The Source And Development Of The Military Clauses Under The Constitution Of The United States

It is an important issue for all researchers in the field of military law to search for new path and method to deepen the study on military law that is not fully developed in China yet. With no doubt, to refer our study to overseas experience and research achievements in such field is an effective and easily accessible way. Being the current only super-power across the world, the U.S. has a fundamental basis to support its current super status, i.e. its military power. It obviously carries an important theoretical and realistic significance to analyze the role and function of military power which has played in the rising of the United States. Under the influence of institutionalism, or to say, legalism, the American military issues is unavoidably incorporated into the governance of law. The latter has provided stable and authoritative institutions and rules that regulate the military issues. It is self-evident that the Constitution plays a fundamental role in such a regulatory process. Both the supreme authority of the Constitution and the peculiarity of the research object of military law determine the importance of which the military law should be studied with a constitutional view.On the basis of plenty of first hand data and on the strength of various research methods such as literature approach, case study, historical and analytical method and the method of comparative research, this thesis systematically demonstrates the resource, generation and development of the military clauses in the U.S. Constitution. It also intends to, from a constitutional research angle, rebuild the“authentic”development process of the American military law, and to analyze and answer several major theoretical questions in the field of military law so as to broaden our research view on military law. In addition, it aims to promote our understanding on military rules itself, and search for a theoretical ground for the long-term prosperity of the State from a peculiar research angle.This thesis is divided into three parts with a chronological view to social development:The first part is mainly concerned with the resource of the military clauses in the U.S. Constitution. The European constitutionalism provides a theoretical basis for the generation of the military clauses in the U.S. Constitution. It makes Framers understand that power must be placed under control, or otherwise, it will be abused. In particular, the establishment, guarantee and control of military powers must be operated by following such principles. Meanwhile, English colonial history in the North America has brought a far-reaching bearing for the Framers to understand what is military, and English military law also became a model for America military law-making at that time. The practice guided by the military provisions of basic laws that functioned at the early stage of colonial period provided a practical foundation for the generation of the military clauses in the U.S. Constitution.The military conditions of the U.S. at the confederation period became an important factor that accelerated the occurrence of the Constitutional Convention. The military thus became a very important topic during such convention. At that time, after the back and forth debate and compromise between the representatives who took part in the convention, the military clauses in the U.S. Constitution came into being at last. These issues are to be discussed in the second part of this thesis. On the Constitutional convention, Framers focused their debates on how to define the meaning of war and peace, what kind of military establishment should be set up, and how to enhance the efficiency of military actions. At last, the final Constitution, to a relatively satisfactory degree, embodied such important principles as the check and balance of powers, the federalism and the people's sovereign in its military clauses.However, the military clauses in the U.S. Constitution can not be deemed as an impeccable political system design. Since the birth of the U. S. Constitution, it has been strongly challenged without stop and has experienced serious crisis for several times. The actual social environment requires that it must be changed with times. Of course, such changes are not the ones to the script itself, but the ones to its spirit. This is to be discussed in the third part of this thesis, mainly including Chapters 3, 4 and 5. In this part, with plenty of typical cases, important legislation examples and historical issues, it illustrates the various challenges faced by the military clauses at different stages of the social development, as well as its amendments and the evolvement of its spirit.Through exploring the development process of the military clauses in the U.S. Constitution, the thesis argues that the military clauses has maintained the unification and stability of the U.S., provides a lawful theory basis for the shaping of the America global hegemony position, and also becomes the constitutional basis for various departments of the federal government and all sectors of society to obtain their respective powers and rights. Meanwhile, the military clauses has been continuously amended by the cases and legislations. During the past two hundred years, the U.S. constitution has been transformed from a“defense-oriented constitution”into an“fighting constitution”. During a war or under emergency, the various departments under America constitutional mechanism can rapidly reach consensus and mutually cooperate, and more importantly, speak with one voice. On the other hand, once the war or emergency disappears, they can also rapidly restore the original check and balance situations on the basis of the provisions of the military clauses, and make the political system fully balanced. This may be the greatest secret for America to avoid itself from trouble even it has frequently intervened the international affairs over the past two hundred years.