chevron-down Created with Sketch Beta.
September 01, 2015

Legal History: How the Civil War Continues to Affect the Law

Kevin C. Donovan

Download a printable PDF of this article.

The past is never dead. It’s not even past.

—William Faulkner, Requiem for a Nun

This year’s sesquicentennial of the Civil War marks the anniversary of an event that transformed our system of laws as much as it shaped our society overall. So much of the jurisprudence developed during our nation’s greatest conflict, and in the tumultuous Reconstruction years immediately after, continues to resonate in courtrooms today.

Take for example military commissions, a forum given renewed prominence after 9/11. The most powerful potential check on an untenable outcome in any criminal case—the writ of habeas corpus—was made applicable to military commissions through post–Civil War litigation.

After the April 1865 assassination of President Abraham Lincoln, nine U.S. Army officers sat as a military jury in the trial of the assassination conspirators, backed only by a one-sentence opinion of the U.S. Attorney General: “I am of the opinion that the persons charged with the murder of the President of the United States can be rightfully tried by a military court.” The military commission found all eight defendants guilty, and four were hanged just a few days later. President Andrew Johnson ignored a writ of habeas corpus issued for one of the defendants, on grounds that he had suspended the writ.

A year later, however, the Supreme Court visited that authority after the fog of war had lifted. In 1864, Lambdin Milligan, a civilian living in Indiana, was sentenced to death by military commission. His hanging was scheduled for May 1865, after the war was effectively over. In a landmark decision the next year, the Supreme Court granted his habeas petition and ruled that Milligan, in the post-war environment, was entitled to trial in a civilian court. See Ex parte Milligan, 71 U.S. 2 (1866). The Court noted that during the war, “the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question.” Id. at 69. Now, with the war done, “this question, as well as all others, can be discussed and decided without passion or the admixture of any element not required to form a legal judgment.”

Ex parte Milligan has resonated throughout the years. The Supreme Court relied on that case in its 2008 decision holding that even non-citizens, aliens detained at Guantanamo Bay Naval Station after being captured in Afghanistan or elsewhere abroad and designated “enemy combatants,” must be afforded the right of habeas corpus. See Boumediene v. Bush, 553 U.S. 723 (2008).

Second Amendment advocates can also credit the post–Civil War era with helping to establish that the Constitution guarantees individuals the right to bear arms. In District of Columbia v. Heller, the Supreme Court found in favor of a gun owner and struck down a ban on handguns in the nation’s capital. See 554 U.S. 570 (2008). The Court relied on the findings of a congressional committee formed to examine the conduct of ex-rebels in the former Confederate states in the months shortly after the war. The Joint Committee on Reconstruction had found that newly freed slaves were being denied the right to bear arms in self-defense, and it identified that right as grounded in the Second Amendment. As the Supreme Court in Heller observed,

[b]lacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. . . . A joint congressional Report decried: “[I]n some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that ‘the right of the people to keep and bear arms shall not be infringed.’

Id. at 614–15 (quoting Joint Comm. on Reconstruction, H.R. Rep. No. 30, pt. 2, at 229, 39th Cong., 1st Sess. (1866)).

The False Claims Act, 31 U.S.C. § 3729 et seq., likewise stems from the injustices of the war. Passed in 1863, the law was designed to combat unscrupulous defense contractors who sold the Union Army bad meat, broken-down horses, and “shoddy” clothing—the last a term used to denote uniform material that appeared to be of good quality but that was actually made from scraps that were pressed together, only to dissolve with the first hard rain. Mark Boatner, The Civil War Dictionary 758 (David McKay Co., New York, rev. ed. 1988). Of course, qui tam litigation is now a well-known weapon in the fight against all sorts of fraudulent billing and other schemes against the federal government.

But the greatest legal legacy of the Civil War and the Reconstruction Era certainly is in the area of civil rights. Passed over President Andrew Johnson’s veto, the Civil Rights Act of 1866 (codified at 42 U.S.C. § 1981) was the first federal law outlawing discrimination in employment based on race. In addition, the key civil rights statute granting a private right of action, 42 U.S.C. § 1983, was part of the Ku Klux Act of April 20, 1871. Passed as part of Congress’s continuing efforts to protect freemen and Union loyalists living in the former Confederacy from violations of their civil rights by state actors, see Monroe v. Pape, 365 U.S. 167, 171 (1961), section 1983 provides a powerful remedy for a variety of civil rights violations, including police brutality, to this day.

Whether you grew up learning that the Civil War was the “War Between the States,” the “War to Preserve the Union,” or the “War of Northern Aggression,” its legacy echoes beyond simply the battlefields we remember this sesquicentennial. The war’s profound impact resonates in every courtroom today.

Kevin C. Donovan

The author is a partner with Wilson Elser Moskowitz Edelman & Dicker, Florham Park, New Jersey.