Also known as the War Between the States, the U.S. Civil War pitted eleven Southern states which seceded to form the Confederate States of America against the rest of the Union.
The Civil War raised questions of fundamental importance to the U.S. constitutional order. Among these were questions about whether a state could secede from the Union, the distribution of the war-making powers between the president and Congress, and the authority of the Supreme Court to review those powers. What was undoubtedly a crisis for the country was no less a crisis for the Court. In the end, these fundamental constitutional issues were decided and resolved, not through appeals to the law or to the Supreme Court, but through political force.
A number of factors led to the war. Prominent among them was the issue of slavery, left unresolved at the nation’s founding. Congress formally prohibited the slave trade in 1808 and tried to end the debate with the Missouri Compromise of 1820, but the problems slavery
The chief justice also ruled that the Missouri Compromise was unconstitutional because Congress had no constitutional authority to regulate slavery in the territories. Some critics of the Court complain that it should not have tried to resolve a divisive political issue through a legal decision. On the other hand, the Court had not come to the issue uninvited. President James Buchanan, for example, had encouraged the Court to rule on the issue, stating in his inaugural speech that slavery “was a judicial question, which legitimately belongs to the Supreme Court, before whom it is now pending and will…be speedily settled.” The Court’s controversial ruling, far from settling the matter, galvanized forces on both sides of the slavery question. Just four years later, the country was at war with itself.
In late 1860 South Carolina and several other states sought to secede from the Union. Such claims were not novel, at least as a matter of constitutional theory. The nullification
In his inaugural address, President Lincoln argued instead that “the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments.” Lincoln thus concluded that the Union, older than the Constitution, authorized him to prevent states from dissolving the bonds of the Union. One of his first actions was to resupply the Union troops at Fort Sumter. Forces in Charleston fired upon the fort, and the constitutional nature of the Union was left to be decided by military force and not by the Supreme Court.
When he assumed
The first significant issue concerned the president’s authority to conduct war without prior congressional approval.
In a 5-4 decision, the Court ruled for Lincoln
In dissent, Justice Samuel Nelson agreed that “in one sense, no doubt this is war, but it is a statement simply of its existence in a material sense, and has no relevancy or weight when the question is what constitutes war in a legal sense…and of the Constitution of the United States.” The Court’s deference to the president’s decision about when the war began was mirrored at war’s end by its decision in Freeborn v. the “Protector,”
President Lincoln’s decision to impose a naval blockade on Southern ports was just one part of a larger war effort. In addition to the blockade, Lincoln
The constitutionality of Lincoln’s decision to suspend the writ was first tested in a federal circuit court in Baltimore, Maryland, in 1861. The military had arrested John Merryman for his participation in an attack on Union forces. Merryman petitioned the court for a writ of habeas corpus. Chief Justice Taney, riding circuit, granted the writ and had it sent to the general in command of the fort where Merryman was detained. Sending an aide in his place, the general replied that he would not obey the writ because Lincoln had suspended its operation. In response, Chief Justice Taney found the general in contempt of court, an action with little practical effect, and issued an opinion that directly addressed the constitutionality of Lincoln’s decision. Taney held that Lincoln
The Supreme Court was presented with another claim concerning habeas corpus just two years later, in the case of Ex parte Vallandigham
Initially the Court cast some doubt on the constitutionality of various Reconstruction measures. In the Test Oath Cases
The Constitution of the United States is a law for rulers and for 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.
The Court did agree, though, “that there are occasions when martial law can be properly applied.” If civilian courts are “actually closed” and it is “impossible to administer criminal justice according to law,” then the military may supply a substitute for civilian authority. In Milligan’s case, the courts had been open and functioning; consequently, Milligan’s arrest by military authorities had been unconstitutional.
Although the Court did not fervently protect civil liberties until the war was over in stark contrast to its behavior during the war many congressional leaders saw in the case a more general threat to Reconstruction policy, which included military governments and tribunals. Thaddeaus Stevens, for example, complained that the decision “although in terms not as infamous as the Dred Scott decision, is yet far more dangerous in its operation.” Several bills were introduced in Congress to curb the Court, including one by Representative John Bingham of Ohio, who warned ominously of a constitutional amendment that could result “in the abolition of the tribunal itself.”
Many congressional leaders believed that a case then working its way through the federal courts would give the Court a chance to declare much of the Reconstruction effort unconstitutional. The case, Ex parte McCardle
Milligan aside, the Court generally refrained from inquiring into the constitutionality of Reconstruction. Thus, in Mississippi v. Johnson
In 1869 the Court put its imprimatur on Reconstruction and on Lincoln’s
General works on the Civil War are voluminous; the works discussed here deal with both the war and the Supreme Court. A good starting place is Timothy S. Huebner’s The Taney Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2003), which is a comprehensive reference work on on the court of the chief justice who directed the Court through most of the war. Jonathan Lurie’s The Chase Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2004) is a similar work on Taney’s successor. Michael A. Ross’s Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court During the Civil War Era (Baton Rouge: Louisiana State University Press, 2003) examines the career of the associate justice whom Abrahm Lincoln appointed to the Court in 1862 to bolster the Court’s support of the war. For a broader study of Lincoln and the Civil War, see Herman Belz’s Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War Era (New York: Fordham University Press, 1998). Still useful is James G. Randall’s earlier study, Constitutional Problems Under Lincoln (Urbana: University of Illinois Press, 1964). Charles Fairman’s History of the Supreme Court of the United States: Reconstruction and Reunion, 1864-88 (2 vols., New York: Macmillan, 1971) is a comprehensive account of the Court during the Reconstruction era. Harold Hyman’s A More Perfect Union: The Impact of the Civil War and Reconstruction upon the Constitution (New York: Alfred A. Knopf, 1973) is still among the best treatments of the Civil War and the Constitution. Stanley Kutler, Judicial Power and Reconstruction Politics (Chicago: University of Chicago Press, 1968) examines the Reconstruction’s effect on the judiciary. For a later study of Texas v. White and Justice Salmon P. Chase, see Harold Hyman’s The Reconstruction Justice of Salmon P. Chase: “In Re Turner” and “Texas v. White” (Lawrence: University Press of Kansas, 1997).
Milligan, Ex parte
Mississippi v. Johnson
States’ rights and state sovereignty
Texas v. White
War and civil liberties