The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction

With the emergence of the Soviet menace after World War II, the United States has, for the first time in its history, found it essential to maintain, both here and abroad, a large standing armed force in what is technically peacetime. That has in turn brought to the fore important and novel questions concerning the jurisdiction which courts martial may constitutionally exercise. With millions of Americans serving and likely to serve in the armed forces, it is to be expected that the Supreme Court will scrutinize, with more care than ever before, legislation which purports to strip from these"citizen soldiers" fundamental rights guaranteed to civilians under the Constitution. One constitutional problem which seems never to have been squarely presented to the Court is whether Congress may authorize courts martial to try, in time of peace, a capital or non-capital crime committed by a serviceman within the United States, where the nature of the crime is exclusively "civil" in the sense that its commission does not have any substantial adverse effect upon the maintenance of military discipline.

Before turning to that problem, however, it will be helpful to review the recent decisions of the Supreme Court in which it has refused to permit enlargement of the peacetime jurisdiction of courts martial over civilians.