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And Mccardle) Merryman and Milligan (and Mccardle) JOHN YOO* It has been said that only Jesus and Shakespeare have been the subject of more works than Abraham Lincoln. But that doesn't mean we shouldn't still keep trying to get things right. I am going to be adding to that body of literature, on the relationship between Lincoln, the Supreme Court, and the Civil War. The cases that I address here make up two­ federacy, in Indiana, who was tried and sen­ thirds of the three "m"s of the Supreme Court's tence by a military commission-an old form encounter with the Civil War: Ex parte Mer­ of ad hoc military court established by com­ ryman, 1 Ex parte Milligan,2 and Ex parte Mc­ manders for the trial of violations of the laws Cardle. 3 All three case names bear the styling of war and the administration of justice in oc­ "ex parte" because all three were brought on cupied territory. behalf of citizens detained by the armed forces In these two cases, federal courts ordered ofthe Union. All three detainees sought release the release of the petitioners on the ground that under the ancient writ of habeas corpus, which the military had exceeded its constitutional au­ requires the government to show the factual thority. Both opinions contained stirring lan­ and legal grounds for detention to a federal guage about the vitality of constitutional rights judge. I will explain why the cases of the Civil even under the pressure of wartime and the War did not assume the landmark importance, need to maintain checks and balances on the despite their circumstances and language, of a executive's powers. In Merryman, Roger Taney Marbury v. Madison, McCulloch v. Maryland, (as Chief Justice, writing an opinion in cham­ or Brown v. Board ofEducation. 4 bers) protested that the military had arrested Merryman was a Maryland militia officer suspected Confederates in Maryland and re­ who had blown up railroad bridges between fused to recognize civilian authorities without Washington, D.C. and the North and was train­ the approval of Congress. Taney had ordered ing secessionist troops in the earliest days of General George Cadwalader, commander of the Civil War. Milligan was the alleged leader Fort McHemy, to appear in his courtroom on of an insurgent force, sympathetic to the Con- May 27, 1861, and to bring the imprisoned 244 JOURNAL OF SUPREME COURT HISTORY Merryman with him. Cadwalader refused to tain and try Milligan, outside "the theatre of obey. Taney held the general in contempt of active military operations" where "the courts court, but the U.S. marshal could not gain en­ are open, and in the proper and unobstructed try to the fort. 5 exercise of their jurisdiction." Only if a foreign Taney then issued an opinion ordering invasion were "actual and present," rather than Merryman's release. The Constitution has threatened, could martial law prevail. 9 "been disregarded and suspended," Taney Nevertheless, neither Merryman nor Mil­ wrote from his courtroom in Baltimore, "by a ligan has secured a place in the firmament of military order, supported by force ofarms." He great Supreme Court decisions. Merryman re­ warned that "if the authority which the Consti­ mains unknown to almost all but those scholars tution has confided to the judiciary department who toil in the academic fields of the separa­ and judicial officers, may thus, upon any pre­ tion of powers or the early days of the Civil text or under any circumstances, be usurped by War. 10 As we will see, it did little to delay the military power, at its discretion, the peo­ Lincoln from ordering the detention of sus­ ple of the United States are no longer living pected Confederate spies, sympathizers, and under a government of laws." Instead, Taney conspirators behind the Union lines. Merry­ proclaimed, "every citizen holds life, liberty man usually receives attention in the stories of and property at the will and pleasure of the the struggle between Unionists and Southern army officer in whose military district he may sympathizers in Maryland and the other bor­ happen to be found."6 He ordered the opin­ der states. Rarely do we learn about the legal ion and all of the proceedings sent to the new response to the opinion, which included out­ President "in order that he might perform his right presidential defiance and a critique of constitutional duty, to enforce the laws, by se­ the role of the Supreme Court in American curing obedience" to his order. 