The Civil War and Reconstruction Eras
No one can believe that, in framing a government intended to guard still more efficiently the rights and liberties of the citizen, against executive encroachment and oppression, they would have conferred on the president a power which the history of England had proved to be dangerous and oppressive in the hands of the crown; and which the people of England had compelled it to surrender, after a long and obstinate struggle on the part of the English executive to usurp and retain it.*
—Ex parte Merryman
After the struggle for liberty known as the American Revolution, and the events leading up to the final political battle between the Federalists and Democrat-Republicans in which Thomas Jefferson defeated Aaron Burr and the outgoing Federalists in the presidential election in a House vote, the Era of Good Feelings and the Age of Jackson ensued. However, differences over the powers of the state with respect to the federal government and the stain of the immorality of ongoing slavery brought tensions between the Northern and Southern states of the Union. Despite several compromises, there was war in 1861 and a second struggle for liberty.
There are some constitutional provisions that embody the quintessence of natural liberty itself. Habeas corpus, which draws its roots from ancient English common law, provides an efficient, fair, and natural safeguard of liberty. By granting a writ, courts can command the production of a confined person before a judge so as to assure the legitimacy of the government’s forcible limitation on an individual’s freedom. Habeas corpus is an essential ingredient to personal freedom and was expressly embodied in the Constitution, in the Founding Fathers’ effort to create a competent, yet controlled government.1 Long had the Framers endured the oppression of the king without due process and a fair judiciary—something they believed they made sure to provide all Americans when they made the bold step to declare independence.
The Framers invested considerable time debating the wording of the provision to be placed within their founding document. James Madison is reported to have drafted one version, which resembles what would later be the First Amendment: “The Legislature of the United States shall pass no law on the subject of religion; nor touching or abridging the liberty of the press; nor shall the privilege of the writ of Habeas Corpus ever be suspended, except in case of rebellion or invasion.”2 The Framers opted for a far more limited provision, not expressly enumerating a right to the writ of habeas corpus—the Drafters of the Constitution assumed that all persons already possess it by virtue of the Natural Law. Hence the document provides that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it.”3 Because the clause is placed in Article I, the Suspension Clause gives Congress alone the power to suspend the privilege of habeas corpus. Strictly speaking in Natural Law and historical analysis, habeas corpus is not a privilege, but an inalienable right. If all mankind but one cannot morally silence the one, it cannot unlawfully incarcerate the one.
During the antebellum period, Congress never invoked its suspension power.4 Yet on May 28th 1861, the clause came into the full focus of the Chief Justice of the Supreme Court, Roger Brooke Taney. Chief Justice Taney fervently proclaimed that President Abraham Lincoln had purposely and illegally violated the Constitution by suspending the right to habeas corpus along the military line between Washington, DC and Philadelphia.5 Taney had issued a writ of habeas corpus for John Merryman to be delivered to the federal courthouse in Baltimore in order to determine the lawfulness of the government’s detention of him.6 Lincoln’s response to the chief justice’s writ of habeas corpus and what ensued afterward have captivated historians and legal scholars for the last one hundred fifty years.7
In 1861, after actual fighting initiated in the War between the States, President Lincoln called on the Northern states to supply an army for the Union. In an effort to reach Washington, troops that had been recruited from the Union states traveled to Washington via the port city of Baltimore, Maryland. This proved to be more precarious than convenient for the Union army. Pro-Confederate mobs ravaged the state roads, blockading the routes leading to the nation’s capital. Fearing the loss of Maryland to the Confederacy, the president requested an official legal opinion from his attorney general on suspending habeas corpus. The Maryland situation became dire, and the president issued an order to Gen. Winfield Scott, then the commander of the Union army, stating that if there was any resistance on the “military line,” from Annapolis to Washington, the officer in command was authorized to suspend habeas corpus in order to gain control of the road. This order was not made public; rather, it was confined to executive secrecy.8
John Merryman, a pro-Confederate state militia lieutenant from Maryland, was accused of involvement in inciting several riots, cutting telegraph wires, and burning several bridges. Merryman was arrested by a federal military official, charged, among lesser offenses, with treason and being a commissioned officer in an organization intending hostility toward the government,9 and detained indefinitely, without court appearance or any semblance of constitutionally mandated process. Merryman’s attorney sought a writ of habeas corpus from the federal court in Baltimore.
