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The Beginning: How the Constutition Intended Congress to Function

The War of 1812

"Free Texas" and Imperial Expansion

The Civil War, Habeas Corpus, and Military Tribunals


The Beginning: How the Constutition Intended Congress to Function

In May 1787, a dozen men, many veterans of the Revolutionary War, gathered in Philadelphia to decide how to bring together a struggling and disunited gaggle of 13 independent states into one overarching union. The Articles of Confederation conferred almost all power upon the states, and, as Irons writes, "they acted more like quarreling European principalities than like states united by common purpose." The idea of a "United States" under a single rubric -- the Constitution -- was in large part the brainchild of scholar and gentleman farmer James Madison. His idea was to jettison the Articles for a new document that would unify the thirteen disparate states under one relatively powerful federal government. Madison wished to invest this new government "with positive and complete authority in all cases which require uniformity; such as the regulation of trade" between the states and foreign nations. Virginia governor Edward Randolph insisted that any new rubric must, in his words, "accomplish the objects proposed by their institution; namely, common defense, security of liberty, and general welfare." Such an overarching mission was well outside of Madison's own vision, but Madison acquiesced in order to win the influential Randolph's support. A convention presided over by George Washington adopted what was then called "the Virginia Plan," which proposed a federal government made up of three branches: the executive, led by an elected president; a "National Legislature," to be divided into two houses, and a "National Judiciary," chosen and structured by the legislature. In the original plan, the executive branch was the weakest of the three, with the legislature (later known as Congress) to wield ultimate power in most areas of governance. Madison called the legislature "first among equals."

One area where the executive branch, later called the presidency, would wield power was the repulsion of military incursions from other nations, although Congress would be the only branch empowered to actually declare war, and the president had strict limitations on how far he could commit troops and funds in the defense of the nation. These framers of the new Constitution had a deep distrust of the British form of government, where a monarch could declare war and mobilize the British military without the consent of Parliament. In this, Madison and the framers went farther even than their philosophical mentor, John Locke, who advocated war-making powers to be assigned to the king (or in the case of the newly formed "United States," the president) in the interest of expediency and quick response to immediate threat. Locke even advocated that in times of emergency, the monarch, or president, has the inherent right to go outside the law in reacting to threats, an idea that has been used by dozens of presidents throughout American history to justify their own extra-constitutional actions. The argument about what exact powers the newly created office of the president would and would not have was long and sometimes contentious, with South Carolina's Charles Pinckney saying that to give the president responsibility for "peace and war...would render the Executive a Monarchy, of the worst kind, to wit an elective one." Fellow South Carolinian John Rutledge agreed that he was "for vesting the executive power in a single person," although he "was not for giving him the power of war and peace." Most delegates to what will become known as the Constitutional Convention agreed with Virginia's James Wilson, who insisted that the powers of "peace and war are generally be legislative powers." At all costs, the delegates agreed, the US must not allow itself to become ipso facto a monarchy in any form or fashion. Massachusetts's Eldridge Gerry thundered during the debate that he "never expected to hear in a republic a motion to empower the Executive alone to declare war," and his views held sway. The Constitution would give broad powers for immediate, limited military action to the president, but retain the power to declare war and to mobilize the military on a broader sense to Congress.

Irons points out that a wording change implemented by Madison and Gerry, from giving the president the power of "declaring" war to "making" war, implied that the framers intended to leave the "making of war" strictly to the president. One example is during Vietnam, when Republican Barry Goldwater insisted that the wording meant that Congress was limited to "declaring" war only after the war had begun and troops were already committed -- in effect, making Congress a rubber stamp to validate the president's decision to engage the country in war. The argument is not supported by the records of the 1787 debate, where the framers clearly intended that power to reside solely with Congress. The president is the "commander-in-chief," said the delegates, but only as much as he retains ultimate command of the military once Congress has decided that there will be a war, and Congress would grant the president the authority to "command" the troops through his subordinates. Congress would control the power to make war; the president would execute it. Down the line, presidents have misinterpreted -- deliberately or not -- the intent of Article II of the Constitution to take upon themselves Congress's power to make war. Clearly, when the Constitution and the various documents and letters written by the framers (such as the Federalist Papers) are read and understood, the intent was to place the military under the command of a civilian president, who himself would be subject to Congressional authorization. North Carolina's James Iredell said, "The President has not the power to declare war. The powers are vested in other hands. The power of declaring war is expressly given to Congress." And Madison wrote, "[T]hose who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separate the sword from the purse, or the power of executing from the power of enacting laws."

