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Court-Martial Jurisdiction over Military-Civilian Hybrids: Retired Regulars, Reservists, and Discharged Prisoners, 112 U. PA. L. REV. 317 (1964)


One of the numerous constitutional questions about which the
Constitution itself tells us very little is the extent to which persons who
are not soldiers or sailors on active duty may be subjected to trial by
court-martial. Clause 14 of article 1, section 8, says that Congress
may "make Rules for the Government and Regulation of the land and
naval Forces;" clause 18 adds that Congress may "make all Laws
which shall be necessary and proper" to that end. The fifth amendment
exempts from its requirement of grand jury indictment "cases arising
in the land or naval forces, or in the Militia, when in actual service in
time of War or public danger." The rest is silence.

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