Military Courts and Article III, Part II: Courts-Martial and the U.S. Constitution

Prof. Stephen I. Vladeck
Washington College of Law

In this post, the second installment of a five-part series on my new paper, "Military Courts and Article III," I aim to introduce readers to the relationship between U.S. courts-martial and the Constitution, More specifically, my goal is to canvas how the Supreme Court has historically reconciled the existence of separate federal military adjudication with the Constitution's textual requirement that all courts exercising the "judicial power of the United States" be staffed by independent, life-tenured judges whose salaries are protected from diminution. As I explain in the post that follows, the short answer is "not well."
I.  Military Justice and the U.S. Constitution

American military justice pre-dates the Constitution. In 1775, the Second Continental Congress codified the first Articles of War, which, among other things, provided for courts-martial for certain prescribed offenses. The 1775 Articles were reaffirmed (as amended) in 1776 and 1786. Indeed, there was little question at the Constitutional Convention that such authority would be preserved under the new Constitution—i.e., that there would be a federal military justice system separate and apart from Article III. What is far more opaque from Founding-era sources was the shape that system would take—or whether such a departure from Article III only encompassed the exceedingly narrow scope of eighteenth-century American military discipline.

Part of the problem for contemporary courts and commentators is the fundamental shift in the nature of American military justice from the Founding to today. Eighteenth- (and nineteenth-) century American military justice looked very little like the courts-martial of today: courts-martial were more administrative than judicial (the title of military "judge" wasn't created by Congress until 1968); there was no appellate review (and judicial review through a collateral challenge was only available to attack the military's assertion of jurisdiction); and the procedures were subsequently decried by Justice Black as providing little more than a "rough form of justice." However accurate that charge may have been, general courts-martial today far more closely resemble their civilian criminal cousins, with trials before military judges; appeals to a service branch Court of Criminal Appeals (CCA), and then one more layer of oversight from the civilian Court of Appeals for the Armed Forces (many of the decisions of which are, in turn, reviewable via certiorari by the U.S. Supreme Court). The Supreme Court has even blessed the authority of military courts to provide their own forms of collateral review. Alongside these changes to the structure of American military justice has come a "civilianization" of American military law, to bring it more into harmony with the substantive rights and procedural protections afforded to all criminal defendants. Thus, although there are still material (and, at times, troubling) differences between the civilian and military justice systems, those differences pale in comparison to that which was true at the Founding and for the first 150 years thereafter.

II.  The Supreme Court's Effort to Ground the Military Exception in Constitutional Text

Notwithstanding these seismic shifts in the nature of American military justice, the Supreme Court has consistently hewed to a relatively static explanation for how "non-Article III" courts-martial are consistent with the Constitution. As Justice Wayne explained in Dynes v. Hoover, the first case in which the Justices had reason to reflect on the relationship between the Constitution and the military justice system, military jurisdiction did not just depend upon Congress’s Article I power "[t]o make rules for the government and regulation of the land and naval forces." Instead, the President’s Article II authority as Commander-in-Chief and the text of the Fifth Amendment—which expressly exempts from that provision's Grand Jury Indictment Clause “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger” —were also key ingredients to the constitutionality of adjudication by non-Article III federal military courts. In his words, “These provisions show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations.” Moreover, “the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other.”

Thus, where courts-martial exercised constitutionally valid jurisdiction, it was the combination of Congress’s Article I police power "and the express textual exception to the Grand Jury Indictment Clause that justified such non-Article III federal adjudication. Dynes assumed sub silentio that an exception to the Grand Jury Indictment Clause also absolved the military justice system of the need to comply with Article III’s requirements of a life-tenured, salary-protected judge; or with the petit jury requirements of Article III and the Sixth Amendment. Eight years later, in Ex parte Milligan, the Court articulated what Dynes had only assumed—that the petit jury trial provisions of Article III and the Sixth Amendment (which say nothing about military cases) necessarily include an atextual exception that is in pari materia with the textual exception embedded within the Fifth Amendment’s Grand Jury Indictment Clause. As Justice Davis wrote in striking down the military tribunals convened by President Lincoln, the Constitution’s drafters “doubtless” meant to limit the Sixth Amendment’s jury-trial requirement to “those persons who were subject to indictment or presentment in the fifth,” and to thereby atextually exempt from the Sixth Amendment’s Jury Trial Clause those cases exempted from the Fifth Amendment’s Grand Jury Indictment Clause.

