Parker v. Levy, 417 U.S. 733 (1974)

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Author: Justice Stewart

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Parker v. Levy, 417 U.S. 733 (1974)

MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.

Article 133 of the Uniform Code of Military Justice, 10 U.S.C. § 933, makes it a criminal offense to engage in "conduct unbecoming an officer and a gentleman."{1} Article 134, 10 U.S.C. § 934, makes criminal "all disorders and neglects to the prejudice of good order and discipline in the armed forces" and "all conduct of a nature to bring discredit upon the armed forces."{2} The Court today, reversing a unanimous judgment of the Court of Appeals, upholds the constitutionality of these statutes. I find it hard to imagine criminal statutes more patently unconstitutional than these vague and uncertain general articles, and I would, accordingly, affirm the judgment before us.

I

As many decisions of this Court make clear, vague statutes suffer from at least two fatal constitutional defects. First, by failing to provide fair notice of precisely what acts are forbidden, a vague statute "violates the first essential of due process of law." Connally v. GeneralConstruction Co., 269 U.S. 385, 391. As the Court put the matter in Lanzetta v. New Jersey, 306 U.S. 451, 453:

No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. . . . Words which are vague and fluid . . . may be as much of a trap for the innocent as the ancient laws of Caligula.

United States v. Cardif, 344 U.S. 174, 176.{3}

Secondly, vague statutes offend due process by failing to provide explicit standards for those who enforce them, thus allowing discriminatory and arbitrary enforcement. Papachristou v. City of Jacksonville, 405 U.S. 156, 16 171.

A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis. . . .

Grayned v. City of Rockford, 408 U.S. 104, 108-109.{4} The absence of specificity in a criminal statute invites abuse on the part of prosecuting officials, who are left free to harass any individuals or groups who may be the object of official displeasure.{5}

It is plain that Arts. 133 and 134 are vague on their face; indeed, the opinion of the Court does not seriously contend to the contrary.{6} Men of common intelligence-- including judges of both military and civilian courts -- must necessarily speculate as to what such terms as "conduct unbecoming an officer and a gentleman" and "conduct of a nature to bring discredit upon the armed forces" really mean. In the past, this Court has held unconstitutional statutes penalizing "misconduct,"{7} conduct that was "annoying,"{8} "reprehensible,"{9} or "prejudicial to the best interests" of a city{10} and it is significant that military courts have resorted to several of these very terms in describing the sort of acts proscribed by Arts. 133 and 134.{11}

Facially vague statutes may, of course, be saved from unconstitutionality by narrowing judicial construction. But I cannot conclude, as does the Court, ante at 752-755, that the facial vagueness of the general articles has been cured by the relevant opinions of either the Court of Military Appeals or any other military tribunal. In attempting to give meaning to the amorphous words of the statutes, the Court of Military Appeals has repeatedly turned to Winthrop’s Military Law and Precedents, an 1886 treatise. That work describes "conduct unbecoming an officer and a gentleman" in the following manner:

To constitute therefore the conduct here denounced, the act which forms the basis of the charge must have a double significance and effect. Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.{12}

As to the predecessor statute of Art. 134, Col. Winthrop read it as applicable to conduct whose prejudice to good order and discipline was "reasonably direct and palpable," as opposed to that conduct which is simply "indirectly or remotely" prejudicial -- whatever that may mean.{13} These passages, and the decisions of the Court of Military Appeals that adopt them verbatim, scarcely add any substantive content to the language of the general articles. At best, the limiting constructions referred to by the Court represent a valiant but unavailing effort to read some specificity into hopelessly vague laws. Winthrop’s definitions may be slightly different in wording from Arts. 133 and 134, but they are not different in kind, for they suffer from the same vagueness as the statutes to which they refer.

