an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I am now writing the portion of the Bingham biography that deals with his role as one of the prosecutors in the military trial of John Wilkes Booth's alleged co-conspirators. When I began my research two years ago, I thought that this would be a terrific stand-alone chapter that would not shed much light on Bingham's constitutional views. I was wrong on the latter point.
One of the crucial issues in the Lincoln case was whether the defendants were entitled to a jury trial with the full protections of the Bill of Rights. After all, they were citizens being accused of conspiracy in the District of Columbia. Why, then, was it lawful to use a military commission to try them? Senator Reverdy Johnson argued to the tribunal that the Constitution did not permit the use of military justice on civilians when the courts were functioning. Senator Johnson holds the dubious distinction of being the man who argued and won Dred Scott in the Supreme Court, but consider what he had to say here:
Basic rights "are more peculiarly necessary to the security of personal liberty in war than in peace. All history tells us that war, at times, maddens the people, frenzies government, and makes both regardless of constitutional limitations of power. Individual safety, at such periods, is more in peril than at any other." Otherwise, those rights "which our fathers thought so vital to individual liberty when assailed by government prosecution, is but a dead letter, totally inefficient for its purpose whenever the Government shall deem it proper to try a citizen by a military commission." To say that a court could not be trusted with such a sensitive case was an attack “upon our civil institutions themselves—upon the very institutions on whose integrity and intelligence the safety of our property, liberty and lives, our ancestors thought, could not only be safely rested, but would be safe nowhere else.”
Ironically, John Bingham, the author of the Fourteenth Amendment's Due Process Clause, rejected this logic: "Who will dare to say that in time of civil war ‘no person shall be deprived of life, liberty, and property, without due process of law?’ This is a provision of your Constitution than which there is none more just or sacred in it; it is, however, only the law of peace, not of war. In peace, that wise provision of the Constitution must be, and is, enforced by the civil courts; in war, it must be, and is, to a great extent, inoperative and disregarded." He went on: “If you cannot, and do not, try the armed enemy before you shoot him, or the captured enemy before you imprison him, why should you be held to open the civil courts and try the spy, the conspirator, and the assassin, in the secret service of the public enemy, by jury, before you convict and punish him?”
The most surprising constitutional point that I've learned in my research thus far is that Bingham's view of due process was that in wartime it meant nothing more than "whatever process Congress provides." He said this both as a member of the House and in the Lincoln trial, which throws a different light on the original understanding of that provision. Posted
by Gerard N. Magliocca [link]
Bingham was a lawyer arguing a case, not a philosopher. He may very well have believed what he said, but he might not have either.
Put Bingham in the context of the then Civil War in comparison to the "War on Terror" without similar battle lines, etc, in balancing/distinguising due process for wars as distinct from peace. Perhaps originalists will jump on Bingham's words to justify the power of the presidency. But keep in mind Mary Dudziak's postings and especially her new book on war. Was Bingham reacting to the Civil War as Bush/Cheney reacted to post 9/11 events? What is the text of the Constitution that supports a distinction for due process in times of peace and times of war (assuming they do not overlap)? Is it the President's role as Commander-in-Chief? Or Congress' power to declare (or not declare) war plus its power of the purse?
But what Bingham believed does not necessarily demonstrate the public understanding of due process in the 14th Amendment.
I see that the commission was set up and the trial began in May 1865, the war not quite over at that time, though Lee and Johnston both surrendered, so it was still technically wartime. But, we are stretching it here. He would have had a stronger case in 1862.
Anyway, did the author here ever watch Robert Redford's film on the trial?
A P.S. -- Mary Surratt's son eventually returned from his exile and in part given the Ex pare Milligan case that came too late for these defendants, he received a civil trial. Of course, the war was long over by then, as it was when Mulligan was handed down.
We need to distinguish Bingham's views from those of everyone else that would be considered relevant for the original understanding (Congress, state legislatures, etc). Obviously, this biography is focused on what he thought.