This understanding only became more ingrained in the Court’s jurisprudence over time, especially after World War II, when the Justices were confronted with a host of new challenges to the constitutional limits of military jurisdiction. In United States ex rel. Toth v. Quarles, for example, the Justices held that former servicemembers could not constitutionally be subjected to court-martial for offenses committed while in the military. Writing for a 6-3 majority, Justice Black explained that the exception in the Grand Jury Trial Clause “does not grant court-martial power to Congress; it merely makes clear that there need be no indictment for such military offenses as Congress can authorize military tribunals to try under its Article I power to make rules to govern the armed forces.” That power, in turn, could not extend to former servicemembers because

the power granted Congress “To make Rules” to regulate “the land and naval Forces” would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces. There is a compelling reason for construing the clause this way: any expansion of court-martial jurisdiction like that in the 1950 Act necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution where persons on trial are surrounded with more constitutional safeguards than in military tribunals. 

Because Toth seemed to suggest that the constitutional authority of courts-martial was thereby confined only to active-duty servicemembers, it necessarily raised a host of questions about Congress’s power to subject to court-martial civilian dependents and employees of the military accompanying the armed forces overseas. Thus, two years after Toth, a 6-3 majority in Reid v. Covert struck down the power of the military to court-martial civilian dependents for capital offenses committed during peacetime, with Justice Black’s opinion for a four-Justice plurality again relying on the jury-trial provisions as one of the key constitutional constraints: 

Article III and the Fifth, Sixth, and Eighth Amendments establish the right to trial by jury, to indictment by a grand jury and a number of other specific safeguards. By way of contrast the jurisdiction of military tribunals is a very limited and extraordinary jurisdiction derived from the cryptic language in Art. I, § 8, and, at most, was intended to be only a narrow exception to the normal and preferred method of trial in courts of law. Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections. 

In Covert itself, the Court's holding was limited to civilian dependents in a capital case during “peacetime”—and no single rationale commanded more than a plurality of the Justices. But just three years later, a majority of the Court extended Covert’s rationale to preclude the trial by court-martial of all civilians during peacetime—even for non-capital offenses. To justify the departure from Article III, courts-martial had to involve “cases arising in the land or naval forces,” and the underlying conduct had to be proscribed by Congress pursuant to the Make Rules Clause. Put another way, the validity of non-Article III federal adjudication did not just turn on Congress’s police power over the military; it also turned on the applicability vel non of the jury-trial provisions of Article III and the Fifth and Sixth Amendments. 

With this understanding in mind, consider CAAF’s recent decision in United States v. Ali. There, the question was the constitutionality of a 2006 amendment to the UCMJ that authorized the trial by court-martial of civilian contracts “serving with or accompanying an armed force in the field” during “time of declared war or a contingency operation,” a statutory term that encompasses any number of peacetime deployments. Writing for a three-judge majority, Judge Erdmann upheld the 2006 amendment not because Article I clearly authorized the exercise of military jurisdiction over civilian contractors like Ali, or because the exception for “cases arising in the land and naval forces” applied, but because, as a non-citizen arrested and detained outside the territorial United States, Ali was categorically not protected by the Fifth and Sixth Amendments—including the jury-trial provisions therein. Whatever the merits of CAAF’s analysis of the applicability of the jury-trial provisions, the view that the propriety of non-Article III military jurisdiction turns on the existence of an exception to those provisions—whether a specific one for “cases arising in the land and naval forces” or the more general one relied upon in Ali—seems at least methodologically consistent with the Supreme Court’s jurisprudence discussed above.

