Interpreting the Code

Did you know that state law--yes state law--can be relevant when interpreting substantive UCMJ provisions?

"Examination of the committee reports discloses that both regarded three sources as relevant to determination of the scope of a punitive article of the Uniform Code. These sources are: (1) The general federal criminal law; (2) the definition of the offense in the State of Maryland; and, (3) the definition provided by the “Manual.” ... Although not part of the general federal penal law, the criminal law of the District of Columbia is a common and long-used source for definition of misconduct proscribed as a military offense."

United States v. Harris, 8 M.J. 52, 56 (C.M.A. 1979).

The reason for this is that if one is seeking Congressional intent, analogies from the Congressionally-written DC Code are relevant, and the DC Code is at times interpreted in light of Maryland.

"As noted earlier, those congressional reports refer to the law of the State of Maryland as a source for definition of various acts prohibited by the Uniform Code. It might seem strange to one unfamiliar with the special relationship between the law of that state and the law of the District of Columbia, that the Committees on Armed Services should single out the criminal law of a particular state as a source for congressional intention as to military offenses. The explanation is that, by direction of Congress, questions of common-law arising *57 in the District of Columbia are resolved with special consideration to the law of the State of Maryland. 49 D.C.Code s 301 (1973); White v. Parnell, 130 U.S.App.D.C. 148, 397 F.2d 709, 710 n. 1 (D.C.Cir. 1968). We construe the reference in the reports to the law of Maryland as identifying, consistent with established military practice, the law of the District of Columbia as a source for congressional intention in regard to punitive articles of the Uniform Code." Id.

Query: does any of this matter given that textualism is now the law of statutory interpretation?

Brenner Fissell

Editor