The Grand Jury Exceptions Clause

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. . . .

—Judge Gregory E. Maggs & Robert Leider

Introduction

The Constitution generally requires that criminal defendants must be subject to a grand jury indictment, but Anglo-American law has long recognized both the necessity of having military law and the need to keep that law cabined to members of the military. The Grand Jury Exceptions Clause recognizes that the ordinary modes of common-law criminal procedure do not apply to cases arising in the military. Courts have decided several constitutional issues about this clause: To whom does military law apply? Does military law extend to traditional civilian crimes? Which constitutional criminal procedure rights, if any, apply to military members?

British Precedent

In England, the only permanent military court was the Court of Chivalry.¹ The court had broad criminal jurisdiction in wartime.² It “administered the permanent Law of Arms,” but it was not concerned “with enforcing military discipline.”³ Martial law was also applied to soldiers and rebels during the Middle Ages.⁴

By the end of the fifteenth century, the Court of Chivalry had fallen into disuse.⁵ With its effective disappearance, military courts consisted primarily of courts-martial authorized by military commanders operating under martial law.⁶ In this context, “martial law” meant “a summary form of criminal justice, exercised under direct or delegated royal authority by the military or police forces of the Crown, which is independent of the established processes of the common-law courts, the ecclesiastical courts, and the courts which administered the civil law in England.”⁷ Sir Matthew Hale, the English jurist, remarked that martial law “in truth and reality . . . is not a law, but something indulged, rather than allowed, as a law.”⁸

Through the early seventeenth century, the people subjected to martial law in England included not only members of the armed forces, but also rebels, rioters, thieves, and other non-military defendants.⁹ This practice would change with the Petition of Right (1628). The Crown would apply martial law only to soldiers in the field during war and to rebels in England.¹⁰ Hale justified the continued application of martial law to members of the military by explaining that “[t]he necessity of government, order, and discipline in an army is” the only possible way to justify martial law.¹¹

The development of standing military institutions created a need for a more permanent system of military justice. When the standing army became an established institution around 1660,¹² the problems of desertion and insubordination became far more common. But desertion and insubordination were not offenses cognizable in civil and common-law courts. H. St. Clair Feilden observed that it became “impossible to maintain a permanent force in time of peace” without a separate military justice system to address military discipline.¹³

In the late seventeenth century, military law began to separate from martial law. In the middle of the century, Parliament passed the Articles of War to govern the British navy.¹⁴ And in 1689, Parliament began to pass annual Mutiny Acts for the discipline of the army.¹⁵ Over time, a separate body of military law would be developed. Confusingly, however, the term “martial law” would still be used as synonymous with military law well into the eighteenth century.¹⁶

The new legal regime both aimed to make the military more efficient and sought to control the danger of professional troops.¹⁷ England mandated that members of the military were subject to both civilian law and military law.¹⁸ Soldiers could not plead that they were following military orders as a defense to criminal prosecution.¹⁹ A soldier could be punished severely for acts that would be not criminal or only a slight offense in the civilian world.²⁰ A soldier also could be punished by court-martial. This special military court proceeding did not provide a trial by a jury of one’s peers, which was guaranteed at common law, but rather a panel of superiors.²¹ Scholar A.V. Dicey observed that a soldier, by virtue of his employment, does not have “the same freedom” and “occupies a position totally different from that of a civilian.”²²

The militia, composed of subjects who performed (or could be called to perform) temporary defensive military service, was a third branch of the military. As nonprofessional soldiers, militiamen were subjected to military law “only when in training or when the force [was] embodied.”²³ When not called out to active service, militiamen were subject only to the duties of civilian law.

American Precedent

In the American colonies, the traditional British military law regime applied. Professional soldiers were subjected to military law while in service. For example, Virginia passed a Mutiny Act in 1757 that applied to officers who were “mustered, or in pay” and to those who were “[e]nlisted or in pay as a soldier.”²⁴ Pennsylvania passed a Mutiny Act in 1756 that applied to officers “commissioned and in pay” and to soldiers “regularly enlisted” who were “paid and maintained by the Crown.”²⁵ As in Britain, civilian law applied to the military—or at least was supposed to do so. The Declaration of Independence objected that Britain had protected soldiers “by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States.”²⁶

After independence, many states adopted the traditional British limits for military jurisdiction. The Maryland Declaration of Rights of 1776 provided that “no person, except regular soldiers, mariners, and marines in the service of this State, or militia when in actual service, ought in any case to be subject to or punishable by martial law.”²⁷ The Massachusetts constitution of 1780 included a nearly identical guarantee.²⁸

During the Revolutionary War, Congress adopted Articles of War to govern the Army and Navy. The Articles of Confederation also authorized Congress to “have the sole and exclusive right and power of . . . making rules for the government and regulation of the . . . land and naval forces.”²⁹ (See Essay No. 61.)

