Madsen v. Kinsella/Dissent Black

Mr. Justice BLACK, dissenting.

Petitioner, a United States citizen, is now serving a fifteen-year sentence for murdering her husband. At the time of the alleged crime, she was living in the United States Area of Control in Germany with her husband who was an Air Force lieutenant on active duty in Germany. It appears that the court that tried her and the law she was judged by were not established or authorized by the Congress. Executive officers acting under presidential authority created the system of courts that tried her, promulgated the edicts she was convicted of violating, and appointed the judges who took away her liberty.

The very first Article of the Constitution begins by saying that 'All legislative Powers herein granted shall be vested in a Congress' and no part of the Constitution contains a provision specifically authorizing the President to create courts to try American citizens. Whatever may be the scope of the President's power as Commander in Chief of the Fighting armed forces, I think that if American citizens in present-day Germany are to be tried by the American Government, they should be tried under laws passed by Congress and in courts created by Congress under its constitutional authority.