Confederates from Iowa:

Not to Defend, but to Understand

Lincoln on Trial: A review of All the Laws but One: Civil Liberties in Wartime

It’s not often that a Supreme Court Chief Justice writes a book of history.  But when he does, it’s a book worth reading.

This is true for William H. Rehnquist’s All the Laws but One:  Civil Liberties in Wartime.  He uses an experienced jurist’s eye to discuss how the federal government handled civil liberties in the Civil War, World War I, and World War II.  He also gives legal insights in terms that laymen can understand.

(Wikipedia)

In treating the Civil War, Rehnquist begins with Lincoln’s suspension of habeas corpus.  In one of the first test cases, Chief Justice Roger Taney rebuked Lincoln, telling him that it was unconstitutional for Lincoln to suspend the writ of habeas corpus.  Lincoln, of course, ignored Taney.

Rehnquist discusses the number of civil liberties violations under Secretary of State William H. Seward and then Secretary of War Edwin Stanton.  There was a huge increase of civilians imprisoned under the secretary of war.

Stanton decided that civilians could be tried before military commissions, that is, courts-martial for civilians.  These arrests and trials took place while the civil court system — state and federal – were operating throughout the North.

Rehnquist also discusses General Ambrose Burnside’s arrest of former Congressman Clement C. Vallandigham, and the treason trials of Democrat Lambdin P. Milligan and others in Indianapolis.  The Civil War section ends with Ex parte Milligan, in which the Supreme Court rebuked Lincoln, deciding that the Bill of Rights is still in force during wartime.

The author compares government conduct during the Civil War, World War I, and World War II.  The biggest difference, he explains, was as follows:

The Lincoln administration relied on presidential authority or on the orders of military commanders to curtail civil liberties, while in the 20th-Century wars, the executive branch resorted much more to laws passed by Congress.

I highly recommend this thoughtful book.

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6 Comments

  1. Kathleen

    Thanks David. Sounds fascinating, and I have added it to my reading list.

  2. I thoroughly enjoy your posts, Dave. Lincoln’s dictatorship trashed the Constitution. His administration operated under a very pragmatic policy of the end justifies the means. He was not going to let the Union dissolve under his watch – no matter what. The historically illiterate general public is blissfully ignorant of this side of the great Lincoln. Keep the posts coming – not to judge, but to educate.

    • David Connon

      Hi, Dick.
      Thank you for your kind comment. I have become persuaded that President Lincoln was practical in the way he governed. I think that his words and actions confirm your statement, “He was not going to let the Union dissolve under his watch — no matter what.” Thanks for reading my blog.

  3. KA Parsons

    Thanks for your (usual) thoughtful review. It was thorough enough for me to read of his legal achievements, and they are many. Sadly, one of Rehnquist’s last public appearances was to administer the oath of office to George W. Bush, before he died in September from anaplastic thyroid cancer. What a thoughtful/thinking man, and a superb topic.

    • David Connon

      Hi, KA Parsons. Thank you for your gracious comments. I agree that Justice Rehnquist was a thoughtful, thinking man.

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