Constitutional Law - Courts-Martial - Power of Congress to Provide for Military Jurisdiction Over Civilian Dependents

Authors

Gerald M. Smith, University of Michigan Law School

Abstract

Defendants, civilian wives of servicemen living overseas, were tried and convicted of murder by military court-martial under article 118 of the Uniform Code of Military Justice. Their trials took place in the countries where they were living with their husbands. Defendants brought petitions for a writ of habeas corpus challenging the constitutionality of article 2(11) of the Uniform Code authorizing their trials by court-martial. Initially the United States Supreme Court rejected this contention. On rehearing, held, reversed, two justices dissenting. The guarantee of the right to jury trial contained in article 3, section 2, and the guarantees of the Fifth and Sixth Amendments restrict the government no matter where it is acting. Treaties and executive agreements cannot confer power upon Congress to provide for court-martial of dependents of military personnel in violation of the foregoing constitutional guarantees. The exception of "cases arising in the land and naval forces" to the Fifth Amendment right of indictment by grand jury does not include civilian dependents of servicemen with troops overseas, for they are not in the and and naval forces, and neither the power "to make Rules for the Government and Regulation of the land and naval Forces" nor the necessary and proper clause can include them within the exception. Chief Justice Warren and Justices Black, Douglas, and Brennan comprised the majority. Justices Frankfurter and Harlan concurred separately, refusing in capital cases to hold that dependents are so closely related to the armed forces as to make trial by court-martial essential to the effective "government and regulation of the land and naval forces." Justices Clark and Burton dissented, arguing that the prior hearings correctly decided that the power of Congress to establish legislative courts outside the United States made court-martial jurisdiction constitutional, and that in any case jurisdiction was constitutional under the power of Congress "to make rules for the government and regulation of the land and naval forces." Reid v. Covert; Kinsella v. Krueger, 354 U.S. 1 (1957).

Recommended Citation

Gerald M. Smith, Constitutional Law - Courts-Martial - Power of Congress to Provide for Military Jurisdiction Over Civilian Dependents, 56 Mich. L. Rev. 287 (1957).
Available at: https://repository.law.umich.edu/mlr/vol56/iss2/8