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Ex Parte Milligan at 150: The Constitution & Military Commissions in American Wars on Terror

September 22-24, 2016
Illinois State University
Normal, IL 

Ex parte Milligan at 150 is an academic conference to mark the 150th anniversary of the Ex parte Milligan (1866) decision of the Supreme Court.  Papers and panels are currently being sought on issues relating to the decision as well as current considerations on civil liberties and the war on terror.

Full Conference Schedule

Please use this full conference schedule as your main resource for all updated conference events.

Historian: Michael Les Benedict │ The Ohio State University
Jonathon Hafetz | Seton Hall Law School

In addition to the keynote speakers, a number of important scholars of Lincoln and Civil Liberties will be delivering remarks:
Roger Billings | Co-editor of Abraham Lincoln, Esq.:The Legal Career of America's Greatest President
Christopher Phillips | Author of The Rivers Ran Backward: The Civil War and the Remaking of the American Middle Border
Brooks Simpson | Author of Ulysses S. Grant: Triumph over Adversity, 1822-1865
Stephen Towne | Author of Surveillance and Spies in the Civil War: Exposing Confederate Conspiracies in America's Heartland
Jennifer Weber | Author of Copperheads: The Rise and Fall of Lincoln's Opponents in the North
Jonathan White | Author of of Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman

Conference rationale: 

In the summer of 1866, US Supreme Court Justice David Davis retired to his home here in Bloomington, Illinois to write the majority opinion in Ex parte Milligan, a controversial case that developed out of the Civil War and the Lincoln Administration’s use of military commissions to try civilians. Contrary to his friend Lincoln’s position, Davis famously held that trial by military commissions was only acceptable where there was a real war and where civilian courts were impaired. Milligan was apprehended in Indiana, where the courts were open and where according to Davis at least, there was no war. To the satisfaction of the Democrats at the time and civil libertarians since, Davis went on to hold that the administration had violated Milligan’s rights under Article III, Section 2, as well as the 4th, 5th, and 6th Amendments to the Constitution. Davis concluded that, “the Constitution of the United States is a law for the 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.”  In a concurring opinion of Justice Salmon P. Chase argued that the military commissions might be set up by Congress under its Article I war powers.  

Despite Davis’s soaring rhetoric, the decision has remained controversial. Radical Republicans who believed such a precedent would inhibit the ability of the Army to protect Black freedom in the South responded by stripping the Supreme Court of appellate jurisdiction over military commissions. And while cited in a few cases arising out of WWII and a stray case in the 1950’s, the case has largely languished in obscurity, in part because it is not entirely clear what the decision really means.

Since 9/11 however, ex parte Milligan and the issues surrounding it have assumed renewed centrality in our national debates. The administration of George W. Bush exercised and defended sweeping executive discretion in prosecuting the war on terror, including the use of military commissions, an assertion seemingly counter to both Davis’s majority opinion as well as the more circumspect concurring opinion. But despite four Supreme Court decisions, Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008), the law in this area remains unsettled. The continuing salience of ex parte Milligan has been underlined again. On October 22, 2014, it and related decisions aired again in a Guantanamo-related case heard in the US Court of Appeals for the DC Circuit, which some expert observers believe will soon head to the Supreme Court.

2016-09-22T09:52:12.639-05:00 2016