When Chief Justice Taney, sitting as a circuit justice in Baltimore, issued a bold and commanding order to General Cadwalader to appear with John Merryman in the Baltimore federal courthouse within twenty-four hours, he could hardly have foreseen the constitutional shouting match that was about to transpire. Sending a colonel in his stead, the general politely refused the chief justice’s order, citing President Lincoln’s executive order suspending habeas corpus. Enraged, the chief justice replied, declaring the actions of the president illegal.10 A writ of attachment* was issued for the general as well, and a U.S. Marshal went to enforce the order. The marshal was refused entry to the army base. Taney responded with a long and scathing opinion which he sent to major newspapers and to Lincoln himself.11 The opinion soon garnered excited responses from across the nation.12 Lincoln, revealing his antipathy for the Constitution, personal liberty, and the rule of law, rebuked the chief justice and refused to obey the order: “Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?”13
Merryman’s case represents an egregious expansion of executive power. The judiciary entered into a fight with the executive, attempting to keep true to the Constitution. Lincoln did not believe that Chief Justice Taney’s opinion controlled actions taken in pursuance of his role as commander in chief.
Lincoln viewed the suspension of the writ of habeas corpus as a military decision and thus immunized from judicial order.14 From a constitutional perspective, President Lincoln could not be further from correct. As the president, Lincoln had neither right nor authority to suspend the writ. As commander in chief, he had the power to command the armed forces of the United States, but that had no bearing on an enumerated congressional power. “The power to issue the writ is given by law. It requires a law to change a law, and the president cannot make a law.”15 Congress did not authorize the president’s actions when the military arrested and detained John Merryman; the president acted on fictional powers that his attorney general, Edward Bates, concocted.
Congress debated the legitimate suspension of the writ for a little more than two years.16 However, this did not stop the president from issuing numerous proclamations essentially suspending the writ of habeas corpus across the entire nation through vesting his “authority” to do so in his military agents.17 These illegal presidential proclamations resulted in the arrests of hundreds of individuals. “The arrests were made on suspicion. Prisoners were not told why they were seized. . . . [T]he purpose of the whole process was temporary military detention.”18
In 1863, the Republican-controlled Congress mustered enough votes to pass an official suspension of the writ. Now this is truly ironic. Representing only two-thirds of the country, the Republican Party—the political force that was able to pass the Thirteenth, Fourteenth, and Fifteenth Amendments through Congress thereby abolishing slavery in the United States—was the same group that suspended one of the most ancient and natural rights possessed by humans.
Lincoln viewed this as validation, the ratification of two years of unconstitutional presidential conduct. Here again, Lincoln was wrong because it is never legal for a president to trample the natural rights of the people or to usurp the constitutional power of Congress. The president derives his executive powers from the Constitution and from no other source. Congress may have been wrong as well since it delegated its delegated powers to the subjective wishes of military officers not because invasion or rebellion required it, but to enable the arrest of troublemakers who had committed no crime.
We now know that Congress would not and did not sanction the president prior to 1863. The author of the suspension legislation, Sen. Jacob Collamer (R-VT), noted that the suspension was necessary to confirm that the president can lawfully exercise the power to “ ‘secure’ persons from ‘the commission’ of acts ‘dangerous to the Government’ in instances where they could not be charged criminally.”19
It would seem as though a logical conclusion can be made that Congress was not enacting the suspension for well-thought-out rationale and necessity, but rather out of fear in wartime. Thankfully, there was some restraint on the part of Congress. In the second and third sections of the Act allowing for the suspension of habeas corpus, Congress placed certain limitations,20 including the notification by cabinet officials of names to federal judges of individuals arrested during the suspension period and anyone under indictment for violating federal law who was entitled to bail before the suspension retained such entitlement.
