This decision, in which the Supreme Court determined that military courts did not have jurisdiction over civilians if civil courts were operating, is regarded as a constitutional landmark by many but has also been criticized and not always followed by the Court.

Justice David DavisDavis, David;Milligan, Ex parte[Milligan, Ex parte] wrote the majority opinion for a unanimous Supreme Court; however, significant differences were expressed in a separate concurrence written by Chief Justice Salmon P. Chase and joined by Justices Samuel F. Miller, Noah H. Swayne, and James M. Wayne. The Court found that Lambdin Milligan and two other prisoners convicted by a military tribunal had to be released, but the release was delayed several months because the Court did not immediately publish its conclusions.War and civil liberties;Milligan, Ex parte[Milligan, Ex parte]Military justice;Milligan, Ex parte[Milligan, Ex parte]

The Supreme Court ruled that Lambdin Milligan, pictured here, should not have been tried by a military court, but by a civil court.

(Indiana Historical Court)

Davis held that the Constitution was not suspended in wartime and not even the president or Congress could give military courts jurisdiction over civilians if the civil courts were open (as they were in the area in which Milligan was arrested). Chase’s concurrence held that the statutes in this case suggested that the government had not even followed the 1863 Habeas Corpus Act, and thus it was not necessary for the Court to raise the constitutional question that Chase would have resolved by holding that Congress could have authorized military courts in extreme wartime conditions. In World War II, the Court did not follow Milligan in allowing the internment of Japanese Americans and used mere statutory grounds to overturn the imposition of martial law in Hawaii.

Civil War

Duncan v. Kahanamoku

Foreign affairs and foreign policy

Korematsu v. United States

Lincoln, Abraham

Martin v. Mott

Military and the Court

Military justice

Presidential powers

War and civil liberties