Finally, although the discussion thus far has focused on how the Constitution constrains who may be tried by courts-martial, the Court had also long hewed to this understanding of the permissible scope of non-Article III court-martial jurisdiction in its analysis of the range of triable offenses, as well. For instance, when the majority in O’Callahan v. Parker held that the Constitution only authorizes non-Article III courts-martial of servicemembers for offenses connected to their service, the crux of Justice Douglas’s analysis was the role of the jury-trial provisions. In his words,

the crime to be under military jurisdiction must be service connected, 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 Court unceremoniously overruled O’Callahan 18 years later, all-but-categorically holding in Solorio v. United States that “the requirements of the Constitution are not violated where, as here, a court-martial is convened to try a serviceman who was a member of the Armed Services at the time of the offense charged.” But even though Solorio paid less overt attention to the role of the jury-trial provisions, Chief Justice Rehnquist’s analysis still turned on the related conclusions that (1) the Constitution invested Congress with police power over the military; and (2) as a result, the textual exception to the Grand Jury Indictment Clause necessarily encompassed the full range of offenses Congress could constitutionally proscribe pursuant to the Make Rules Clause. In short, “the proper exercise of court-martial jurisdiction” turns on “the military status of the accused,” a conclusion that at once expands the scope of court-martial jurisdiction over servicemembers and arguably contracts it decisively as applied to those without such status.

Thus, the Supreme Court’s validation of non-Article III federal adjudication in the court-martial context has historically turned on both Congress’s police power over the military and its construction the jury-trial exception in the Fifth Amendment’s Grand Jury Indictment Clause—as implicitly read into the petit jury trial provisions of Article III and the Sixth Amendment. As Justice Black explained in Covert, “the exception in [the Fifth] Amendment for ‘cases arising in the land or naval forces’ was undoubtedly designed to correlate with the power granted Congress to provide for the ‘Government and Regulation’ of the armed services.’” If one conceives of the Make Rules Clause and Fifth Amendment exception as forming a Venn diagram, military jurisdiction is appropriate only in cases in which they overlap.

III.  The Puzzles Left by the Court's Jurisprudence

If you've made it this far, you've hopefully noticed three fairly significant shortcomings in the Supreme Court's constitutional defense of non-Article III courts-martial:

First is the preposterous weight the Supreme Court has placed upon the exception to the Grand Jury Indictment Clause for "cases arising in the land or naval forces." Even though the exception only appears in the provision requiring a grand jury indictment, the Supreme Court has not only atextually incorporated it into the petit jury rights protected by Article III and the Sixth Amendment, but has also relied upon the exception to exempt such cases from the requirement of an Article III judge altogether. It should hardly be controversial that we don't usually construe express exceptions in one constitutional provision as being implicitly incorporated into others...

Second, even if one accepts this central role of the Grand Jury Indictment Clause, what that would mean is that the Constitution as written did not, in fact, allow for non-Article III military justice. After all, the Constitution was adopted in 1788; the Bill of Rights, including the Fifth Amendment, was not ratified until 1791. Yet no one has ever suggested that courts-martial were unconstitutional until the Fifth Amendment was ratified. Thus, it should be obvious that there has to be a better constitutional explanation for courts-martial than eight wholly inadequate words in the Fifth Amendment.

Third, as I'll explain in more detail in my fourth post (next Tuesday), both Solorio and Ali in any event upend this understanding, insofar as Solorio largely ignored the narrower text of the Grand Jury Indictment Clause in upholding trial by court-martial for any offense committed by a servicemember, and Ali (or, at least, Chief Judge Baker's more convincing concurrence) relied upon different Article I powers in explaining why Congress could subject civilian contractors (so, those who are not members of the "land and naval forces," and thus outside the ambit of the Make Rules Clause) to trial by court-martial.

Simply put, the Supreme Court's constitutional defense of courts-martial as a departure from Article III leaves more than a little to be desired--and is hardly as "tidy" as then-Justice Rehnquist suggested in 1982. And as I'll show in my next post on Monday, things only get untidier when we add the constitutional defense of military commissions into our analysis.