CALL FOR PAPERS AND PANELS
“Ex parte Milligan at 150: the Constitution and Military
Commissions in American Wars on Terror”
A conference to mark the 150th anniversary of ex parte Milligan (1866), sponsored by
Illinois State University and the David Davis Mansion.
Conference Co-Chairs
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Stewart Winger, Associate Professor, History
Meghan Leonard, Assistant Professor, Politics and Government
Michael Gizzi, Associate Professor, Criminal Justice
The conference planning committee invites papers and panel proposals for a conference to
mark the 150th anniversary of ex parte Milligan, sponsored by Illinois State
University and the David Davis Mansion on September 22-24, 2016 at the Marriot
Hotel, Normal Illinois.
Ex parte Milligan was a controversial case that developed out of the Civil War and the
Lincoln Administration’s use of military commissions to try civilians. Davis held that the
Lincoln administration had violated Milligan’s rights under Article III, Section 2, as well
as the 4th, 5th, and 6th Amendments to the Constitution.
Despite Davis’s soaring rhetoric, the decision has remained controversial. In a concurring
opinion of Justice Salmon P. Chase argued that the military commissions might be set up
by Congress under its Article I war powers. Radical Republicans who believed such a
precedent would inhibit the ability of the Army to protect Black freedom in the South
responded by stripping the Supreme Court of appellate jurisdiction over military
commissions.
Since 9/11 however, ex parte Milligan and the issues surrounding it have assumed
renewed centrality in our national debates. The administration of George W. Bush
exercised and defended sweeping executive discretion in prosecuting the war on terror,
including the use of military commissions, an assertion seemingly counter to both
Davis’s majority opinion as well as the more circumspect concurring opinion.
Despite three Supreme Court decisions, Hamdi v. Rumsfeld, Rasul v. Bush, and Hamdan
v. Rumsfeld, the law in this area remains unsettled. The renewed importance of ex Parte
Milligan has been reinforced again just recently. On October 22, 2014, it and related
decisions aired again in a Guantanamo-related case heard in the US Court of Appeals for
the DC Circuit, which some expert observers believe will soon head to the Supreme
Court.
We invite established scholars, practicing professionals, or graduate students from all fields
to submit proposals on historical, legal, constitutional or political subtopics related to the
Milligan decision itself, its antecedents, or its legacy. All accepted papers will be considered
for inclusion in a projected edited volume of essays. If accepted, the deadline for the full
revised and extended papers will be February 1, 2017.
Possible subtopics to provoke thought:
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Habeas Corpus before the Civil War, in the Civil War, in Reconstruction, or since, as it
relates to Milligan
Habeas Corpus in Time of War Generally, as it relates to Milligan
The Lincoln Administration, Congressional War Making Power, and the Commander-inChief Clause
Congressional War Making Power and the Commander-in-Chief Clause as they relate to
Milligan before or since the decision
The Use of the Bill of Rights in Davis’s Milligan Opinion
The place of Milligan in the Development of Legal Liberalism, Legal Formalism or of
the Bill of Rights
The Milligan decision and the Law of Treason
The Laws of War or International Law and the Constitution as they relate to Milligan
The History and Practice of Military Commission Trials of any Era as they relate to
Milligan
This History and Practice of Military Detention in any Era as they relate to Milligan
“Terrorism” and Military Commissions or Military Detention during the Civil War.
The legacy of the Lincoln Administration for the “War on Terror” in light of Milligan
The Provost Marshall Generals Bureau and Civil Liberties in the Civil War
Judge Advocate General Joseph Holt
Copperheadism and the limits of legitimate dissent and during War.
Copperheads and Vietnam
Lambdin P. Milligan and Copperhead Conspiracy
Lambdin P. Milligan, his trial, detention, appeal, or later legal activities
David Davis and Wartime Civil Liberties before Milligan
Was there War in Indiana and who decides?
When are courts operating unimpeded and who gets to decide?
Milligan in its immediate political context.
The Milligan decision in the context of Reconstruction
The Milligan decision and Black Freedom, Radical Republicanism, or Radical
Reconstruction
The significance of Milligan in the development of Salmon Chase, Jeremiah S. Black,
Benjamin F. Butler, David Davis, David Dudley Field, James A. Garfield, Abraham
Lincoln, or any other of the participants
Ample time in the conference schedule will be given to two plenary sessions, anchored
by our two keynote speakers, Michael Les Benedict and Louis Fisher, so that deep
historical investigation can better come to inform contemporary constitutional debate and
vice versa. We hope to provoke a scholarly discussion of unresolved issues compelling
for historians, legal scholars, practicing lawyers, political scientists, teachers of history,
government, and civics, and for the interested public. This will be a chance for scholars
to engage in dialogue not only with scholars of other disciplines, but with practicing
lawyers and civics educators as well.
Instructions to submit your proposals:
Individual proposals should include a 500 to 1000 word proposal and one-page CV. Panel
proposals should include individual proposals for each paper, one-page CVs for all
participants (including commenters), and a 250-word panel abstract and title. Proposals are
due March 15, 2016.
Abstracts should be submitted via email to milligan150ISU@gmail.com
Conference rationale:
In the summer of 1866, US Supreme Court Justice David Davis retired to his home here
in Bloomington, Illinois to write the majority opinion in Ex parte Milligan, a
controversial case that developed out of the Civil War and the Lincoln Administration’s
use of military commissions to try civilians. Contrary to his friend Lincoln’s position,
Davis famously held that trial by military commissions was only acceptable where there
was a real war and where civilian courts were impaired. Milligan was apprehended in
Indiana, where the courts were open and where according to Davis at least, there was no
war. To the satisfaction of the Democrats at the time and civil libertarians since, Davis
went on to hold that the administration had violated Milligan’s rights under Article III,
Section 2, as well as the 4th, 5th, and 6th Amendments to the Constitution. Davis
concluded that, “the Constitution of the United States is a law for the rulers and people,
equally in war and in peace, and covers with the shield of its protection all classes of
men, at all times and under all circumstances.” In a concurring opinion of Justice Salmon
P. Chase argued that the military commissions might be set up by Congress under its
Article I war powers.
Despite Davis’s soaring rhetoric, the decision has remained controversial. Radical
Republicans who believed such a precedent would inhibit the ability of the Army to
protect Black freedom in the South responded by stripping the Supreme Court of
appellate jurisdiction over military commissions. And while cited in a few cases arising
out of WWII and a stray case in the 1950’s, the case has largely languished in obscurity,
in part because it is not entirely clear what the decision really means.
Since 9/11 however, ex parte Milligan and the issues surrounding it have assumed
renewed centrality in our national debates. The administration of George W. Bush
exercised and defended sweeping executive discretion in prosecuting the war on terror,
including the use of military commissions, an assertion seemingly counter to both
Davis’s majority opinion as well as the more circumspect concurring opinion. But despite
three Supreme Court decisions, Hamdi v Rumsfeld, Rasul v. Bush, and Hamdan v.
Rumsfeld, the law in this area remains unsettled. The continuing salience of ex parte
Milligan has been underlined again just this month. On October 22, 2014, it and related
decisions aired again in a Guantanamo-related case heard in the US Court of Appeals for
the DC Circuit, which some expert observers believe will soon head to the Supreme
Court.