Teaching Others and Learning from Others: A Response to Professor Evan Bernick

 

          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[1] also shaped events. The Union’s law officers followed a dual-track legal theory,[2] 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.[3]

          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.[4]

 

          Frankly, I believe my statement above is entirely unexceptional. During hostilities, Lee’s soldiers were enemies[5] 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>;

 

---

[1] This essay draws freely from: Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350, 539–41 (2024), https://ssrn.com/abstract=4568771.

[2] 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.”).

[3] U.S. Const. amend XIV, § 3: “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two‑thirds of each House, remove such disability.” (emphases added). The meaning of this language was litigated in: Anderson v. Griswold, Case No. 2023CV32577, 2023 WL 8006216 (Dist. Ct., City and County of Denver, Colo., Nov. 17, 2023) (Wallace, J.), rev’d, 543 P.3d 283 (Colo. Dec. 19, 2023) (per curiam), rev’d Trump v. Anderson, 601 U.S. 100 (2024) (per curiam).

[4] 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).

[5] 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)).