Jan 22, 2018 in Law

Identification and articulation of the specific, general and sub-issue(s)

Reid vs. Covert, 354 U.S. 1 (1957) is a landmark case as it established the fact that treaties cannot override the United States Constitution. This case is also important in the legal history as Covert’s lawyer, Frederick Bernays Wiener was the only lawyer who lost his case in the Supreme Court but won it on rehearing (Bartholomew, 1961, 5).

Background of the Case

Clarice Covert, the wife of US air force sergeant in an army base in England killed her husband with an axe and then later climbed in bed with his corpse. She confessed her misdeed in front of the military psychiatrist and was immediately tried by the US Court Martial and not by the US jury. This case was tried by the military under the Uniform Code of Military Justice which says as per Article 2(11) of the UCMJ: “The following persons are subject to this code: (11) Subject to the provisions of any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, all persons serving with, employed by, or accompanying the armed forces without the continental limits of the United States” (Constitution.org, 1957).

The time the killing took place the US and the UK were in an executive agreement which allowed United States’ military courts exclusive jurisdiction and rights over crimes/offenses committed in UK by American servicemen or their dependants.

Bartholomew (1961) notes that Clarice Covert’s lawyer, Frederick Bernays Wiener appealed to the US court under the writ of Habeas Corpus that the Constitution does not allow her to be tried under the Military law as she is a US citizen and needs to undergo trial by a Jury (p. 7).

Now the point in contention was if the treaties be given importance over the constitution; if the constitution can be extended overseas and if the treaty is constitutional.


Justice Black after rehearing the case ruled that “The Constitution supersedes all treaties ratified by the United States Senate. The military may not try the civilian wife of a soldier under military jurisdiction” (Constitution.org, 1957).

Justice Frankfurter concurred that in “capital cases” (Bartholomew, 1961, 6), that the military rule (court martial) cannot be applied on the dependents of the army/naval forces during times of peace. Then the power of the congress on the “land and naval forces” (Bartholomew, 1961, 6) cannot be justified.

Justice Harlan also concurred that the Uniform Code of Military Justice cannot be applied on civilian dependents of army and naval forces during peace time and that they cannot try the offenders.  He also said that the Constitution applies overseas unless it is “impracticable and anomalous” (Bartholomew, 1961, 6) and the Fifth Amendment in this particular case was “impracticable and anomalous” (Bartholomew, 1961, 6).

The ruling said that it is not the treaty that is unconstitutional but the point of contention is the executive agreement. The ruling also established the fact that "no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution" (Constitution.org, 1957).

Justice Black along with Justice Brennan and Justice Douglas concluded:

1. The United States can only act within the limits of the Constitution when considering actions against citizens abroad and that includes Art. III, 2, and the Fifth and Sixth Amendments.

2. As far as Art. 2 (11) of the Uniform Code of Military Justice is concerned trying the dependents of military personnels’ cannot be considered as legislation that is “necessary and proper” (Constitution.org, 1957) as no agreement made by the Congress with any foreign country can act free of the Constitution.

3. Art. I, 8, cl. 14, of the Constitution, that confers on Congress the power "To make Rules for the Government and Regulation of the land and naval Forces," (Bartholomew, 1961, 9-10) will not cover the civilian dependents of the armed personnel.

4. Only the court of law can try the citizens of the US if they commit a crime against laws of the country as per the Constitution.

Thus it is clear that even when the US is extending its jurisdiction on its citizens abroad it cannot act beyond the Bill of Rights. No government or military can provide rules and regulations or sign treaties or come to agreements that go against the basic rights of the citizens of the United States of America. They can only act within the constitutional limits.

Hence, Covert had to be given a rehearing and tried in front of a Jury.


To understand the case clearly it is important to know which parts of the constitution are relevant to this case and they are Article, III, (2), the Fifth Amendment and the Sixth Amendment.

Article, III, (2) lays down that all crimes except in the case of an impeachment have to be tried within the state the crime has been committed and if it is not in any state then the trial should take place where the Congress has deemed fit by law.

This establishes that every citizen of USA has to be tried under the law of the United States.

The Fifth Amendment says that “no person” can be “held to answer” (Bartholomew, 1961, 5-16) for a capital punishment or any other crime unless the Grand Jury has indicted the person of the crime or offense except in cases of land or naval forces or in the case of military.

While the Sixth Amendment dictates that in “criminal prosecutions” the offender has the right to a speedy trial held in public which will be overseen by an “impartial Jury” of the particular state or the district where this crime has been committed (Constitution.org, 1957).

It might seem through these provisions in the constitution that the power of the US government is only limited to the citizens within the country and not the ones residing outside. But we also cannot forget going by the long standing tradition and history of the Constitution and that of Bill of Rights that a trial before the civil judge and an independent impartial jury is a fundamental right of every citizen. These very rights protect the citizens from the arbitrariness of the governments and the Congress. These rights were given to the citizens to safeguard the sanctity of the constitution and to do justice to the citizens in case the Government passes laws under the demand of expediency or convenience

The court also opined that the Article, III, (2), the Fifth Amendment and the Sixth Amendment were not applicable in the case of Clarice Covert (p13) relying on “insular cases” for reference as those were territories occupied and conquered by the US and they had completely different cultures and traditions than that of the US hence certain “constitutional safeguards were not applicable“(Bartholomew, 1961, 11) to them. The insular cases were different as the rules and regulations formed by the Congress were present to temporarily govern those territories but here the question was of American Citizenship and Mrs. Clarice Covert was an American citizen. Bill of Rights and other constitutional protection established for the citizens cannot be declared inoperative when faced with government rules and regulations made under circumstances of exigency and for convenience.

Although US and UK were in an executive agreement at the time Mrs. Covert committed the offense as explained earlier but the treaty and the agreement nowhere suggests that they cannot work under the Constitution of the United States and that the United States could exercise its control on the basis of the international treaty without considering and in turn ignoring the tenets of the constitution. The court has also repeatedly taken the stand that the Congress has the power to make a treaty but in alignment with the constitution of the country and if at any given point in time the treaty or the statute is inconsistent with the constitution it will be declared null.


The conclusion of this case could not be clearer than this when the Supreme Court says: “treaties do not override the constitution, and cannot, in any fashion, amend it!!! Case closed” (Constitution.org, 1957). Hence, No law or treaty is over and above the Supreme Law of the land. Even the military law cannot override the Constitution. The framers of the constitution were careful while making the constitution and also wanted to keep their rights under bounds and they had no intention to create a parallel system of governance in the form of military courts. Hence, the martial law cannot supersede the civilian rights and law. Thus the law that the wives of the armed forces and naval officers can be tried by the military rule can be taken as encroachment on the bill of rights and other constitutional provisions which can later form an unconstitutional precedent.


Related essays