Document Type

Article

Publication Date

2-2-2017

Abstract

Shortly after John Wilkes Booth killed Abraham Lincoln on April 14, 1865, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that was a subject of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected presiding judge, by trying individuals other than members of the armed forces in a military tribunal?

The political branches and others have debated this Article III question in several of the nation’s major wars, yet it remains unresolved, particularly with respect to the trial of domestic-law offenses. Moreover, that question is especially significant in the United States’ current armed conflicts against nonstate terrorist organizations, such as al Qaeda, because although members of such enemy forces, who lack international law “combatant immunity,” can often be tried in Article III courts for violation of U.S. criminal laws, Congress has recently authorized military commissions to try such enemy forces for certain domestic-law, war-related offenses. Moreover, during the recent campaign, President Trump indicated that he intends to increase the use of military tribunals—including even to try United States citizens.

In attempting to justify the constitutionality of such military trials, the government and several judges on the U.S. Court of Appeals for the D.C. Circuit have turned to the Lincoln assassination commission as a leading precedent, one that is said to help establish a political branch practice that should inform our current constitutional understandings of the proper scope of military jurisdiction. Such reliance on the Lincoln trial as legal authority is, in one sense, understandable, because that proceeding was, in Judge Kavanaugh’s words, “the highest-profile and most important U.S. military commission precedent in American history,” and thus it would be striking—indeed, a significant constitutional embarrassment—to conclude that the trial was unlawful.

As this Article demonstrates, however, such respect for the Lincoln assassination trial as a canonical constitutional precedent would itself be historically anomalous. For almost 150 years it was virtually unthinkable for anyone to rely upon that proceeding as venerated legal authority: as one esteemed expert wrote, the Lincoln trial was a case of military jurisdiction that “no self-respecting military lawyer [would] look straight in the eye.

There is a rich and familiar literature on many of the great constitutional questions raised during the Civil War—on issues such as secession, habeas suspension, emancipation, and presidential prerogatives. This is, however, the first comprehensive account of one of the most important and most dramatic of the constitutional debates of that war and its aftermath, involving the permissible scope of military justice and whether certain wartime exigencies might justify circumvention of Article III’s guarantees. All three branches engaged on this difficult question during and after the war, but it resisted resolution; indeed, it was the rare constitutional problem that flummoxed even Lincoln himself. At war’s end, the President and many of his congressional allies appeared to be on the verge of repudiating the system of military tribunals that Lincoln himself had superintended. His assassination, however, prompted his successor to convene the most controversial military trial of them all, an audacious proceeding that not only revived the heated debate over the constitutional question, but also precipitated one of the only instances in the nation’s history in which the Executive actually disregarded a judicial order—an action to prevent the Article III courts from adjudicating a challenge to their own displacement. The Article uncovers this fascinating but long-neglected chapter in the history of constitutional war powers.

The article also carefully examines the place of the Lincoln trial in the nation’s constitutional discourse over the past century and a half—the ways in which that proceeding, and other Civil War military trials, have been accorded authority, or dismissed as nonauthoritative, by later generations. This broader historical narrative is not only of direct significance to the ongoing constitutional litigation challenging such military trials, but can also inform current academic and judicial debates about whether and under what circumstances political branch practice, especially high-profile precedents, ought to inform, or “liquidate,” the meaning or proper application of the Constitution.

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