The Constitution was ratified by the ninth state, New Hampshire, on June 21, 1788, making it the law of the new United States of America; George Washington was proclaimed president by acclamation (though subsequent presidents would be voted on by the citizenry), and the first Congress and the first president assumed their duties in April 1789.

First Challenges

Ironically, the first challenge to the nascent republic came from Muslim Arabs. In 1785, before Washington became president or the Constitution was written, pirates from Algiers seized a number of American merchant vessels. Algiers, Tunis, and Tripoli were part of a loose confederation called the Barbary Powers, and aligned with Morocco. The standard procedure for the pirates was to seize a ship, impound its cargo, enslave its crew, and then offer peace and the return of the captured sailors in exchange for allowing the pirates to keep the ships and let them ply the waters of the Atlantic and Mediterranean without hindrance. A number of American sailors were held hostage (again ironically, considering the Iranian hostage crisis of 1979) for eleven years before their eventual release in 1796. An outraged citizenry demanded action, but both Washington and his Secretary of State, Thomas Jefferson, deferred to Congress over the decision to go to war with the Barbary Powers. Jefferson wrote, "Upon the whole, it rests with Congress to decide between war, tribute, and ransom as the means of re-establishing our Mediterranean commerce." Congress would decide if the US would go to war, and if so, how far that war would extend.

The Barbary pirates would continue to plague American shipping well into the 19th century. In 1815, President James Madison asked Congress to declare war against Algiers. Congress did not give Madison blanket authority to wield the US military as he saw fit, but instead authorized him to "employ such of the armed vessels of the United States as may be judged requisite." However, this vaguely worded authorization would be the first of many "blank check" authorizations for presidents to use as justifications for wars and interventions clearly not foreseen, nor authorized, by Congress. It is noteworthy that the first five presidents -- Washington, Adams, Jefferson, Madison, and Monroe -- all deferred to Congress in their efforts to wage war and diplomacy with the Barbary Powers.

Another crisis occurred under Washington's tenure, when in 1793, during the war between England and France, a French diplomat, Edmond-Charles-Edouard Genet, attempted with some success to inflame passions among Americans in support of France, to the point where one American privateer seized a French vessel and brought it to Philadelphia. Washington issued a Proclamation of Neutrality declaring the US a bystander in the Anglo-French war, effectively abrogating the Franco-American Treaty of Alliance of 1778. Washington issued the proclamation, and the effective jettisoning of the treaty, without the authorization of Congress. Jefferson and Alexander Hamilton supported the authority of the president to declare neutrality (essentially, declaring peace) without Congressional authorization; James Monroe and James Madison, among others, opposed it, with Madison insisting that the power of peace as well as war must reside solely with the legislature. In December 1793, Washington sought "the wisdom of Congress to correct, improve, or enforce" his proclamation, and Congress did so with the Neutrality Act of 1794.

From 1798 through 1801, the government under President John Adams tacitly encouraged what was called the "Quasi-War" with France, where American privateers routinely raided and seized French ships in violation of the Neutrality Act. Two legislative acts allowed US captains to "rescue" other US vessels from "enemy" ships. In several cases concerning such seizures, the Supreme Court ruled that Congress had in effect declared war on France even though no official declaration had been made. The ruling is notable for two things: one, that undeclared wars can occur within the bounds of the Constitution, and two, that Congress is the only governmental body capable of declaring war, either directly or by the actions it authorizes.

Irons writes, "In the broad scope of American history, and particularly in light of later conflicts -- such as the two world wars, Vietnam, and the 2003 invasion of Iraq -- the events recounted [here] may seem inconsequential and small. But...[t]he threat posed by the tribute demands of the Barbary Powers who took American sailors hostage cannot be dismissed as trivial, any more than the threat posed by present-day terrorists who have taken American hostages in the Middle East. How presidents and Congress responded to earlier challenges, and how the federal courts resolved cases stemming from them, have continuing relevance to the later assertions of inherent presidential war-making powers. During the first decades of the nation's history, presidents and Congress generally respected the original intent of the Constitution's Framers concerning their respective powers, and the courts established legal principles of enduring significance. But...the emergence of imperial ambitions -- for territory and markets alike -- followed the rapid growth of the nation's population and economy."

