington had disagreements over this issue. Ultimately, the Congress did allow Washington to appoint or dismiss his own subordinates which was a real mark of the confidence and respect that had for the man. The whole concept of who controls the military and how has been a touchy subject for our society and others. Subjecting the military to civilian control has been a major theme of our military establishment and actual operations. It was so important that it was one of the specific matters addressed in the Constitution.
Regarding military matters the Constitution in Article One, Section 8 provides as follows: “to raise and support Armies, but no Appropriation of Money to that Use shall be for a longer term than two years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval forces;”. That clearly set forth the concept that the miliary could not be allowed to write its own rules of conduct and the appointment procedure for officers and other ranks. From our earliest times the courts have consistently held that the Bill of Rights if modified when you are in the military. The sergeant doesn’t have to get a search warrant to inspect your footlocker, nor do you have to right to free speech as examples. The recent firing of General McChrystal is only another example of the restrictions that have been placed on military personnel by Congress and those authorized by the Constitution to run the military. Same thing happened to MacArthur by Truman. The courts have long recognized that the military is unique as an institution and as a free people we surrender some of our traditional rights in the military as we provide for the common defence.
Congress has the right to determine the eligibility of those serving in the military. If they want to restrict it to those over 21 that weight over 160 pounds but less than 250 they have the right and authority to do so. The list of examples they have the right to impose is as endless as your imagination. You don’t have a Constitutional right to serve in the military but you may have a legal duty to do so when Congress so deems necessary. Ask the millions of men drafted into our various wars.
The galling issue at hand is the usurpation of the Federal court of Constitutional authority not granted to it and the creation of “rights” that do not exist. The Federal judiciary believes it is the supreme arbiter of all matters. But the judiciary is as capable as the other branches of over-stepping its bounds. The ruling on gays is unconstitutional. The Congress and the Congress alone as the right to write the rules and regulations regarding the military. The issue of gay rights is secondary to the more fundamental and important question of the authority of the Federal courts to intervene in matters granted to another branch of government. For example could the Federal courts order a President to veto some particular piece of legislation because they deem it unconstitutional? Can the courts tell the Commander in
Chief how many troops are constitutional to use in any conflict?
Running the military is for Congress per the Constitution. If the rules created by Congress are offensive to the people then we need to petition Congress to change the rules or vote in those who favor different rules. If this ruling of the Federal court is allowed to stand we embark down a road that is only dimly lit with those awful unintended consequences. The courts can act in an unconstitutional manner just as any other branch of government. The court order should at least be ignored. There is precedent for that. Lincoln during the War Between the States ignored the ruling of the Supreme Court regarding the writ of habeas corpus Maryland legislators he had arrested because he thought they might vote for secession. He simply ignored it and never made any attempt to comply. The Federal courts have gotten too big for their breeches and need to be knocked down a notch or two.
The Constitutional provision granting authority to Congress over the military is why all the major appointments of generals by Presidents have to be approved by Congress. As Commander-in-Chief you would think he could promote whoever he wanted but that is restricted by Art. One, Sec. 8. www.olcranky.wordpress.com