# Kinsella v. United States/Opinion of the Court

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* Opinion of the Court
* Dissenting Opinion Whittaker
United States Supreme Court
361 U.S. 234
Kinsella v. United States
Argued: Oct. 22, 1959. --- Decided: Jan 18, 1960
This direct appeal tests the constitutional validity of peace time court-martial trials of civilian persons 'accompanying the armed forces outside the United States' and charged with noncapital offenses under the Uniform Code of Military Justice, 10 U.S.C. § 802, 70A Stat. 37. Appellee contends that the dependent wife of a soldier can be tried only in a court that affords her the safeguards of Article III and of the Fifth and Sixth Amendments of the Constitution. The trial court held Article 2(11) of the Code unconstitutional as applied to civilian dependents accompanying the armed forces overseas and charged with noncapital offenses, D.C., 164 F.Supp. 707, and the Government appealed. We noted probable jurisdiction and permitted appellee to proceed in forma pauperis. 359 U.S. 903, 79 S.Ct. 581, 3 L.Ed.2d 569.
The appellee is the mother of Mrs. Joanna S. Dial, the wife of a soldier who was assigned to a tank battalion of the United States Army. The Dials and their three children lived in government housing quarters at Baumholder, Germany. In consequence of the death of one of their children, both of the Dials were charged with unpremeditated murder, under Article 118(2) of the Uniform Code of Military Justice. 10 U.S.C.A. § 918(2). Upon the Dials' offer to plead guilty to involuntary manslaughter under Article 119 of the Code, 10 U.S.C.A. § 919, both charges were withdrawn and new ones charging them separately with the lesser offense were returned. They were then tried together before a general court-martial at Baumholder. Mrs. Dial challenged the jurisdiction of the court-martial over her but, upon denial of her motion, pleaded guilty, as did her husband. Each was sentenced to the maximum penalty permitted under the Code. Their convictions were upheld by the Court of Military Appeals, and Mrs. Dial was returned to the United States and placed in the Federal Reformatory for Women at Alderson, West Virginia. Thereafter the appellee filed this petition for habeas corpus and obtained Mrs. Dial's discharge from custody. From this judgment the warden has appealed.
As has been noted, the jurisdiction of the court-martial was based upon the provisions of Article 2(11) of the Code. The Congress enacted that article in an effort to extend, for disciplinary reasons, the coverage of the Uniform Code of Military Justice to the classes of persons therein enumerated. The jurisdiction of the Code only attached, however, when and if its applicability in a given foreign territory was sanctioned under 'any treaty or agreement to which the United States is or may be a party' with the foreign sovereignty, or under 'any accepted rule of international law.' The existence of such an agreement here is admitted. The constitutionality of Article 2(11), as it applies in time of peace to civilian dependents charged with noncapital offenses under the Code, is the sole issue to be decided.
The question is not one of first impression, as we had before us in 1956 the constitutionality of the article as applied to civilian dependents charged with capital offenses, in the companion cases of Kinsella v. Krueger, 351 U.S. 470, 76 S.Ct. 886, 100 L.Ed. 1342, and Reid v. Covert, 351 U.S. 487, 76 S.Ct. 880, 100 L.Ed. 1352. At the original submission of those cases, we decided by a bare majority that the article was a valid exercise of the power of the Congress, under art. IV, § 3, to 'make all needful Rules and Regulations' for the 'Territories' of the United States. We held further that the 'procedure in such tribunals need not comply with the standards prescribed by the Constitution for Article III courts,' 351 U.S. at page 475, 76 S.Ct. at page 889, and specifically upheld court-martial jurisdiction in such cases against the contention that its procedures did not provide for indictment by grand jury or trial by petit jury. In short, we said that the failure to provide such protections raised 'no constitutional defect,' citing In re Ross, 1891, 140 U.S. 453, 11 S.Ct. 897, 36 L.Ed. 581, and the Insular Cases, such as Balzac v. People of Porto Rico, 1922, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627. After rehearing at the following Term, these opinions were withdrawn and judgments were entered declaring the article unconstitutional when applied to civilian dependents charged with capital offenses. Reid v. Covert, consolidated with Kinsella v. Krueger, 1957, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148. The Court held that the power over 'Territories,' as applied by the In re Ross doctrine, was neither applicable nor controlling. It found that trial by court-martial was the exercise of an exceptional jurisdiction springing from the power granted the Congress in art. I, § 8, cl. 14, 'To make Rules for the Government and Regulation of the land and naval Forces,' as supplemented by the Necessary and Proper Clause of art. I, § 8, cl. 18. But as applied to the civilian dependents there involved it must be considered, the Court said, in relation to Article III and the Fifth and Sixth Amendments. The majority concluded that, in those capital cases, trial by court-martial as provided could not constitutionally be justified.
