The Supreme Court In and Out of the Stream of History

The Supreme Court in American Society

Kermit L. Hall

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781135690694
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Available as a single volume or part of the 10 volume set Supreme Court in American Society

The Constitution in the Supreme Court: Civil War and Reconstruction, 1865–1873

David P. Carnet †

The appointment of Salmon P. Chase as Chief Justice in December 1864, like that of his predecessor in 1836, marked the beginning of a new epoch in the Court's history. Not only had the Civil War altered the legal landscape dramatically; Chase was to preside over an essentially new complement of Justices. Of those who had sat more than a few years with Chief Justice Roger Taney, only Samuel Nelson and Robert Grier were to remain for a significant time. With them were six newcomers appointed between 1858 and 1864, five of them by Abraham Lincoln and four of them Republicans: Nathan Clifford, Noah H. Swayne, Samuel F. Miller, David Davis, Stephen J. Field, and Chase himself. These eight Justices were to sit together through most of the period until Chase's death in 1873. Taney's longtime colleagues James M. Wayne and John Catron were gone by 1867; William Strong, Joseph P. Bradley, and Ward Hunt, appointed at the end of Chase's tenure, played relatively minor roles. The work of the Chase period was largely done by eight men.¹

Chase was Chief Justice for less than nine years, but his tenure was a time of important constitutional decisions. Most of the significant cases fall into three categories. The best known cases, which serve as the subject of this article, involve a variety of questions arising out of the Civil War itself. Less dramatic but of comparable impact on future litigation and of comparable jurisprudential interest were a number of decisions determining the inhibitory effect of the commerce clause on state legislation. Finally, at the very end of the Chase period the Court for the first time turned to the task of interpreting the constitutional amendments adopted as a result of the war, a labor that would absorb a major part of the energies of Justices down to the present day.²

My aim here, as in studies of earlier periods in the Court's history,³ is to explore and to criticize the Justices' methods of constitutional interpretation. Useful insights can sometimes be gleaned from cases whose holdings are of no particular interest, and the total workload of the Court is an important factor in determining how the Justices approach the writing of any single opinion. Thus, although from considerations of economy I shall focus primarily upon the more important cases, I shall also attempt to convey a more or less comprehensive overview of the constitutional work of the Chase period as a whole.⁴

An event as cataclysmic as the Civil War was bound to place considerable strain on the Constitution, and the brunt of the judicial burden of putting it back in shape was borne in the decade following the War itself—the period considered in this study.⁵

A series of landmark opinions characterizes this aspect of the Court's work. Ex parte Milligan⁶ invalidated military trials of civilians. Cummings v. Missouri⁷ and Ex parte Garland⁸ struck down state and federal test oaths enacted after the War. Mississippi v. Johnson⁹ Georgia v. Stanton,¹⁰ Ex parte McCardle,¹¹ and United States v. Klein¹² laid down important principles of federal jurisdiction in the course of generally unavailing attempts to obtain a judicial test of Reconstruction measures. Texas v. White¹³ finally established both the illegality of secession and the validity of the basic Reconstruction principle. Wartime financial measures produced several important opinions culminating in the invalidation of paper tender under questionable circumstances in Hepburn v. Griswold¹⁴ and in the prompt overruling of that case after two new Justices were appointed.¹⁵

I. Military Trials and Test Oaths

A. Ex parte Milligan

Sentenced to death by a military commission in Indiana during the war for giving aid to the rebellion, Milligan sought habeas corpus from a federal circuit court. On certified questions the Supreme Court held, in a celebrated 1866 opinion by Lincoln's old friend David Davis, that the military trial of a civilian under such circumstances was unconstitutional.¹⁶

Davis's discussion of the constitutional question begins with one of the Court's most stirring affirmations of 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, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.¹⁷

The merits, wrote Davis, were plain from the words of the Constitution. "Every trial involves the exercise of judicial power," and article III vests that power in "'one supreme court and such inferior courts as the Congress may from time to time ordain and establish.'" "One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior."¹⁸ Moreover, the sixth amendment had been offended as well, for it guaranteed that " 'in all criminal prosecutions the accused shall enjoy the right to a . . . trial by an impartial jury.'"¹⁹

Having said this, Davis began in dicta to take much of it back. First, he conceded, soldiers were not entitled to jury trials for military offenses, for the fifth amendment excepts from its grand-jury requirement "'cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger,'" and "the framers,... doubtless, meant to limit the right of trial by jury, in the sixth amendment, to those persons who were subject to indictment or presentment in the fifth."²⁰ Though unnecessary to the decision, this concession was necessitated by longstanding practice and was in accord with an earlier dictum.²¹ Moreover, though one may feel queasy over the Court's conclusion that the fifth amendment's military exception applies to the sixth as well, it helps to reconcile the conviction that the Framers had not meant to abolish traditional courts-martial with the apparently uncompromising text of the Constitution.²²

More troubling is what follows:

If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. . . . Because, during the late Rebellion [martial rule] could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered.²³

There was no occasion to say any of this, for, as the Court emphasized, in Indiana "the courts were open," and there were no hostile armies.²⁴ More disturbing yet is the implication of this obiter pronouncement, for it undermines the very basis of the Court's decision. If military courts may try civilians whenever military necessity demands it, then neither article III nor the jury provision is plain on its face after all. Moreover, while in the purely formal sense the Court may still be right that the Constitution is not "suspended" in an emergency, it might as well be, for apparently its provisions implicitly include exceptions for emergency conditions.

Davis's dicta thus deprive his earlier ringing statements of much of their force. Unfortunately, however, it is difficult to escape the conclusion that he was right about military tribunals in place...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Series Introduction
• Volume Introduction
• Legitimacy, Realigning Elections, and the Supreme Court
• Moral Philosophy, the United States Supreme Court, and the Nation's Character, 1860-1910
• The Supreme Court in American Popular Culture
• Substantive Due Process, Selective Incorporation, and The Late-Nineteenth Century Overthrow of John Marshall's Constitutional Jurisprudence
• The Role of the Supreme Court in American Society
• The Constitution in the Supreme Court: Civil War and Reconstruction, 1865-1873
• A Theory of U.S. Constitutional History
• John Marshall's Selective Use of History in Marbury v. Madison
• Clio and the Court: An Illicit Love Affair
• Time to Reclaim: The Current Challenge of American Constitutional History
• The Art of Revising History: Revisiting the Marshall Court
• Acknowledgments