Ex Parte Milligan Reconsidered

Race and Civil Liberties from the Lincoln Administration to the War on Terror

Edited by Stewart L. Winger and Jonathan W. White

At the very end of the Civil War, a military court convicted Lambdin P. Milligan and his coconspirators in Indiana of fomenting a general insurrection and sentenced them to hang. On appeal, in Ex parte Milligan the US Supreme Court sided with the conspirators, ruling that it was unconstitutional to try American citizens in military tribunals when civilian courts were open and functioning—as they were in Indiana. Far from being a relic of the Civil War, the landmark 1866 decision has surprising relevance in our day, as this volume makes clear. Cited in four Supreme Court decisions arising from the wars in Afghanistan and Iraq, Ex parte Milligan speaks to constitutional questions raised by the war on terror; but more than that, the authors of Ex parte Milligan Reconsidered contend, the case affords an opportunity to reevaluate the history of wartime civil liberties from the Civil War era to our own.

After the Civil War, critics of Reconstruction pointed to Milligan as an example of the Republican Party’s abuse of federal power; even historians sympathetic to Lincoln have found it necessary to apologize for his administration’s record on civil liberties during the Civil War. However, the authors of this volume argue that this distorts the nineteenth-century understanding of the Bill of Rights, neglects international law entirely, and, equally striking, ignores the experience of African Americans. In reviving Milligan, the Supreme Court has implicitly cast Reconstruction as a “war on terror” in which terrorist insurgencies threatened and eventually halted the assertion of black freedom by the Republican Party, the Union Army, and African Americans themselves. Returning African Americans to the center of the story, and recognizing that Lincoln and Republicans were often forced to restrict white civil liberties in order to establish black civil rights and liberties, Ex parte Milligan Reconsidered suggests an entirely different account of wartime civil liberties, one with profound implications for US racial history and constitutional law in today’s war on terror.

“This book is a valuable addition to a number of academic areas including political science, international law, the laws of war, history, and sociology. Further, these excellent researchers are also wonderful storytellers, and this book will provide readers with both an informative re-examination of a watershed (and still ongoing) event in American history and an enjoyable read.”

—Howard Ball, author of Prosecuting War Crimes and Genocide: The Twentieth-Century Experience and Murder in Mississippi: United States v. Price and the Struggle for Civil Rights

“This timely and important book contributes to understanding the Civil War/Reconstruction context of the uses and limits of presidential war powers when faced with a domestic insurrection. It also makes suggestive and weighty insights on how those presidential and judicial decisions of the Civil War/Reconstruction Era resonate in the current public policy debates on the problem of security in an age of stateless wars and acts of terror. This work succeeds in all of its goals and, as is required in a volume of collected essays, the whole is greater than the individual parts—an impressive book.”

—Thomas C. Mackey, professor of history, University of Louisville

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About the Author

Stewart L. Winger is associate professor of history at Illinois State University. Jonathan W. White is associate professor of American studies at Christopher Newport University.