Over the past few months, I have explored—at least the initial contours of—the question of military jurisdiction over service members for the commission of civilian offenses committed within the continental United States during the absence of a declaration of war by Congress. This exploration has led to this final post that introduces the history relied upon by the Supreme Court of the United States in O’Callahan v. Parker (1969) to limit military jurisdiction, and the Court’s subsequent rejection of this history in Solorio v. United States (1987).
I’ll be taking a break from blogging until probably March 2017. I am hoping to wrap up a writing project over December and January in order to submit it for publication in February. While I may work on updating the topical bibliography here and there, I intend to focus most of my available time on my article. I hope you will continue your interest in my work in March. As always, I try to post once a month and within the first week of that month, but I invite you to subscribe to this blog in order to receive email notifications of updates.
We began our exploration a few months ago with a post summarizing the chronological evolution of the statutory authority for military prosecution of military members for civilian offenses committed within the United States during a time of peace. In that post I explained Sir William Blackstone’s statement, found in his highly influential Commentaries on the Laws of England, that military law is “something indulged in rather than allowed as law.” Two subsequent posts (here and here) introduced the two seminal Supreme Court decisions, O’Callahan and Solorio, that established—and subsequently abandoned—a requirement that military jurisdiction only lies if there is a connection between the offense and military service. Both utilized, though at times rather superficially, the historical record to support their holding (or the accompanying dissent). And in the penultimate post in this series, I also introduced some similarities—and differences—between civilian and military prosecution and effects of conviction. With this brief background in hand, we can finish up this initial journey with a somewhat brief discussion of how each decision, majority and dissent, utilized the historical record. I think it tells us that, regardless of which decision is ultimately correct, history must inform the law in this area.
The O’Callahan majority framed the history of military jurisdiction as the legislative branch protecting military members from military jurisdiction to the maximum extent possible. Military status was a prerequisite for military jurisdiction, but only the beginning of the inquiry.
English and American history revealed a deep suspicion of prosecuting military members for committing civilian offenses in military courts. Beginning with English history, Parliament long “expressed substantive disapproval of the general use of military courts for trial of ordinary crimes.” This caused a series of conflicts between the British Parliament and the Crown that resulted in the Crown’s acceptance the Bill of Rights in 1689. With that enactment, Parliament wrestled the power to define the jurisdiction of courts-martial from the Crown.
With its new power, Parliament enacted the first Mutiny Act. Subject to annual renewal, this Act authorized both a standing army and “trial by court-martial of certain crimes closely related to military discipline.” These were mutiny, sedition, and desertion. All other crimes required a trial by a jury of one’s peers according to the “Established Laws of this Realme.”
The O’Callahan majority noted that “Parliament’s new power over courts-martial was exercised only very sparingly to ordain military jurisdiction over acts which were also offenses at common law,” but it did not elaborate. One explanation could be the writing tactic of minimizing bad facts. Another could be the Court’s acknowledgment of the need to provide some sort of criminal jurisdiction for offenses committed outside England while on campaign or policing in the colonies. The subsequent paragraphs appear to support this latter explanation, but it is difficult to know for sure based on the decision itself.
The majority continued that “[t]he jurisdiction of British courts-martial over military offenses which were also common-law felonies was from time to time extended, but, with the exception of one year, there was never any general military jurisdiction to try soldiers for ordinary crimes committed in the British Isles.” This one exception involved the Mutiny Act of 1720. This Act allowed the army to prosecute a soldier by court-martial for “any Capital Crime, or . . . any Violence or Offense against the Person, Estate, or Property of any of the Subjects of this Kingdom, which is punishable by the known Laws of the Land” unless civilian authorities requested the soldier be turned over for civilian prosecution. Consequently, the army interpreted that provision to allow it to prosecute a soldier at court-martial in Scotland for an offense punishable by civilian law, where civilian courts were open and functioning. Parliament eliminated that provision the following year. Since then, every subsequent Mutiny Act allowed trial by court-martial for common-law offenses only when civilian courts were unavailable. As a result, the majority concluded, it was “the rule in Britain at the time of the American Revolution that a soldier could not be tried by court-martial for a civilian offense committed in Britain, instead military officers were required to use their energies and office to insure that the accused soldier would be tried before a civil court.”
