A Lost Theory of American Emergency Constitutionalism

Law & History Review, 36:3, Forthcoming

Yale Law School, Public Law Research Paper No. 634

41 Pages Posted: 24 Mar 2018 Last revised: 16 Aug 2018

Date Written: March 21, 2018

Abstract

In the wake of the Civil War, Columbia Law School professor Francis Lieber, architect of some of the Lincoln administration's most important legal strategies, set out to write a definitive text on martial law and the emergency power. Lieber’s text would have summed up his view of the legal lessons of the Civil War. Lieber died in 1872, leaving an unfinished manuscript to his son, Guido Norman Lieber, soon to become the Judge Advocate General of the Union Army. Norman Lieber worked on the manuscript but never finished it. Hidden deep in the younger Lieber’s papers in the National Archives, the manuscript summarizes a strand of thinking about constitutional emergencies that first emerged in the controversies over slavery, then animated Emancipation and the broader legal strategy of the Lincoln White House, before running headlong into the post-war backlash signaled by the Supreme Court’s 1866 decision in Ex Parte Milligan. Building on debates over martial law in Anglo-American empire, the Liebers’ thinking embraced a forceful but constrained approach that made a cabined form of necessity the central principle of emergency governance in the modern state.

Keywords: Martial Law, Emergencies, Ex Parte Milligan, Francis Lieber, Civil War, Reconstruction, Slavery

JEL Classification: K10, K30, K42

Suggested Citation

Witt, John Fabian, A Lost Theory of American Emergency Constitutionalism (March 21, 2018). Law & History Review, 36:3, Forthcoming; Yale Law School, Public Law Research Paper No. 634. Available at SSRN: https://ssrn.com/abstract=3145923

John Fabian Witt (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4944 (Phone)

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