The War of 1812

On June 1, 1812, responding to what he called the catalog of "indignities and injuries" the British had inflicted on American shipping as well as its instigation of Native American uprisings and naval blockades of American ports, and to the public outcry for military redress, President James Madison told Congress that "a state of war" now existed between the US and Great Britain. Congress responded with a hotly debated authorization for Madison to use "the whole land and naval force of the United States" against Britain. Madison hoped that the British, already embroiled in a long and messy conflict with France, would quickly settle with America; instead, the British attacked with confidence, using its far superior naval forces and better organized army to defeat the tiny American navy and badly organized American militias in battle after battle. Detroit fell to British forces, and in 1814, Royal Marines invested Washington, DC and burned the White House and Congress. Eventually, American forces evened the score, and the War of 1812, as it would be called, became a "quagmire" bogging down both British and American forces until a December 1814 peace treaty, signed in Brussels, ended the conflict. Though the war was essentially a draw, it was the first war to be officially declared by Congress -- in fact, the first of only five officially declared wars in American history, though history is replete with American military actions. The Supreme Court decided one case, Martin vs. Mott, in which an American militiaman refused to fight in what he and others called "Mr. Madison's war" and claimed that the president had no authority to compel him to military service. The court ruled that the president did, indeed, have the authority to compel service from military personnel; more importantly, the court wrote its opinion specifically to preclude the possibility of future soldiers' challenges to presidential authority to deploy the military, even without what some soldiers might see as evidence of hostilities that required their service. Mott's court challenge to Madison's authority "unwittingly paved the way for judicial expansion of the commander in chief clause and judicial contraction of congressional power to limit executive authority to commit troops to combat."

"Free Texas" and Imperial Expansion

Over the next decades, America expanded tremendously, with the acquisition of much of the middle of the continent through the Louisiana Purchase in 1803, Spain's cessation of Florida to the US in 1819, and the enforced acquisition of Native American lands. These expansions were accomplished without the need for declared wars, though long and bloody conflicts with the native tribes were an ugly part of expansion, and the courts ruled time and again that such expansions were the right of the nation. But in 1846, that changed, in an imperialistic war with Mexico provoked and declared by President James K. Polk. The large area known as Texas had previously been annexed by the US, and declared a state in 1845, after several battles with Mexican forces, including the famous massacre at the Alamo in 1836 and the victory of Texan troops a month later at the Battle of San Jacinto. Texas briefly became an independent nation, recognized by Mexico though that country refused to relinquish its claims upon the territory, and by the American Congress, though President Andrew Jackson had been reluctant to provoke Mexico by recognizing Texas as an independent nation, and the Texans themselves viewed themselves as Americans and worked to bring Texas into the union. Under Polk, Texas was annexed by an act of Congress. But Polk had his eye on the rest of the continent, specifically the Southwest and the Pacific seaboard up to the southern border of what is now Oregon, currently owned and populated by Mexico and Mexican citizens. Polk, and his envoy John Slidell, tried and failed to buy the area from Mexico; the Mexican government, though virtually bankrupt, faced severe opposition to selling off any more territory, and Mexico's Spanish advisors privately told Polk that Mexico "must appear to be forced to agree to such a proposition" in order to avoid a revolution.

Polk provoked a conflict with Mexico by positioning troops along the Rio Grande in January 1846; in June, Mexican forces crossed the river and were soundly defeated. Polk had already asked Congress "to confer authority on the Executive to take redress into our own hands by aggressive measures" should the Mexicans cross the river, and on May 11, told Congress that a state of war existed between the US and Mexico, and asked for a formal declaration of war. Many Congressmen felt that Polk was stampeding the country into an unnecessary war. "The president has announced that there is war," said Senator John C. Calhoun, but "there is no war according to the sense of our Constitution. ...If we have declared war, then a state of war exists, and not until then." Despite the objections of Calhoun and others, some of who condemned Polk for sending troops into battle without authorization, Congress overwhelmingly declared war on May 12. The war was both popular and successful, with American troops investing Veracruz and Mexico City, and routing Mexican forces in California. On February 2, 1848, Mexico sued for peace, signing a treaty that gave the US over half of its territory in return for a face-saving $15 million in compensation for damages. The Mexican-American War is the first direct example of American expansion through imperialist actions, and the first example of presidential war-making, with Congress approving the military aggression well after the fact. Approval for Polk's actions quickly dimmed in the face of his violation of the Constitution, and Congress, turned over to the Whigs (later the Republican Party) after an election that was largely in repudiation of Polk's Democrats, voted to condemn Polk's military aggression. "Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion," wrote first-term Whig congressman Abraham Lincoln, "and you allow him to make war at pleasure." He wrote that the framers of the Constitution intended that "no one man should hold the power" of committing the US to war. Even so, the Supreme Court decided several cases stemming from Polk's aggression, and the US's acquisition of territory, that upheld the president's ability to add territory to the nation either by treaty, by acquisition, or even by conquest.

