Reassessing the Ahistorical Judicial Use of William Winthrop and Frederick Bernays Wiener

Abstract

William Winthrop (1831-1899) and Frederick Bernays Wiener (1906-1996) can be classified as two of the most utilized military law sources. Federal and state appellate courts have cited to Winthrop and Wiener on questions of military law including the executive branch’s power to court-martial retired service-members and the jurisdictional authority of Article III courts to review courts-martial convictions. In spite of Winthrop’s and Wiener’s subject-matter prominence, one can search in vain to ascertain whether the nation’s judges have actually articulated any historic context for their scholarly work, or questioned their motivations in producing their influential works.

In 1955 Homer Carey Hockett a once-prominent historian, noted that 'negative criticism' is an important tool which requires a proponent of a source to discover every possible reason for doubting the source’s statement. The judiciary has long since abandoned even employing a scintilla of this tool to Winthrop of Wiener. This paper will cast doubt in the aim the nation's judges will cautiously approach their citation to these two military law sources.

This is a working draft based from my presentation delivered at the symposium: Thirty Years of Military Justice (October 28th, 2021).