Tuesday, September 8, 2015

'Ex Parte Merryman': Myth, History, and Scholarship

Seth Barrett Tillman of the National University of Ireland, Maynooth (NUI Maynooth) Faculty of Law, available for download at Social Science Research Network;
"Abstract:

"Ex parte Merryman is iconic. It is, arguably, the first major American case testing the scope of lawful military authority during war time. Not only during a war, but during a civil war. Not only were the civilian (judicial) authorities in conflict with the military authorities, but the Chief Justice of the United States clashed with the President — or, at least, that is the story as it is commonly told. It is an 1861 case, but the stakes were large and, sadly, the issues remain relevant if not eternal.

"However, the standard restatement of the facts and holding of Ex parte Merryman appearing in many (if not most) law review articles is wrong. Moreover, these mistakes are not unique to academic lawyers; a fair number of judges, historians, and academics in allied fields make the same or very similar mistakes. These repeated errors are somewhat surprising because Merryman is, if not a leading case, only one short step removed from the received case law canon. To put it another way, what is frequently written about Merryman is a series of myths. This Article seeks to disentangle Merryman’s many myths from reality."