Abstract
The most famous United States Supreme Court case related to the problem of emergency is the case Ex Parte Milligan from 1866. The case is famous because of its ringing endorsement of the unchanging nature of fundamental constitutional rights.
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Notes
- 1.
71 U.S. (4 Wall.) 2 (1866).
- 2.
U.S. Const. Art. I, § 9, cl. 2.
- 3.
Both Schlesinger and Rossiter argue that Lincoln deliberately delayed the convocation of Congress, “as a considered determination to crush the rebellion swiftly without the vexatious presence of an unpredictable Congress to confuse the narrow issue” (Rossiter 2002, p. 225) and took action unilaterally, “lest constitutionalists on the Hill try to stop him from doing what he deemed necessary to save the life of the nation” (Schlesinger 2004, p. 58).
- 4.
Lincoln’s interpretation of the war powers in the initial phase of the Civil Wars is often seen as a defining moment for the subsequent development of presidential war powers in the USA toward the unilateral authority to initiate and conduct war (Schlesinger 2004, p. 61).
- 5.
U.S. Const. Art. II, § 2.
- 6.
U.S. Const. Art. I § 8.
- 7.
His order stated: “If at any point on or in the vicinity of the military line which is now used between the city of Philadelphia via Perryville, Annapolis City and Annapolis Junction you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally or through the officer in command at the point where resistance occurs are authorized to suspend that writ” (Lincoln’s Suspension of the Writ of Habeas Corpus, Relating to the Events in Baltimore, Washington, April 27, 1861).
- 8.
The Constitution provides: “Before he [the president elect] enter on the Execution of his Office, he shall take the following Oath or Affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’” (U.S. Const. Art. I § 2, Sec. 8).
- 9.
12 Stat. 755 (1863).
- 10.
17 Fed. Cas. 144 (No. 9487) (C.C.D. Md. 1861).
- 11.
At that time, the Supreme Court justices had to “ride circuit,” as it was called, and act as judges on the circuit courts in between their obligations at the Supreme Court.
- 12.
“The President converted the punishment to banishment within the Confederate lines” (McLaughlin 2001, p. 626).
- 13.
Ex parte Vallandigham, 68 U.S. (I Wall.) 243 (1863).
- 14.
Justice Davis cited US Const. Art. II, § 2, cl. 8, as well as amend. IV, V and VI.
- 15.
In the brief for Milligan, the right to a trial by jury is commended not only because of its clear constitutional underpinning but also for its historical importance as a hallmark of civilized rule by law. In this connection, the brief contrasted it to the uncivilized rule of our Danish predecessors: “[t]he Saxons carried it [the privilege of trial by jury] to England, and were ever ready to defend it with their blood. It was crushed out by the Danish invasion; and all that they suffered of tyranny and oppression, during the period of their subjugation, resulted from the want of trial by jury. If that had been conceded to them, the reaction would not have taken place which drove back the Danes to their frozen homes in the North. But those ruffian seakings could not understand that, and the reaction came” (Milligan at 70, brief for petitioner).
- 16.
In former Chief Justice Rehnquist’s book on emergency governance in the United States, the Milligan case takes up more than 30 pages but he spends less than half a page on explaining the brief for the government (Rehnquist 1998; He discusses the Government’s brief on page 121). Gross and Ní Aoláin also discuss the case in their book Law in Times of Crisis: Emergency Powers in Theory and Practice, but they do not mention the government’s brief at all (Gross and Ní Aoláin 2006, p. 94). In Geoffrey R. Stone’s book Perilous Times, he mentions the decision but does not discuss the government’s brief (Stone 2004, p. 126). The same is the case in McLaughlin’s A Constitutional History of the United States (McLaughlin 2001, p. 625 and 660). Furthermore, the section on Milligan in the widely used casebook of United States constitutional law Processes of Constitutional Decisionmaking neither cites nor discusses the Government’s brief (Brest 2006, p. 874).
- 17.
See, for example, Ex parte Quirin 317 U.S. 1 (1942), Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952), Hirabayashi v. U.S. 320 U.S. 81 (1943), Ex parte Mitsuye Endo 323 U.S. 283 (1944), Rasul v. Bush 542 U.S. 466 (2004), Hamdi v. Rumsfeld 542 U.S. 507 (2004), Hamdan v. Rumsfeld 548 U.S. 557 (2006) and Boumediene v. Bush 553 U.S. 723 (2008).
- 18.
Justice Scalia’s dissent in Hamdi v. Rumsfeld is a rare exception. Here, he relied on Milligan to argue in favor of the unconditional release of an American citizen held by the government as an enemy combatant in the War on Terror.
- 19.
542 U.S. 507 (2004) I discuss this case in Chap. 6.
- 20.
317 U.S. 1 (1942) I discuss this case in Chap. 4, Sect. 4.2 (The Procedural Model and Ex Parte Quirin).
References
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List of Cited Cases
Boumediene v. Bush, 553 U.S. 723 (2008)
Endo, Ex parte 323 U.S. 283 (1944)
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
Hirabayashi v. U.S., 320 U.S. 81 (1943)
Merryman, Ex Parte 17 Fed. Cas. 144 (No. 9487) (C.C.D. Md. 1861)
Milligan, Ex parte, 71 U.S. 2 (1866)
Quirin, Ex parte, 317 U.S. 1 (1942)
Rasul v. Bush, 542 U.S. 466 (2004)
Vallandigham, Ex parte, 68 U.S. (I Wall.) 243 (1863)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
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Hartz, E. (2013). The Rights Model. In: From the American Civil War to the War on Terror. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-32633-2_2
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