Ex Parte Milligan Reconsidered: Race and Civil Liberties from the Lincoln Administration to the War on Terror. Edited by Stewart L. Winger and Jonathan W. White (Lawrence, University Press of Kansas, 2020) 371 pp. $35.00

Abstract

This collection is, simply put, excellent. The twelve separate chapters (two of them by Michael Les Benedict) offer extraordinarily rich reflections on an 1866 case, Ex parte Milligan, in which the Supreme Court invalidated the conviction (and death penalty) of Lambdin Milligan, after trial before a military commission. Milligan supported the Confederacy, no small matter in a de facto border state like Indiana, which was sharply divided between supporters and skeptics of forcible prevention of secession.Justice David Davis, who had been Abraham Lincoln’s campaign manager and an Illinois state trial judge for fourteen years prior to his appointment to the Supreme Court, wrote a self-consciously broad opinion, which gained five votes, that he hoped would ring down through the ages as a defense of basic civil liberties even during times of war. He declared that so long as civil courts were available, it was unconstitutional to try a civilian in front of a military commission. He rejected the notion that “emergencies,” even a war, could render nugatory sacred individual rights and liberties. Salmon Chase, one of Lincoln’s “team of rivals,” who had been both secretary of the treasury and, more importantly, a leading anti-slavery lawyer, wrote a more modest opinion in behalf of four justices, agreeing that Milligan’s trial and sentence were illegal, but only because Congress had not authorized the use of military commissions in Indiana. The Constitution did not, however, absolutely prevent Congress from doing so.A theme running through the entire volume is the degree to which Davis’ ambitions were in vain. One prominent historian labeled his opinion “irrelevant,” because it did not prevent grave deprivations of civil liberties in the future. Others who have been kinder still note that Davis’ opinion has been honored at least as much in the breach as in the observance. But another important question is whether we today should give Davis’ opinion the veneration that he desired and that it continues to receive from some contemporary civil-liberties lawyers. Jonthan Hafetz, a long-time lawyer for the American Civil Liberties Union before entering the legal academy, concludes the book by arguing that Davis’ opinion should help to protect those accused of terrorism from policies like those adopted by President George W. Bush’s administration (and continued with less severity under President Obama) that consigned suspects to military commissions.The major accomplishment of the collection, however, is its careful placement of Milligan in the context of both the Civil War and the ensuing hopes for a Reconstruction that included genuine regime change and not merely, for example, the repudiation of secession and acceptance of the Thirteenth Amendment abolishing formal slavery. Many Republicans at the time correctly viewed Davis’ opinion as a huge victory for Southern whites who wished as little regime change as possible. Their preferences would undoubtedly fare better in civil courts than in military commissions—not only because many judges would be less sympathetic to the overall project of regime change than those who staffed military commissions but also because one holdout in a jury trial would be enough to prevent the conviction of clearly culpable opponents of necessary changes. This problem with jury trials continues today when defendants can appeal to the entrenched prejudice of a local community to justify their actions. One reason for supporting trials of suspected terrorists in civil courts is that few, if any, “unjust acquittals” will occur because jury members are sympathetic to the terrorist cause. Such was not the case, however, regarding Confederate sympathizers or such terrorists as members of the Ku Klux Klan.The collection could have delved more deeply into this particular reason for being suspicious of civil courts in the context of a South that had been defeated on the battlefield but had not truly accepted the role that those now called African-Americans (as opposed to their former identity as enslaved persons) would play in the “new South.” Several of the chapters, however, offer extremely granular explorations of Indiana politics and what might be termed the “facts on the ground” that motivated the decision to use commissions instead of Indiana’s courts. The various “Copperhead” critics of the War, particularly as it became a war to end slavery as well as to maintain the Union, receive careful attention, as do the state and national Republican Party political machinations that were involved.Anyone interested in American constitutional history should certainly read this truly excellent book. But, insofar as it also challenges us to consider how matters of context might be relevant to our support for certain conceptions of civil liberties, including the necessity of jury trials, the book deserves a broader readership. The writing is accessible to specialists and general readers alike.