The appellee contends that this result, declaring civilian dependents charged with capital offenses not to be subject to the provisions of the Code, bears directly on its applicability to the same class charged with noncapital crimes. She says that the test of whether civilian dependents come within the power of Congress as granted in Clause 14's limitation to the 'land and naval Forces' is the status of the person involved. Her conclusion is that if civilian dependents charged with capital offenses are not within that language, a fortiori, persons in the same class charged with noncapital offenses cannot be included, since the clause draws no distinction as to offenses. The Government fully accepts the holding in the second Covert case, supra. It contends that the case is controlling only where civilian dependents are charged with capital offenses, and that in fact the concurrences indicate that considerations of a compelling necessity for prosecution by courts-martial of civilian dependents charged with noncapital offenses might permit with reason the inclusion of that limited category within court-martial jurisdiction. It submits that such necessities are controlling in the case of civilian dependents charged with noncapital crimes. It points out that such dependents affect the military community as a whole; that they have, in fact, been permitted to enjoy their residence in such communities on the representation that they are subject to military control; and that realistically they are a part of the military establishment. It argues that, from a morale standpoint, the present need for dependents to accompany American forces maintained abroad is a pressing one; that their special status as integral parts of the military community requires disciplinary control over them by the military commander; that the effectiveness of this control depends upon a readily available machinery affording a prompt sanction and resulting deterrent present only in court-martial jurisdiction; and that not only is court-martial procedure inherently fair but there are no alternatives to it. The Government further contends that it has entered into international agreements with a large number of foreign governments permitting the exercise of military jurisdiction in the territory of the signatories, and pursuant to the same it has been utilizing court-martial procedures at various American installations abroad. Its legal theory is based on historical materials which it asserts indicate a well-established practice of court-martial jurisdiction over civilians accompanying the armed forces, during Colonial days as well as the formative period of our Constitution. From this it concludes that civilian dependents may be included as a necessary and proper incident to the congressional power 'To make Rules for the Government and Regulation of the land and naval Forces,' as granted in Clause 14.
In this field, United States ex rel. Toth v. Qualres, 1955, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, cited with approval by a majority in the second Covert case, supra, is a landmark. Likewise, of course, we must consider the effect of the latter case on our problem. We therefore turn to their teachings. The Toth case involved a discharged soldier who was tried by court-martial after his discharge from the Army, for an offense committed before his discharge. It was said there that the Clause 14 'provision itself does not empower Congress to deprive people of trials under Bill of Rights safeguards,' 350 U.S. at pages 21-22, 76 S.Ct. at page 8, and that military tribunals must be restricted 'to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service,' id., 350 U.S. at page 22, 76 S.Ct. at page 8. We brushed aside the thought that 'considerations of discipline' could provide an excuse for 'new expansion of court-martial jurisdiction at the expense of normal and constitutionally preferable systems of trial by jury.' Id., 350 U.S. at pages 22-23, 76 S.Ct. at page 8. (Italics supplied.) We were therefore 'not willing to hold that power to circumvent these safeguards should be inferred through the Necessary and Proper Clause.' Id., 350 U.S. at page 22, 76 S.Ct. at page 8. The holding of the case may be summed up in its own words, namely, that '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.' Id., 350 U.S. at page 15, 76 S.Ct. at page 4.
It was with this gloss on Clause 14 that the Court reached the second Covert case, supra. There, as we have noted, the person involved was the civilian dependent of a soldier, who was accompanying him outside the United States when the capital offense complained of was committed. The majority concluded that 'Trial by court-martial is constitutionally permissible only for persons who can, on a fair appraisal, be regarded as falling within the authority given to Congress under Article I to regulate the 'land and naval Forces' * * *.' Concurring opinion, 354 U.S. at page 42, 77 S.Ct. at page 1244. (Italics supplied.) The test for jurisdiction, it follows, is one of status, namely, whether the accused in the court-martial proceeding is a person who can be regarded as falling within the term 'land and naval Forces.' The Court concluded that civilian dependents charged with capital offenses were not included within such authority, the concurring Justices expressing the view that they did not think 'that the proximity, physical and social, of these women to the 'land and naval Forces' is, with due regard to all that has been put befoure us, so clearly demanded by the effective 'Government and Regulation' of those forces as reasonably to demonstrate a justification for court-martial jurisdiction over capital offenses.' Concurring opinion, 354 U.S. at pages 46-47, 77 S.Ct. at page 1246.
