# O'Callahan v. Parker (395 U.S. 258)/Dissent Harlan

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Harlan
United States Supreme Court
395 U.S. 258
James F. O'CALLAHAN, Petitioner, v. J. J. PARKER, Warden.
Certiorari to the United States Court of Appeals for the Third Circuit
No. 646. Argued: January 23, 1969. --- Decided: June 2, 1969.
Mr. Justice Harlan, whom Mr. Justice Stewart and Mr. Justice White join, dissenting.
I consider that the terms of the Constitution and the precedents in this Court point clearly to sustaining court-martial jurisdiction in this instance. 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. In sum, I think that the Court has grasped for itself the making of a determination which the Constitution has placed in the hands of the Congress, and that in so doing the Court has thrown the law in this realm into a demoralizing state of uncertainty. I must dissent.
My starting point is the language of Art. I, § 8, cl. 14, of the Constitution, which empowers the Congress '(t)o 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.'
Writing for a plurality of the Court in Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), Mr. Justice Black explained that if the 'language of Clause 14 is given its natural meaning * * * (t)he term 'land and naval Forces' refers to persons who are members of the armed services * * *,' id., at 19-20, 77 S.Ct. at 1232, and that accordingly the Fifth Amendment's exception encompasses persons "in' the armed services.' Id., at 22 23, 77 S.Ct. at 1233. In Kinsella v. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960), again looking to the constitutional language, the Court noted that 'military jurisdiction has always been based on the 'status' of the accused, rather than on the nature of the offense,' id., at 243, 80 S.Ct. at 302, that is, whether the accused 'is a person who can be regarded as falling within the term 'land and naval Forces." Id., at 241, 80 S.Ct. at 301.
In these cases and many others, Ex parte Milligan, 4 Wall. 2, 123, 18 L.Ed. 281 (1866); Coleman v. Tennessee, 97 U.S. 509, 24 L.Ed. 1118 (1879); Smith v. Whitney, 116 U.S. 167, 184-185, 6 S.Ct. 570, 579, 29 L.Ed. 601 (1886); Johnson v. Sayre, 158 U.S. 109, 114, 15 S.Ct. 773, 775, 39 L.Ed. 914 (1895); Grafton v. United States, 206 U.S. 333, 348, 27 S.Ct. 749, 752, 51 L.Ed. 1084 (1907), this Court has consistently asserted that military 'status' is necessary and sufficient condition for the exercise of court-martial jurisdiction. The Court has never previously questioned what the language of Clause 14 would seem to make plain-that, given the requisite military status, it is for Congress and not the Judiciary to determine the appropriate subject-matter jurisdiction of courts-martial. See Coleman v. Tennessee, supra, at 514.
English constitutional history provides scant support for the Court's novel interpretation of Clause 14, and the pertinent American history proves, if anything, quite the contrary.
The English history on which the majority relies reveals a long-standing and multifaceted struggle for power between the military and the Crown, on the one hand, and Parliament on the other, which focused, inter alia, on the King's asserted independent prerogative to try soldiers by court-martial in time of peace. See generally J. Tanner, English Constitutional Conflicts of the Seventeenth Century (1961). The martial law of the time was, moreover, arbitrary, and alien to established legal principles. See 1 W. Blackstone's Commentaries 413; M. Hale, History and Analysis of the Common Law in England 42 (6th ed. 1820). Thus, when, with the Glorious Revolution of 1688, Parliament gained exclusive authority to create peacetime court-martial jurisdiction, it exercised that authority sparingly: the early Mutiny Acts permitted trial by court-martial only for the crimes of mutiny, sedition, and desertion. E.g., Mutiny Act of 1689, 1 W. & M., Sess. 2, c. 4.
Parliament subsequently expanded the military's peacetime jurisdiction both abroad and at home. See Mutiny Act of 1712, 12 Anne, c. 13; Mutiny Act of 1803, 43 Geo. 3, c. 20. And, significantly, § 46 of the Mutiny Act of 1720, 7 Geo. 1, c. 6, authorized trial by court-martial for offenses of a nonmilitary nature, if the injured civilian made no request that the accused be tried in the civil courts. See F. Wiener, Civilians Under Military Justice 13 14, 245-246 (1967).
The burden of English history was not lost on the Framers of our Constitution, who doubtless feared the Executive's assertion of an independent military authority unchecked by the people acting through the Legislature. Article 9, § 4, of the Articles of Confederation-from which Art. I, § 8, cl. 14, of the Constitution was taken-was responsive to this apprehension:
'The United States in Congress assembled shall * * * have the sole and exclusive right and power of * * * making rules for the government and regulation of the * * * land and naval forces, and directing their operations.' (Emphasis added.)
