Article

The constitution and the laws of war during the civil war

Andrew Kent

• Notre Dame law review, Vol. 85, no. 5, 2010, p. 1839-1930

English

Photocopies

In the courts and legal academy, interest in the Civil War has increased greatly in the last decade, and it is not hard to understand why. The 9/11 attacks were by far the most spectacular and deadly military attacks on the mainland United States since the Civil War. Both the conflict against al Qaeda and the Civil War were untraditional; in both, it was contested whether they amounted to “war” in the sense used in the Constitution and public international law, and what effect that had on government powers and individual rights. Lines between combatants and non combatants were blurry in both conflicts, often intentionally so. This article attempts to recover important but forgotten legal rules and theories about the relationship between the Constitution and the laws of war. The Supreme Court today, while claiming fidelity to the doctrines of the Civil War era, holds that military enemies of the United States—and noncitizens outside the United States, at that—have judicially enforceable rights under the Constitution, the laws of Congress and the international laws of war. That repudiates core legal doctrines of the Civil War. The author tries to recover and accurately describe the law of the Civil War as it was understood by contemporaries. It turns out that those doctrines are vastly different than what the Supreme Court and many contemporary academic commentators have led to believe.

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