Which Constitution is Judge Phillips reading?

Lots of people find ourselves diametrically opposed to the military policy referred to as "Don't Ask, Don't Tell," and many of us would like very much to see that policy changed. I have stated on a number of occasions, in blogs, in essays, and in innumerable conversations with uncounted numbers of other participants that DADT needs to be replaced with a policy that is entirely neutral as to sexual orientation except where the mission of the military can be affected. What that exception means is simple: in the military, everyone is required to act, dress, and comport themselves in particular, mandated ways. They must accept discipline, and they must think "mission first."

All of that said, the federal judge in San Diego who struck down DADT as unconstitutional has clearly never read the Constitution. I quote Article 1, Section 8: Powers of Congress: It shall have the power:

To make Rules for the Government and Regulation of the land and naval Forces;

That simple. It is a completely exclusive grant of power with no "except as it pertains to" equivocations. Congress, bluntly, has the power to make rules for the military. Not the Executive. Not the Judiciary. Congress.

The judge is completely out of line, and I do not doubt that if the case arrives at the Supreme Court, she will be reversed. There is this, also: because Article 1, Section 8 gives Congress the exclusive right to determine the rules and regulations of the armed forces, it also has the derived right to determine who may serve and who may not.

There is NO Constitutional right to serve in the military. Absent that right, everyone who serves in the military serves at the discretion of Congress or the particular branch as it applies. People who are significantly overweight cannot serve. People who are over a particular age cannot enlist. And many others are excluded for a variety of reasons, including health, criminal records, or country of origin issues. This, in law, is simply one more disqualification.

Now. Congress may change that law, and I believe that it can and will for many good and valuable reasons. Gays and lesbians already serve honorably and well, and it is an injustice not to allow them to serve openly, and an idiocy to exclude people of good character, high integrity, and manifest ability, whatever their sexual orientation.

In the meantime, I believe that Congress should vote out a resolution to the effect that it, and it alone, will decide on qualifications for service, and that it is not subject to judicial review. I also believe that when the military is finished with its review, Congress should act and definitively change the policy.

And I think that California U.S. District Judge Virginia Phillips ought to take the time to read the Constitution before she trots out another specious decision on what it does, or does not, allow.