But 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. To the contrary, Alexander Hamilton stated 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.' The Federalist, No. 23. (Emphasis omitted.) American exercise of court-martial jurisdiction prior to, and contemporaneous with, adoption of the Constitution lends no support to the Court's position. Military records between the endo f 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. Military authority to try soldiers for such offenses derived initially from the 'general article' of war, first enacted by the Continental Congress in 1775, and incorporated today in Art. 134, 10 U.S.C. § 934. W. Winthrop's Military Law and Precedents (2d ed. 1896), the leading 19th century treatise on military law, recognized that the general article encompassed crimes 'committed upon or against civilians * * * at or near a military camp or post,' id., at 724 (1920 reprint) (second emphasis added), and noted that even this limiting principle was not strictly observed. Id., at 725, 730 732. And in Grafton v. United States, 206 U.S. 333, 348, 27 S.Ct. 749, 752, 51 L.Ed. 1084 (1907), the Court held, with respect to the general article, that:
'The crimes referred to in that article manifestly embrace those not capital, committed by officers or soldiers of the Army in violation of public law as enforced by the civil power. No crimes committed by officers or soldiers of the Army are excepted by the * * * article from the jurisdiction thus conferred upon courts-martial, except those that are capital in their nature. * * * (T)he jurisdiction of general courts-martial (is) * * * concurrent with that of the civil courts.'
Even if the practice of early American courts-martial had been otherwise, this would hardly lead to the conclusion that Congress lacked power to authorize military trials under the present circumstances. 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 centuries. And however restrictively the power to define court-martial jurisdiction may be construed, it would be patently wrong so to limit that power. The disciplinary requirements of today's armed force of over 3,000,000 men are manifestly different from those of the 718-man army in existence in 1789. Cf. The Federalist, No. 23, quoted, supra, at 277. By the same token, given an otherwise valid exercise of the Article I power, I can perceive no basis for judicial curtailment of court-martial jurisdiction as Congress has enacted it.
In the light of the language and history of Art. 1, § 8, cl. 14, of the Constitution, and this Court's hitherto consistent interpretation of this provision, I do not believe that the resolution of the controversy before us calls for any balancing of interests. But if one does engage in a balancing process, one cannot fairly hope to come up with a meaningful answer unless the interests on both sides are fully explored. The Court does not do this. Rather, it chooses to ignore strong and legitimate governmental interests which support the exercise of court-martial jurisdiction even over 'nonmilitary' crimes.
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 commission of offenses against the civil order manifests qualities of attitude and character equally destructive of military order and safety. The soldier who acts the part of Mr. Hyde while on leave is, at best, a precarious Dr. Jekyll when back on duty. Thus, as General George Washington recognized:
'All improper treatment of an inhabitant by an officer or soldier being destructive of good order and discipline as well as subversive of the rights of society is as much a breach of military, as civil law and as punishable by the one as the other.' 14 Writings of George Washington 140-141 (Bicent. ed.).
A soldier's misconduct directed against civilians, moreover, brings discredit upon the service of which he is a member:
'Under every system of military law for the government of either land or naval forces, the jurisdiction of courts martial extends to the trial and punishment of acts of military or naval officers which tend to bring disgrace and reproach upon the service of which they are members, whether those acts are done in the performance of military duties, or in a civil position * * *.' Smith v. Whitney, 116 U.S. 167, 183-184, 6 S.Ct. 570, 578, 29 L.Ed. 601 (1886).
The Government, thus, has a proper concern in keeping its own house in order, by deterring members of the armed forces from engaging in criminal misconduct on or off the base, and by rehabilitating offenders to return them to useful military service.
The exercise of military jurisdiction is also responsive to other practical needs of the armed forces. A soldier detained by the civil authorities pending trial, or subsequently imprisoned, is to that extent rendered useless to the service. Even if he is released on bail or recognizance, or ultimately placed on probation, the civil authorities may require him to remain within the jurisdiction, thus making him unavailable for transfer with the rest of his unit or as the service otherwise requires.
In contrast, a person awaiting trial by court-martial may simply be restricted to limits, and may 'participate in all military duties and activities of his organization while under such restriction.' Manual for Courts-Martial, United States (1969), 20 b. The trial need not be held in the jurisdiction where the offense was committed. Id., 8. See, e.g., United States v. Voorhees, 4 U.S.C.M.A. 509, 515, 16 C.M.R. 83, 89 (1954); cf. United States v. Gravitt, 5 U.S.C.M.A. 249, 256, 17 C.M.R. 249, 256 (1954). And punishments-such as forfeiture of pay, restriction to limits, and hard labor without confinement-may be imposed that do not keep the convicted serviceman from performing his military duties. See Manual for Courts-Martial, supra, 126 g, h, k.
