Recently,
I wrote a paper on Ex parte Merryman
(1861) (Taney, C.J.).[1] Merryman was not a Supreme Court
decision; rather, it was a Taney decision “in chambers,” or, possibly, a single-judge
decision of the Circuit Court for the District of Maryland (where Taney, a
native Marylander, had circuit-riding duty). Merryman dealt with, among other things, the validity of Lincoln’s
suspension of habeas corpus at the outbreak of Civil War hostilities.
One
of the interesting things about Merryman
is that many commentators (including judges and academics in law, history, etc.)
misstate the case’s facts, reasoning, and final disposition. For example,
several academics have written that “martial law” was an issue in Merryman. See, e.g., Richard H. Fallon, Jr., Executive Power and the Political Constitution, 2007 Utah Law Review 1, 2 (“At stake in Merryman was the constitutional
authority of the President to declare martial
law . . . .”). Some even suggest that Merryman involved both martial law and the suspension of habeas corpus: a position which, although
wrong, at least has the merit of distinguishing these two legal concepts. See, e.g., Geoffrey R. Stone, Civil Liberties in Wartime, 28(3) Journal of Supreme Court History 215,
220 (Nov. 2003) (“On April 27, to restore order in Baltimore and to enable
Union forces to protect Washington, Lincoln suspended the writ of habeas corpus and declared martial law
in Maryland.”) (peer reviewed). All of this is quite puzzling: neither Taney’s
opinion, nor the party’s (extant) filings, nor Lincoln’s suspension order from
April 27, 1861 mention martial law at all. Merryman’s
facts—as far as I know—relate only to suspension issues, not to martial law.
I
suspect that there may be a reason why this has happened. A large swathe of our
modern academic elite is now so removed from the martial aspect of American
history and American law that understanding the past (in its own terms) poses
real challenges for them (and, perhaps, for us too and the Nation as a whole). Query: What percentage of our academic class
is composed of veterans, and how does that compare to our population as a
whole?
Pre-World
War II, this division between American civil and military society was less (perhaps,
much less) of a problem. Then, the largest part of our (white male) population (of
a certain age) was enrolled in our various state militias (or, their successors—the U.S.
and state National Guards). Conscription, if not universal conscription,
naturally flowed from actual congressionally declared wars. Likewise, a large
swathe of Americans, across all social classes, could expect to see military
service in war, including, unfortunately, Indian wars. (Lincoln and Davis both
served in the Black Hawk War.)
To understand the historically broad scope and egalitarian reach of American military service one need only consider: Alexander Hamilton (born abroad); Ulysses S. Grant (West Point educated, but not in the active military at the outbreak of the Civil War); Ely S. Parker (a Native American who rose to the rank of general during the Civil War and drafted the surrender terms atGettysburg Appomattox Court House); and Walter Bedell Smith (who
started his military service as a private
in Indiana’s National Guard, but rose quickly through the officer ranks of the
regular Army in World War I and World War II). All four had
significant careers after their military service. This world—their world—has been
replaced by an elite permanent full-time careerist officers corps, and a body
of enlisted persons who (it appears) have not been drawn from the children of
the aspiring upper middle and professional classes.[2] My
primary concern here is that if those with military careers are not drawn from
all walks of American life, and, concomitantly, if the largest part of the
officers corps serve for life, which was not the case in the 18th and 19th
centuries, then it is likely that wider civil society will lack needful
knowledge about the realities of war and military life.
To understand the historically broad scope and egalitarian reach of American military service one need only consider: Alexander Hamilton (born abroad); Ulysses S. Grant (West Point educated, but not in the active military at the outbreak of the Civil War); Ely S. Parker (a Native American who rose to the rank of general during the Civil War and drafted the surrender terms at
If
this disconnect between wider American society and an ever more specialized
military exists as I describe it, then it is not really surprising that academics
(outside the military) do not know the difference between martial law and the
suspension of habeas corpus. (Query: Do
you?) But if that is where American high culture is today, then that might
mean that (what should be) the useful past cannot (easily) serve to educate our
people when confronted by today’s problems. If the past has truly become a foreign
country, it can throw little light on today’s world and today’s problems, and
perhaps it supplies only misinformation, thereby adding noise, confusion, and
delay.