Moreover, violations of these sections subjected the offending federal officers to a fine and/or imprisonment.21 The restrictions indicate “Congress viewed suspension as a limited exception—justified by the dramatic nature of the times—to the requirement that the detention of persons within protection be effected through the ordinary criminal process.”22 The term suspension connotes that this ability of Congress is a finite power. The clause was never meant to provide federal officials a blank check for arbitrarily arresting and detaining individuals. It was meant as a last resort to be used only in the direst of circumstances. The Founders possessed the foresight to write the Constitution in this manner, and Congress should adhere to this school of thought.
Presidential Military Commissions: Ex parte Vallandigham and Ex parte Milligan
The concept of military tribunals and commissions is not a modern one. During the War between the States, Lincoln divided the North into military districts for administrative reasons.23 Commanding officers were permitted to arrest and detain anyone associated with opposition to the war, clearly unlawful arrests.24 Concurrently, tribunals were convened to adjudicate individuals who committed crimes in areas where martial law had been declared and where habeas corpus had been suspended. Commissions are the offspring of an old and cruel military justice device, called the drumhead courts, which operated outside the typical court-martial structure.25 Drumhead courts get their name from the use of a drumhead as a table instead of a judicial bench—the commanding officer sat behind the drumhead and passed summary judgment on his or enemy troops, typically for battlefield offenses committed moments before. American tradition dictated that such courts would not be used against civilians, but Lincoln had made his decision.
In an affair that would become the Supreme Court case Ex parte Vallandigham, Congressman Clement Vallandigham of Ohio asserted that President Lincoln had waged war “for the purpose of crushing out liberty and erecting a despotism” and “restrain[ing] the people of their liberties.”26 Gen. Ambrose Burnside had recently issued General Order No. 38 to the citizens of Ohio, a tyrannical repression of free speech that made “declaring sympathies” with the enemy an offense against the military Department of Ohio, punishable by exile to the Confederacy.27 Lincoln believed that his commander in chief powers somehow included the power to write criminal laws.
General Burnside arrested Congressman Vallandigham on charges of “declaring disloyal . . . opinions” and giving voice to the Rebel Cause.28 Not unlike the case of Congressman Matthew Lyon, discussed in chapter 3, Vallandigham’s claims were a scathing rant against the incumbent president.29 Although reports have placed animosity between Lincoln and General Burnside,30 the president defended his general’s actions, proffering that Vallandigham’s words were encouraging soldiers to desert the army.* The lower court judge, in denying Vallandigham a writ of habeas corpus, viewed the judicial branch as a “junior partner [in times of war], rather than a critical check on the executive.”31
When the case reached the Supreme Court, the justices finessed the possibility of a ruling, but ultimately punted the case on standing issues.32 The Court curiously found that military commissions were not covered by the 1789 Judiciary Act that grants the Court’s habeas jurisdiction over inferior courts, nor were they a question of “law or equity within the meaning of [Article III of the Constitution].”33 As a result of the Supreme Court’s reluctance to arrest Lincoln’s war machinery, Vallandigham, a sitting U.S. congressman from Ohio, was ultimately shipped to the rebellious South as punishment for his exercise of the freedom of speech.34
Contrarily, the Supreme Court in Ex parte Milligan held that the president had no authority to try civilians by military commission in areas where the civilian courts were still available to exercise their legitimate jurisdiction.35
Lambdin Milligan was arrested along with four other men for plotting to steal Union army weapons and invading a Union prisoner-of-war camp in Indiana. When their plan was discovered, the five men were taken into custody by military officials and were subsequently tried by a military tribunal. The tribunal returned a guilty verdict, and the men were sentenced to death by hanging. Milligan soon after appealed directly to the Supreme Court, requesting a writ of habeas corpus be issued. Along with issuing the writ, the Supreme Court was careful to articulate that during a suspension of the writ of habeas corpus, the government may only detain individuals, not try them in a court established by the president when there are civilian courts still in operation.
