Document Type
Article
Publication Date
10-2021
Abstract
Government lawyers, like the courts continue to cite to Winthrop. Most recently, in the pending appeal titled Larabee v. Harker, the government ‘s counsel quoted Winthrop for the proposition that “retired officers are a part of the army and so triable by court-martial—a fact indeed never admitting of question.” It is unlikely that the government’s counsel considered the matters presented in this brief article, or that Winthrop rested his statement on dicta rather than any constitutional statement on jurisdiction. Likewise, whatever criticism may be given to Justice Alito’s Ortiz dissent, I am not suggesting that either he, or Justice Neil Gorsuch who joined with him, knew of either Winthrop’s or Wiener’s views of expanded military powers or Wiener’s insistence that Korematsu was rightly decided as a matter of military necessity. Yet the dissent placed considerable reliance on both Winthrop and Wiener in a matter directly related to their military jurisdictional views.
Symposium on Military Justice | October 2021
The following pieces are from the “30 Years of Military Justice” symposium held on Oct. 28, 2021, with keynote speaker Senator Kirsten Gillibrand (D-NY), and in partnership with Georgetown University Law Center’s Center on National Security and the Law, the Journal of National Security Law & Policy, and the Georgetown National Security Law and Military Law Societies.
Publisher
Syracuse University Institute for Security Policy and Law
Publication Title
Journal of National Security Law & Policy
Editor
William C. Banks, Editor-in-Cheif
Keywords
military justice
Recommended Citation
Joshua E. Kastenberg,
Reassessing the Ahistorical Judicial Use of William Winthrop and Frederick Bernays Wiener,
Journal of National Security Law & Policy
(2021).
Available at:
https://digitalrepository.unm.edu/law_facultyscholarship/904
