Civil War Constitutional history of the Civil War period underscores the principal characteristics of the Supreme Court as a coordinate branch of government in the context of nineteenth‐century political culture. As the war signaled the end of three decades of Democratic rule and the start of a long period of Republican dominance, so it marked the transition from the
state sovereignty doctrines of the Taney Court to the constitutional nationalism of the Chase Court. The process of change that accelerated these political and jurisprudential trends was dramatically illustrated in the withdrawal from the federal government of southern members of Congress and the resignation from the Supreme Court of Justice John A.
Campbell of Alabama.
Changes in the membership of the Supreme Court at the start of the Civil War permitted the effects of the political realignment that put Abraham
Lincoln in the White House to be registered in constitutional law more rapidly than is usually the case following critical elections in American political history. Problems arising from the war encouraged the Court to refrain from judicial activist policy making at the expense of the political branches. Military exigencies caused most of the major constitutional questions that arose to be resolved by the executive and Congress and induced in the justices a more deferential attitude toward political officers than might otherwise have prevailed (see
War).
Three vacancies existed on the Supreme Court at the start of President Abraham Lincoln's administration. Justice Peter V.
Daniel died in 1860 and President James Buchanan's nomination of a Democratic successor was blocked by Republicans in the Senate in February 1861. Justice John
McLean died on 4 April 1861, and on 25 April Justice
Campbell resigned. Lincoln appointed Noah H.
Swayne, an Ohio Republican, in January 1862, Republican Samuel F.
Miller of Iowa in July, and Illinois Republican David
Davis, a state judge, in October. When Congress created a tenth judicial circuit (thereby increasing the size of the Court to ten justices) in 1863, Lincoln named Stephen J.
Field of California, a Democrat and ardent Unionist, to the high bench. These appointments produced a more politically balanced Court, consisting of six antebellum Democrats (Samuel
Nelson, Nathan
Clifford, James M.
Wayne, Robert C.
Grier, John
Catron, and Roger B.
Taney), and four wartime appointees sympathetic to the Republican administration. The composition of the Court remained stable until Chief Justice Taney died in October 1864 and was replaced by Salmon P.
Chase, secretary of the treasury under Lincoln.
The war raised constitutional questions that were inappropriate for judicial resolution because of their military and political nature. Confiscation, emancipation, taxation and fiscal policy,
conscription, and treason were among these issues. Yet the judiciary's traditional concern for individual liberty and
property rights provided the basis for limited Supreme Court involvement in matters relating to internal security policy and to the politically sensitive question of the legal nature of the war.
President Lincoln's suspension of the privilege of the
writ of
habeas corpus in April 1861 presented an issue of government infringement of civil liberties that could reasonably be brought before the judiciary. The executive and Congress provided for the nation's internal security without benefit of any Supreme Court opinion on the constitutionality of the measures adopted. Before the government's policy was put in place, however, Chief Justice Taney attempted to control the actions of the executive branch by invalidating Lincoln's suspension of the writ of habeas corpus. Taney questioned the president's action in
Ex parte Merryman in May 1861.
John Merryman was a pro‐Confederate Maryland political leader who was arrested under authority of Lincoln's suspension of habeas corpus in May 1861 for participating in the destruction of railroad bridges. He petitioned Chief Justice Taney, presiding judge of the circuit court at Baltimore, for a writ of habeas corpus. Taney issued the writ, but the military commander to whom it was addressed refused to produce Merryman. The chief justice then issued a writ of attachment ordering the military commander to be apprehended. He was again rebuffed. Holding a session at chambers as chief justice of the U.S. Supreme Court (rather than presiding over a session of the circuit court), Taney on 28 May 1861 declared Merryman entitled to his freedom. In an unusual move, he filed an opinion condemning Merryman's arrest as an arbitrary and illegal denial of civil liberty (see
Military Trials and Martial Law).
Taney stated that military detention of civilians like Merryman was unconstitutional because only Congress had authority to suspend the writ of habeas corpus. He based this conclusion on the fact that the provision authorizing suspension of the writ appears in Article I of the Constitution, dealing with the powers of the legislative branch. In a broader constitutional analysis, Taney described the president as a mere administrative officer charged with faithful enforcement of the laws. According to the chief justice, this amounted to a constitutional duty not to execute the laws on the president's own authority or initiative, but rather to act in support of the judicial authority by executing the laws “as they are expounded and adjudged by the co‐ordinate branch of the government, to which that duty is assigned by the Constitution.” Taney sent a copy of his opinion to Lincoln, who in his 4 July 1861 message to Congress justified his action suspending the writ of habeas corpus on the basis of his constitutional oath to take care that the laws be faithfully executed. The president reasoned further that the Constitution did not expressly state who can order suspension of the writ and that the framers did not intend that in an emergency no action should be taken to protect the public safety by suspending habeas corpus until Congress could be assembled. Lincoln prevailed in the contest with Taney.
The Supreme Court at other times deferred to the government's internal security policy, even when executive action exceeded habeas corpus suspension, as in
Ex parte Vallandigham in 1864. In April 1863, General Ambrose Burnside issued an order prohibiting in the area of his command any declarations of sympathy for the enemy. He also declared that persons who helped the enemy would be tried under military authority. Former Democratic representative Clement L. Vallandigham condemned the order and urged resistance to it. He was arrested, tried, and convicted by a military commission. Burnside imposed a prison sentence, which President Lincoln commuted into banishment beyond Confederate lines. Removing to Canada, Vallandigham petitioned a federal circuit court in Ohio for a writ of habeas corpus, but since he was no longer in custody, no basis existed for Supreme Court review of the lower court's denial of the petition. Vallandigham then applied to the Supreme Court for a writ of
certiorari to review directly the decision of the military commission.
