SCOTUS’ Use of the Historical Record to Limit, Then Expand, Military Criminal Jurisdiction

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).

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Separate And Not Quite Equal: “Enjoying” Reduced Rights Based On One’s “Status,” and Nothing More, In the Separate Society

In my last post, the first in a series looking at the legal history behind the ability of the American military to prosecute American citizens for civilian offenses committed within the United States during peacetime (absence of declaration of war), I summarized the evolution of statutes governing military criminal jurisdiction. This summary demonstrated, or at least took note of, the fact that for most of American history, the military retained limited jurisdiction to prosecute such offenses, if at all. In this post, I’d like to turn to the evolution of today’s legal landscape, as framed by the Supreme Court.  This history tells us how we reached the point of one’s status as a military member, alone, subjected him or her to a criminal justice system that deprives him or her of substantial constitutional rights, even when facing prosecution for traditionally civilian offenses, within the United States, during time of peace when civilian courts are open for business.

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