Who Interprets the Constitution for You?

Are military officers required to interpret the Constitution in order to fulfill their oath, or are they instead required to interpret judicial decisions? Are they expected, as educated men and women, to perform the intellectual grunt work of understanding the document, or are they instead given their government marching orders explaining what the text says and means? What does the Constitution itself say regarding this question?

Justice Joseph Story, United States Supreme Court (1811-1845)

Before we seek out the Constitution itself (a fitting source for the question at hand), consider the words of Justice Story in his, Commentaries on the Constitution of the United States, published in 1833. In a chapter entitled, "Who is the final Judge or Interpreter in Constitutional Controversies," this James Madison appointed SCOTUS Justice writes:

The constitution, contemplating the grant of limited powers, and distributing them among various functionaries, and the state governments, and their functionaries, being also clothed with limited powers, subordinate to those granted to the general government, whenever any question arises, as to the exercise of any power by any of these functionaries under the state, or federal government, it is of necessity, that such functionaries must, in the first instance, decide upon the constitutionality of the exercise of such power. It may arise in the course of the discharge of the functions of any one, or of all, of the great departments of government, the executive, the legislative, and the judicial. The officers of each of these departments are equally bound by their oaths of office to support the constitution of the United States, and are therefore conscientiously bound to abstain from all acts, which are inconsistent with it. Whenever, therefore, they are required to act in a case, not hitherto settled by any proper authority, these functionaries must, in the first instance, decide, each for himself, whether, consistently with the constitution, the act can be done.

Justice Story says that military officers are equally bound to their oaths, as are the government entities themselves. He suggests that interpretation is an individual affair that is equal to the interpretation of the government branch they are employed with. He also suggests that if a Constitutional interpretation on an issue has already been rendered by a "proper authority," that this may not be the case.

I agree with the Justice on the whole. Military officers are required to interpret the Constitution themselves to inform their actions, and that requirement is equally as important as the executive, legislative, and judicial branches binding their actions by the document. He makes it clear that if the Constitutionality of a proposed government action has not yet been ruled on by a "proper authority," that individual government actors must use their own understanding of the document. There are no other options. To simply trust the order to be legal, or to have faith in the government body issuing it, would make the oaths we take to the Constitution utterly worthless. Consider the potential order to assassinate an American citizen without the citizen being tried for any crime. This is clearly not a case that has been resolved by the Supreme Court, and anybody with any understanding of the Constitution knows this will eventually be struck down as perhaps the most unconstitutional overreach of power ever taken by our government. But the SCOTUS has not ruled on the issue. So individual public servants must make the interpretation themselves as Justice Story explains. The Justice does, however, suggest that this does not apply once a "proper authority" has provided its interpretation. I disagree with him here.

The reason I disagree on this finer detail is because the Constitution itself states otherwise. In Article VI it requires an oath (or affirmation) by both judicial and executive (military) officers to the Constitution itself. It binds judicial officers to the text, and it binds executive officers to the text. It does not bind the judicial to the text, and the executive to the interpretation of the judicial (or vice versa).

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution...

Of course, any military officer serious about understanding the document will naturally seek the reasoning of the judiciary who spend their time pondering these issues. Clear reasoning from a judge or Justice is invaluable in our professional military duty to understand the limits set upon us. That being said, we did not swear an oath to the judicial interpretation, just as they did not swear an oath to our particular executive officer interpretations. We are responsible for knowing our Constitution and acting accordingly.

It makes sense. Requiring government actors to swear an oath before God to the supreme law of the land, rather than the government this law intends to limit, provides a fail safe should the government attempt to stray from the Constitutional line in the sand.

What a great responsibility for us in the military. Not only do we have to fight our nation's wars, but should an unconstitutional (and therefore illegal) order be issued from the government, we are required to be knowledgeable of the Constitution enough to detect it, and courageous enough to refuse to follow it. It's noteworthy that Article VI did not include an exception for inconvenience as a result.