In the second Covert case, each opinion supporting the judgment struck down the article as it was applied to civilian dependents charged with capital crimes. The separate concurrences supported the judgment on the theory that the crime being 'in fact punishable by death,' id., 354 U.S. at page 45, 77 S.Ct. at page 1245, the question to be decided is 'analogous, ultimately, to issues of due process,' id., 354 U.S. at page 75, 77 S.Ct. at page 1261. The Justices joining in the opinion announcing the judgment, however, did not join in this view, but held that the constitutional safeguards claimed applied in 'all criminal trials' in Article III courts and applied 'outside of the States,' pointing out that both the Fifth and Sixth Amendments were 'all inclusive with their sweeping references to 'no person' and to 'all criminal prosecutions." Id., 354 U.S. at pages 7-8, 77 S.Ct. at pages 1225-1226. The two dissenters found 'no distinction in the Constitution between capital and other cases,' id., 354 U.S. at page 89, 77 S.Ct. at page 1268, but said that the constitutional safeguards claimed were not required under the power granted Congress in art. IV, § 3, and the cases heretofore mentioned. The briefs and argument in Covert reveal that it was argued and submitted by the parties on the theory that no constitutional distinction could be drawn between capital and noncapital offenses for the purposes of Clause 14. Supplemental Brief for Government on Rehearing, Nos. 701 and 713, at pp. 16-20, 82-95.
We have given careful study to the contentions of the Government. They add up to a reverse of form from the broad presentation in Covert, where it asserted that no distinction coud be drawn between capital and noncapital offenses. But the same fittings are used here with only adaptation to noncapital crimes. The Government asserts that the second Covert case, rather than foreclosing the issue here, indicates that military tribunals would have jurisdiction over civilian dependents charged with offenses less than capital. It says that the trial of such a person for a noncapital crime is 'significantly different' from his trial for a capital one, that the maintaining of different standards or considerations in capital cases is not a new concept, and that, therefore, there must be a fresh evaluation of the necessities for court-martial jurisdiction and a new balancing of the rights involved. As we have indicated, these necessities add up to about the same as those asserted in capital cases and which the concurrence in second Covert held as not of sufficient 'proximity, physical and social * * * to the 'land and naval Forces' * * * as reasonably to demonstrate a justification' for court-martial prosecution. Likewise in the Government's historical material-dealing with court-martial jurisdiction during peace which was found in Covert 'too episodic, too meager * * * for constitutional adjudication,' concurring opinion, 354 U.S. at page 64, 77 S.Ct. at page 1255, 1 L.Ed.2d 1148, it has been unable to point out one court-martial which drew any distinction, insofar as the grant of power to the Congress under Clause 14 was concerned, between capital and noncapital crimes. The Government makes no claim that historically there was ever any distinction made as to the jurisdiction of courts-martial to try civilian dependents on the basis of capital as against noncapital offenses. Without contradiction, the materials furnished show that military jurisdiction has always been based on the 'status' of the accused, rather than on the nature of the offense. To say that military jurisdiction 'defies definition in terms of military 'status" is to defy unambiguous language of art. I, § 8, cl. 14, as well as the historical background thereof and the precedents with reference thereto.
Furthermore, we are not convinced that a critical impact upon discipline will result, as claimed by the Government (even if anyone deemed this a relevant consideration), if noncapital offenses are given the same treatment as capital ones by virtue of the second Covert case. The same necessities claimed here were found present in the second Covert case (see the dissent there) and were rejected by the Court. Even if the necessity for court-martial jurisdiction be relevant in cases involving deprivation of the constitutional rights of civilian dependents, which we seriously question, we doubt that the existence of the small number of noncapital cases now admitted by the Government in its brief here, when spread over the world-wide coverage of military installations, would of itself bring on such a crisis. Moreover, in the critical areas of occupation, other legal grounds may exist for court-martial jurisdiction as claimed by the Government in No. 37, Wilson v. Bohlender, 361 U.S. 281, 80 S.Ct. 305. See Madsen v. Kinsella, 1952, 343 U.S. 341, 72 S.Ct. 699, 96 L.Ed. 988. Another serious obstacle to permitting prosecution of noncapial offenses, while rejecting capital ones, is that it would place in the hands of the military an unreviewable discretion to exercise jurisdiction over civilian dependents simply by downgrading the offense, thus stripping the accused of his constitutional rights and protections. By allowing this assumption of 'the garb of mercy,' we would be depriving a capital offender of his constitutional means of defense and in effect would nullify the second Covert case. This situation will be aggravated by the want of legislation providing for trials in capital cases in Article III courts sitting in the United States. At argument, the Government indicated that there had been no effort in the Congress to make any provision for the prosecution of such cases either in continental United States or in foreign lands. Still we heard no claim that the total failure to prosecute capital cases against civilian dependents since the second Covert decision in 1957 had affected in the least the discipline at armed services installations. We do know that in one case, Wilson v. Girard, 1957, 354 U.S. 524, 77 S.Ct. 1409, 1 L.Ed.2d u544, the Government insisted and we agreed that it had the power to turn over an American soldier to Japanese civil authorities for trial for an offense committed while on duty. We have no information as to the impact of that trial on civilian dependents. Strangely, this itself might prove to be quite an effective deterrent. Moreover, the immediate return to the United States permanently of such civilian dependents, or their subsequent prosecution in the United States for the more serious offenses when authorized by the Congress, might well be the answer to the disciplinary problem. Certainly such trials would not involve as much expense nor be as difficult of successful prosecution as capital offenses.
