Reconstruction. Es received his ba and masters degree at the university of illinois, where he was able to root for his beloved chicago that by later deserted going to Rice University when professor hyman moved, and received his phd at Rice University, where unlike many people, he published not just one book out of his dissertation, but two. Unfortunately one of his books that he published out of his dissertation arrived at perhaps an auspicious time, the ineachment of Andrew Johnson 1973. You may know what else happened in 1973. , as those of us who know him call him, has also been president of the society for historians of the gilded age, a distinguished lecturer for that organization, and a very important mover in that organization. But he has also been extremely active as author and publisher and speaker in demand all over the country. I recently saw him speaking to the texas humanities council. I am not sure how much advice they took from him, based on what i have heard, but at least it was a good talk, and he has punished published many books. He has talked all over the country, in fact all over the world. Anduniversity of sussex elsewhere. I am happy to cut the short because i could talk for several minutes but i would prefer we listen to michael les benedict. [applause] michael thank you for that lovely introduction, roger. As roger says, we go back a long time and i really cannot express the great affection which i developed for him as a young guy when we were both together. I want to thank the sponsors of this conference, of course stewart winger for organizing it. It has been a pleasure to be here. I want to thank those of you who participated, both as analysts and speakers and those in the audience, because one of the beauties of conferences like this is you learn things. One of the downsides, you have to insert what you learned in a andr a few weeks ago disrupted and katie make it too long, and worry that you have not but it is a pleasure to be able to contribute some thoughts of my own to the case of ex parte milligan in American History. 1866, summer of davis,gtons david associate justice of the Supreme Court appointed by his longtime friend Abraham Lincoln, was hard at work in the study of his farmhouse at the site of his present mansion. He was writing the Supreme Courts opinion in the case ex parte milligan, which had been decided a few months earlier but announced without an opinion, which was promised for the following winter. He knew that it was the opportunity of a lifetime for a lawyer and judge, indeed for an american. During the civil war, davis had been dismayed at how the struggle challenged traditional and deeply felt commitment to civil liberty. Freedom of speech and press, but most especially the principle that one could not be deprived of life, liberty, except by due process of law. There were two ways the Lincoln Administration had challenged traditional notions of due process. First, it suspended the privilege of the writ of habeas corpus. Conflict butre was eventually everywhere in the United States. Second, it tried people for various offenses in military commission,ntary rather than in the ordinary civil court. This was a punitive measure designed to punish people who have done something that had harmed the war effort. Democrats have complained mightily about both of these policies. When you combine them with the seizure of billions of dollars in slave property promised by the emancipation proclamation, democrats charged that lincoln was destroying civil liberty and property in the United States, that he was in fact creating a despotism. Has no problem with the suspension of the privilege of the writ of habeas corpus once congress had passed a law regularizing it in 1863. That was the kb habeas corpus act of 1863 and required that the administration provide list of those held. If the prisoners were charged with some offense by the end of the following term of the Federal District or Circuit Court where they were held, the prisoners had to be released. Republicans, this was an appropriate limitation on Civil Liberties for the sake of the country. It took dangerous people out of circulation temporarily, but they would not suffer punishment or longterm imprisonment without a trial. As republican said, temporary arrest was precautionary, it was not punitive. Commission military was something else. They were punitive and could lead to long jail terms and even death sentences. Davis, along with many republicans, thought this could not be done without due process of law. That is what the fifth amendment to the constitution demanded and what other provisions of the constitution, especially in the bill of rights, guaranteed. The fifth amendment reads that no person shall be held to answer for capital or otherwise infamous crime unless on presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law. Yet military commissions were an ordinary part of military administration in times of war. Commanders had a responsibility to protect the troops, keep order where their troops were stationed, and the authority to punish enemy combatant who warated the rules of orecially as guerrillas spying and engaging in espionage out of uniform. And thousands of people were tried by military commissions during the civil war. Nearly all the trials occurred in the border states and in the south. That is, in active theaters of war. And the accused ranged from confederate guerrillas to saboteurs and spies, whose actions clearly did violate the laws of war, too outspoken confederate sympathizers in areas that were still contested, to cheating peddlers and prostitutes and thieves hanging around military camps. With theseo problem military trials. But the legal justification for the smaller number of trials in the northern states were not so clear. Men were