The Court does not explain the scope of the 'service-connected' crimes as to which court-martial jurisdiction is appropriate, but it appears that jurisdiction may extend to 'nonmilitary' offenses in appropriate circumstances. Thus, the Court intimates that it is relevant to the jurisdictional issue in this case that petitioner was wearing civilian clothes rather than a uniform when he committed the crimes. Ante, at 259, And it also implies that plundering, abusing, and stealing from, civilians may sometimes constitute a punishable abuse of military position, ante, at 270, n. 14, and that officers may be court-martialed for purely civilian crimes, because '(i)n the 18th century * * * the 'honor' of an officer was thought to give a specific military connection to a crime otherwise without military significance.' Ibid. But if these are illustrative cases, the Court suggests no general standard for determining when the exercise of court-martial jurisdiction is permissible.
Whatever role an ad hoc judicial approach may have in some areas of the law, the Congress and the military are at least entitled to know with some certainty the allowable scope of court-martial jurisdiction. Otherwise, the infinite permutations of possibly relevant factors are bound to create confusion and proliferate litigation over the jurisdictional issue in each instance. Absolutely nothing in the language, history, or logic of the Constitution justifies this uneasy state of affairs which the Court has today created.
I would affirm the judgment of the Court of Appeals.

## Notes

* ↑ This proviso was dropped in the Mutiny Act of 1721, 8 Geo. 1, c. 3, and court-martial jurisdiction over such offenses was thereafter limited by the articles of war to, inter alia, 'Place(s) beyond the Seas * * * where there is no form of Our Civil Judicature in Force.' F. Wiener, Civilians Under Military Justice 14 (1967).
* ↑ See 2 M. Farrand, The Records of the Federal Convention of 1787, p. 330 (1911); 5 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, p. 443 (1836).
* ↑ For example: The general orders of George Washington report the trial of soldiers for 'killing a Cow * * *, stealing Fowls * * *, and stealing eleven Geese * * *.' 26 Writings of George Washington 73 (Bicent. ed.) (H.Q., Newburgh, January 28, 1783), and 'for stealing a number of Shirts and blanketts out of the public store at Newburgh * * *.' Id., at 322 (H.Q., Newburgh, April 15, 1783). The Orderly Books of the Corps of Artillerists and Engineers report the court-martial of Sergeant Harris for 'beating a Mr. Williams an inhabitant living near this garrison,' Book 1, pp. 157-158 (West Point, October 5, 1795), and of Private Kelly for 'abusing and using violence on Mrs. Cronkhyte, a citizen of the United States,' Book 3, pp. 45-46 (West Point, July 5, 1796). Numerous other instances of military punishment for nonmilitary crimes during the period 1775-1815 are summarized in the appendix to the Brief for the United States 35-52.
* ↑ '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 articles of war, are to be taken cognizance of by a general or regimental court-martial, according to the nature and degree of the offence, and be punished at their discretion.' W. Winthrop, Military Law and Precedents 957 (2d ed. 1896, 1920 reprint).
* ↑ In 1916, Congress for the first time explicitly authorized peacetime court-martial jurisdiction for specific noncapital offenses. Article 93, Articles of War, 39 Stat. 664. It also revised the general article, renumbered Article 96, to read:
* ↑ On such a theory, for example, Congress could not have permissibly waited, as it did, until 1875, see Act of March 3, 1875, § 1, 18 Stat. 470, to confer general federal-question jurisdiction on the district courts; the presenty-day exercise of this jurisdiction, see 28 U.S.C. § 1331, would be unconstitutional.
* ↑ Statistical Abstract of The United States 257 (1968).
* ↑ R. Weigley, History of the United States Army 566 (1967).
* ↑ Congress may also assume the responsibility of protecting civilians from harms perpetrated by membr § of the armed forces. For the military is often responsible for bringing to a locality thousands of its personnel-whose numbers may be as great as, and sometimes exceed, the neighboring population-thereby imposing on the local law-enforcement agencies a burden which they may be unable to carry.
* ↑ Thus, at petitioner's presentence hearing, Captain Powell testified that 'through proper rehabilitation, O'Callahan can make a good soldier,' Record Transcript 61, and Major Turner testified:
* ↑ It is, to say the least, strange that as a constitutional matter the military is without authority to discipline an enlisted man for an offense that is punishable if committed by an officer.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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