Court-Martial Jurisdiction over Military-Civilian Hybrids: Retired Regulars, Reservists, and Discharged Prisoners

One of the numerous constitutional questions about which theConstitution itself tells us very little is the extent to which persons whoare not soldiers or sailors on active duty may be subjected to trial bycourt-martial. Clause 14 of article 1, section 8, says that Congressmay make Rules for the Government and Regulation of the land andnaval Forces; clause 18 adds that Congress may make all Lawswhich shall be necessary and proper to that end. The fifth amendmentexempts from its requirement of grand jury indictment cases arisingin the land or naval forces, or in the Militia, when in actual service intime of War or public danger. The rest is silence