tried for discouraging enrollment in the armed forces. Fomenting resistance to the draft, and encouraging desertion. Those were clearly the kinds of acts that military commissions could public punish according to the International Laws or. Likehat about an offender the famous clement elva landy, who gave public speeches and disaffected areas of the midwest, where the majority of the people were really critical of the war. Gave public spaces speeches that are bitterly attacking the administration, and saying the war was both wrong and hopeless. What about people arrested on the order that one of the marshals for even less significant criticisms of , and criticisms of the infringement of civil liberty that were saying all around them. Punishable interferes with the war effort. Could those are arrestees be tried by military commission . Lincolns War Department decided that the requirement of the habeas corpus act if nothing else, if those sorts of people were arrested and held and unable to get out of jail with a writ of habeas corpus, i could only be held on the habeas corpus act of 1863 for a limited amount of time. If the government did not bring an indictment to them, bring them a trial in front of a civil court they would be released. Decideds War Department the requirements of the habeas corpus act did not apply to people who were brought to trial by military commission. The administration argued that those trials substituted for the indictments that the government was supposed to bring in the civil court. Those convicted in such military courts were not entitled to release at the and of the terms of the Circuit Court, local court, that filed their arrest. In other words, the governor couldnt evade the 1863 law by holding military trials the 1863nment could evade the law by holding military trials. Whigsats denied, and many this civilied on liberties issue. They denied that the war justified the suspension of protections of civil liberty special specified in the constitution. Republicans argued that the constitution did justify these kinds of suspension, and the issue was debated in congress, and newspapers, and pamphlets, in stump seats. Democrats made it the central issue of the elections of 1863 and 1864. They made the trial of clement l landing a desperate of the landing which he answered just as forcefully, all of which were published and put before the people before the election of 1864. Of milligan trial was part this debate, designed to prove to the public that the danger was real, and that therefore the military trials were justified. Know, it worked. 1864ln won the election of largely on that issue, convincing the American People there were real copperheads who put the war effort at risk. Not he told lincoln that the military commissions in the north were unconstitutional. He was worried that his friends had defended them so successfully that he seemed to have won the public debate. He later told his brotherinlaw that he had been afraid if things went on as they had, civil liberty would, as he wrote his brotherinlaw, would be all gone. It was not only davis was worried. Many republicans had begun to worry as well. In march, 1865 they try to pass an amendment, an appropriations bill to ban trials by military commission altogether. Congressman who moved the proposal in the house of representatives was the ultra radical republican from maryland , henry winter davis. That was david davis cousin. His proposal passed the house. The house of representatives voted to end all military moved byns on a bill david davis cousin, a radical republican. It lost in the senate when republican senators said, how can you reverse the very decision that the americans decided, that the people decided in the election of 1864 . It was pleading guilty to the democratic charge, and suggested that lincoln should have lost the election. But once the war was over, davis determined to insert the Supreme Court into this great debate and he determined to do so on the side of those who wanted to uphold constitutional liberties in the time of crisis. And he had the perfect case well, almost perfect case. A prominent indiana democrat named Landon Milligan and others had tried to organize critics of the Lincoln Administration to defend themselves against despotism, and i think you here today how seriously those people took the threat of despotism. Unarmed, if they had no organization, how would they resist if their fears came true and the Lincoln Administration would infringe so , interferedights with the election of 1864 in order to control a unit they have lost. So they organized, they wanted to organize these people. These people, by the way, or sometimes violently resisting. People trying to catch draft rogers, dodgers, assaulting marshals who were trying to an role people in the draft. Individually, where resisting in various ways. Confederateshis wanted to organize them in case there was a final confrontation. And torsuaded the landy become the titular leader of what they called sons of liberty. Confederate agents in canada decided to use the protein organization to free confederate prisoners of war being held in the north and launched an uprising in the union armys rear. Milligan and his associates excepted the confederate agent money and it appears their advice. They were arrested, tried by that military commission at a propitious time for abraham 1864, andhe fall of milligan was sentenced to death. Davis made out about milligans guilt, but why not try them in front of a jury in an ordinary federal court question mark they were unlikely to get off, which was one of the things that would get them off. This was a guy that was going to be convicted if you tried him in a civil case. Davis personally made sure that the death sentence was not carried out so that milligan could