If there be any doubt as to the absence of truly limiting constructions of the general articles, it is swiftly dispelled by even the most cursory review of convictions under them in the military courts. Article 133 has been recently employed to punish such widely disparate conduct as dishonorable failure to repay debts,{14} selling whiskey at an unconscionable price to an enlisted man,{15} cheating at cards,{16} and having an extramarital affair.{17} Article 134 has been given an even wider sweep, having been applied to sexual acts with a chicken,{18} window peeping in a trailer park,{19} and cheating while calling bingo numbers.{20} Convictions such as these leave little doubt that

[a]n infinite variety of other conduct, limited only by the scope of a commander’s creativity or spleen, can be made the subject of court-martial under these articles.

Sherman, The Civilianization of Military Law, 22 Maine L.Rev. 3, 80.

In short, the general articles are in practice, as well as theory, "catch-alls," designed to allow prosecutions for practically any conduct that may offend the sensibilities of a military commander.{21} Not every prosecution, of course, results in a conviction, and the military courts have sometimes overturned convictions when the conduct involved was so marginally related to military discipline as to offend even the loosest interpretations of the general articles.{22} But these circumstances can hardly be thought to validate the otherwise vague statutes. As the Court said in United States v. Reese, 92 U.S. 214, 221:

It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large.

At best, the general articles are just such a net, and suffer from all the vices that our previous decisions condemn.

II

Perhaps in recognition of the essential vagueness of the general articles, the Court today adopts several rather periphrastic approaches to the problem before us. Whatever the apparent vagueness of these statutes to us civilians, we are told, they are models of clarity to "`practical men in the navy and army.’" Ante at 747, quoting from Dynes v. Hoover, 20 How. 65, 82. Moreover, the Court says, the appellee should have been well aware that his conduct fell within the proscriptions of the general articles, since the Manual for Courts-Martial gives specific content to these facially uncertain statutes. I believe that neither of these propositions can withstand analysis.

A

It is true, of course, that a line of prior decisions of this Court, beginning with Dynes v. Hoover, supra, in 1858, and concluding with Carter v. McClaughry, 183 U.S. 365, in 1902, have upheld against constitutional attack the ancestors of today’s general articles.{23} With all respect for the principle of stare decisis, however, I believe that these decisions should be given no authoritative force in view of what is manifestly a vastly "altered historic environment." Mitchell v. W. T. Grant Co., 416 U.S. 600, 634-635 (dissenting opinion). See also id. at 627-628 (POWELL, J., concurring).

It might well have been true in 1858 or even 1902 that those in the Armed Services knew, through a combination of military custom and instinct, what sorts of acts fell within the purview of the general articles. But times have surely changed. Throughout much of this country’s early history, the standing army and navy numbered in the hundreds. The cadre was small, professional, and voluntary. The military was a unique society, isolated from the mainstream of civilian life, and it is at least plausible to suppose that the volunteer in that era understood what conduct was prohibited by the general articles.{24}

It is obvious that the Army into which Dr. Levy entered was far different. It was part of a military establishment whose members numbered in the millions, a large percentage of whom were conscripts or draft-induced volunteers, with no prior military experience and little expectation of remaining beyond their initial period of obligation.{25} Levy was precisely such an individual, a draft-induced volunteer whose military indoctrination was minimal, at best.{26} To presume that he and others like him who served during the Vietnam era were so imbued with the ancient traditions of the military as to comprehend the arcane meaning of the general articles is to engage in an act of judicial fantasy.{27} In my view, we do a grave disservice to citizen soldiers in subjecting them to the uncertain regime of Arts. 133 and 134 simply because these provisions did not offend the sensibilities of the federal judiciary in a wholly different period of our history. In today’s vastly "altered historic environment," the Dynes case and its progeny have become constitutional anachronisms, and I would retire them from active service.

B

The Court suggests that the Manual for Courts-Martial provides some notice of what is proscribed by the general articles, through its Appendix containing "Forms for Charges and Specifications."{28} These specimen charges, which consist of "fill-in-the-blank" accusations covering various fact situations, do offer some indication of what conduct the drafters of the Manual perceived to fall within the prohibitions of Arts. 133 and 134. There are several reasons, however, why the form specifications cannot provide the sort of definitive interpretation of the general articles necessary to save these statutes from unconstitutionality.

