Supreme Court's Role in Defining the Jurisdiction of Military Courts: A Study and Proposal

摘要

This article analyzes the Supreme Court's judicial review over military tribunals to identify the constitutional limits of military courts within America's system of government. The central thesis is that the Supreme Court's review over military courts has failed to coherently define the boundary between federal courts and military tribunals. Rather than creating a consistent precedent, the Court's decisions have led to arbitrary results and an increased uncertainty about whether the military commissions at Guantanamo Bay, Cuba, are constitutional. This article seeks to remedy this problem by proposing a method of constitutional interpretation that creates a principled distinction between the cases that belong in federal court and those matters properly before military tribunals. First, it lays the groundwork by defining the four different types of military tribunals and examining the nature of Supreme Court review over military courts. Next, it examines the historic use of military courts and looks at each instance of Supreme Court review over these military tribunals. Finally, it critiques the Court's textualist interpretation of the Constitution and demonstrates how translation theory provides a more effective method of defining the boundaries of military courts. It concludes by explaining why the current trial of Salim Hamdan by military commission is unconstitutional under translation theory.