Article I, Section 8, Clause 14:

[The Congress shall have Power . . . ] To make Rules for the Government and Regulation of the land and naval Forces; . . .

Over the years, the Supreme Court has narrowed the scope of persons Congress may constitutionally subject to the Uniform Code of Military Justice under its Clause 14 powers. In United States ex rel. Toth v. Quarles, the Court held that an honorably discharged former soldier, charged with having committed murder during military service in Korea, could not be tried by court-martial but, under the Constitution, could be charged in federal court.1 In Reid v. Covert, the Court, after initially upholding the constitutionality of court-martial jurisdiction,2 reached the opposite conclusion on rehearing, holding that court-martial jurisdiction was lacking, at least in peacetime, to try civilian dependents of service personnel for capital crimes committed outside the United States.3 Subsequently, the Court extended its ruling to civilian dependents overseas charged with noncapital crimes4 and to civilian employees of the military charged with either capital or noncapital crimes.5

Footnotes

1

350 U.S. 11 (1955) (stating that it is within Congress’s power to make former soldiers who are no longer subject to the military code subject to federal jurisdiction). Explaining the rationale for courts-martial, the Court noted: “Court-martial jurisdiction sprang from the belief that within the military ranks there is need for prompt, read-at-hand means of compelling obedience and order. But Army discipline will not be improved by court-martialing rather than trying by jury some civilian ex-soldier who has been wholly separated from the service for months, years or perhaps decades.” Id. at 22. See also Lee v. Madigan, 358 U.S. 228 (1959).

2

See Kinsella v. Krueger, 351 U.S. 470 (1956); Reid v. Covert, 351 U.S. 487 (1956).

3

Reid v. Covert, 354 U.S. 1 (1957) (voiding court-martial convictions of two women for murdering their soldier husbands stationed in Japan). No majority of Justices in Reid agreed on the extent to which Congress’s power under clause 14 could reach civilians. Chief Justice Earl Warren and Justices Hugo Black, William Douglas, and William Brennan were of the opinion Congress’s power under clause 14 could not reach civilians at all. Justices Felix Frankfurter and John Harlan concurred as to the result, but expressed the more limited view that clause 14 cannot justify the exercise of court-martial jurisdiction over civilian dependents in capital cases in peacetime.

4

Kinsella v. United States, 361 U.S. 234 (1960) (voiding court-martial conviction for noncapital crime committed overseas by civilian wife of soldier). The majority could see no reason for distinguishing between capital and noncapital crimes. Justices Harlan and Frankfurter dissented on the ground that in capital cases greater constitutional protection, available in civil courts, was required.

5

Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960).