petition for writ of habeas corpus. The petition went to the Circuit Court on which he himself joined another judge to hear the petition. Then davis arranged with that ,udge to disagree on whether answering the petition was legitimate and whether milligan should be released. Disagreed on circuit, according to the law in 1864 and 1865, the disagreement automatically went up to the Supreme Court. So this was a case davis had arranged because he wanted to test this question and have the court contribute to the debate. Everyone knew it was a great case. The court assigned seven days for oral argument. The foremost democratic constitutional lawyers in the country appeared for milligan. They added a young republican who had expressed reservations about military commissions and that fight in the house of representatives, future president james garfield. Davis arranged for his wife, sarah, to sit in the ladies gallery and she reflected his excitement when she wrote their son is considered the most important case ever brought before the Supreme Court. Milligans lawyers made great oral arguments. They described the angloamerican heritage of liberty. They stressed the Founding Fathers suspicions of executive power. Garfield echoed those arguments but also argued that the military trial was inconsistent with the provisions of the habeas corpus act which he had helped to pass. The arguments on behalf of the government did not come close. Two matching these great legal for rations. Attorney general james speed was way out of his depth. He brought in the bombastic radical republican general Benjamin Butler to help. That made sense, he thought, because butler had been the military commander in new orleans where butler had exercised military authority to the fullest. Surely a good lawyer like butler had figure out why he was authorized to do it. Out, andd figured that he gave that argument to the Supreme Court. He did it in the bombastic, stump speech style that worked for him when he was litigating in front of juries. His argument was that in wartime, the laws of war justified military, that justified military commissions who preceded the constitution. In times of war, the law of necessity trumped civil and constitutional rule. It was an argument guaranteed to alienate a court. Davis,ecially davis, whig. Incoln had been a they prided themselves on respect for the judiciary and they blasted the democrats for pandering they pointed to like the one protecting cherokee indians from the state of georgias playing claim he could take over their land. It is not true but it was rumored that jackson had said John Marshall has given his opinion on that cherokee subject. Let him enforce it, and he might as well have said, because the court was able to enforce it. When they were young whigs, both davis and lincoln had observed the great debate in congress from 1842 to 1844. Andrew jackson, as military commander in new orleans in 1814, had pronounced martial law and had instituted military commissions to prosecute people who he thought were dangerous. He banished people from the town and one of the victims petitioned the local federal judge in 1814 for writ of habeas corpus. He was being held. The local judge issued the petition, he simply brought the guide to court to make the decision. Jackson arrested the judge. And banished him from the city. When it was all over the judge came back and demanded the jackson answer for his actions. Jackson refused to come. The judge instituted a contempt of court fine of 1200. To his credit, Andrew Jackson paid it but in 1842 he asked congress to reimburse him for what he had paid. All of the democrats in congress favored giving him the money because he had done nothing wrong. They all argued that in a crisis like occurred in new orleans, the law of necessity justified justifiedion, even Andrew Jackson even putting a judge in jail. Every whig said jackson was wrong and to reimburse him for that fine would manifest in the most obvious way disrespect for judiciary. That is when davis and lincoln were young whigs. The primary protection of constitutional right lay in the courts and late in the peoples respect for the law. That was davis background and unlike begin who modified his still. Avis butlers argument supporting everything that was wrong. Lincolns argument was taken to its logical conclusion. So in april 1865, the justices agreed unanimously that the military trial was unconstitutional and that milligan had to be released. They agreed on the decision but not the reasoning. The chief justice and three colleagues said they would write up there dissension separately because davis had done so much to get the case for the court. Assigned lly chase naturally assigned the opinion to him. He wanted to do more than established a binding precedent on the court. Show how to demonstrate the governments power in times of great crisis. He wanted to save civil liberty with an eloquent, unanswerable argument. He wanted to address the people as well as the lawyers. He wanted to write an opinion drewage, and he grew upon the great orations in the argument and the arguments of reverend e johnson. He tried to pursue military commission saying it did not have jurisdiction over the lincoln assassin. He failed, but his argument was published all over and it was quite a great argument. Not much, davis was concerned with the military trials. He was concerned with the trial of a citizen of indiana for 20 years past, and never in the military or naval service, arrested at his home in a state not under immediate threat from confederate troops. It was the perfect case. And technical consideration of jurisdiction to counteract what he thought was going to be the basis for the minority reservations, he turned to the main question. No greater question has ever been considered