We now reach the Government's suggestion that, in the light of the noncapital nature of the offense here, as opposed to the capital one in the Covert case, we should make a 'fresh evaluation and a new balancing.' But the power to 'make Rules for the Government and Regulation of the land and naval Forces' bears no limitation as to offenses. The power there granted includes not only the creation of offenses but the fixing of the punishment therefor. If civilian dependents are included in the term 'land and naval Forces' at all, they are subject to the full power granted the Congress therein to create capital as well as noncapital offenses. This Court cannot diminish and expand that power, either on a case-by-case basis or on a balancing of the power there granted Congress against the sageguards of Article III and the Fifth and Sixth Amendments. Due process cannot create or enlarge power. See, United States ex rel. Toth v. Quarles, supra. It has to do, as taught by the Government's own cases, with the denial of that 'fundamental fairness, shocking to the universal sense of justice.' Betts v. Brady, 1942, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595. It deals neither with power nor with jurisdiction, but with their exercise. Obviously Fourteenth Amendment cases dealing with state action have no application here, but if they did, we believe that to deprive civilian dependents of the safeguards of a jury trial here, an infamous case by constitutional standards, would be as invalid under those cases as it would be in cases of a capital nature. Nor do we believe that due process considerations bring about an expansion of Clause 14 through the operation of the Necessary and Proper Clause. If the exercise of the power is valid it is because it is granted in Clause 14, not because of the Necessary and Proper Clause. The latter clause is not itself a grant of power, but a caveat that the Congress possesses all the means necessary to carry out the specifically granted 'foregoing' powers of § 8 'and all other Powers vested by this Constitution. * * *' As James Madison explained, the Necessary and Proper Clause is 'but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those (powers) otherwise granted are included in the grant.' VI Writings of James Madison, edited by Gaillard Hunt, 383. There can be no question but that Clause 14 grants the Congress power to adopt the Uniform Code of Military Justice. Our initial inquiry is whether Congress can include civilian dependents within the term 'land and naval Forces' as a proper incident to this power and necessary to its execution. If answered in the affirmative then civilian dependents are amenable to the Code. In the second Covert case, supra, it was held they were not so amenable as to capital offenses. Our final inquiry, therefore, is narrowed to whether Clause 14, which under the second Covert case has been held not to include civilian dependents charged with capital offenses, may now be expanded to include civilian dependents who are charged with noncapital offenses. We again refer to James Madison:
'When the Constitution was under the discussions which preceded its ratification, it is well known that great apprehensions were expressed by many, lest the omission of some positive exception, from the powers delegated, of certain rights, * * * might expose them to the danger of being drawn, by construction, within some of the powers vested in Congress, more especially of the power to make all laws necessary and proper for carrying their other powers into execution. In reply to this objection, it was invariably urged to be a fundamental and characteristic principle of the Constitution, that all powers not given by it were reserved; that no powers were given beyond those enumerated in the Constitution, and such as were fairly incident to them; * * *.' Writings, supra, at 390.
We are therefore constrained to say that since this Court has said that the Necessary and Proper Clause cannot expand Clause 14 so as to include prosecution of civilian dependents for capital crimes, it cannot expand Clause 14 to include prosecution of them for noncapital offenses.
Neither our history nor our decisions furnish a foothold for the application of such due process concept as the Government protjects. Its application today in the light of the irreversibility of the death penalty would free from military prosecution a civilian accompanying or employed by the armed services who committed a capital offense, while the same civilian could be prosecuted by the military for a noncapital crime. It is illogical to say that 'the power respecting the land and naval forces encompasses * * * all that Congress may appropriately deem 'necessary' for their good order' and still deny to Congress the means to exercise such power through the infliction of the death penalty. But that is proposed here. In our view this would militate against our whole concept of power and jurisdiction. It would likewise be contrary to the entire history of the Articles of War. Even prior to the Constitutional Convention, the Articles of War included 17 capital offenses applicable to all persons whose status brought them within the term 'land and naval Forces.' There were not then and never have been any exceptions as to persons in the applicability of these capital offenses. In 1806 when the Articles of War were first revised, Congress retained therein 16 offenses that carried the death penalty, although there was complaint that 'almost every article in the bill was stained with blood.' 15 Annals of Cong. 326.
Nor do we believe that the exclusion of noncapital offenses along with capital ones will cause any additional disturbance in our 'delicate arrangements with many foreign countries.' The Government has pointed to no disruption in such relations by reason of the second Covert decision. Certainly this case involves no more 'important national concerns into which we should be reluctant to enter' than did Covert. In truth the problems are identical and are so intertwined that equal treatment of capital and noncapital cases would be a palliative to a troubled world.
We therefore hold that Mrs. Dial is protected by the specific provisions of Article III and the Fifth and Sixth Amendments and that her prosecution and conviction by court-martial are not constitutionally permissible. The judgment must therefore be affirmed.
Affirmed.
Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER joins, dissenting in Nos. 22, 21, and 37, and concurring in No. 58.
Within the compass of 'any treaty or agreement to which the United States is or may be a party' and 'any accepted rule of international law,' Article 2(11) of the Uniform Code of Military Justice makes subject to the Code, and therefore prosecutable by courts-martial for offenses committed abroad, all 'persons serving with, employed by, or accompanying the armed forces' outside the United States and certain other areas.
These four cases, involving persons and crimes concededly covered by the Military Code, bring before us the constitutionality of Article 2(11) as applied to (1) civilian service dependents charged with noncapital offenses (No. 22); (2) civilian service employees, also charged with noncapital offenses (Nos. 21 and 37); and (3) civilian service employees charged with capital offenses (No. 58). In each instance the Court holds the Act unconstitutional. While I agree with the judgment in No. 58, which involves a capital offense, I cannot agree with the judgments in Nos. 22, 21 and 37, in each of which the conviction was for a noncapital offense.
The effect of these decisions is to deny to Congress the power to give the military services, when the United States is not actually at war, criminal jurisdiction over noncapital offenses committed by nonmilitary personnel while accompanying or serving with our armed forces abroad. I consider this a much too narrow conception of the constitutional power of Congress and the result particularly unfortunate in the setting of the present-day international scene. To put what the Court has decided in proper context, some review of the past fate of Article 2(11) in this Court is desirable.
At the 1955 Term there came before the Court in Kinsella v. Krueger, 351 U.S. 470, 76 S.Ct. 886, 100 L.Ed. 1342, and Reid v. Covert, 351 U.S. 487, 76 S.Ct. 880, 100 L.Ed. 1352, the question whether two army wives could be constitutionally convicted, under Article 2(11), of the capital offense of first degree murder, committed while stationed with their husbands at military bases abroad. Initially a divided Court, in two opinions which I joined, upheld the convictions. In so holding the Court relied not upon the constitutional power of Congress 'To make Rules for the Government and Regulation of the land and naval Forces,' Art. 1, § 8, cl. 14, but upon In re Ross, 140 U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581, the U.S. 453, 11 S.Ct. 897, 35 L.Ed. 581, the People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627, and Art. IV, § 3, of the Constitution, respecting congressional power over Territories. These factors, in combination, led the Court to conclude that the constitutional guarantees of Article III and the Fifth and Sixth Amendments did not apply to criminal trials of Americans abroad before legislatively established tribunals; that it was permissible for Congress to conclude that persons circumstanced as those women were should be tried before a court-martial, rather than a civil tribunal; and that such trials did not offend the fundamentals of due process.
The decisions in these cases were reached under the pressures of the closing days of the Term. See Kinsella v. Krueger, 351 U.S. at pages 483-486, 76 S.Ct. at pages 893-894. Having become convinced over the summer that the grounds on which they rested were untenable, I moved at the opening of the 1956 Term that the cases be reheard, being joined by the four Justices who had been in the minority. See Reid v. Covert, 352 U.S. 901, 77 S.Ct. 123, 1 L.Ed.2d 92; Id., 354 U.S. 1, 65-67, 77 S.Ct. 1222, 1255-1256, 1 L.Ed.2d 1148 Upon a consolidated rehearing of the cases, the Court's original opinions and the judgments of conviction were set aside, a majority of the Court then holding that whether the convictions should stand or fall depended solely on the Art. I, § 8, cl. 14 power, and that such power could not be constitutionally applied in those cases. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148. There was, however, no opinion for the Court. Four Justices joined in an opinion broadly holding that 'civilians' can never be criminally tried by military courts in times of peace, id., 354 U.S. at pages 3-41, 77 S.Ct. at pages 1223-1243. Two Justices concurred specially in the result, on the narrow ground that Article 2(11) could not be so applied to civilian service dependents charged with capital offenses, explicitly reserving judgment, however, as to whether nonmilitary personnel charged with other than capital offenses could be subjected to such trials. Id., 354 U.S. at pages 41-64, 65-78, 77 S.Ct. at pages 1243-1255, 1255-1262. Two Justices dissented, adhering to the grounds expressed in the earlier majority opinions. Id., 354 U.S. at page 78, 77 S.Ct. at page 1262. And one Justice did not participate in the cases.
Thus the only issue that second Covert actually decided was that Article 2(11) could not be constitutionally applied to civilian service dependents charged with capital offenses. Nevertheless, despite the wide differences of views by which this particular result was reached-none of which commanded the assent of a majority of the Court-Covert is now regarded as establishing that nonmilitary personnel are never within the reach of the Article I power in times of peace. On this faulty view of the case, it is considered that Covert controls the issues presently before us. Apart from that view I think if fair to say different results might well have been reached in the three noncapital cases now under consideration. Without needlessly traversing ground already covered in my separate opinion in Covert, id., 354 U.S. at pages 67-78, 77 S.Ct. 1256-1262, I shall give my reasons for believing that while the result reached by the Court in the capital case is right, its decisions in the noncapital cases are wrong.