Military Law in the Constitution

The Constitution has two separate provisions concerning military law. First, Congress has the power to make “Rules for the Government and Regulation of the land and naval Forces.” This provision applies to the Army and Navy. The second clause grants Congress the power to “provide for organizing, arming, and disciplining[] the Militia, and for governing such Part of them as may be employed in the Service of the United States.” (See Essay Nos. 61 and 63.)

During the ratification debates, the Anti-Federalists objected vigorously to the Organizing the Militia Clause. Technically, all able-bodied men were in the militia. Therefore, the Anti-Federalists argued, Congress could impose military law on all men of military age. This argument was raised in Maryland, Pennsylvania, and other states.³⁰ Federalists responded that the national government’s power to govern the militia was limited to times when the militia was in actual federal service. For example, George Nicholas said that because the Constitution permitted the national government to govern only “such part of [the militia] as may be in the actual service of the United States,” there was no risk that the militia could be subject to martial law when off duty.³¹

The Anti-Federalists wanted additional assurances. The conventions in Virginia, New York, North Carolina, and Rhode Island proposed constitutional amendments guaranteeing that civilian law and common-law criminal procedure rights would apply to all citizens.³² Similar proposals were advanced by the Maryland minority and the Richmond Antifederal Committee.³³ These proposed amendments recognized two exceptions for when military law would apply. First, military law would apply to cases involving “the government of the land and naval forces” or some equivalent language.³⁴ In short, soldiers could be subjected to military law by virtue of their status as soldiers. Some proposals further limited military law so that it would apply only in “time of actual War, Invasion, or Rebellion.”³⁵ Second, military law would not apply to militiamen except “when in actual service in time of war, invasion, or rebellion.”36 As a result, civilian law applied to militiamen when they lived as civilians. These proposals tracked traditional British practice.

Adoption of the Grand Jury Exceptions Clause

In August 1789, the House of Representatives passed an amendment that would guarantee the right to a jury trial in a criminal case. That right, however, would not apply “in cases arising in the land or naval forces, or in the militia, in time of war or public danger.”³⁶ In September 1789, the Senate moved this exception language to the guarantee of a Grand Jury indictment.³⁷ After a conference committee, the House accepted the changes in the grand jury provision. Other changes in the jury trial right did not provide any explicit exceptions for the military.39 The grand jury requirement would be ratified as part of the Fifth Amendment, and the jury trial right would be ratified as part of the Sixth Amendment. Under the Fifth Amendment, criminal cases would generally be presented to the grand jury, but military cases were excepted.

Despite its drafting, the Grand Jury Exceptions Clause has been understood to stand for the broader proposition that traditional common-law criminal procedure protections do not apply to proper proceedings under military jurisdiction.³⁸ Thus, for example, members of the military may be tried by courts-martial and are not entitled to a petit jury of their peers even though the Sixth Amendment contains no similar explicit exception for military trials.³⁹

Modern Practice

Under an originalist understanding, which Fifth and Sixth Amendment rights, if any, should apply in military law cases remains an unsettled question.⁴⁰ Courts have applied some provisions of the Fifth and Sixth Amendments in military law cases. The U.S. Supreme Court has applied the Double Jeopardy Clause (or has assumed it applies) to bar successive prosecutions by the same sovereign, whether civilian or military.⁴¹ (See Essay No. 170.) Whether those cases are correct as an original matter is uncertain. Under British law, a civilian acquittal would bar a military prosecution, but a military acquittal would not bar a civilian prosecution.⁴² The rule perhaps prevented the military from protecting its own for misconduct committed in the civilian realm. Others have assumed that due process and the right to counsel apply, although the Supreme Court has characterized the latter as “much debated and never squarely resolved.”⁴³ (See Essay Nos. 172 and 181.) And there have been dicta to the effect that none of the provisions apply.⁴⁴

The intersection of originalism and modern practice creates difficult questions about how to apply the Grand Jury Exceptions Clause today. Some of the most difficult of these questions involve how to understand Framing-era rules in light of changed circumstances. For example, the bureaucratic structure of the armed forces has changed beyond the Framers’ imagination. At the Framing, there was a sharp distinction between the Army and Navy, which were regular forces, and the militia, which was the nonprofessional force.⁴⁵ (See Essay Nos. 59 and 60.) Yet the military now has large categories of servicemen who maintain a military affiliation but are not full-time troops. These include military reservists, both actively drilling and inactive, and military retirees of both the regular and reserve components.