For one thing, the specifications covering Arts. 133 and 134 are not exclusive; the military courts have repeatedly held conduct not listed in the Manual’s Appendix as nonetheless violative of the general articles.{29} Nor can it be said that the specifications contain any common thread or unifying theme that gives generic definition to the articles’ vague words; the specimen charges in the Manual list such widely disparate conduct as kicking a public horse in the belly,{30} subornation of perjury,{31} and wrongful cohabitation{32} as violative of Art. 134.{33} Moreover, the list of offenses included in the Appendix is ever-expanding; the 1951 Manual contained 59 Art. 134 offenses,{34} while the list had increased to 63 in 1969.{35} In view of the nonexclusive and transient character of the specification list, a serviceman wishing to conform his conduct to the requirements of the law would simply find definitive guidance from the Manual impossible.

More significantly, the fact that certain conduct is listed in the Manual is no guarantee that it is in violation of the general articles. The Court of Military Appeals has repeatedly emphasized that the sample specifications are only procedural guides and time-savers for military prosecutors beset by poor research facilities, and are not intended to create offenses under the general articles.{36} Consequently, the court has on several occasions disapproved Art. 134 convictions despite the fact that the precise conduct at issue was listed in the form specifications as falling under that article.{37}

Despite all this, the Court indicates that Levy should have been aware that his conduct was violative of Art. 134, since one of the specimen charges relates to the making of statements "disloyal to the United States."{38} That specification, and the brief reference to such conduct in the text of the Manual,{39} is itself so vague and overbroad as to have been declared unconstitutional by one federal court. Stolte v. Laird, 353 F.Supp. 1392 (DC). But even if a consensus as to the meaning of the word "disloyal" were readily attainable, I am less than confident that Dr. Levy’s attacks upon our Vietnam policies could be accurately characterized by such an adjective. However foreign to the military atmosphere of Fort Jackson, the words spoken by him represented a viewpoint shared by many American citizens. Whatever the accuracy of these views, I would be loath to impute "disloyalty" to those who honestly held them. In short, I think it is clear that the form specification concerning disloyal statements cannot be said to have given Levy notice of the illegality of his conduct. The specimen charge is no better than the article that spawned it. It merely substitutes one set of subjective and amorphous phraseology for another.{40}

III

What has been said above indicates my view that the general articles are unconstitutionally vague under the standards normally and repeatedly applied by this Court. The remaining question is whether, as the Court concludes, ante at 756, the peculiar situation of the military requires application of a standard of judicial review more relaxed than that embodied in our prior decisions.

It is, of course, common ground that the military is a "specialized community governed by a separate discipline from that of the civilian." Orloff v. Willoughby, 345 U.S. 83, 94. A number of serviceman’s individual rights must necessarily be subordinated to the overriding military mission, and I have no doubt that the military may constitutionally prohibit conduct that is quite permissible in civilian life, such as questioning the command of a superior. But this only begins the inquiry. The question before us is not whether the military may adopt substantive rules different from those that govern civilian society, but whether the serviceman has the same right as his civilian counterpart to be informed as to precisely what conduct those rules proscribe before he can be criminally punished for violating them. More specifically, the issue is whether the vagueness of the general articles is required to serve a genuine military objective.

The Solicitor General suggests that a certain amount of vagueness in the general articles is necessary in order to maintain high standards of conduct in the military, since it is impossible to predict in advance every offense that might serve to affect morale or discredit the service. It seems to me that this argument was concisely and eloquently rebutted by Judge Aldisert in the Court of Appeals, 478 F.2d 772, 795 (CA3):

[W]hat high standard of conduct is served by convicting an individual of conduct he did not reasonably perceive to be criminal? Is not the essence of high standards in the military, first, knowing one’s duty, and secondly, executing it? And, in this regard, would not an even higher standard be served by delineation of the various offenses under Article 134, followed by obedience to these standards?

It may be that military necessity justifies the promulgation of substantive rules of law that are wholly foreign to civilian life, but I fail to perceive how any legitimate military goal is served by enshrouding these rules in language so vague and uncertain as to be incomprehensible to the servicemen who are to be governed by them.{41} Indeed, I should suppose that vague laws, with their serious capacity for arbitrary and discriminatory enforcement, can in the end only hamper the military’s objectives of high morale and esprit de corps.

