Lincoln and Habeas: Of Merryman, Milligan, and McCardle

29 Pages Posted: 22 Nov 2009 Last revised: 19 Dec 2009

See all articles by John Yoo

John Yoo

University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace

Date Written: November 12, 2009

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, Chief Justice Taney 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.

Suggested Citation

Yoo, John Choon, Lincoln and Habeas: Of Merryman, Milligan, and McCardle (November 12, 2009). Chapman Law Review, Vol. 12, No. 3, pp. 1-29, 2009; UC Berkeley Public Law Research Paper No. 1505079. Available at SSRN: https://ssrn.com/abstract=1505079

John Choon Yoo (Contact Author)

University of California at Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States
510-600-3217 (Phone)
510-643-2673 (Fax)

American Enterprise Institute ( email )

1789 Massachusetts Ave., N.W.
Washington, DC 20036
United States

Stanford University - The Hoover Institution on War, Revolution and Peace ( email )

Stanford, CA 94305-6010
United States

HOME PAGE: http://https://www.hoover.org/profiles/john-yoo

Register to save articles to
your library

Register

Paper statistics

Downloads
279
Abstract Views
1,795
rank
107,615
PlumX Metrics