Home -> Law Blog Directory -> Academic Blogs -> Legal Theory Blog

Academic

: Legal Theory Blog

Yoo on LIncoln & Habeas

By Lawrence Solum

John Yoo (University of California at Berkeley School of Law) has posted Lincoln and Habeas: Of Merryman, Milligan, and McCardle (Chapman Law Review, Vol. 12, No. 3, pp. 1-29, 2009) on SSRN. Here is the abstract:

This essay examines the costs of judicial intervention in wartime policy through the lens of three Civil War cases - Ex parte Merryman, Ex parte Milligan, and Ex parte McCardle. In Merryman, the Supreme Court held that President Lincoln?s suspension of the writ of habeas corpus was unconstitutional. In Milligan, the Court held that military commissions had no jurisdiction over civilians in Northern states, where the courts were open and their process unobstructed. Although both opinions provide stirring rhetoric about the vitality of constitutional rights during wartime, they became largely irrelevant. President Lincoln refused to obey the Court and continued to order the detention of suspected Confederate sympathizers and conspirators. After Milligan, Congress stripped the Court of jurisdiction over habeas corpus appeals, and military occupation and trials continued throughout the South - an outcome accepted by the Court in McCardle. The remarkable lack of deference to the political branches during provoked reactions by the political branches that undermined the Court as an institution. Chief Justice Taney and Justice Davis wrongly believed that the Court had the final and immediate authority to resolve constitutional questions, regardless of the wartime circumstances. The Court?s attachment to judicial supremacy in wartime ultimately provoked outright presidential defiance and the only clear example of congressional jurisdiction-stripping in the Court?s history.

Full post as published by Legal Theory Blog on December 01, 2009 (boomark / email).