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Judicial Power & Separation of Powers

Ex parte Milligan

Decided: 1866

In brief

Held that civilians cannot be tried by military tribunals where civilian courts are open, limiting executive war powers.

The Court's ruling in depth

Lambdin Milligan, an Indiana civilian, was tried by military commission during the Civil War and sentenced to hang. The Supreme Court unanimously ordered him freed. Justice Davis wrote that the Constitution 'is a law for rulers and people, equally in war and in peace' and that martial law cannot supplant civilian courts when those courts remain open and functioning. Milligan is a foundational check on executive war power and was repeatedly invoked against the Bush administration's post-9/11 military-commission policies.

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