Few legal academics write about
military law and military government. I have had occasion to think and write
about these topics, but they do not occupy the intellectual heartland of most
in legal academia. As a result, it can sometimes happen that conversations with
others, or responses directed to others, can become somewhat one-sided, as one
party to the conversation knows something he believes to be understood by
members of his audience, but the other party is (or remains) in the dark. Conversations, like a teacher-student relationship, are a shared enterprise. The active speaker
must always consider whether his assumptions about a listener’s knowledge is
sufficiently complete to understand the speaker’s meaning. It is the same in
the other direction: the listener must always consider whether his knowledge
base is sufficiently complete to understand and to criticize the speaker’s
meaning.
When historians discuss the American
Civil War, discussions of the political exigencies, the military battles,
and contemporaneous international relations take the lead. By contrast, those
historians in the weeds have explained that the day-to-day legal character of
the war also shaped events. The
Union’s law officers followed a dual-track legal theory, in and off the
battlefield, to prosecute the war and to punish Civil War era (and Reconstruction
Era) wrongdoing.
The first track related
to criminal prosecutions under domestic federal law. U.S. citizens and
foreigners who engaged in insurrection or rebellion (and also violations of the
law of land warfare) could be prosecuted as criminals. Furthermore, U.S.
citizens and, in certain circumstances, foreigners who adhered to the
(purported) confederacy, and gave that enemy nation “aid and comfort,” could be
prosecuted for treason under federal law. E.g., Jefferson Davis was indicted
for treason.
The second track
relied on military force and military law as controlled by public
international law. The Union fought the (purported) southern confederacy as
a de facto enemy nation. In doing so, the Union was not recognizing de
jure the (purported) confederacy as a matter of public international law,
much less recognizing the constitutionality or legality of secession. Rather,
the Union recognized the existence of a de facto war between itself and a foreign de facto
government. This limited recognition of actual belligerency in the field
permitted the Union to take actions in regard to persons and property that were
not otherwise permitted in peacetime, but were permitted in war time as a
matter of public international law. E.g., internment of enemy prisoners of war,
during war time, absent individualized hearings or trials. Authority to take
such actions flowed from international law, but it was supplemented by the
Lieber Code, which was the military law code that governed the Union armed
forces, by constitutionally granted presidential war powers, by extant
statutory authorities, such as the Militia Acts and Insurrection Acts, and by
acquiescence and affirmative actions by Congress generally.
The dual-track legal
theory justifying the Union’s use of force was a messy set of legal theories in
a messy war. Indeed, the language of Section 3 of the Fourteenth Amendment follows
the dual-track theory.
In a 2025 Mississippi Law Journal
article, I wrote:
It is said that at
the negotiations at Appomattox Courthouse—Lee and Grant were both frank and
civil during the course of discussing the surrender of Lee’s Army of Northern
Virginia. Afterwards, Grant sent food to Lee to feed his (and, then,
their) nation’s former enemy soldiers. Celebrations for Grant’s soldiers came
only later—not while Lee’s soldiers remained present. Again, in ending active
hostilities, the first step towards national reconciliation was frank and civil
discourse.
I do not think our
present and future is or will be as difficult as was Grant and Lee’s.
Frankly, I believe my statement above is
entirely unexceptional. During hostilities, Lee’s soldiers were enemies of the United States as they
were the soldiers of a de facto enemy nation during actual hostilities. In other words, as a matter of
public international law, the (purported) confederacy was at war with the
United States. Once Lee surrendered and Lee’s soldiers were paroled, per the terms
of the surrender, then they became former enemy soldiers.
I was surprised to learn that
Professor Evan Bernick, on Bluesky, finds my characterization of these events
as anything but factual and commonplace. Indeed, Bernick wrote that my characterization
“seems to assume the validity of secessionist claims about the nature of a republic
that Lincoln (contra Lee) considered to have existed since the Declaration.”
It strikes me that
Bernick may have arrived at his (and, in my opinion, mistaken) opinion, in one
of several ways.