It is important to note that five of the justices went even further to expound on the issue. The justices held that even Congress itself did not wield the authority to circumvent the courts. Lincoln’s administration rested its entire argument on the basis of a “constitutional necessity defense”:36 That in time of war, the need for national security outweighs and can miraculously trump civil liberties. In a truly ridiculous statement, Lincoln’s attorney noted: “The officer executing martial law is at the same time supreme legislator, supreme judge, and supreme executive. As necessity makes his will the law, he only can define and declare it; and whether or not it is infringed, and of the extent of the infraction, he alone can judge.”37 Put in other terms, Lincoln’s government proffered that “[a]ntiquated idealism had to give way to pragmatic realism.”38
The extra-constitutional nature of these proclamations cannot be overstated. The president, through his attorney general,39 was essentially advocating for dictator-like control of the government. Lincoln would have the Court declare the president a Caesar in times of war instead of having a federal government with checks and balances. Moreover, the Founders never would have approved of such a power grab, even in times of war. James Garfield, co-counsel for Milligan and future president, expounded, “[When] personal rights are merged in the will of the commander in chief, [what you have] is organized despotism. . . . [D]id not the ‘first law of the Revolutionary Congress,’ which was ‘passed September 20th, 1776,’ say that ‘no officer or soldier should be kept in arrest more than eight days without being furnished with the written charges and specifications against’ him?”40
In a split decision, the Milligan Court sided with liberty rather than security, broadly providing that the “Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”41 Justice David Davis, Lincoln’s former law partner, campaign manager, and Supreme Court appointee, wrote for the majority, striking against his former political ally’s policies after the exigencies of war no longer existed. Another Lincoln appointee, Chief Justice Salmon P. Chase, who had recently succeeded Chief Justice Taney, authored the concurring/dissenting opinion.
The case was decided after the Civil War ended and Lincoln was dead, and the Court’s timing in issuing the ruling led many to believe that the case was irrelevant as it was now moot. Bryant Smith, reviewing a piece on Milligan for the Texas Law Review in 1930, is quoted as stating: “On neither point is the case of any great importance, partly because of the improbable recurrence of conditions in which the government might be inclined to resort to such power, and partly because if the case had come before the Court while the war was yet still in progress, the decision might very well have been the other way.”42
Smith’s comments have proven inexorably wrong. Seventy years after his erroneous commentary and 135 years after Milligan, the Bush and Obama administrations’ use of military commissions and the Supreme Court decisions that have followed are, for the most part, far more faithful to Taney in Merryman and Davis in Milligan than to Lincoln. Lincoln’s successors, however, fully embraced and expanded upon his set of executive precedents.
These cases, Vallandigham and Milligan, represent a battle between the various branches of government. The president is seizing power from the other two branches of the federal government: From Congress in declaring a suspension of the writ of habeas corpus and from the judiciary in creating military commissions when civilian courts were still in operation. The timing of these decisions is also telling. The Court waited until the Civil War ended and Lincoln was dead before it issued the decision in Ex parte Milligan, avoiding a wartime battle between the executive and judicial branches.43 Chief Justice William Rehnquist, writing in a general audience book and not from the bench, noted that peacetime “offers an opportunity for detached reflection on these important questions which are not so calmly discussed in the midst of a war.”44
Can the president abrogate constitutional protections in the name of necessity in wartime? We see that he has done so only when the other branches of the federal government fail to realize their constitutional obligations. The purpose of the Constitution was to prevent this despotic, king-like behavior on the part of any president, no matter his goal. Necessity can never be a constitutional justification to assume extra-constitutional power—either the government has the constitutional authorization to do something, or it does not.
After Lincoln’s assassination, Congress moved the country toward radical Reconstruction, dividing the South into military districts through the Reconstruction Acts. These districts were governed by the military. President Andrew Johnson had vetoed the legislative measures, but Congress overrode him. There was, however, one case in the Supreme Court pipeline that could overturn the oppressive Reconstruction Acts: Ex parte McCardle.45
William McCardle was a Confederate soldier. After the war, he was the editor of a newspaper that published several articles “alleged to be incendiary and libellous [sic]” by the military authorities occupying his district.46 He “was not in the military service of the United States, but was held in custody by military authority for trial before a military commission” pursuant to the aforementioned Acts of Congress.47
Because Congress was afraid that the Court would overturn the Reconstruction Acts, it engaged in a practice called jurisdiction stripping. Congress controls the appellate jurisdiction of the Supreme Court, per Article III of the Constitution: “[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”48 Thus, in March 1868, while the McCardle case was under consideration, Congress passed an act which took away the Supreme Court’s power to hear habeas corpus petition appeals from the inferior courts.
