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Lincoln and Habeas: Of Merryman, Milligan, and McCardle
Chapman L Rev (2009)
  • John C Yoo, University of California, Berkeley
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.
  • Lincoln,
  • habeas corpus,
  • executive power,
  • Presidency,
  • supreme court
Publication Date
Citation Information
John C Yoo. "Lincoln and Habeas: Of Merryman, Milligan, and McCardle" Chapman L Rev Vol. 12 (2009)
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