Polk's successors, Zachary Taylor, Millard Fillmore, Franklin Pierce, and James Buchanan, learned from Polk's unpopularity, and refused to engage in imperialistic advances during their terms. One example from this time, however, echoes down through history. An American warship, the Cyane, was sent to the Nicaraguan port of Greytown to respond to "insults" given to American merchants by local officials stemming from disputes between Nicaraguan and American businessmen; when the officials refused to apologize, the Cyane bombarded the town. President Pierce was embarrassed by the entire incident, but nevertheless defended the bombardment to concerned British diplomats in Nicaragua as being necessary to protect American lives and property. Pierce's justification, and a federal court ruling against an American citizen who sued the US government for damages inflicted on his property in Greytown, were both used as recently as 1993 to justify American incursions into foreign nations without real provocation -- both George H.W. Bush and Bill Clinton cited the Greytown incident as legal support for American incursions into Somalia. But Buchanan, Pierce's Secretary of State before he became president, told Congress in 1858 that the president "cannot legitimately resort to force without the direct authority of Congress, except in resisting and repelling hostile attacks." However, Buchanan's restraint will be honored by future presidents mostly in the breach.

The Civil War, Habeas Corpus, and Military Tribunals

The American Civil War presented a unique set of challenges to the US government. The issue of slavery, among others, inflamed passions around the nation, with many on both sides taking up arms against one another, and Southern states insisting that they would secede from the United States rather than have the federal government go against their wishes in abolishing slavery. The Constitutional Convention had generated what was called "The Great Compromise" over slavery, which solved nothing and merely postponed the issue's resolution. The Missouri Compromise of 1820 angered Southern slave states by admitting Missouri to the Union with the specific provision that, though Missouri would be a slave-owning state, other states north of its southern border would not; new territories in the West also prohibited slavery. Abolitionist William Henry Garrison burned a copy of the Constitution in 1854 after calling it "a covenant with death and an agreement with hell;" Kansas, farther west, became a battleground between pro- and anti-slavery proponents. And in 1857 the Supreme Court issued what would be the most infamous and derided decision of its existence, in what would be known as the Dred Scott case: the case revolved around a former slave, Dred Scott, who insisted that he had been emancipated by his residence in the free state of Illinois. The Court disagreed. Chief Justice Roger Taney, writing for the Court, said that blacks were simply "property" that could be "bought and sold, and treated as an ordinary article of merchandise;" and characterized blacks as "beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights that the white man was bound to respect; and the negro might justly and lawfully be reduced to slavery for his own benefit." He even went so far as to unilaterally strike down the Missouri Compromise as an unconstitutional effort by Congress to regulate the territories. Taney's ruling, in effect "nationalizing" slavery, fueled the dispute over whether the new territories would or would not be slaveholding states.

Abraham Lincoln ran for a Senate seat in Illinois in 1858 by running largely as an anti-slavery candidate, though his own views were hardly so abolitionist. Debating his opponent Stephen Douglas, Lincoln called the Dred Scott decision "erroneous," and accused Douglas and pro-slavery advocates of engaging in a "conspiracy to perpetuate and nationalize slavery." Douglas in turn accused Lincoln of engaging in "warfare on the Supreme Court." Douglas defeated Lincoln, but in 1860, the two would square off again, this time for the presidency. Aided by a split among Douglas's Democratic Party, Lincoln won, but with less than 40% of the popular vote. The Dred Scott decision fomented the split among the nation's Democrats which would come to fruition a century later, when the Democrats embraced the Civil Rights Act, precipitating a sea change in American politics that would reverse the two parties' positions on a number of issues, and transform both into what, in some respects, amounts to their opposition.