Congress’s expansion of the armed forces to include nonprofessional forces raises difficult questions about how far Congress may extend military jurisdiction. Consistent with the original understanding, the Court has held that members of the Army and Navy (the regular forces) are subject to military law at all times, militiamen are subject to military law only while on duty, and civilians are not amenable to military law.⁴⁶ But what about military retirees who remain affiliated with the armed forces and draw retired pay but have no active-duty service obligations? May Congress subject them to military law for conduct that occurs in their civilian lives? Originalists have debated the constitutionality of such actions.⁴⁷

Similar disputes have not arisen over the nonprofessional troops in the reserve forces. But that is because Congress has statutorily treated reservists as though they were militiamen by limiting military jurisdiction to when they are on active duty or in training.⁴⁸ It is not clear whether Congress could constitutionally apply status-based jurisdiction to reservists and subject them to military law for conduct that occurred in their civilian lives.⁴⁹

Finally, questions have arisen about the extent to which Congress may subject servicemembers to military jurisdiction for traditionally civilian offenses. Until 1969, the Supreme Court did not require that an offense cognizable by court-martial must have any connection to the military. Instead, the Court generally policed only personal jurisdiction, holding that members of the Army and Navy (the regular forces) are subject to military law at all times.⁵⁰ Militiamen are subject to military law while on duty,⁵¹ and civilians are not amenable to military law.⁵² Beginning in 1969, the Court required that the offense be service-connected to qualify as “arising” in the armed forces.⁵³ Still, doubts persisted about whether the service-connected rule was correct, and the rule proved difficult to enforce. As a result, the Court abandoned that rule only eighteen years later.⁵⁴

This holding has been a contested issue because of changed circumstances. At the Founding, military law generally applied only to military offenses, but Congress has vastly expanded the range of offenses cognizable in military courts more recently to include traditionally civilian conduct.⁵⁵ There are originalist debates over whether the Constitution imposes any subject-matter limits on the crimes for which servicemembers may be prosecuted in military courts. These debates involve legal questions of constitutional meaning, factual disputes about Framing-era practices, and the legal effect, if any, of past practices and arguably changed circumstances.

Open Questions

• How far may Congress extend military jurisdiction over reservists for conduct that occurs when they are not on military duty?
• Do other provisions of the Fourth and Eighth Amendments, as well as the Ex Post Facto Clause, apply in courts-martial?⁵⁶
• United States ex rel. Toth v. Quarles (1955) held that the court-martialing of ex-servicemembers for conduct that occurred during their service was unconstitutional.⁵⁷ Was this case correctly decided?⁵⁸

