Tom C. Clark

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”