First. The Court's view of the effect of Covert in these noncapital cases stems from the basic premise that only persons occupying a military 'status' are within the scope of the Art. I, § 8, cl. 14 power. The judgment in Covert having decided that civilian service dependents were not within the reach of that power in capital cases, it is said to follow that such dependents, and presumably all other 'civilians,' may also not be tried by courts-martial in noncapital cases; this because neither the statute nor Article I makes exercise of the power turn upon the nature of the offense involved.
I think the 'status' premise on which the Court has proceeded is unsound. Article I, § 8, cl. 14, speaks not in narrow terms of soldiers and sailors, but broadly gives Congress power to prescribe 'Rules for the Government and Regulation of the land and naval Forces.' This power must be read in connection with Clause 18 of the same Article, authorizing Congress
'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.'
Thus read, the power respecting the land and naval forces encompasses, in my opinion, all that Congress may appropriately deem 'necessary' for their good order. It does not automatically exclude the regulation of non military personnel.
I think it impermissible to conclude, as some of my brethren have indicated on an earlier occasion (see second Covert, supra, 354 U.S. at pages 20-22, 77 S.Ct. at pages 1232-1233), and as the Court now holds, 80 S.Ct. 304, that the Necessary and Proper Clause may not be resorted to in judging constitutionality in cases of this type. The clause, itself a part of Art. I, § 8, in which the power to regulate the armed forces is also found, applies no less to that power than it does to the other § 8 congressional powers, and indeed is to be read 'as an integral part of each' such power. Second Covert, supra, 354 U.S. at page 43, 77 S.Ct. at page 1244 (concurring opinion of Frankfurter, J.). As Mr. Justice Brandeis put it in Jacob Ruppert v. Caffey, 251 U.S. 264, at pages 300-301, 40 S.Ct. 141, at page 150, 64 L.Ed. 260:
'Whether it be for purposes of national defense, or for the purpose of establishing post offices and post roads, or for the purpose of regulating commerce among the several states Congress has the power 'to make all laws which shall be necessary and proper for carrying into execution' the duty so reposed in the federal government. While this is a government of enumerated powers, it has full attributes of sovereignty within the limits of those powers. In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. Some confusion of thought might perhaps have been avoided, if, instead of distinguishing between powers by the terms 'express and implied,' the term 'specific and general' had been used. For the power conferred by clause 18 of section 8 'to make all laws which shall be necessary and proper for carrying into execution' powers specifically enumerated is also an express power. * * *'
See also United States v. Classic, 313 U.S. 299, 320, 61 S.Ct. 1031, 85 L.Ed. 1368.
Of course, the Necessary and Proper Clause cannot be used to 'expand' powers which are otherwise constitutionally limited, but that is only to say that when an asserted power is not appropriate to the exercise of an express power, to which all 'necessary and proper' powers must relate, the asserted power is not a 'proper' one. But to say, as the Court does now, that the Necessary and Proper Clause 'is not itself a grant of power' is to disregard Clause 18 as one of the enumerated powers of § 8 of Art. I.
Viewing Congress' power to provide for the governing of the armed forces in connection with the Necessary and Proper Clause, it becomes apparent, I believe, that a person's 'status' with reference to the military establishment is but one, and not alone the determinative, factor in judging the constitutionality of a particular exercise of that power. By the same token, the major premise on which the Court ascribes to Covert a controlling effect in these noncapital cases disappears.
Second. It is further suggested that the difference between capital and non-capital offenses is not constitutionally significant, and that if Article 2(11) of the Military Code, as applied to nonmilitary persons, is unconstitutional in one case, it equally is so in the other. I think this passes over too lightly the awesome finality of a capital case, a factor which in other instances has been reflected both in the constitutional adjudications of this Court and in the special procedural safeguards which have been thrown around those charged with such crimes.
Thus, this Court has held that the Fourteenth Amendment requires a State to appoint counsel for an indigent defendant in a capital case, Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, whereas in noncapital cases a defendant has no such absolute right to counsel, Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. Again, the Congress in first degree murder cases has in effect put infliction of the death penalty in the hands of the jury, rather than the judge, 18 U.S.C. § 1111(b), 18 U.S.C.A. § 1111(b); see also 60 Stat. 766, as amended, 42 U.S.C. § 2274(a), 42 U.S.C.A. § 2274(a), and various States have similar statutes. Further illustrations of the same concern about capital cases are the prohibition on acceptance of pleas of guilty in such cases, and, in the appellate field, provisions for mandatory or automatic appeals from such convictions.
In my Covert opinion I pointed out that the Government itself had in effect acknowledged that because of the gravity of the offense, a treason case against a nonsoldier in time of peace could not constitutionally be held to be within the otherwise unlimited scope of Article 2(11); and I expressed the view that the same constitutional limitation should obtain whenever the death penalty is involved. 354 U.S. at page 77, 77 S.Ct. at page 1262. I see no reason for retreating from that conclusion. The view that we must hold that nonmilitary personnel abroad are subject to peacetime court-martial jurisdiction either for all offenses, or for none at all, represents an inexorable approach to constitutional adjudication to which I cannot subscribe.