7 society. The Merryman opinion itself is rarely Milligan, decided five years later, reproduced in prominent casebooks used for sounded a similar theme. Justice David Davis the teaching of constitutional law, which usu­ declared that "[t]he Constitution of the United ally relegate the case to a one-paragraph note States is a law for rulers and people, equally in discussions of the debate over judicial in war and in peace, and covers with the shield review. of its protection all classes of men, at all Milligan, on the other hand, has seen a times, and under all circumstances." Reject­ burst of attention in this decade. This is en­ ing Attorney General James Speed's argument tirely due to the Bush administration's poli­ (and Lincoln's) that the war gave the execu­ cies in the war on terrorism and the associated tive branch the right to hold Milligan and try cases taken up by the Rehnquist Court. Aside him by a military court, the Court responded from this recent interest in the decision, Mil­ that "[n]o doctrine, involving more pernicious ligan usually goes unexamined and unremem­ consequences, was ever invented by the wit bered. In his Pulitzer Prize-winning The Fate of man than that any of its provisions can be of Liberty: Abraham Lincoln and Civil Lib­ suspended during any of the great exigencies erties, historian Mark Neely titled a chapter of government." Claims to the contrary risked "The Irrelevance of the Milligan Decision."11 "anarchy or despotism," and led from a false Despite the opinion's broad language, for ex­ assumption, "for the government, within the ample, military trials continued throughout the Constitution, has all the powers granted to it, occupied South. As Neely observes, scholars which are necessary to preserve its existence; were no kinder to the decision. The first Amer­ as has been happily proved by the result of the ican encyclopedia on political science, pub­ great effort to throw off its just authority. "8 lished in 18 81, provides an entry on military The Court held that the military could not de- commissions that holds that they can be used MERRYMAN AND MILLIGAN (AND McCARDLE) 245 for purposes directly contrary to Milligan. Pro­ who had joined or associated themselves with fessor John Burgess of Columbia University, enemy forces. Both Hamdi and the later Ham­ the leading political scientist on Reconstruc­ dan v. Rumsfeld17 take Quirin as the relevant tion at the turn of the century, wrote in 1890 gloss over the original Milligan precedent. To­ that "it is devoutly to be hoped that the deci­ day's law schools do only slightly better. Most sion of the Court may never be subject to the leading casebooks relegate Milligan to sum­ strain of actual war. If, however, it should be, mary notes of no more than one or two pages. we may safely predict that it will necessarily Most concentrate on Quirin or the cases de­ be disregarded."12 cided in the last four years. Professors probably Remembrance of Merryman and Milligan spend more time teaching students about the usually occurs during wartime. This should Supreme Court's protections for the national come perhaps as no surprise, as that is the market in milk. context within which they were decided. But McCardle, whose case provides the epi­ they usually do not have much effect. During logue to our story, was a Vicksburg, Mis­ World War I, neither Merryman nor Milligan sissippi newspaper editor tried by military had any direct relevance because no military commission for publishing "incendiary and commissions or detentions occurred on Amer­ libelous" articles and calling for violence ican soil. In World War II, the Supreme Court against Union authorities. Because of Milli­ narrowed Milligan to its facts. In Ex parte gan, Congress stripped the Supreme Court of Quirin, the Court upheld the military detention jurisdiction in McCardle and prevented the and trial ofNazi saboteurs-two ofwhom were Court from reviewing the constitutionality of American citizens---on the orders of President military Reconstruction. Without going too Franklin Roosevelt. 13 According to the unan­ much into the details of McCardle, the de­ imous Quirin majority, Milligan stood for the cision may help us understand why Merryman proposition that the military could not apply and Milligan were the landmarks of constitu­ the laws of war to civilians in areas outside the tional law that never were. battlefield where the civilian courts remained open. But it did not apply to those covered by the laws of war, namely combatants. "Milligan, I. not being a part of or associated with the armed Lincoln was confronted with national secu­ forces of the enemy, was a non-belligerent, not rity challenges that no other American Pres­ subject to the law of war," the Court held. 14 ident has ever faced. This was true with the Milligan had no effect on the Court's decision Civil War in toto, the deadliest, most destruc­ in Korematsu v. United States, which upheld tive war in our history, in which American FDR's order for and Congress's approval of the fought American and brother fought brother.
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