by this court, nor one that more nearly concerns the rights of the people. The decision does not depend on argument or judicial precedent. Precedents nearly illustrated the deeper history, the extent of the struggle to preserve liberty and to relieve those in civil life from military trial. The founders of our government were familiar with the history of that struggle and procured in a written constitution every right which the people had rested from power during a contest of ages. By that constitution and the laws authorized by it, this question was the eternal. The constitution of the United States is a law for rulers and people equally in war and peace, and covers with the shield of its protection all classes of and under the time all circumstances. The idea thatd butler had articulated so aggressively in his oral argument. No doctrine involving more pernicious consequences was ever , thened by the wit of man that any of the constitutions provisions can be suspended during any of the great exigencies of government. Correct,s argument is davis wrote, republican government is a failure and there is an end to liberty regulated by law. Pointed to the law congress had passed limiting time detainees could be held before being indicted or released, and pointed out that milligan situation fit squarely in the terms about law. But he would not rely on so limited a reason for releasing him. The problem was not only that the trial was inconsistent with the statute, it denied the specific protections of liberty so carefully incorporated into the constitution. Such a power could be exercised only when ordinary law had collapsed, when the word no court to administer it. Hence, he developed a specific rule that should govern this case. It,rticulated how to apply specifically martial law can never exist where the courts are in the proper and unobstructed exercise of their jurisdiction. And it must be confined to the locality of actual war. Have been no justification for a military trial in indiana. Far from the actual theater of the battle where the courts were open and have never been closed. If milligan committed the crimes, let him be crying tried by an established court and an impartial jury. The Supreme Court had put toricans general commitment due process and civil liberty, a commitment articulated in what you might call constitutional politics, the debates i have just described or rendered in the United States during the civil war. And the Supreme Court had put the general commitment so often articulated in constitutional politics, squarely into constitutional law where it would not only influence public debate but held precedential authority in the court. Survive surprise, chase and his colleagues did not dissent on the jurisdictional question. They dismissed the issue with hardly a word. Instead, they criticize the opinion for precluding not only the commission that convicted milligan that have been approved by the president without judicial authority, but from precluding congress to authorize military commissions anywhere the court was open. They went too far. The constitution Gave Congress the power to declare war and this power necessarily extends to all legislation to the prosecution of war with vigor and success, chase wrote. We can act out that congress had power to provide for the organization of a military commission to try the conspirators. It had chosen to rely on prosecution in the civil court instead, let that fact could not deprive congress of the right to do otherwise. At theas devastated tidal wave that greeted his opinion. The conservative republican New York Times blasted the court for throwing its great weight of influence into the scale of those who had in. The constitutionality of everything that had been done to promote it. The editor called it the most dangerous opinion ever produced by the Supreme Court. It was called the new dread scott. Respected legal commentators criticized davis and the majority for having gone beyond the facts of the case. They seemed eager, one of them admonished, to go beyond the principleslay down on which they would decide other questions not now before them regarding the bravest and highest powers of congress. That is from the american law review which had just then established and became the leading journal in the country for decades. Davis did not understand that in the time between the announcement of ex parte milligan in 1866 and the delivery of opinion on december 17, 1866, the context of the case had entirely changed. It was no longer a Civil Liberties case. It had become a federalist case. The question had become whether the federal government could project power in the south to protect the rights of freed people, southern loyalists, and even its own soldiers. President johnson had supervise the establishment of new state governments and the south and as far as he was concerned, the process of reconstruction was over. He issued a proclamation that peace existed throughout the south, civil government was reestablished, and the courts were open and on obstructed on obstructed. Unobstructed. He conceded that martial law could be composed on anarchy pipe territory but said clearly that martial law could not continue after the civil courts had been reestablished. Opinionication of his was to preclude congress from establishing military law or commissions in the south, protections for the newly freed slaves, southern unionists, and northern troops stationed in the south would be in the hands of southern Law Enforcement officials and court. Southerner shot and killed a u. S. Soldier, the only recourse would be prosecution in the state. Maybe the perpetrator would be liable to, prosecution in the federal court. Congress would be sure to make such an assault on crime but not until later. Even that would require