My best guess is that
he was unaware of the dual-track legal theory underlying and rationalizing the
Union’s theory for prosecuting the war (including interning enemy soldiers) and
for punishing wrongdoers. If my assumption is correct, that is, that Bernick
was unaware of dual-track theory, then you, the reader, would have to assess
where (if anywhere) fault lies. Was it my assuming the reader of a law review
would know this? Or, was it Bernick’s willingness to criticize an author having
personally made insufficient inquiry to understand the author’s intended meaning?
Is Bernick’s error (if properly
characterized as error) his use of “seems”? Does that justify his comment here,
even if not otherwise wholly accurate and complete? I wonder.
Does Bernick’s error (if properly
characterized as error) arise in connection with my use of “his,” as in “his
(and, then, their) nation’s former enemy soldiers”? Does Bernick believe I was
referring to Lee, as opposed to Grant? But even if that were so, that
interpretation would make the sentence a nonsense, and it does not in any way
obviously link up to my supporting the legality of secession or the permanent
lawfulness of two separate nations. And if that interpretation were on one’s
mind … is not that interpretation of my writing inconsistent with my last
sentence. “I
do not think our present and future is or will be as difficult as was Grant and
Lee’s.”
The single apostrophe indicates that Grant and Lee had a common future. Is
Bernick taking exception to my correct use of an apostrophe?
There is another possibility that could
explain Bernick’s interpretation of my writing. Bernick is still fighting the
Civil War, Reconstruction, and the Dunning School. And If I (Tillman) fail to
engage (as he would) in the remaining remnants of what is now only an intellectual war, then it
follows that any ambiguity in my writing indicates a quiet support for the secessions of 1860 and 1861. I do not suggest that this “seems” to be correct. I would hope that my
hypothesis is not correct as any such position is tantamount to abandoning all aspirational
efforts towards neutrality and fair play. Academics should always strive (if we
can do so reasonably) to adopt the most charitable view of others’ writings.
And for that reason, among others, I would be hesitant to put forward the Bernick
is still fighting the Civil War as the best explanation for his Bluesky
statements. But I would also like to see some reciprocity if only because the
most charitable view is frequently the better or best interpretation of
disputed text.
How we communicate
our views to others, how we do so calmly and rationally, and how we attempt to accommodate
different members of our audience sincerely, reflects on who we are as
teachers. How we receive such ideas and information, how we react, how critically
and how charitably, reflects on who we are as audience members, as students,
and, sometimes, as colleagues.
Seth Barrett Tillman, ‘Teaching Others and Learning from Others: A Response to Professor Evan Bernick,’ New Reform Club (Sept. 11, 2026, 8:04 AM), <https://reformclub.blogspot.com/2026/09/teaching-others-and-learning-from.html>;
See also Professor Evan Bernick’s original post and thread: <https://bsky.app/profile/evanbernick.bsky.social/post/3loivs2tzzc2b>;
See, e.g.,
James G. Randall, Constitutional Problems
Under Lincoln 59–73 (rev. ed. 1951) (1926) (outlining the dual character
of the U.S. government’s approach to legal issues arising during the American
Civil War); see also, e.g., Andrew
C. McLaughlin A Constitutional History of the United States 617 (1935)
(“[T]he [American Civil] [W]ar was of a dual character: in strict theory it was
an insurrection; but in the conduct of the war the insurgents were treated as
forces of an independent government.”).
Seth Barrett Tillman, Some Personal Reflections on the
Recent Litigation involving Section 3 of the Fourteenth Amendment, 94 Miss. L.J.
1375 (2025) (emphasis
added).
E.g.,
The Brig Amy Warwick (The Prize Cases), 67 U.S. (2 Black) 635, 644 (1863) (referring
to “alien enemies”); id. (referring to “the enemy”—as in an enemy
nation or sovereign (emphasis added)); id. at 674 (explaining that
“enemies’ property” is a “technical phrase peculiar to prize courts, and
depends upon principles of public policy, as distinguished from the common
law.” (emphases added)).
