The Articles of War was adopted during the Revolution, it was a direct copy of the British Articles of War of 1773 which was an update of the Articles of War written by Oliver Cromwell during the English Civil War (c 1649). In the US the Articles of War was updated in 1806 and then Basically stayed the same with modification till the UCMJ was adopted in 1951. Please note the Articles of War ONLY applied to the Army, the Navy had a different Article of War (Which were harsher, for example In the Army you had an absolute Right to be tried by a Lawyer as your Judge, in the Navy only if one was available). The UCMJ reflects the ARMY rules not the Navy Rules do the Army rules being even then known to be fairer to enlisted personnel
The UCMJ:
http://www4.law.cornell.edu/uscode/html/uscode10/usc_sup_01_10_10_A_20_II_30_47.htmlThe UCMJ made some long expected changes (and some reversion to Oliver Cromwell's Original Articles). For example during WWII a pro-nazi american had been drafted into the Army. He kept saying good things about Hitler while in the Army and bad things about FDR. For that he was Court Martial under right is now rewritten as § 888 of Article 88 of the UCMJ ("Contempt toward officials"). This had extended to ALL Soldiers under the Articles of War for Oliver Cromwell required this of ALL of his soldiers, but Cromwell forbade the drafting or the enlisting of people who opposed the Government, thus never an issue for Cromwell.
On the other hand during WWII the US drafted this person who was pro-Hitler and Anti-FDR. He continued to state his opposition to the Government and was tried and Convicted under the Articles of War provision. This conviction was upheld on appeal. When the UCMJ was adopted in 1951 this ban on Criticizing Government Officials was restricted to only OFFICERS (Since the US then had the Draft and you could again draft someone who opposed the President, thus Congress thought restricting speech OK for officers, who could resign, but NOT for enlistee whom may be draftees and thus FORCED to be in the Military). Rumsfield suppose to have extended it to enlisted ranks by Regulation, but the statute is still the same so ENLISTED personnel can criticize the Government, Officers can not (Without Resigning First).
Article of War (Civil War period):
http://members.aol.com/cog10thtx2/artus1.htmArticle of war June 30, 1775 Version:
http://memory.loc.gov/learn/features/timeline/amrev/contarmy/articles.htmlAs to the Constitution, the Articles of War come WITHIN the Constitution. Any Violation of the Constitution in the UCMJ (Or the earlier Articles of War) that violates the Constitution is Unconstitutional. The problem was when Oliver Cromwell wrote the Articles of war he wanted to Maintain discipline BUT ALSO PROHIBIT ABUSE OF HIS SOLDIERS and ABUSE BY HIS SOLDIERS. When the Constitution was adopted many of the delegates of the Constitution had SERVED under the Articles of War during the Revolution and thus took Cromwell's compromise with them to the Convention. These compromises where acceptable to them AND WRITTEN INTO THE CONSTITUTION. After Aaron Burr did his Treason in the early 1800s Congress revisited the Articles of War and rewrote them to reflect that the US Army was under the control of the President NOT independent of Congress and the PResident (Changes were minor, most articles just were re-passed). No need to rewrite the Constitution during the Civil War (Those person who were drafted rarely opposed the War and if they did could buy they way out of the Army). During WWI and WWII one grounds for NOT being Drafted was disloyalty. Thus it was rare to get someone in the Army that opposed the actions of the Government until someone idiotic draft board decided this man should be drafted. He apparently as part of the 1944 draft. What is meant by the "1944 draft" was a review of previous draft rejects. Most had been rejected in 1941 as 4F. now in 1944 with the ground War in Europe the US army needed men, and a review of those 1941 4Fs were ordered. Given the tight troop situation many people previously rejected as 4F were made 1A. You did NOT want to be in this group, many were killed in combat (and we have this man court martial ed, but the story of such 4Fs then 1As personnel is another story).
My point is the UCMJ reflects the needs of the Military while balancing the right of Soldiers. Since the Napoleonic wars most Armies consist of Draftees and the Changes from the Articles of War to the UCMJ reflects that switch. We have had a non-draftee army since the early1 1970s but the UCMJ still reflects the needs of the Draftee army. It is an attempt to balance the needs to maintain Order and discipline in the Military while preserving the right of the Solders and Sailors under the Bill of Rights.
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