The Supreme Court responded by taking a middle-of-the-road and politically shrewd approach. Writing for the majority, Chief Justice Salmon P. Chase held, “It is quite clear . . . that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal.”49 However, it rejected the government’s stance that this stripped all habeas jurisdiction from the Court: “Counsel . . . supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals . . . under the act of 1867. It does not affect the jurisdiction which was previously exercised.”50 The Court held that Congress had closed off appeals only by those denied habeas corpus relief, not all appeals. This jurisdiction-stripping issue would become relevant in the Global War on Terror a century and a half later.
The Posse Comitatus Act of 1878
The Posse Comitatus Act (PCA) was enacted in 1878 to prevent the U.S. military from policing the Southern Military Districts after the Civil War.* With the defeat of the Confederacy in 1865, the use of the military as a police force in the South became common practice.51 Not unlike the British government one hundred years earlier that housed its troops in the homes of American colonists, the federal government quartered troops in the homes still standing in the Southern states during the Reconstruction era. In a heated national election, the presidency was determined by Congress in a deal that awarded the office to Rutherford B. Hayes of Ohio. In return for the southern electoral support, congressional Republicans removed the military occupation of the South, officially ending the Reconstruction era.52
The PCA regulates and generally proscribes the participation of military personnel in domestic civilian law enforcement on U.S. soil. “The legislative history of the act leaves little doubt that the statute is indeed meant ‘to preclude the Army [or now in modern times, the Navy, Marines, and Air Force as well] from assisting local law enforcement officers in carrying out their duties.’ ”53 Moreover, “the statute is not an anachronistic relic of an historical period the experience of which is irrelevant to the present. It is not improper to regard it, as it is said to have been regarded in 1878 by the Democrats who sponsored it, as expressing ‘the inherited antipathy of the American to the use of troops for civil purposes.’ ”54
In its original form, the Act read:
From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by fine not exceeding ten thousand dollars or imprisonment not exceeding two years or by both such fine and imprisonment.55
The PCA “reflects a strong American tradition against the use of military that stretches back before the founding of the nation.”56 The Founders were all too familiar with the routine military involvement of civil affairs under the British monarchy.57 The Act embodies the principle of a limited role of the military in American life and also the subordination of the military to civilian authority. The federal government is a civilian system, not a military regime; the Constitution provides a framework that allows for the people’s elected representatives, not the military, to govern.
To those who would be victimized by the military domestically, the PCA represents the legacy of those who were struggling with liberty. The government could not use its vast and powerful instruments of state warfare against domestic criminals without either a constitutional reason or an accountable Congress. The government could not use the weapons reserved for other powerful and awesome foes against its own people without constitutionally based necessity.
More broadly, it showed a rejection of this military scheme being applied to what are, at their core, law enforcement concerns. Military justice and civilian justice are in many ways different and inapposite, and the application of one to the other threatens recognized liberties. The law has proscribed the government from using the military to stop marijuana smokers and kidnappers, but left it leeway to end open defiance of constitutional and natural order or prevent a foreign state from imposing a similar order.
* Ex parte Merryman, 17 F. Cas. 144, 150 (C.C.D. Md.) (Taney, Circuit Justice).
* A court order that provides a law enforcement official with the power and direction to seize property that is in the possession of a judgment debtor in order to satisfy the judgment held by the creditor. In this case the body of John Merryman.
* “Must I shoot a simpleminded soldier boy who deserts,” Lincoln asked, “while I must not touch a hair of a wily agitator who induced him to desert?” Don E. Fehrenbacher, ed., Lincoln: Speeches and Writings 1859–1865 (New York: Library of America, 1989), 460.
* 18 U.S.C. §1385 (2012). “The phrase ‘posse comitatus’ is literally translated from Latin as the ‘power of the county’ and is defined at common law to refer to all those over the age of 15 upon whom a sheriff could call for assistance in preventing any type of civil disorder.” United States v. Hartley, 796 F.2d 112, 115 (5th Cir. 1986) (citations omitted). The phrase is a poor translation, and it is supposed to mean “force of the country,” as in prohibiting the formation of a posse that is the “force of the country.”