It has seemed reasonably clear that the Con- stitution does not follow the advancing troops into conquered territory. Persons in such territory have been held entirely beyond the reach of constitutional limitations and subject to the laws of war as interpreted and applied by the Congress and the President.1737 “What is the law which governs an army invading an enemy’s country?” the Court asked in Dow v. Johnson.1738 “It is not the civil law of the invaded country; it is not the civil law of the conquering country; it is military law—the law of war—and its supremacy for the protection of the officers and soldiers of the army, when in service in the field in the enemy’s country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty.”
These conclusions follow not only from the usual necessities of war but also from the Court’s doctrine that the Constitution is not automatically applicable in all territories acquired by the United States. The question turns upon whether Congress has made the area “incorporated” or “unincorporated” territory.1739 In Reid v. Covert,1740 however, Justice Black asserted in a plurality opinion that wherever the United States acts it must do so only “in accordance with all the limitations imposed by the Constitution. . . . [C]onstitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as at home.”1741 The case, however, involved the trial of a United States citizen abroad and the language quoted was not subscribed to by a majority of the Court; thus, it must be regarded as a questionable rejection of the previous line of cases.1742
- New Orleans v. The Steamship Co., 87 U.S. (20 Wall.) 387 (1874); Santiago v. Nogueras, 214 U.S. 260 (1909); Madsen v. Kinsella, 343 U.S. 341 (1952).
- 100 U.S. 158, 170 (1880).
- De Lima v. Bidwell, 182 U.S. 1 (1901); Dooley v. United States, 182 U.S. 222 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 138 (1904).
- 354 U.S. 1 (1957).
- 354 U.S. at 6, 7.
- For a comprehensive treatment, preceding Reid v. Covert, of the matter in the context of the post-War war crimes trials, see Fairman, Some New Problems of the Constitution Following the Flag, 1 STAN. L. REV. 587 (1949).