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4 U.S.A.F. JAG Bull. 6 (1962)
The Bill of Rights and the Military

handle is hein.journals/airfor4 and id is 68 raw text is: THE BILL OF RIGHTS AND THE MILITARY Earl Warren Chief Justice of the United States The James Madison Lecture for 1962, delivered at the School of Law, New York University, Feb. 1, 1962, and reprinted with permission of New York University. It is almost a commonplace to say that free government is on trial for its life. But it is the truth. And it has been throughout his- tory. What is almost as certain: It will probably be true throughout the foreseeable future. Why should this be so? Why is it that, over the centuries of world history, the right to liberty that our Declaration of In- dependence declares to be inalienable has been more often abridged than enforced? One important reason, surely, is that the members of a free society are called upon to bear an extraordinarily heavy responsibility, for such a society is based upon the recipro- cal self-imposed discipline of both the gov- erned and their government. Many nations in the past have attempted to develop demo- cratic institutions,- only to lose them when either the people or their government lapsed from the rigorous self-control that is essen- tial to the maintenance of a proper relation between freedom and order. Such failures have produced the totalitarianism or the anarchy that, however masked, are the twin mortal enemies of an ordered liberty. Our forebears, well understanding this problem, sought to solve it in unique fashion by incorporating the concept of mutual re- straint into our Nation's basic Charter. In the body of our Constitution, the Founding Fathers insured that the Government would have the power necessary to govern. Most of them felt that the self-discipline basic to a democratic government of delegated powers was implicit in that document in the light of our Anglo-Saxon heritage. But our people wanted explicit assurances. The Bill of Rights was the result. This act of political creation was a re- markable beginning. It was only that, of course, for every generation of Americans must preserve its own freedoms. In so doing, we must turn time and again to the Bill of Rights, for it is that document that solemnly set forth the political consensus that is our heritage. Nor should we confine ourselves to examining the diverse, complicated, and sometimes subordinate issues that arise in the the day-to-day application of the Bill of Rights. It is perhaps more Important that we seek to understand in its fullness the nature of the spirit of liberty that gave that document its birth. Thus it is in keeping with the high pur- poses of this great University that its School of Law sponsor a series of lectures emphasiz- ing the role of the Bill of Rights in contem- porary American life. And it is particularly appropriate, after the splendid lectures of Mr. Justice Black and Mr. Justice Brennan on the relationship of the Bill of Rights to the Federal and State Governments, respec- tively, that you should delegate to someone the task of discussing the relationship of the Bill of Rights to the military establishment. This is a relationship that, perhaps more Vol. IV, No. 3

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