1. 3 Blackstone 68. ↩︎
2. 4 Encylopaedia of the Laws of England 157, 158 (A. Wood Renton & Max A. Robertson eds., 2d. ed. 1907). ↩︎
3. J.V. Capua, The Early History of Martial Law in England from the Fourteenth Century to the Petition of Right, 36 Cambridge L.J. 152, 157–58 (1977). ↩︎
4. Id. at 158. ↩︎
5. Id. at 152, 158. ↩︎
6. Id. ↩︎
7. Id. at 152. ↩︎
8. Matthew Hale, History of the Common Law of England 42 (1713); Capua, supra at 152. ↩︎
9. Capua, supra at 153. ↩︎
10. Id. at 172–73; Petition of Right, 1628, 3 Car., c. 10 (Eng.). ↩︎
11. Hale, supra at 42. ↩︎
12. Correlli Barnett, Britain and Her Army 1509–1970: A Military, Political and Social Survey 115 (1970). ↩︎
13. H. St. Clair Feilden, A Short Constitutional History of England 316 (3d ed. 1897). ↩︎
14. 2 Wm. Laird Clowes, The Royal Navy: A History from the Earliest Times to the Present 102–03 (1898). ↩︎
15. Capua, supra at 153. ↩︎
16. George M. Dennison, Martial Law: The Development of a Theory of Emergency Powers, 1776–1861, 18 Am. J. Legal Hist., 52, 52–60 (1974). ↩︎
17. Dan Maurer, A Logic of Military Justice, 53 Tex. Tech L. Rev. 669 (2021). ↩︎
18. A.V. Dicey, Introduction to the Study of the Law of the Constitution 276 (3d ed. 1889). ↩︎
19. Id. ↩︎
20. Id. at 282. ↩︎
21. Id. ↩︎
22. Id. ↩︎
23. Id. at 285. ↩︎
24. An Act for Preventing Mutiny and Desertion, in 7 The Statutes at Large; Being a Collection of All The Laws of Virginia, from the First Session of the Legislature, in the Year 1919, at 8 (William Waller Hening ed., 1820). ↩︎
25. An Act for Regulating the Officers and Soldiers Commissioned and Raised by the Governor for the Defense of This Province, § 1, in 5 The Statutes at Large of Pennsylvania from 1682 to 1801, at 220 (James T. Mitchell & Henry Flanders eds., 1898). ↩︎
26. Declaration of Independence, ¶ 20. ↩︎
27. Md. Const. Decl. of Rts. of 1776, art. XXIX. ↩︎
28. Mass. Const. Decl. of Rts. of 1780, art. XXVIII. ↩︎
29. Articles of Confederation, art. IX, § 4. ↩︎
30. Maryland Ratifying Convention (1788), reprinted in 2 The Bill of Rights: A Documentary History 729, 734 (Bernard Schwartz ed., 1971); The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, Pa. Packet & Daily Advertiser (Dec. 18, 1787), reprinted in Storing 3.11.54; Foreign Spectator, Remarks on the Amendments to the Federal Constitution, Proposed by the Conventions of Massachusetts, New-Hampshire, New-York, Virginia, South and North-Caroline, with the Minorities of Pennsylvania and Maryland, by a Foreign Spectator: Number VIII, Phila. Fed. Gazette (Nov. 14, 1788), reprinted in The Origin of the Second Amendment: A Documentary History in Commentaries on Liberty, Free Government, and an Armed Populace During the Formation of the Bill of Rights 567, 569–70 (David E. Young ed., 1991). ↩︎
31. 10 DHRC 1280 (John P. Kaminski et al. eds., 1993). ↩︎
32. The Origin of the Second Amendment, supra at 458 ¶ 8, 481, 504 ¶ 8, 734 ¶ 8. ↩︎
33. 2 Elliot’s 552 (Maryland); 3 Elliot’s 660 (Virginia). ↩︎
34. The Origin of the Second Amendment, supra at 359 ¶ 13, 389 ¶ 8. ↩︎
35. Id. at 389 ¶ 8. ↩︎
36. H.R. Jour., 1st Cong., 1st sess. 108 (Aug. 21, 1789). ↩︎
37. S. Jour., 1st Cong., 1st sess. 129 (Sept. 9, 1789). ↩︎
38. Reid v. Covert, 354 U.S. 1, 37 n.68 (1957). ↩︎
39. Ex parte Quirin, 317 U.S. 1, 40 (1942); Kneedler v. Lane, 45 Pa. 238, 261 (Woodward, J., concurring); Gregory E. Maggs, Judicial Review of the Manual for Courts Martial, 160 Mil. L. Rev. 96, 147–55 (1999). ↩︎
40. Frederick Bernays Wiener, Courts-Martial and the Bill of Rights: The Original Practice I, 72 Harv. L. Rev. 1 (1958); Frederick Bernays Wiener, Courts-Martial and the Bill of Rights: The Original Practice II, 72 Harv. L. Rev. 266 (1958); Gordon D. Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv. L. Rev. 293 (1957). ↩︎
41. Wade v. Hunter, 336 U.S. 684 (1949); Grafton v. United States, 206 U.S. 333 (1907). ↩︎
42. Dicey, supra at 277–78. ↩︎
43. Middendorf v. Henry, 425 U.S. 25, 34 (1976); Weiss v. United States, 510 U.S. 163, 176 (1994). ↩︎
44. Ex parte Milligan, 71 U.S. (4 Wall.) 2, 138 (1866). ↩︎
45. Robert Leider, Deciphering the “Armed Forces of the United States,” 57 Wake Forest L. Rev. 1195 (2022). ↩︎
46. Johnson v. Sayre, 158 U.S. 109, 114–15 (1895); Ex parte Milligan, 71 U.S. (4 Wall.) 2; Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 (1960). ↩︎
47. Larrabee v. Del Toro, 45 F.4d 81, 83–94 (D.C. Cir. 2022); United States v. Begani, N81 M.J. 273., 282 (C.A.A.F. 2021) (Maggs, J., concurring); Robert Leider, Retiring Military Jurisdiction over Military Retirees, 68 Vill. L. Rev. 751 (2024). ↩︎
48. 10 U.S.C. § 802(a)(1), (3). ↩︎
49. Leider, Retiring Military Jurisdiction, supra at 801; Joseph W. Bishop, Jr., Court-Martial Jurisdiction Over Military-Civilian Hybrids: Retired Regulars, Reservists, and Discharged Prisoners, 112 U. Pa. L. Rev. 317 (1964). ↩︎
50. Johnson v. Sayre, 158 U.S. 109, 114–15 (1895). ↩︎
51. Id. ↩︎
52. Ex parte Milligan, 71 U.S. (4 Wall.) 2; Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246 (1960). ↩︎
53. O’Callahan v. Parker, 395 U.S. 258, 272 (1969). ↩︎
54. Solorio v. United States, 483 U.S. 435, 436 (1987). ↩︎
55. Wiener, Original Practice I, supra at 10–12. ↩︎
56. Maggs, supra at 147–55. ↩︎
57. 350 U.S. 11 (1955). ↩︎
58. Christian Burset, Advisory Opinions and Military Jurisdiction: New Light on Sackville’s Case (1760), Volokh Conspiracy (Apr. 1, 2024) (posted by Samuel Bray), https://perma.cc/K5WS-92GM. ↩︎