Ex parte Milligan and South Carolina v. Katzenbach: War Powers, Habeas Corpus, and Civil Rights Enforcement

Historical and Legal Context of Ex Parte Milligan

• Timeline and Scope: This case takes place in the latter part of the $19\text{th century}$ during the American Civil War. It is considered a seminal case regarding war powers and the limits of executive and legislative authority over citizens.

• The Copperheads: These were Southern sympathizers residing in the North (the Union) during the rebellion. The term "Copperhead" was used pejoratively by Northerners to describe those who were sympathetic to the Confederate cause.
      * Activities: Their actions ranged from legal activities, like public speaking and publishing, to illegal efforts to subvert the war effort, including acts of violence.

• President Lincoln’s 1862 Proclamation: In $1862$, President Abraham Lincoln issued a proclamation authorizing military trials for individuals who discouraged enlistments in the Union Army.
      * Backlash and Rescission: This executive order produced a significant public backlash, leading the Secretary of War to issue an order releasing the people arrested under these terms.

• Lincoln’s Personal and Legal Dilemma:
      * Lincoln, described as a "first-rate lawyer" and a "wise and decent human being," expressed his frustration in a letter.
      * The Anecdote: Lincoln wrote that he could legally shoot a "poor soldier boy" for desertion in the army (a capital offense in the face of the enemy), but felt it was an inherent contradiction that he could not punish the "wily, subversive person" who induced that boy to desert in the first place.
      * Constitutional Tension: While Lincoln saw the practical necessity of punishing subversives, the practice ran afoul of free speech and other constitutional protections.

• Congressional Action: Following the administrative withdrawal of Lincoln's proclamation, Congress passed a statute authorizing military trials for people arrested for sedition and related activities.

The Case of Lambdin P. Milligan

• Milligan’s Profile: Lambdin P. Milligan was a high-profile "Copperhead" and an Indiana lawyer who had lived in the state for $20\,\text{years}$.

• The Plot: Milligan conspired with others to raid prisoner of war (POW) camps in Indiana and other Northern locations.
      * Objectives: The goal was to free Confederate soldiers held as prisoners. Once freed, these soldiers were expected to "rampage" through the North, stealing, blowing up trains, and disrupting the Union war effort.
      * Political Goal: The agitation and chaos were intended to put political pressure on the Lincoln administration to reach a resolution with the rebellion and allow the Southern states to secede.

• Arrest and Sentencing: Milligan was caught, investigated, and tried before a military tribunal composed of Union Army officers. He was found guilty and sentenced to be hanged.

• Legal Challenge: Milligan petitioned the federal court for a Writ of Habeas Corpus, which eventually reached the Supreme Court of the United States.

The Writ of Habeas Corpus: The "Great Writ"

• Definition: Habeas Corpus is Latin for "you have the body." It is known in law as the "Great Writ" and is a fundamental tool for the prevention of tyranny and oppressive government.

• Mechanism of the Writ: Like a Writ of Mandamus, it is a court order directed at an official—specifically a jailer or someone holding a person in custody.

• The Function: The writ commands the jailer to produce the prisoner in open court at a specific time (e.g., "$\text{February 4 at 10:00}$") and "show cause" why the individual is being lawfully held.

• The Legal Impact: It forces the government to explain the legal justification for confinement to a neutral magistrate. If the justification is insufficient, the magistrate orders the prisoner's release. It is the primary tool to test the legality of detention in a court that enforces the rule of law.

Supreme Court Rulings and Principles in Milligan

• The Controlling Question: The Court stated the issue was not whether Milligan committed the crime, but whether the military commission had the "jurisdiction legally to try and sentence him."

• Key Facts of Milligan’s Status:
      * He was not a resident of a state in rebellion.
      * He was not a member of the military (Army or Navy).
      * He was at his home in Indiana when arrested by military power.

• The Birthright of Citizens: The Court declared that every American citizen charged with a crime has a birthright to be tried according to the law. Punishment can only occur through means provided by the law for that purpose.

• Constitutional Mandate: Article III, Section $2$ states: "The trial of all crimes, except in case of impeachment, shall be by jury."