This continued into early American practice. The Articles of War of 1776 “emphasized the importance of military authority to insure that soldiers who committed crimes were brought to justice.” But the O’Callahan majority concluded this envisioned trials by civil courts. Keep in mind that, until the mid-20th century, the Articles of War (or the Rules for the Governance of the Navy, for that matter) did not contain articulated criminal offenses like those found in state and federal criminal codes. Beyond articulating specific military offenses such as mutiny, sedition, and desertion, “[t]he ‘general article,’ which punished ‘all crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war,’ was interpreted to embrace only crimes the commission of which had some direct impact on military discipline.” Though not always consistent, reviewing authorities during the 19th century from time to time set aside convictions by courts-martial because “the charges recited only a violation of the general criminal law and failed to state a military offense.”
In reaching its conclusions, the majority noted the Government cited “a large number of courts-martial in the very early days of the Nation which it claims indicate that military trial for civil offenses was common in that period.” But it summarily discarded this argument. “In almost every case summarized, it appears that some special military interest existed.” Many of the crimes were, in fact, military specific offenses or crimes against other soldiers or the army. Many others involve abusing one’s military position, and the rest simply were not accompanied by sufficient records to determine “the relationship of the offense to military discipline.” The few that involved military prosecution of soldiers for civilian offenses involved offenses committed by officers. “In the 18th century at least the ‘honor’ of an officer was thought to give a specific military connection to a crime otherwise without military significance.” Regardless, every court-martial referenced by the Government was convened between 1773-1783. They were conducted during wartime “and, given the pattern of fighting in those days, in the immediate theater of operations.”
During the Civil War, Congress did authorize the prosecution of certain civilian offenses “without regard to their effect on order and discipline.” These included larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with intent to kill, wounding by shooting or stabbing with an intent to commit murder, rape, and assault and battery with an intent to commit rape. But this authorization only applied “in time of war, insurrection, or rebellion.” This made good sense, as these offenses were those that may arise in an army on a campaign. And in the case of the Civil War, it meant American soil. On the eve of World War I in 1916, the majority noted, military jurisdiction extended to certain specific civilian offenses even in peacetime and the general article now encompassed “all crimes or offenses not capital.” And by 1950, the Uniform Code of Military Justice extended military jurisdiction to all offenses, regardless of wartime or peacetime conditions, including capital crimes.
The majority provides no context for this extraordinary expansion of military jurisdiction. Especially since, until 1950, military criminal law provided shockingly limited due process protections to military members. But one can imagine the existence of a large military is an emergency wartime condition. World War I, World War II, and the ensuing Cold War were existential threats to not only democracy, but mankind. So much so, the country decided to maintain a large standing military rather than demobilize as it had done in all prior wars. So, while it may not be possible (at least by a reading of O’Callahan) to ascertain Congressional intent, one can imagine desperate times called for desperate measures. 
Thus, the majority in O’Callahan concluded military jurisdiction required a service connection between the offense and military service, “lest ‘cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,’ as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers.” The power of Congress to make “Rules for the Government and Regulation of the land and Naval Forces,” must be read “in harmony with express guarantees of the Bill of Rights.”
Justice Harlan, joined by Justices Stewart and White, dissented. “The Court’s largely one-sided discussion of the competing individual and governmental interests at stake, and its reliance upon what are at best wholly inconclusive historical data, fall far short of supporting the contrary conclusion which the majority has reached.” Putting aside the majority’s assertion of historical practice and apparently declining to consider what the text of the Constitution meant to the Founding generation that enacted it, Justice Harlan instead rested his case on the text of Article I, § 8, cl. 14 (Congress retained the power “to make Rules for the Government and Regulation of the land and naval Forces”) and “the Fifth Amendment’s correlative exception for ‘cases arising in the land or naval forces.” I have previously discussed that this view of the Fifth Amendment comes from the Court’s decision in Johnson v. Sayre in 1895, not from the text itself. But the result of Justice Harlan’s approach was clear—status is all that mattered and the judiciary had no role to play in Congress’s exclusive prerogative.