In short, I think no case has been made for finding that there is any legitimate military necessity for perpetuation of the vague and amorphous general articles. In this regard, I am not alone. No less an authority than Kenneth J. Hodson, former Judge Advocate General of the Army and Chief Judge of the Army Court of Military Review, has recommended the abolition of Art. 134 because "[w]e don’t really need it, and we can’t defend our use of it in this modern world." Hodson, The Manual for Courts-Martial -- 1984, 57 Military L.Rev. l, 12.{42} No different conclusion can be reached as to Art. 133. Both are anachronisms, whose legitimate military usefulness, if any, has long since disappeared.

It is perhaps appropriate to add a final word. I do not for one moment denigrate the importance of our inherited tradition that the commissioned officers of our military forces are expected to be men of honor, nor do I doubt the necessity that servicemen generally must be orderly and dutiful. An efficient and effective military organization depends in large part upon the character and quality of its personnel, particularly its leadership. The internal loyalty and mutual reliance indispensable to the ultimate effectiveness of any military organization can exist only among people who can be counted on to do their duty. It is, therefore, not only legitimate but essential that, in matters of promotion, retention, duty assignment, and internal discipline, evaluations must repeatedly be made of a serviceman’s basic character as reflected in his deportment, whether he be an enlisted man or a commissioned officer. But we deal here with criminal statutes. And I cannot believe that such meaningless statutes as these can be used to send men to prison under a Constitution that guarantees due process of law.

1. Article 133 provides:

Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.

2. Article 134 provides:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

The clause in Art. 134 prohibiting all "crimes and offenses not capital" applies only to crimes and offenses proscribed by Congress. See Manual for Courts-Martial ¶ 213(e) (1969) (hereinafter sometimes referred to as Manual). Cf. Grafton v. United States, 206 U.S. 333. As such, this clause is simply assimilative, like 18 U.S.C. § 13, and is not the subject of the vagueness attack mounted by appellee on the balance of Art. 134. See generally Wiener, Are the General Military Articles Unconstitutionally Vague?, 54 A.B.A.J. 357, 358; Note, Taps for the Real Catch-22, 1 Yale L.J. 1518 n.3.

While only Art. 134 is expressly termed the "general article," Arts. 133 and 134 are commonly known as the "general articles," and will be so referred to herein.

3. See also United States v. Harriss, 347 U.S. 612, 617:

The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.

4. See also Smith v. Goguen, 415 U.S. 566, 575:

Statutory language of such a standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections. Legislatures may not so abdicate their responsibilities for setting the standards of the criminal law.

5. This Court has repeatedly recognized that the dangers inherent in vague statutes are magnified where laws touch upon First Amendment freedoms. See, e.g., id. at 573; Grayned v. City of Rockford, 408 U.S. 104, 109. In such areas, more precise statutory specificity is required lest cautious citizens steer clear of protected conduct in order to be certain of not violating the law. See generally Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 75-85.

6. Even one of the staunchest defenders of the general articles has recognized that:

It cannot be denied that there is language in the void-for-vagueness cases broad enough to condemn as unduly indefinite the prohibition in Article 133 against "conduct unbecoming an officer and a gentleman" and the prohibitions in Article 134 against "all disorders and neglects to the prejudice of good order and discipline in the armed forces" and against "all conduct of a nature to bring discredit upon the armed forces."

Wiener, supra,n. 2, at 363.

7. Giaccio v. Pennsylvania, 382 U.S. 399.

8. Coates v. Cincinnati, 402 U.S. 611.

9. Giaccio v. Pennsylvania, supra.

10. Gelling v. Texas, 343 U.S. 960. Other federal courts have similarly held unconstitutional statutes containing language such as "reflect[s] discredit," Flynn v. Giarrusso, 321 F.Supp. 1295 (ED La.); "offensive," Pritikin v. Thurman, 311 F.Supp. 1400 (SD Fla.); and "immoral" or "demoralizing," Oestreich v. Hale, 321 F.Supp. 445 (ED Wis.).