• The "Shield of Protection" Statement: The Court provided a definitive statement on the rule of law: "The constitution of The United States is a law for rulers and people equally in war and in peace, and covers with the shield of its protection all classes of men at all times under all circumstances."

• Rejection of the "Theory of Necessity":
      * The Court rejected the idea that the Constitution can be suspended during an exigency (emergency).
      * Consequences of Suspension: Suspending provisions leads directly to anarchy or despotism.
      * Sufficiency of the Constitution: The Court argued the government has all necessary powers to preserve its existence within the Constitution. They cited the fact that the Union successfully navigated the Civil War—including conducting two elections and a presidential election—without putting the Constitution "on the shelf."

• Judicial Notice: The Court took "judicial notice" (acknowledging uncontradicted facts) that while the Civil War was ongoing, Indiana was never in rebellion, federal authority was unopposed, and federal courts were open and functioning from $1861$ to $1865$.

• Milligan’s Remedy: Since the federal courts (specifically the Circuit Court of Indiana) were open "down the street" while Milligan was being tried by soldiers, there was no reason to bypass the common law process. The Court ordered that Milligan should be arrested, indicted by a grand jury, and tried by a jury of his peers rather than a military tribunal.

South Carolina v. Katzenbach and the 15th Amendment

• Post-Civil War Amendments:
      * 13th Amendment: Abolished slavery.
      * 14th Amendment: Prohibited states from denying life, liberty, or property without due process and guaranteed equal protection.
      * 15th Amendment: Prohibited states from denying the right to vote based on race, color, or previous condition of servitude.

• Section 2 of the 15th Amendment: Grants Congress the "power to enforce this article by appropriate legislation."

• Historical Disenfranchisement: Despite the $15\text{th}$, states (predominantly in the South) used legal and extralegal techniques to prevent African Americans from voting:
      * Literacy Tests: Voters had to pass tests to register. White voters were asked simple questions (e.g., "Who is the president?"), while African Americans were asked impossible legal questions (e.g., "What is the admiralty jurisdiction of federal courts in a diversity case?").
      * Grandfather Clauses: Exempted people from burdensome voting requirements if their grandfathers were registered voters. This effectively exempted whites while excluding African Americans whose grandfathers had been enslaved.
      * Poll Taxes: Charges required to vote.

• The Voting Rights Act (VRA) of 1965: Congress passed this to break down barriers to voting after years of state resistance.

Provisions and Challenges to the Voting Rights Act

• Preclearance Provision (Section 5): This required certain states to get permission from the Justice Department or a district court before changing their voting laws.
      * Trigger for Preclearance: Any state where less than $50\%$ of the voting-age population voted in the most recent general election was subject to this provision.
      * Prima Facie Evidence: The pronounced discrepancy in participation was treated as evidence of discriminatory practices.

• South Carolina’s Challenge: The state argued that the VRA infringed on state sovereignty under the $10\text{th}$ Amendment. They claimed the $15\text{th}$ Amendment only allowed Congress to pass general "don't discriminate" laws, not to mandate federal approval for state lawmaking.

• The Supreme Court’s Test: The Court applied the classic formulation of "appropriate legislation" from McCulloch v. Maryland ($1819$).
      * Standard: "Let the end be legitimate… and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."
      * Application: The "end" (preventing racial discrimination in voting) is legitimate under the $15\text{th}$. The "means" (preclearance) is adapted to that end and not prohibited by the Constitution.

• The Limits of Sovereignty: The Court ruled that it was not Congress but "the sovereign" (the people of the United States) who limited state sovereignty by passing the $15\text{th}$ Amendment.

• Court’s Justification for Stringency: The Court noted that earlier, less intrusive efforts to stop discrimination had failed. States engaged in a game of "whack-a-mole," inventing new discriminatory techniques as soon as old ones were struck down. Thus, the stringent preclearance measure was justified by a century of state resistance.

Justice Hugo Black’s Dissent

• Focus on Federalism: Justice Hugo Black dissented specifically regarding the preclearance provision.

• The "Begging" Argument: He argued that requiring states to "beg" federal authorities for permission to pass laws distorts the constitutional structure.

• The McCulloch Standard Interpretation: While he agreed with the McCulloch test in theory, he argued that preclearance violated the "spirit of the constitution" by undermining the basic principles of federalism.