conviction by a southern jury, still all white. What a military commander could thedo was arrest perpetrator and try him before a military commission. Of Course Congress was not going to allow this condition to continue and passed a new reconstruction act in 1867, made the johnson government madetions subordinate, and the use of military commissions legal if necessary. Congressional republicans insisted that it was legal, saying peace was not restored until Southern States were restored to their initial place in the union and in congress. Recognize that martial law was appropriate in an occupied territory, but what about those question mark open courts . Democrats moved heaven and earth to get a case before the Supreme Court, and republicans worked just as hard to present it. Publicans were able to reconstruct the Southern States and restore them to the union before the court could hear a challenge. But the effect of milligan was tremendous. It was one of the Reasons Congress had to hurry the process. Republicans did not dare risk and adverse court ruling. Milligan presented the use of military commissions once the Southern States were restored. The southernked states after they were restored to normal relations. Laws trying to deal with that but they all had to be enforced with a federal court. Critical as they were davis opinion, republicans never dared rely on chases dissent to authorize military trial of southerners. After some initial success in inting down the ku klux klan 1872, the federal courts proved utterly ineffective in protecting the rights of africanamericans and white republicans thereafter. Milligan has been recognized as davis case, mostly for eloquent dedication to constitutional liberty in times of crisis. Contrastll quoted to davis constitutionalism as opposed to lincolns nonconstitutionalism. It is also included in books on great essays. The heart of this decision is the heart of the difference between the United States of germany and the soviet union. Political scientists and lawyers have been more skeptical. The entries on military commissions did not even mention milligan. It focused instead on the rules law,oped on international and International Law of war which davis had considered irrelevant. When the great pioneers of american political science, john burgess, declared in 1890 that andes opinion was correct if davis opinion was ever subjected to the state of war, it would be necessarily discarded. On the eve of world war ii a lawyer called his opinion childish, to think it would prove a different precedent in times of crisis. To understand what has happened to milligan, one has to recognize a basic irony. Milligan articulated a general principle that constitutional protection was not suspended by war, but the specific holding established a very rigid rule for a very particular circumstance. It specified that american citizens who are not themselves combatants, could not be tried by military commissions when regular courts were open and unobstructed. It did not apply to American Indians tried for violating the rules of war in raids on settlers were in combat against american troops. It did not apply to the war that filipinos fought in the philippines because neither case, the filipinos or American Indians involved american citizens. But as was natural in 1916 in 1920, congress authorized them to try crimes of war. Queries, the Supreme Court made the legislation of the boundaries of the milligan case clear. When german saboteurs were caught, it sustained their trial by military commission, they were not american citizens. In the case of the one who might be considered a citizen because parents, he had been under the orders and control of the foreign enemy. That trumped the fact that he might be considered a citizen. Milligan applied only to american citizens who were not combatant, the Supreme Court ruled. And the nature of the offense that it violated the rules of war, seven tours had violated laws, that was much more important than the location of the trial or the fact that courts were open. The specific holding of milligan was interpreted rigidly. So was the at the mission admonition that it was binding legally in war and peace. The Supreme Court refrained from challenging roosevelt orders forcing the relocation of people of japanese descent to the west coast. The judges barely mentioned milligan at all and certainly not davis exhortation that the constitution protects all class of men in war and peace. Despite that fact, milligans main principle remained japaneseg the relied on it it. Thehistorical government of japanese relocation has been almost uniformly negative, that it violates basic rights is merely a unanimous conclusion. Inability to intervene was criticized. The main objection was to the blatant racism that precipitated the program, but every critic points to the Supreme Courts failure to stand up for the main, that war should not preclude Civil Liberties. Hawaiinder took over after pearl harbor, replacing civil courts with military. That was a decision that paralleled the milligan situation. The question was whether congress had authorized this action, implying clearly that the court agreed with chase that it could not it could have authorized the action. They decided congress had not authorized such trials in hawaii because americas long heritage of opposition to arbitrary military power, made it highly unlikely that congress would have done so. Of course in that case, the court relied on an quoted ex parte milligan. That brings us to the war on terror. From the beginning, the Bush Administration insisted the court had unlimited power. It buttressed the claim by pointing to the resolution that congress had passed after the terrorist attack of september 11, 2001, which authorized the president to use all necessary and