With Chief Justice Taney not participating in the case, the Court denied the petition for certiorari. Justice Wayne's opinion for a unanimous Court asserted that the Court lacked jurisdiction under the
Judiciary Act of 1789 because a military commission was not a court whose decisions could be reviewed by the Supreme Court. He noted that the Constitution defined the
original jurisdiction of the Court in a way that precluded review of the case. Although the disposition of the case was favorable to the government, the Court did not reach the issue of the constitutionality of military trial of civilians in circumstances like those surrounding the arrest of Vallandigham.
While generally refraining from decisions having an impact on military or war‐related policies, the Supreme Court handed down a major decision determining the legal nature of the conflict. This question was presented in the
Prize Cases (1863), where the issue was the legality of the navy's capture of ships bound for Confederate ports under the blockade ordered by President Lincoln in April 1861. If a state of war recognized by international law existed, the blockade was legal and the captures legitimate. If a war did not exist when the executive imposed the blockade, the captures were illegal. In March 1863, the Supreme Court decided 5 to 4 that the blockade was legal. According to Justice Grier's majority opinion, a state of war existed in April 1861 that justified resort to a blockade. Grier wrote that although the conflict began as an insurrection against the federal government and without a formal declaration, it was nonetheless a war—a civil war. He observed that the Civil War was a fact of which the Supreme Court was bound to take notice. Turning to the Constitution, he pointed out that although neither Congress nor the executive could declare war on a state, the president was authorized by statutes of 1795 and 1807 to call out the militia and use military force to suppress insurrection against the United States. Grier stated that it was for the president as commander in chief to decide whether in suppressing an insurrection it was justifiable to treat the opponents as belligerents (see
Presidential Emergency Powers). He furthermore contended that the Supreme Court must be governed by the president's decision. Grier concluded that the proclamation of the blockade was evidence that a state of war existed.
The
Prize Cases recognized broad executive power to respond to military attack on the United States. Of more immediate practical import was the Court's holding that persons in the seceded states could be treated both as rebels and enemies, or as a belligerent party. The Court did not, however, acknowledge or confer executive authority unilaterally to declare and carry on a war indefinitely without legislative approval.
Justice Nelson wrote a dissenting opinion joined by Justices Clifford, Catron, and Taney. Nelson argued that war did not exist when Lincoln ordered the blockade because Congress had not exercised its exclusive power to declare war. He said that whether war existed was a legal question unaffected by material facts and realities. When Congress on 13 July 1861 authorized the executive to declare the existence of a state of insurrection, war began and the blockade was legal. Before that date the conduct of hostilities by the United States was a “personal war” of President Lincoln.
During the Civil War the Supreme Court decided many nonmilitary questions. California land disputes arising out of Mexican rule were prominent on its docket, as were cases dealing with contracts, partnership, bankruptcy, usury, patent rights, and other commercial matters. A few cases illustrated continuity with earlier trends in constitutional law despite changes in the Court's membership.
In
Gelpcke v. Dubuque (1864), the Court overruled an Iowa supreme court decision holding that a city's nonpayment of municipal bonds, issued for a railroad that was never built, was constitutional under the state constitution. Although not expressly stated, the effective basis of the Court's decision seemed to be the
Contract Clause of the Constitution. The case also may have illustrated the Court's belief that it could shape a
federal common law of commerce, as in
Swift v. Tyson (1842).
The Supreme Court also ruled against state power in
People ex rel. Bank of Commerce v. Commissioner of Taxes (1863). In this case the Court considered a New York tax on bank stock, including federal government securities that were otherwise exempt from
state taxation. Although Congress in 1862 passed an act declaring stocks, bonds, and other U.S. securities exempt from state taxes, the Court struck down the state tax on constitutional grounds. Yet the Court declined to decide the constitutionality of the Legal Tender Act of 1862. In
Roosevelt v. Meyer (1863), it inexplicably held that it lacked jurisdiction to review a New York state court ruling favorable to the Legal Tender Act. It is not clear whether this decision, which was overruled in 1872, reflected unwillingness to tackle the controversial issue of national currency policy or was instead a flawed legal analysis of the Judiciary Act of 1780. (See
Legal Tender Cases.)
The December 1864 term of the Supreme Court marked the end of the Taney era. While Congress debated and rejected a proposal to place a marble bust of the late Chief Justice Taney in the Supreme Court room in the Capitol, the Court under Chief Justice Chase disposed of a series of cases involving the illegal slave trade. In February 1865, John S. Rock was sworn in as the first African‐American attorney to be admitted to the bar of the Supreme Court. This event signified the emergence of racial equality as a major constitutional issue in the judicial history of the
Reconstruction period that would soon engage the Court's attention.
See also
History of the Court: Establishment of the Union.
Bibliography
David P. Currie , The Constitution in the Supreme Court: The First Hundred Years 1789–1888 (1985).
David M. Silver , Lincoln's Supreme Court (1956).
Carl B. Swisher , History of the Supreme Court of the United States, vol. 5, The Taney Period 1836–64 (1974).
Charles Warren , The Supreme Court in United States History, 2 vols (1926).
Herman Belz