Notably, Justice Harlan’s dissent included no language actually challenging the majority’s use of history, other than in his opening paragraph. Instead, he focused the argument not on the historical suspicion of military jurisdiction, but instead limited the analysis to which branch of government is authorized to establish the limits of military jurisdiction. That was Congress. And “nothing in the debates over our Constitution indicates that the Congress was forever to be limited to the precise scope of court-martial jurisdiction existing in 17th century England.” For support, he cited Alexander Hamilton’s statement in Federalist 23 that “Congress’ power to prescribe rules for the government of the armed forces ‘ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the corresponding extent & variety of the means which may be necessary to satisfy them.’”
He then disagreed with the majority’s interpretation of the Government’s citations to court-martial records in the early American experience. “Military records between the end of the War of Independence and the beginning of the War of 1812 show frequent instances of trials by court-martial, east of the frontier, for offenses against civilians and the civil laws, such as theft, assault, and killing livestock.”
Justice Harlan concluded his dissenting opinion not in law or history, but appeared to ground his legal analysis in the perceived practical needs of modern military society. “It cannot be seriously argued as a general matter that the constitutional limits of congressional power are coterminous with the extent of its exercise in the late 18th and early 19th century.” The modern requirements or a large draft based military simply made that argument untenable. “The disciplinary requirements of today’s force of over 3,000,000 men are manifestly different from those of the 718-man army in existence in 1789.”
As I mentioned in a previous post, Justice Harlan explained the country had parochial interests in the social engineering, of sorts, of its involuntary soldiers:
The United States has a vital interest in creating and maintaining an armed force of honest, upright, and well-disciplined persons, and in preserving the reputation, morale, and integrity of the military services. Furthermore, because its personnel must, perforce, live and work in close proximity to one another, the military has an obligation to protect each of its members from the misconduct of fellow servicemen.
The Solorio decision largely dismissed O’Callahan’s reliance on history and essentially adopted Justice Harlan’s views.
The majority agreed with O’Callahan’s reliance on history regarding Parliament’s wrestling away power to define military jurisdiction, but nothing else. Everything else referenced by the O’Callahan majority “is less than accurate.” It acknowledged the provision noted by the O’Callahan majority requiring officers to turn soldiers over to civilian authorities for prosecution of offenses committed against British subjects. But the majority also pointed to an Article XVI of the British Articles of War in existence during the time of the American Revolution that it claimed granted military jurisdiction over civilian offenses:
[Any officer or soldier who] shall maliciously destroy any Property whatsoever belonging to any of Our Subjects, unless by Order of the then Commander in Chief of Our Forces, to annoy Rebels or other Enemies in Arms against Us, he or they that shall be found guilty of offending herein shall (besides such Penalties as they are liable to by law) be punished according to the Nature and Degree of the Offence, by the Judgment of a Regimental or General Court-Martial.
Thus, “the O’Callahan Court erred in suggesting that, at the time of the American Revolution, military tribunals in England were available ‘only where ordinary civil courts were unavailable.’”
Even less historical evidence, the Solorio majority stated, supported O’Callahan’s conclusion that any hesitation to grant military jurisdiction over civilian offenses continued in early American practice. Implicitly acknowledging a disagreement among scholars in a footnote on this point, the majority declared the General Article referenced above granted military authorities jurisdiction to prosecute soldiers for civilian offenses when civilian authorities did not demand their production. It then cited Justice Harlan’s dissent and three scholarly articles in support of its conclusion that early records confirm military trials for “offenses against civilians and punishable under civil law” during the late 18th century.