Seth
Barrett Tillman
PS: My prior post is: Seth Barrett Tillman, The European Parliament’s Sakharov Prize for Freedom of Thought 2015, The New Reform Club (Oct. 18, 2015, 3:33 PM), http://reformclub.blogspot.ie/2015/10/the-european-parliaments-sakharov-prize.html
PS: My prior post is: Seth Barrett Tillman, The European Parliament’s Sakharov Prize for Freedom of Thought 2015, The New Reform Club (Oct. 18, 2015, 3:33 PM), http://reformclub.blogspot.ie/2015/10/the-european-parliaments-sakharov-prize.html
PPS: See Seth Barrett Tillman, Teaching the History of the American Civil War: Flies of a Summer (Part
II), The New Reform Club
(Oct. 9, 2015)
and
Seth Barrett Tillman, American
Culture: The Flies of a Summer (Part I), The New Reform Club (Sept. 29, 2015)
Thank you Instapundit readers! See Glenn Reynolds, SETH BARRETT TILLMAN on the decline of American martial culture, Instapundit (Oct. 26, 2015, 1:00 PM), http://pjmedia.com/instapundit/217264/.
Thank you Instapundit readers! See Glenn Reynolds, SETH BARRETT TILLMAN on the decline of American martial culture, Instapundit (Oct. 26, 2015, 1:00 PM), http://pjmedia.com/instapundit/217264/.
Twitter:
https://twitter.com/SethBTillman ( @SethBTillman
)
[1] See
generally Seth Barrett Tillman, Ex
parte Merryman: Myth, History, and
Scholarship, Military Law Review (forthcoming
circa Summer 2016) (peer reviewed), available
at http://ssrn.com/abstract=2646888, also
available at http://works.bepress.com/seth_barrett_tillman/561/.
[2] Is it a substantial problem that our
military is now composed of an elite permanent full-time careerist officers
corps, and a body of enlisted persons who (it appears) have not been drawn from
the children of the aspiring upper middle and professional classes? In terms of
actual military competence, my claim here—assuming it is correct—might be a
feature, and not a bug.
8 comments:
"do not know the difference between martial law and the suspension of habeas corpus. (Query: Do you?)"
i confess i am unsure, other than (i think) one is a subset of the other. (i do know that according to scotus there is no precise definition of martial law.)
so i will be the ninny that asks the question: what is the difference?
See generally Ex parte Milligan (1866) (Davis, J.):
It is difficult to see how the safety for the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and establish court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.
It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Rebellion [martial law] could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a necessity in one state, when, in another, it would be ‘mere lawless violence.’ [End of passage from Milligan’s majority decision]
Seth: Martial law is rule imposed by the military; it may include adjudicating disputes via military commissions over both civil and criminal matters in the boundaries of the United States and over United States citizens (including those who are not in the military) if during an invasion or insurrection (i.e., a civil war) the civilian courts are obstructed from freely exercising their authority. In these dire circumstances, in actual theatres of war, certain constitutional protections go unenforced: e.g., trial by jury.
Suspension of habeas corpus is much more limited. When habeas corpus is suspended, the civilian courts continue to hear and adjudicate cases. In other words, in martial law, the civilian courts are overthrown; by contrast, when habeas is suspended, the civilian courts continue to function. However, when habeas is suspended, the civilian courts are precluded from issuing the writ of habeas corpus, or if issued, and then suspension follows, the force of the writ is suspended (i.e., its execution or enforcement) until the emergency has passed.
The suspension of habeas corpus means some people in jail cannot get out of jail. By contrast, martial law means no one has access to civilian courts (which presumably have been overthrown by invasion or rebellion). The difference is night and day, and if it has been forgotten by the otherwise well educated, then that tells you where our wider culture and our legal culture now stand vis-a-vis our society’s martial past.
Seth
I thought that Ely S. Parker wrote the terms as Appomattox, and that there were no terms sought, offered or otherwise in play at the end of Gettysburg?
Exactly. Grant and Lee had exchanged letters. Parker took the terms Grant had offered Lee, then Parker committed those terms to a single final writing: the Gettysburg surrender terms. Hence, Parker drafted the surrender terms.