required force against those responsible. The Bush Administration said the president has inherent power to create a military commission, this gave the power that chase thought was necessary. Milligan became relevant to constitutional law. It to theestored three pages of quotation from ex parte milligan in the case. Whenourt cited milligan the justice from the war on terror cannot spend constitutional productions, that prisoners had a right to challenge whether they were the people described held. The court has nonetheless sustained congresspower to sustain commission, in effect endorsing chaseopinion rather than davis. And despite the fairness outlined by the jeep a the Geneva Convention noncombatant system as davis characterized milligan lawto be tried in a civil unlawful combatants do not. Critics of the milligan decision say this was proved largely irrelevant the issue of military trials for those held at guantanamo bay. And they can point to how the laws and prosecutions in federal court have impaired freedom of speech as in the sedition act cases during world war i, or the smith act prosecution of communists during the civil war. And of course, of the japanese relocation in world war ii. Hello that is true. All of that is true. There is something we take for granted, as was mentioned in our discussion earlier today, when people suggest that maybe the decision is not been important or salient. Since the years decision of ex parte milligan, no american civilian has been tried by a military court within the United States for supposedly endangering american security. If americans thought that criticism of our petition in world war i harmed the war effort and should be suppressed, and thought membership in the communist party was subversive, they had to fast a law pass a law to punish it. And that had to be enforced in ordinary civil court. The inability of the government turned to military court makes it much easier i should say it makes it much harder for the federal government to enforce federal laws against local intransigence, and makes it much easier to resist. As a self jury reconstruction or the Civil Rights Movement demonstrates. Price worth be a paying. Thank you. [applause] excuse me, i think we are not to take questions . Now to take questions . I will bring you the microphone. Talk. Derful historians arent good at what ifs . So i am tempted to ask, but what is lincoln had not been assassinated . Changed my help the politics that mightve ensued after the war . Not only do we not like to do that, that is a tough wh atif. Lincoln was certainly not Andrew Johnson, and he certainly understood constitutional politics. Nt to make arguments that would be persuasive to the public. He was going to be faced with this opinion. Andrew johnson somehow conduct about this decision. Somehow found out about this decision. Davis would have told him about this decision. I think that lincoln, a good lawyer, which Andrew Johnson was not he was not even a good tailor lincoln would have importanced seen the of convincing americans that the issued the peace proclamation. He wouldve not evidenced that the south was restored and that the courts were operating unobstructed. To do so would have tied his hand. That would have been the most immediate consequence. He never would have done that. Therefore the milliken decision, when it came down, would not have carried the implication that i can read, because it came after Andrew Johnson had issued that piece proclamation. That induction would not be there. We dont know how lincoln would have restored Southern States. That is a real whatif. If one thing lincoln wanted to do, it is to keep a lot of authority in his own hands. That would continue to keep problems in congress over reconstruction. He certainly wasnt going to give up his authority to protect Union Soldiers in the south to the Supreme Court. And of course democrats still would have argued that the peace does exist. Lincoln would have tried to restore some semblance of order, including civil courts down there. The argument that have been made, but lincoln would have been in a far better position to resist. Yeah . [indiscernible] range fore had the it, but had told milligans lawyers the way he put it, and i think its important how the word is nearly over. After the war is over, everyone is going to feel there has been enough killing. But i think i will keep them in prison for a while so that they dont keep dont kill the government. That implies clearly, once the government was safe, he was going to let them go. And he was not going to allow the Death Penalty debate exercised. Exercised. To be wonderful talk. Just a question in the legacy of milligan post world war ii. Understanding of milligan expressed the dominant tradition. You referenced duncan. In landmarktions cases that were not about military commissions, but about courtmartial and the overexertion of military and civilian and over intrusion of civilian authority. Before commissions and tablets were established, was the more marginal case. Even if milligan, the holding had been eroded as reflective of the tradition have always been the dominant case of the two. Michael what i wanted to get across in the opinion is that its ironic. What lawyers attend to are the issues being litigated. The cases being litigated are ones that lie outside the main issue of milligan. It makes lawyers think milligan is irrelevant. Not aid complain gutsy not exactly clear to me why. Casebooks do not have milligan in it. Violated theave and particularly when they have violated the laws of war, military commissions are appropriate. That reflects a country tradition to milligan which relies on the laws of war which categorize a number of situations in which military commissions are okay. And so for most lawyers, this was a case that