11. See, e.g., United States v. Lee, 4 C.M.R. 185, 191 (ABR), petition for review denied, 1 U.S.C.M.A. 713, 4 C.M.R. 173 ("reprehensible conduct"); United States v. Rio Poon, 26 C.M.R. 830, 833 (CGBR) ("universally reprehended"). See also Note, Taps for the Real Catch-22, 81 Yale L.J. 1518, 1522.

12. W. Winthrop, Military Law and Precedents 711-712 (2d ed. 1920). The cited language is quoted in United States v. Howe, 17 U.S.C.M.A. 165, 177-178, 37 C.M.R. 429, 441-442, and in United States v. Giordano, 15 U.S.C.M.A. 163, 168, 35 C.M.R. 135, 140.

Such authoritative publications as The Officer’s Guide do little better in defining "conduct unbecoming an officer and a gentleman":

There are certain moral attributes which belong to the ideal officer and the gentleman, a lack of which is indicated by acts of dishonesty or unfair dealing, of indecency or indecorum, or of lawlessness, injustice, or cruelty. Not every one can be expected to meet ideal standards or to possess the attributes in the exact degree demanded by the standards of his own time; but there is a limit of tolerance below which the individual standards in these respects of an officer or cadet cannot fall without his being morally unfit to be an officer or cadet or to be considered a gentleman. This article contemplates such conduct by an officer or cadet which, taking all the circumstances into consideration, satisfactorily shows such moral unfitness.

R. Reynolds, The Officer’s Guide 435-436 (1969 rev.). This language is substantially repeated in Manual ¶ 212.

13. W. Winthrop, Military Law and Precedents 723 (2d ed.1920). For cases embodying these definitions, see United States v. Sadinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343; United States v. Holiday, 4 U.S.C.M.A. 454, 16 C.M.R. 28. See also Manual ¶ 213(b), containing identical language.

14. United States v. Journell, 18 C.M.R. 752 (AFBR).

15. United States v. Kupfer, 9 C.M.R. 283 (ABR), aff’d, 3 U.S.C.M.A.478, 13 C.M.R.34.

16. United States v. West, 16 C.M.R. 587 (AFBR), petition for review denied, 4 U.S.C.M.A. 744, 20 C.M.R. 398.

17. United States v. Alcantara, 39 C.M.R. 682 (ABR) aff’d, 18 U.S.C.M.A. 372, 40 C.M.R. 84.

For a listing of other representative convictions under Art. 133, see H. Moyer, Justice and the Military 1028-1034 (1972). See also Nelson, Conduct Expected of an Officer and a Gentleman: Ambiguity, 12 AF JAG L.Rev. 124.

18. United States v. Sanchez, 11 U.S.C.M.A. 216, 29 C.M.R. 32.

19. United States v. Clark, 22 C.M.R. 888 (AFBR), petition for review denied, 7 U.S.C.M.A. 790, 22 C.M.R. 331.

20. United States v. Holt, 7 U.S.C.M.A. 617, 23 C.M.R. 81.

21. The drafters of the Manual for Courts-Martial have admitted as much, characterizing the discredit clause of Art. 134 as the "catchall" in military law. Legal and Legislative Basis, Manual for Courts Martial United States 294 (1951). Admitting that the language of Art. 134 is "vague," the drafters state:

By judicial interpretation, these "vague words" have since been expanded from the narrow construction placed on them by their author to the point where they have been used as the legal justification to sustain convictions for practically any offense committed by one in the military service which is not either specifically denounced by some other article, or is not a crime or offense not capital or a disorder or neglect to the prejudice of good order and discipline.

Id. at 295.

22. See, e.g., United States v. Ford, 31 C.M.R. 353 (ABR), petition for review denied, 12 U.S.C.M.A. 763, 31 C.M.R. 314 (conviction under Art. 133 for showing an allegedly obscene photograph to a friend in a private home reversed); United States v. Waluski, 6 U.S.C.M.A. 724, 21 C.M.R. 46 (conviction under Art. 134 of passenger for leaving scene of accident reversed).