It is one thing to hold that nonmilitary personnel situated at our foreign bases may be tried abroad by courts-martial in times of peace for noncapital offenses, but quite another to say that they may be so tried where life is at stake. In the latter situation I do not believe that the Necessary and Proper Clause, which alone in cases like this brings the exceptional Article I jurisdiction into play, can properly be taken as justifying the trial of nonmilitary personnel without the full protections of an Article III court. See 354 U.S. at page 77, 77 S.Ct. at page 1262. Before the constitutional existence of such a power can be found, for me a much more persuasive showing would be required that Congress had good reason for concluding that such a course is necessary to the proper maintenance of our military establishment abroad than has been made in any of the cases of this kind which have thus far come before the Court.
Third. I revert to the Court's 'status' approach to the power of Congress to make rules for governing the armed forces. How little of substance that view holds appears when it is pointed out that had those involved in these cases been inducted into the army, though otherwise maintaining their same capacities, it would presumably have been held that they were all fullly subject to Article 2(11). Yet except for this formality their real 'status' would have remained the same.
Although it was recognized in the second Covert case that a person might be subject to Article 2(11) 'even though he had not formally been inducted into the military or did not wear a uniform,' 354 U.S. at page 23, 77 S.Ct. at page 1233, I think that drawing a line of demarcation between those who are constitutionally subject to the Art. I, § 8, cl. 14 power, and those who are not, defies definition in terms of military 'status.' I believe that the true issue on this aspect of all such cases concerns the closeness or remoteness of the relationship between the person affected and the military establishment. Is that relationship close enough so that Congress may, in light of all the factors involved, appropriately deem it 'necessary' that the military be given jurisdiction to deal with offenses committed by such persons?
I think that such relationship here was close enough, and in this respect can draw no constitutional distinction between the army wife in No. 22 and the civilian service employees in the other cases. Though their presence at these army overseas bases was for different reasons and purposes, the relationship of both to the military community was such as to render them constitutionally amenable to the Article 2(11) jurisdiction. By the same token, being of the view that the constitutional existence of such jurisdiction has not been shown as to civilian service dependents charged with capital offenses, I am equally of the opinion that it cannot be found with respect to civilian service employees similarly charged. For these reasons I concur in the judgment of the Court in No. 58.
Fourth. The other factors which must be weighed in judging the constitutionality of Article 2(11) as applied to noncapital cases have, in my opinion, been adequately satisfied. I need not add to what was said in my concurring opinion in Covert, 354 U.S. at pages 70-73, 76-77, 77 S.Ct. at pages 1258-1260, 1261-1262, with reference to the matters which originally were adumbrated by my Brother Clark in his dissent in the same case. Id., 354 U.S. at pages 83-88, 77 S.Ct. at pages 1265-1267. Nothing in the supplemental historical data respecting courts-martial which have been presented in these cases persuades me that we would be justified in holding that Congress' exercise of its constitutional powers in this area was without a rational and appropriate basis, so far as noncapital cases are concerned. Although it is now suggested that the problem with which Congress sought to deal in Article 2(11) may be met in other ways, I submit that once it is shown that Congress' choice was not excluded by a rational judgment concerned with the problem it is beyond our competence to find constitutional command for other procedures.
I think it unfortunate that this Court should have found the Constitution lacking in enabling Congress to cope effectively with matters which are so intertwined with broader problems that have been engendered by present disturbed world conditions. Those problems are fraught with many factors that this Court is ill-equipped to assess, and involve important national concerns into which we should be reluctant to enter except under the clearest sort of constitutional compulsion. That such compulsion is lacking here has been amply demonstrated by the chequered history of the past cases of this kind in the Court. Today's decisions are the more regrettable because they are bound to disturb delicate arrangements with many foreign countries, and may result in our having to relinquish to other nations where United States forces are stationed a substantial part of the jurisdiction now retained over American personnel under the Status of Forces Agreements.
I would reverse in Nos. 22, 21, and 58, and affirm in No. 37.
Mr. Justice WHITTAKER, with whom Mr. Justice STEWART joins, concurring in part and dissenting in part.

## Notes

* ↑ Art. 2. 'The following persons are subject to this chapter:
* ↑ Four Justices joined in an opinion announcing the judgment, two concurred in the result, and two dissented. Mr. Justice Whittaker, having come to the Court subsequent to the time of argument and decision in this case, took no part.
* ↑ Clause 18. 'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.'
* ↑ See also Dynes v. Hoover, 1857, 20 How. 65, 15 L.Ed. 838; Ex parte Milligan, 1866, 4 Wall. 2, 18 L.Ed. 281; Duncan v. Kahanamoku, 1946, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688; and Winthrop, Military Law and Precedents (2d ed. 1896), 144 et seq. and Reprint (1920) 105-107.