would show when you could have military commissions. And of course now it is used in the war on terror issues because was thathe major point noncombatants dont get the part of the benefit of the milliken decision. Lawyerhe case that took s attention from milligan. That brilliant, to this is sooon milligan established that people do not even think about it. There is that gentleman over there. Further questions . Ill throw one out. Something we dont think about as much is the constitutional explanation for the emancipation proclamation, which for lincoln, invested with all the powers of commanderinchief under the laws of war, including, forgetting about the fifth and when the state comes into possession of a slave, the state can emancipate slaves. Dozens of milligan doesnt milligan, in denying developments of International Law, challenge the emancipation proclamation . Michael of course davis never mentions it. Davis, for all of his eloquence, is not the worlds best lawyer. Did he consider it . You would think that a lawyer would look at some of that language and say gee, somebody that thinks that somebody could argue under what i just said that the president doesnt have the right to emancipate slaves. After all, depressing people of property without due process of law. Lawyer you have to remember his decision. The constitution applies with all of its productions where the courts are open. It doesnt apply in military war. Laws of war to apply, including the right to hold military commissions, and i presume the right to emancipate the property of your opponent. Remember that lincoln never claimed the right to abolish slavery. He moved heaven and earth to get an amendment to abolish slavery, because under the war part, all he could do was emancipate slaves. That would not stop slavery for continuing efforts. From continuing afterwards. In spite of the talk we had precedents that might be dangerous, he had a deep commitment to abiding to the formalities of law. He always gave arguments why his actions were constitutional. And they were not insubstantial masquerading arguments. They were real arguments that carried weight. The reason a part of that people feel more comfortable with lincoln in this area. He did not just exercise the spotting powers ic powers. Se despot he had to convince that what he was doing was constitutional. That. Ld not do he could not get reelected if he did not do that. Any interaction between the ex parte milligan, was there any impact after . Michael i have to say no. Davis must have known the labor code. Key must have known the generals order number one. Or he alludes to them when he the most pernicious argument ever devised by man is things could replace the actual provisions of the constitution. It is as if they dont exist. That is one of the reasons that milligan holds such an odd decision in american law. Even a decade after milligan these videos are developed after general order one, which becomes a code for the Geneva Convention, and talk about what those things could replace the actual provisions of the constitution. It is as if they dont main, eny about milligan. Portion, thatts the laws of the Geneva Convention do not apply to us as ordinary citizens in that we are undermining national security. But for everyone else, that is was is being explored and developed in the legal community. And you think a u. S. Citizen crosses the line and becomes a combatant . [indiscernible] michael he was a regional commander. You raise that point earlier in the discussion. Its great davis was trying to affect the whole course of american understanding. To bring back American History in the course of several liberty civil liberty, which he thought had been almost destroyed in the civil war. He wanted the best case you could have. He we not have been able because it was a dominant aim, there was not a dominant theme in law to determine who was a combatant. Might not have asked the question. Atif a guy getting arrested 2 00 a. M. In his own home in indiana . But what he was so happy with was that the guy was an american citizen who had been living in indiana for a long time, who himself was not a member of the Confederate Armed forces or United States armed forces. He was a perfect test. He had to script the issue skirt the issue is that milligan was part of a conspiracy financed by the confederate government and undertaking activities the confederate agencies were advising him to undertake. Is arin terms, milligan combatant. They refer to him in that is a specific case. The court interpreted milligan a civilian noncombatant, and we will accept the Court Opinion in that case. You wont question it, but it is irrelevant to a situation where someone is a combatant. In modern terms, yeah, milligan as a combatant. Unlawful. What do you think about executive action against an american citizen who is allegedly a combatant outside the country . You may hear that coming up. We of course have the drone cases that have hit american citizens. Because milligan has been ofined to preclude the trial american noncombatant citizens in places where there are courts that can hear a case. Those are going to be considered outside the purview of milligan. When i say that, that doesnt mean milligan is unimportant. It projects all of the rest of us pretty clearly. It would be difficult for anyone to grade a military commission to try american citizens in one of the american states. Theby golly, you go one of you go take appointments outside of the United States take up weapons outside of the United States, milligan is not going to cover your. Milligan strikes me as a new kind of language. Do you hear earlier in the 19th , my thinking is this divergence, you could cynically say that lincoln and davis diverged because their interests diverged. Davis has the courts and lincoln