Definition: draft: to draw up in written form; compose. See Dictionary.com
Seth
I still think you're referring to Appomattox surrender terms. geek49203 is correct that there were no discussion after Gettysburg, when Lee retreated of his own volition on July 4, 1863. Note also the Army of the Potomac was the under the command of George G. Meade (who retained command of the AoP through the rest of the war), Grant did not assume overall command of operations in the Eastern theater until March 1864.
Moreover, I'm not sure you accurately characterize American military culture prior to WWII. In the 19th century, except in time of war we had a very professional regular (or standing) army. The officers were almost all West Pointers (though by, and after, the Civil War some came from Norwich, VMI, and the Citadel) with a few by direct appointment. Officers were almost all upper or upper middle class in origin. The enlisted troops were almost all drawn from the poor. This was true at least until WWI.
In wartime, the army expanded with massive influxes of volunteers. Most of the volunteer regiments, from the various states, had non-professional officers, usually elected at least through the company level, with regimental officers appointed by governors or state legislatures. Sometimes those regimental officers were West Point (or Norwich/VMI/Citadel) trained, but usually not. Most were leading citizens. Enlisted militia came from a much broader statum of society, depending on where they were raised. Some were socially elite, most were not.
The Civil War saw the first draft, which was hated and widely evaded. Our first effective draft came in WWI.
Thus, what you say is true as far as it goes that far more citizens had military experience (or at least militia experience) before WWI, in the Mexican War, the Civil War and the Spanish American War, the military itself was hardly egalitarian in any meaningful way.
In fact the gulf between officers and enlisted men in the regular army, which the army attempted to impose on volunteer units during wartime, was a source of great tension in volunteer units and between volunteer and regular officers (who often didn't take the volunteer officers seriously).
This all changed to a degree with the institution of the national guard and reserve systems prior to and during WWI, along with the institution of the Reserve Officer Training Corps (ROTC).
Still, even as late as the 1930s, regular Navy (especially) and Army officers were considered at least de facto upper class, were considered "clubbable" at the better private clubs, and were often invited to large parties and balls by society hostesses in the major cities.
The mass army of WWII, and the post war period through the end of the Vietnam War, is really the exception, as the military returned to its largely volunteer, professional officer corps and now professional noncomissioned officer corps roots.
Query: What percentage of our academic class is composed of veterans, and how does that compare to our population as a whole?
Zero. The academic class like the rest of our mandarins, shun military service. That is the good news.
How does an elite class stay in power? At the very least they need the military, the law, and religion.
Our mandarins shun two out of three of those. And, when it comes to law, they will have nothing to do with civilian armed law enforcement.
When push comes to shove they have no religious sanction for their power, except perhaps the anger of Gaia. And, that cuts no ice anywhere outside of their own precincts.
When the shooting phase of the civil war between America and the Mandarin Elites starts, they will not be able to rely on the military or civilian armed law enforcement, because they have refused to participate in either institution.
I find that comforting, because I believe that our Mandarins are the most destructive element in our society. I would hate to think of them winning the final battle.
Yes, I see my mistake now. You are right -- Appomattox Court House -- not Gettysburg.
Thank you.
Seth
Seth, according to the Military Compensation and Retirement Modernization Commission, by 2013, only about 30% of the officers commissioned in 1993 were still on active duty. And assuming past promotion rates, that percentage will continue to drop until about 2-3 percent remain as General or Flag Officers at the 30 year mark. The "Up or Out" promotion practice means that officers promoted to Lieutenant Colonel/Commander but not selected for Colonel/Captain will retire at 26 years, which is about 50% of the remaining cohort. The next selection, for Brigadier General/Rear Admiral (LH), is the hardest selection, with only 2 to 3 percent of a year group surviving the cut. That's a long way of saying most officers don't stay in for life, but go on to have second careers, just typically not in academia. And as for the Fat Man's comments that lefties don't participate in Law Enforcement either, the old Communist Party of the Soviet Union saying was that the Party, the KGB and the Red Army were the three legs of the Soviet Stool, and that you had to control two to influence the third. So the CPSU played the KGB against the Army and the Army against the KGB. Our lefties don't have either a KGB or an Army. Don't have a Google account, so have to post as Anonymous. Cheers
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