23. See also Swaim v. United States, 165 U.S. 553; United States v. Fletcher, 148 U.S. 84; Smith v. Whitney, 116 U.S. 167.

24. See generally Comment, The Discredit Clause of the UCMJ: An Unrestricted Anachronism, 18 U.C.L.A.L.Rev. 821, 833-837. Cf. Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 187-188; Wiener, Courts-Martial and the Bill of Rights: The Original Practice II, 72 Harv.L.Rev. 266, 292, 301-302.

25. See Comment, 18 U.C.L.A.L.Rev. supra, at 836. Cf. Avrech v. Secretary of the Navy, 155 U.S.App.D.C. 352, 357, 477 F.2d 1237, 1242 (Clark, J.), prob. juris. noted, 414 U.S. 816.

26. The record indicates that Dr. Levy, unlike many other medical officers entering active duty, did not attend the basic military orientation course at Fort Sam Houston, Texas. Instead, he came to Fort Jackson directly from civilian life. While at Fort Jackson, he received but 16 to 26 hours of military training, only a small portion of which was devoted to military justice.

27. The Court suggests, ante at 751-752, that some of the problems with the general articles may be ameliorated by the requirement of Art. 137, 10 U.S.C. § 937, that the provisions of the Code be "carefully explained to each enlisted member at the time of his entrance on active duty, or within six days thereafter," and that they be "explained again after he has completed six months of active duty." Even assuming, arguendo, that it is possible to "carefully explain" the general articles, I do not believe that Art. 137 cures the vagueness of the statutes. The record in this case indicates that Dr. Levy received only a very brief amount of instruction on military justice; presumably, only a fraction of that instruction was devoted to the general articles. Seen. 26, supra. Moreover, Army regulations indicate that only 20 minutes of instruction at the initial military justice lesson for enlisted men is devoted to Arts. 71 through 134 of the UCMJ; 49 minutes of instruction on Arts. 107 through 134 is provided for at the six-month class. Department of the Army, Army Regulation 350-212, Training, Military Justice, 2 June 1972; Army Subject Schedule No. 21-10, Military Justice (Enlisted Personnel Training), 24 June 1969. Obviously, only a portion of this total of 69 minutes can be set aside for instruction pertaining to the general articles. It would be myopic to pretend that such limited instruction on these amorphous criminal statutes provided military personnel with any genuine expertise on the subject, even assuming that anybody could ever acquire such expertise.

28. Manual, App. 6c.

29. See, e.g., United States v. Sadinsky, 14 U.S.C.M.A. 563, 34 C.M.R. 343 (jumping from ship to sea); United States v. Sanchez, 11 U.S.C.M.A. 216, 29 C.M.R. 32 (sexual acts with a chicken). See also Avrech v. Secretary of the Navy, 155 U.S.App.D.C. at 357, 477 F.2d at 1242; Manual, App. 6a.1: Legal and Legislative Basis, Manual for Courts-Martial United States 296 (1951).

30. Manual, App. 6c, Spec. 126.

31. Id.App. 6c, Spec. 170.

32. Id.App. 6c, Spec. 188.

33. Similarly, the specifications concerning Art. 133 cover such dissimilar offenses as copying an examination paper, being drunk and disorderly, failing to pay a debt, and failure to keep a promise to pay a debt. Id. App. 6c, Specs. 122-125. Nowhere under the Art. 133 specifications is there any mention of the conduct with which Levy was charged.