is grubbing for executive power. That is not diminish that does not diminish their arguments. I am wondering if there are other sources for their mental divergence. One thing that strikes me is songs thee kinds of p bill of rights are not sung. Use . U know of this kind of michael it is taken for granted. You can see the effect of commitmentordinary to the rule of law in the state constitutions. One of the principles is that you are not supposed to be private of liberty without due process of law. How is that enforced . It is enforced every time there is a Constitutional Convention. The people at the Constitutional Convention great a state bill of rights, which requires you to be indicted, which requires you to be tried. That is how civil liberty has been protected. Of course it is absolutely ingrained. It is not ingrained in a bunch of controversies that arrived during the civil war. Then the specific controversy arrives, it is there. That is what happens in the debate about Andrew Jackson getting reimbursed. Criticism for introduction of actions that he took when he fought the creeks, that he was highhanded. That in turn is important. Whigss create the conceptions of themselves. The modern understanding of what the court does. And protecting ordinary people from the majority. That isnt really there. Ir civilnot where the liberties it comes from the ordinary action of people. One of the things i havent quoted that is interesting and the transition potential is that after david davis gets criticized so badly for the decision, it sobers him about the American People. He right to his brotherinlaw he writes to his brotherinlaw, why do we have constitutions . It is not protect the majority that can protect themselves. It is to protect the minority from the majority. He uses that language, which later becomes the dominant theme of legal discourse in the later 20th century. Not in a constant litany of debates. I recall, davis ran inns campaign i the 60s . What impact did that have on the Supreme Court . Beenel this would have more similar to a Supreme Court justice from the 1850s who dissented from prescott from dread scott, took up a pilot against Civil Liberties reverend johnson is a similar person. Davis had no use for africanamericans. He had no use for abolitionist. He blamed that wing on the Republican Party for putting the union at risk. Eh saw Abraham Lincoln as a conservative weight choice for the Republican Party. Conservative whig choice for the Republican Party. He had no idea what lincoln would do. Say david davis was a republican because he loved lincoln. And he wouldnt have been otherwise. When he got to the Supreme Court, he would not have indicated he was partisan. You repeat what he says, he is an old whig. Other questions or thoughts . Les benedict another hand. [applause] michael thank you very much. Interested in American History tv . Visit our website, cspan. Org history. See our schedule or what an upcoming program. To the white house relied, lectures and history. And more at cspan. Org history. Through 20 years of wavering and wondering, through hot and wars, through corruption and cynicism, the American People have hungered for leadership founded on integrity and wisdom and courage. We have sought a leader that is of the people. Man raised to leadership by the people. A man whose whole life was spent by the people. Rane was the first to france with the first two hill eisenhower. First to hail eisenhower. Too. Guy likes ikes and across the english channel, which hitlers not cross. They surrendered with a cheer to ike. To every londoner that has taken one of its soldiers into my home, i say you always have my profound gratitude. , hisck home in america wife was the first to say i like ike. And the rest of the crowd booming, knowing that washington belongs not to a percent, but the people. A president , but the people. I stand before federal elected lawmakers of our republic. A symbol of those things we call the american heritage. [applause] and now watch what a country boy can do to the biggest city in the world new york. [applause] watch the women, watched the young people. Watch all the young people who mean victory at the polls in november. Watch them flock to mr. America. In this age of ahte and that hate and violence, communists stir up in europe. This one in italy. Redsn the middle east, the rile people too. Where is there a statesman that can teach enemies to call each other neighbor again . To end violence abroad and here too. At a time when 80 of every american budget dollar goes to the fence of our freedom, where is the man with wisdom and experience who can get the most security for every military youth, from women and informs and factories, even from democrats who plays principal above party, a century has brought the front of a new slavery. Mr. American, dwight david eisenhower. On election day, november 8, Commission Decides our next president , and which Party Controls the house and senate. Stay with cspan for coverage of the president ial race, including Campaign Stops with hillary clinton, donald trump, and their surrogates. Follow key house and senate races. Cspan, where history unfolds daily. Historyctures in George Washington university perfection chad heap talks about the origins of the gayrights movement, finding commonplace with communists, the black power movement, and others fighting this is quote of american cold war society. Also specific issues like removing the ban on lesbians and gays from holding governmental jobs. His classes about one hour. Class. Elcome back to beay our topic is going to gay and lesbian liberation. I want to spend a bit of time setting that up for you and we will move into discussion of the issues. For the last couple weeks we have been talking about the ways that cold war conformity gave