Ex Parte Milligan Reconsidered: Race and Civil Liberties from the Lincoln Administration to the Warfare on Terror

On the very finish of the Civil Warfare, a navy court docket convicted Lambdin P. Milligan and his coconspirators in Indiana of fomenting a basic revolt and sentenced them to hold. On attraction, in
Ex parte Milligan the US Supreme Court docket sided with the conspirators, ruling that it was unconstitutional to attempt Americans in navy tribunals when civilian courts have been open and functioning—as they have been in Indiana. Removed from being a relic of the Civil Warfare, the landmark 1866 choice has shocking relevance in our day, as this quantity makes clear. Cited in 4 Supreme Court docket choices arising from the wars in Afghanistan and Iraq,
Ex parte Milligan speaks to constitutional questions raised by the struggle on terror; however greater than that, the authors of Ex parte Milligan
Reconsidered contend, the case affords a possibility to reevaluate the historical past of wartime civil liberties from the Civil Warfare period to our personal.

After the Civil Warfare, critics of Reconstruction pointed to
Milligan for instance of the Republican Occasion’s abuse of federal energy; even historians sympathetic to Lincoln have discovered it essential to apologize for his administration’s file on civil liberties through the Civil Warfare. Nonetheless, the authors of this quantity argue that this distorts the nineteenth-century understanding of the Invoice of Rights, neglects worldwide regulation completely, and, equally hanging, ignores the expertise of African People. In reviving
Milligan, the Supreme Court docket has implicitly solid Reconstruction as a “struggle on terror” wherein terrorist insurgencies threatened and ultimately halted the assertion of black freedom by the Republican Occasion, the Union Military, and African People themselves. Returning African People to the middle of the story, and recognizing that Lincoln and Republicans have been usually pressured to limit white civil liberties as a way to set up black civil rights and liberties, Ex parte Milligan
Reconsidered suggests a wholly totally different account of wartime civil liberties, one with profound implications for US racial historical past and constitutional regulation in immediately’s struggle on terror.