Loving v. United States, 517 U.S. 748, 13 (1996)

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Opinion of the Court

and American history. It is this historical exclusion of common-law capital crimes from military jurisdiction, he urges, that must inform our understanding of whether Clause 14 reserves to Congress the power to prescribe what conduct warrants a death sentence, even if it permits Congress to authorize courts-martial to try such crimes. See Brief for Petitioner 42-43; Brief for United States Navy-Marine Corps Appellate Defense Division as Amicus Curiae 7-12, 19-26. Mindful of the historical dangers of autocratic military justice and of the limits Parliament set on the peacetime jurisdiction of courts-martial over capital crimes in the first Mutiny Act, 1 Wm. & Mary, ch. 5 (1689), and having experienced the military excesses of the Crown in colonial America, the Framers harbored a deep distrust of executive military power and military tribunals. See Reid v. Covert, 354 U. S. 1, 23-24 (1957) (plurality); Lee v. Madigan, 358 U. S. 228, 232 (1959). It follows, Loving says, that the Framers intended that Congress alone should possess the power to decide what aggravating factors justify sentencing a member of the Armed Forces to death.

We have undertaken before, in resolving other issues, the difficult task of interpreting Clause 14 by drawing upon English constitutional history. See, e. g., Reid, supra, at 23-30; O'Callahan v. Parker, 395 U. S. 258, 268-272 (1969) (determining that courts-martial only had jurisdiction of service-connected crimes); Solorio v. United States, 483 U. S. 435, 442-446 (1987) (overruling O'Callahan and taking issue with its historical analysis). Doing so here, we find that, although there is a grain of truth in Loving's historical arguments, the struggle of Parliament to control military tribunals and the lessons the Framers drew from it are more complex than he suggests. The history does not require us to read Clause 14 as granting to Congress an exclusive, nondelegable power to determine military punishments. If anything, it appears that England found security in divided authority, with Parliament at times ceding to the Crown the

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