Southern states were incensed at Lincoln's election. On February 8, 1861, a month before Lincoln's inauguration, seven Southern states -- South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, and Texas -- announced their formal secession from the United States and their formation of the Confederate States of America, with former Secretary of War Jefferson Davis named as the president of the CSA. Four more states, Virginia, Arkansas, Tennessee, and North Carolina, quickly joined them. On April 12, Confederate troops fired on Fort Sumter in South Carolina, forcing the Union garrison to surrender. On April 14, the day the Sumter troops surrendered, Lincoln told Congress that he was exercising his Constitutional powers to call up the state militias and "to cause the laws to be duly executed." This marks the opening of the Civil War. Before it ended, in 1865, over 600,000 Americans on both sides would die in what remains the bloodiest war in American history. (Additional material from Wikipedia.)

Lincoln took two extraordinary actions without Congressional approval that would eventually be the focus of Supreme Court decisions -- the naval blockade of the Confederate states, and the suspension of the Constitutional legal protection of habeas corpus. Irons writes, "Between them, these decisions illustrate the Court's difficult task of resolving disputes over presidential powers during wartime -- in this case, a war that began as a domestic insurrection but soon became a conflict between 'belligerent' nations, each claiming sovereignty over its territory." Lincoln told Congress frankly that he had undertaken both actions without their consent, but said that his actions, "whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them." Though he took such drastic actions, he acknowledged that he required Congress to make them legal. Congress was cooperative, passing legislation "approving, legalizing, and making valid all the acts, proclamations, and orders of the President, etc., as if they had been issued and done under the previous express authority and direction of the Congress of the United States." Other presidents, including Truman, Clinton, and both Bushes, would not observe the legal niceties even so much as Lincoln did.

The Supreme Court ratified, by a scant 5-4 majority, that Lincoln, as president, had the right to blockade Confederate ports and seize foreign ships carrying materials to be used in the Confederate war effort. Indirectly, the Court ruling, written by Justice Robert Grier, recognized the Confederacy as an independent, belligerent state which was at war with the US, ignoring the fact that both Lincoln and Congress were treating the Confederacy as domestic insurgents. Dancing around the Constitutional provision that Lincoln did not possess the authority to blockade Confederate ports without Congressional authority, Grier ruled that the president had the Constitutional authority to decide what exactly the status of the Confederacy was by himself, and act accordingly. Grier's decision, that in times of emergency, a president can pretty much do as he sees fit, has been used time and again by later presidents to justify their own military incursions of other nations. "By shielding the president from judicial oversight," Irons writes, "the Court abdicated its responsibility to 'say what the law is,' in the memorable phrase of Chief Justice John Marshall.... Justice Grier's invocation of the 'political question' doctrine [essentially saying that the entire question was not up to the Court, but to the other two branches] effectively exempted Lincoln from the Court's duty to hold his actions up to judicial scrutiny." In a scathing dissent, Justice Benjamin Nelson wrote that the Constitution expressly reserved war-making powers to Congress, and not the president, and Lincoln violated the Constitution by unilaterally declaring the blockades regardless of what Congress authorized after the fact. Irons wonders what the ramifications would be had one justice joined the dissenters and made their opinion, not Grier's, the ruling: "Most likely, in deciding challenges to congressional authorizations, without formal declarations of war, the Court either would have simply ignored the [decision] as precedent or would have distinguished the ruling against Lincoln on the ground that an 'internal' naval blockade was factually different from 'external' military actions. Nonetheless, the sharp conflict between the Court's majority and its a constitutional division over presidential war-making powers that subsequent judicial decisions on this critical issue have failed to resolve."