* ↑ The second concurring opinion expressed the view that Article I was an unlimited grant of power to Congress 'to make such laws in the regulation of the land and naval forces as are necessary to the proper functioning of those forces' and indicated that the Necessary and Proper Clause 'modified' Clause 14 'expanding' its power 'under changing circumstances.' 354 U.S. at page 68, 77 S.Ct. at page 1257.
* ↑ The writer of this opinion wrote the dissent.
* ↑ Even at argument here government counsel admitted he had found no such distinction other than that asserted by the concurrences in second Covert:
* ↑ It was for this reason that the majority in the first Covert case, supra, based its decision on art. IV, § 3, rather than the congressional power under Clause 14.
* ↑ Aside from traffic violations, there were only 273 cases (both capital and noncapital) involving dependents subject to foreign jurisdiction during the period between December 1, 1954, and November 30, 1958. This number includes 54 'Offenses against economic control laws' and 88 offenses denominated 'other.' Government's Brief on the Merits in McElroy v. United States ex rel. Guagliardo, No. 21, at page 75. (361 U.S. 281, 80 S.Ct. 305)
* ↑ 'He was glad, he said, that the penalty under this bill was not to be greater than that to which persons were subjected who were convicted of counterfeiting the great seal; but, on the other hand, he feared that this seeming lenity was not what it appeared to be, the child of mercy; he apprehended that its object was to facilitate the conviction of the accused, by taking from him the means of defence, which he might claim as his right, if the bill left the enumerated acts within the statute of the 25th of Edward III. These acts might be considered as proofs of an adherence to the king's enemies, and consequently came within the species of treason on which corruption of blood attached; but, by classing them under the head of treasons which did not operate a corruption of blood, the framers of the bill had contrived to take from the accused the means of defence, under the appearance of lenity. Of all the characters of cruelty, he considered that as the most odious which assumed the garb of mercy: such was the case here; under the pretence of mercy to the accused, in not charging him with corruption of blood, he was to be deprived of the means of making his defence. That he might not stand a chance in the contest, his shield was to be taken from him. The list of the jury, to give him the benefit of the challenge-the list of witnesses, to enable him to detect conspiracies and to prevent perjury-the copy of the charge ten days before the trial, to enable him to prepare himself for the awful day-the assistance of a learned gentleman to speak for an unlearned man-all the arms and means of protection with which the humanity of the law of England had fortified an individual, when accused by the crown, were to be taken away. Harshness and severity were to be substituted for tenderness and compassion; and then he was to be insulted by being told he was spared the corruption of blood!' 5 The Speeches of the Right Hon. Charles James Fox in the House of Commons (London 1815) 78.
* ↑ Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, and Betts v. Brady, 1942, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, both Fourteenth Amendment cases which would, of course, have no application here.
* ↑ To wit: 'that part of Alaska east of longitude 172 degrees west, the Canal Zone, the main group of the Hawaiian Islands, Puerto Rico, and the Virgin Islands.'
* ↑ In No. 37 the Government, alternatively, relies on the 'War Power,' the offense having been committed in the American Occupied Zone of West Berlin. Cf. Madsen v. Kinsella, 343 U.S. 341, 72 S.Ct. 699, 96 L.Ed. 988. Apart from whether or not the contention is available in light of the course of the proceedings below, I do not reach that issue.
* ↑ In addition to myself, the majority opinions, written by Mr. Justice Clark, were joined by Justices Reed, Burton and Minton, 351 U.S. 470 and 487, 76 S.Ct. 886 and 880. The Chief Justice and Justices Black and Douglas dissented. Id., 351 U.S. at page 485, 76 S.Ct. at page 894. Mr. Justice Frankfurter filed a Reservation. Id., 351 U.S. at page 481, 76 S.Ct. at page 892.
* ↑ The three remaining members of the original majority were in dissent, 352 U.S. at page 902, 77 S.Ct. at page 124, Mr. Justice Minton having meanwhile retired. Mr. Justice Brennan, his successor, did not participate on the motion.
* ↑ The Chief Justice, Mr. Justice Black (the writer of the opinion), and Justices Douglas and Brennan.
* ↑ Mr. Justice Frankfurter and myself.
* ↑ Justices Clark and Burton.
* ↑ Mr. Justice Whittaker, succeeding Mr. Justice Reed who had meanwhile retired.
* ↑ The Fifth Amendment excepts from its protection 'cases arising,' not persons, 'in the land or naval forces.'
* ↑ E.g., M.G.L.A. c. 265 § 2; Miss.Code Ann. § 2536; N.H.R.S.A. c. 585, § 4.
* ↑ E.g., N.Y.Code Cr.Proc. § 332.
* ↑ E.g., Cal.Penal Code, § 1239(b); ORS 138.810.
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