34. Id.App. 6c, Specs. 118-176 (1951 ed.).

35. Id.App. 6c, Specs. 126-188 (1969).

36. See United States v. Smith, 13 U.S.C.M.A. 105, 32 C.M.R. 105; United States v. McCormick, 12 U.S.C.M.A. 26, 30 C.M.R. 26. In these and other cases, the Court of Military Appeals has indicated its belief that Congress did not and could not empower the President to promulgate substantive rules of law for the military. See also United States v. Barnes, 14 U.S.C.M.A. 567, 34 C.M.R. 347; United States v. Margelony, 14 U.S.C.M.A. 55, 33 C.M.R. 267. Cf. United States v. Acosta-Varga, 13 U.S.C.M.A. 388, 32 C.M.R. 388. The question as to whether the Executive has such an inherent power was apparently left open by this Court in Reid v. Covert, 354 U.S. 1, 38, and it is not necessary to resolve it in this case. It is enough to note that the Court of Military Appeals has clearly held that inclusion of specific conduct in the Manual does not necessarily mean that it is violative of the general articles. Given that position of the highest military court, I can hardly conclude that a serviceman could ever receive authoritative notice from the form specifications as to the scope of the articles.

37. See, e.g., United States v. McCormick, 12 U.S.C.M.A. 26, 30 C.M.R. 26; United States v. Waluski, 6 U.S.C.M.A. 724, 21 C.M.R. 46.

38. Manual, App. 6c, Spec. 139.

39. Id. ¶ 213f(5)

40. The Court also holds that, even if the general articles might be considered vague as to some offenders, the appellee has no standing to raise such a claim, since he should have known that his conduct was forbidden. Ante at 755-757. To the extent that this conclusion rests on the Court’s holdings that the general articles are given content through limiting judicial constructions, military custom, or the Manual for Courts-Martial, I have indicated above my disagreement with its underlying premises. And to the extent that this conclusion rests on the language of the general articles, I think that it is simply mistaken. The words of Arts. 133 and 134 are vague beyond repair; I am no more able to discern objective standards of conduct from phrases such as "conduct unbecoming an officer and a gentleman" and "conduct of a nature to bring discredit upon the armed forces" than I am from such words as "bad" or "reprehensible." Given this essential uncertainty, I cannot conclude that the statutory language clearly warned the appellee that his speech was illegal. It may have been, of course, that Dr. Levy had a subjective feeling that his conduct violated some military law. But that is not enough, for as we pointed out in Bouie v. City of Columbia, 378 U.S. 347, 355-356, n. 5,

[t]he determination whether a criminal statute provides fair warning of its prohibitions must be made on the basis of the statute itself and the other pertinent law, rather than on the basis of an ad hoc appraisal of the subjective expectations of particular defendants.

41. Cf. J. Heller, Catch-22, p. 395 (Dell ed.1970):

"[W]e accuse you also of the commission of crimes and infractions we don’t even know about yet. Guilty or innocent?"

"I don’t know, sir. How can I say if you don’t tell me what they are?"

"How can we tell you if we don’t know?"

42. General Hodson suggests that, in place of Art. 134, the Department of Defense and various military commanders could promulgate specific sets of orders outlawing particular conduct. Those disobeying these orders could be prosecuted under Art. 92 of the UCMJ, 10 U.S.C. § 892, which outlaws the failure to obey any lawful order. See also Note, Taps for the Real Catch-22, 81 Yale L.J. 1518, 1537-1541, containing a similar suggestion.

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Chicago: Stewart, "Stewart, J., Dissenting," Parker v. Levy, 417 U.S. 733 (1974) in 417 U.S. 733 417 U.S. 774–417 U.S. 789. Original Sources, accessed August 25, 2019, http://www.originalsources.com/Document.aspx?DocID=PWW9NLM1WY47FTI.

MLA: Stewart. "Stewart, J., Dissenting." Parker v. Levy, 417 U.S. 733 (1974), in 417 U.S. 733, pp. 417 U.S. 774–417 U.S. 789. Original Sources. 25 Aug. 2019. www.originalsources.com/Document.aspx?DocID=PWW9NLM1WY47FTI.

Harvard: Stewart, 'Stewart, J., Dissenting' in Parker v. Levy, 417 U.S. 733 (1974). cited in 1974, 417 U.S. 733, pp.417 U.S. 774–417 U.S. 789. Original Sources, retrieved 25 August 2019, from http://www.originalsources.com/Document.aspx?DocID=PWW9NLM1WY47FTI.