On April 27, 1861, in response to word that Confederate sympathizers in the border state of Maryland were planning on blowing up bridges, Lincoln issued a proclamation suspending the writ of habeas corpus in the affected parts of Maryland, in effect allowing Union officers to arrest and detain without charge or trial anyone suspected of threatening "public safety." The ramifications of this decision, again issued unilaterally and against Constitutional protections, on 21st-century executive decisions is apparent. Basically, the "Great Writ" of habeas corpus goes back to 17th century English civil law, and demands that law enforcement officials cannot arrest or detain citizens without a judge deciding that there is enough evidence against the citizen to warrant such. Angered by British soldiers' trampling on the rights of Americans during the Revolutionary War by arbitrarily arresting and detaining thousands without legal justification, the framers wrote specific guidelines in the Constitution that only allows a president to suspend habeas corpus with a specific act of Congress. Lincoln's proclamation is somewhat understandable in the light of the emergency conditions facing Maryland and the entire country, but regardless of justification, he violated the Constitution in making the decision. The law first faced judicial review when John Merryman, a Maryland state legislator vocal in his support for the Confederacy and suspected of organizing a plan to blow up bridges to block the passage of Union troops, was arrested in his home and jailed at Fort McHenry without a warrant. Merryman drew up a writ of habeas corpus and filed it through his lawyer with Chief Justice Taney. (The law allowed for Supreme Court justices to directly consider writs of habeas corpus without going through the usual court procedures.) In Taney's court, Merryman's lawyer demanded to see the warrant for Merryman's arrest; the army officer representing General Cadwalader, the commander of Fort McHenry, refused, instead merely informing the court that Merryman had been arrested on charges of treason and rebellion. Taney granted Merryman's petition, drafted a writ of habeas corpus, and had the writ served on Cadwalader. The general refused to accept the writ. Taney chose not to challenge Cadwalader's military authority by sending federal marshals to arrest Cadwalader for contempt of court; instead, he allowed Merryman to remain in custody, but penned a 5000-word opinion castigating both Lincoln and Cadwalader for violating the principle of habeas corpus. Only Congress, he wrote, can suspend the principle, and then only in emergencies and for a limited period of time. Because of this unchecked and arbitrary power, Taney wrote, "the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty, and property at the will and pleasure of the army officer in whose military district he happens to be found."

In his angry rejoinder to Taney's opinion, Lincoln characterized habeas corpus as nothing more than "a single law" which should not be allowed to stand in the way of governmental necessities: "[Is] the government itself [to] go to pieces less that one [law] be violated?" True to historical precedent, Congress authorized Lincoln to suspend the law in legislation passed in March of 1863 -- after Lincoln had ordered a nationwide suspension of habeas corpus in August of 1862. By the end of the war, over 10,000 people had been arrested and jailed without legal recourse. Lincoln thusly perpetuated "the greatest violation of constitutional rights until the mass incarceration of some 120,000 Americans of Japanese ancestry during World War II."

Irons also delineates the case of Lambdin Milligan, who, unlike Merryman, who was soon freed, was tried by a military tribunal and sentenced to hang for charges of "inciting insurrection" and aiding Confederate rebels. Milligan was a "Copperhead," a Confederate sympathizer living in the Northern state of Indiana, and arrested for supposedly plotting to attack Union military facilities. Milligan was tried under military law, not civilian law as the Constitution affords, and, with three associates, was convicted and sentenced to death. But by the time their convictions were reviewed by Lincoln, who by law had to sign off on all such executions, the Union had all but defeated the Confederacy and Lincoln did not sign the warrants. Nevertheless, Milligan and the others remained in jail, under a death sentence. Lincoln was assassinated on April 15, 1865, just six days after Robert E. Lee signed the surrender orders in Appomattox. Lincoln's successor, Andrew Johnson, signed the warrant for Milligan's execution. By this point, a number of lawyers, including future president James Garfield, were representing Milligan. Before the execution, his lawyers filed a writ asking that Milligan be released from "unlawful imprisonment" -- the military tribunal had no jurisdiction over civilians, the lawyers argued, because at the time of his arrest, the nation was not yet under martial law, Indiana was not threatened with Confederate invasion, and that Milligan could have been tried in federal court. In fact, a civilian grand jury had refused to indict him. By the time the case reached the Supreme Court, Johnson had commuted Milligan's death sentence. In April 1866, the Court unanimously voided Milligan's conviction, denouncing the military tribunal proceedings for a civilian and noting that the trial had violated the Fourth, Fifth, and Sixth Amendments.

Writing for the court, Justice David Davis penned the following, which resonates today: "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. Such a doctrine leads directly to anarchism or despotism, but the theory of necessity on which it is based is false; for the Government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its authority." Davis's mandate that Constitutional guarantees, in particular the Bill of Rights, transcend governmental authority and are, in Irons's words, "beyond the reach of government officials, civilian or military, elected or appointed," have been all but ignored by subsequent Courts, as has Davis's warning that government officials who are "ambitious of power" and who display their "contempt of law" have repeatedly placed the Constitution in grave peril. Irons notes that in June 2004, the Supreme Court, in a majority opinion by Sandra Day O'Connor, echoed Taney's words in the Merryman case by holding that the Constitution does not give the president a "blank check" during wartime, and ordered another detainee denied habeas corpus, Yasser Hamdi, to be given a fair trial in a civilian court.