Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime

I read Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime (Landmark Law Cases and American Society) by Thomas C. Mackey. These short summaries of Supreme Court cases are helpful ways to learn about the cases and surrounding issues. This one was pretty good with some limitations.

Clement Vallandigham was an opponent of the Civil War. He was a Midwestern politician and congressman. He supported a negotiated peace, opposed using slavery as a war aim, and criticized threats to civil liberties including suspension of habeas corpus. CV also opposed the draft. 

An order by General Burnside (at the time in charge of a midwestern military district outside of the war zone) that among various benign things involving spies and such that targeted protest speech particularly bothered him. He gave a big speech to poke the bear, so to speak, including with general boilerplate about not following anything but the Constitution.  

Burnside eventually arrested him and tried him in front of a military commission. President Lincoln probably felt this was a bad idea, especially as a political matter, but defended his general. This is what led to his challenge regarding arresting or maybe even shooting some lowly private for desertion but not the person who encouraged him to do so. 

Since we are not talking modern-day free speech here, not even WWI, his "bad tendency" test is defensible. Nonetheless, even at the time, people were wary. CV's speech was largely a fully legitimate act of dissent with references to using the courts and the ballot box. He did not directly encourage people not to answer draft notices. The borderline elements were open-ended boilerplate that could be interpreted in various ways.

The Supreme Court eventually (after various bits of political drama outside the courts) held that they had no jurisdiction to take a case from a military commission. The case was unanimous. Justice Wayne wrote the opinion, and it appears Taney went along without comment. One justice for some reason did not take part. The bottom line: a military commission is not a "court" that the Supreme Court has jurisdiction to hear appeals. 

After the war, and ultimately this seems to be the determining factor, the Supreme Court held otherwise in the Milligan case. The book -- the cases are discussed back-to-back -- does not explain why they heard an appeal (again unanimously) military commission in that case. The litigant there was convicted of unloyal acts, not just words. 

The justices divided on the ability of Congress to use military commissions for events that took place in civilian areas. Some civil libertarians use quotable language about laws being in place in wartime. The concurrence argued Congress could, but did not, authorize such commissions. During WWII, Ex parte Quirin limited its reach, involving saboteurs outside a war zone. The line drawn there was "civilian" and "non-civilian." 

The book also has a rather bland final chapter that does not discuss later constitutional developments. The book very briefly alludes to a WWII case. Nonetheless, even a short book (these books tend to be under 200 pages) should have a conclusion chapter citing later events, including the cases during the War on Terror.  It is a serious deficiency.

Milligan later supported James Garfield. Vallandigham accidentally killed himself preparing a defense in a murder case. He wanted to show that the gun accidentally went off. Lethally, he won his case in the end. A great attorney to the end?