Ultimately, the Solorio majority concluded “the history of court-martial jurisdiction in England and in this country during the 17th and 18th centuries is far too ambiguous to justify the restriction on the plain language of Clause 14 which O’Callahan imported into it.” Yes, history shows a strong desire in England to transfer the scope and control of court-martial jurisdiction from the Crown to Parliament. And it is equally true that Parliament was reluctant to expand military jurisdiction, though not as reluctant as O’Callahan concluded. But just because the English didn’t like expanding military jurisdiction, at least to some extent, does not mean the Framers of the Constitution of the United States were as queasy about granting a necessarily undemocratic institution substantial authority over the liberty and lives of American citizens. “The unqualified language of Clause 14 suggests that whatever these concerns, they were met by vesting in Congress, rather than the Executive, authority to make rules for the government of the military.” The text was clear; it was apparently immaterial what they meant at the time of the text’s drafting and ratification. Nor was the majority persuaded that the text should be viewed in light of the writings of scholars at the time that were well known to the Framer such as Sir William Blackstone’s admonition that military law is “something indulged in rather than allowed as a law.”
Justice Marshall, joined by Justices Brennan and Blackmun, vociferously dissented. But rather than take on the fight over the historical record, the dissent focused on the meaning of the Fifth Amendment’s exclusion of “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger”:
The historical evidence considered by the Court in O’Callahan is therefore relevant, not to what the Framers intended to include in the scope of the congressional powers to regulate the Armed Forces in Art. I, § 8, cl. 14, but to what the Framers, wary of military jurisdiction and familiar with strong restrictions on the scope of that jurisdiction, considered ‘cases arising in the armed forces.’ Even assuming that they intended to assign control over the scope of the Article I power to the Legislature, this does not imply that the meaning of the Fifth Amendment’s ‘arising in’ exception can be interpreted without references to the practices of that time.
British writers in that period “took a narrow view of the appropriate scope of court-martial jurisdiction, which manifested itself in a very limited grant of authority to try offenses by court-martial during the period of which the Framers would have been most acutely aware.” Citing a number of treatises from the period, Justice Marshall explained that ‘[n]ot only was that jurisdiction narrow, it was expressly limited to cases having some connection with the military. The test was not one of status, but one of military relationship.”
Justice Marshall then took aim at the majority’s interpretation of Article XVI of the British Articles of War. “The latter provision, however, appears in a section of the Articles of War captioned ‘Of Duties in Quarters, in Garrison, or in the Field,’ and its text suggests that the activities it forbade were considered derelictions of military duty, and were punishable by court-martial n that basis.”
The dissent then argued the “American colonists shared the British suspicion of broad military authority in courts-martial.” The Declaration of Independence decried Britain’s protection of its soldiers “by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States.” Thus, ‘[t]he Framers . . . were concerned both with protecting the rights of those subjected to courts-martial, and with preventing courts-martial from permitting soldiers to get away with murder—literally—in the civilian community.” It then concluded by lamenting, as discussed in other posts, that ‘[t]he relatively recent expansion of the authority of military tribunals appears to disregard the Framers’ understanding.”
In closing, Justice Marshall opined that the majority may not like constitutional protections for military members, but that did not mean they did not apply:
Instead of acknowledging the Fifth Amendment limits on the crimes triable in a court-martial, the Court simply ignores them. But ‘the concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when the become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our Government.’ Reid v. Covert, 354 U.S. 1, 14 (1957) (plurality opinion). The limitations may not, in the view of the majority, be desirable, but that does not mean they do not exist.
It is fascinating that neither O’Callahan nor Solorio spends a great deal of time focusing on canons of interpretation. Each focuses on historical interpretation. But neither goes beyond mostly conclusory statements. This appears to demonstrate a need for a more thorough study, and possibly some re-evaluation of doctrine. If accurate, perhaps that is the end of the story or, possibly, Congress has retreated from its responsibility.
In an effort to avoid making this look like an overly academic post with lots of footnotes, I decided to list the main citations below for interested readers.
O’Callahan v. Parker, 395 U.S. 258 (1969).
Solorio v. United States, 483 U.S. 435 (1987).
 The Solorio majority disagreed. It interpreted this as a requirement to comply with civilian requests instead of taking affirmative action to turn over the soldier to civilian prosecution.
 An interesting topic, though for another day, is the debate and ultimate conclusion to choose a large standing military rather than requiring universal military training, something I believe General George C. Marshall advocated for.
 A living constitution, perhaps?