Drawing Lines of Sovereignty: State Habeas Doctrine and the Substance of States’ Rights in Confederate Conscription Cases

Drawing Lines of Sovereignty: State Habeas Doctrine and the Substance of States’ Rights in Confederate Conscription Cases

Winthrop Rutherfurd, Drawing Lines of Sovereignty: State Habeas Doctrine and the Substance of States’ Rights in Confederate Conscription Cases, 51 U. Rich. L. Rev. Online 93 (2017).

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Winthrop Rutherfurd *

 

I have heard some express the opinion that it would have been better not to have made a Constitution for the Confederate States until after the war was over![1]

Introduction

Across the Confederacy, state judges uniformly claimed jurisdiction to issue habeas writs to confederate conscription officers on behalf of conscripts claiming unlawful detention. State judges based this authority to issue habeas writs to federal officers on the state habeas doctrine, pursuant to which a state court had coequal jurisdiction with federal courts to determine the lawfulness of a habeas petitioner’s detention. Today state habeas doctrine would constitute a gross violation of jurisdictional lines separating federal and state sovereignty;[2] federal courts have exclusive jurisdiction to determine whether a federal prisoner’s detention is lawful.[3] Even during the antebellum period state habeas was constitutionally controversial, resulting in a robust and divided body of antebellum state and federal precedent, and featured in the broader judicial and political disputes over the boundaries of states’ rights. In the flagship Confederate state habeas conscription cases issued by the supreme courts of North Carolina, Alabama, and Georgia in 1863, only one state supreme court judge dissented from holding state habeas as constitutional under both the United States and Confederate constitutions.[4] By staking a claim to the jurisdictional space of state habeas these confederate state judges made an unequivocal statement about how they envisioned the balance of state and federal sovereign power in the Confederacy. While confederate state judges defended state habeas as an extension of state sovereignty, they were the first in American legal history to widely endorse conscription as constitutional.[5] This was an unprecedented expansion of federal power that subordinated the states’ sovereign prerogative to raise militias.

The dialogue about national conscription and state habeas between state judges and the Jefferson Davis administration sheds light on a constitutional identity crisis about states’ rights absent an abolitionist threat within the Confederacy. The states’ rights ethos of secessionism had rested on the compact theory of federalism, pursuant to which states were equal with the federal judiciary as arbiters of the Constitution because the United States derived its sovereignty from the sovereignty of the several states, and the prior could not supersede the latter. Because the sovereign states had formed the federal sovereign through a compact, a state could exit the constitutional compact should that state believe the federal government improperly infringed upon its sovereignty. The Davis administration’s apprehension about state habeas was that, because a conscript could challenge conscription’s constitutionality in a habeas petition, the determination of whether that conscript’s detention was lawful put Confederate military policy in the hands of a multitude state supreme (or even lower state) courts. State habeas provided a unique forum, unfettered because no Confederate Supreme Court was established, for confederate state judges to determine the boundaries of states’ rights in the Confederacy. Given this forum, confederate state courts generally did not stake a claim to jurisdictional parity with a future Confederate Supreme Court, or fully embrace the states’ rights ethos of secession. Confederate state judges reviewed the constitutionality of conscription to determine lawfulness of a habeas petitioner’s detention, but were largely silent about whether confederate states could nullify what the states construed as onerous federal legislation. State habeas doctrine diverged from the states’ rights of secession in that the state habeas doctrine did not hold the states, or their courts, were equal with the Supreme Court as arbiters of the Constitution. These judges did not seek to diverge from antebellum state habeas doctrine, which presumed state and federal courts had co-equal authority to determine the lawfulness of a prisoner’s detention, but did not presume to extend the states’ coequal jurisdiction beyond the determination of lawfulness. Confederate state judges eschewed the states’ rights of secessionism for the moderated variant underlying the state habeas doctrine, in which state habeas acted as a procedural check on abuses of federal power without a broader substantive claim to the states’ sovereign prerogative.

State judges embraced state habeas as the vehicle to ensure the integrity of state sovereignty amidst national military centralization. Confederate state habeas cases serve as indicia of the boundaries to which states’ rights took root within the confederate legal landscape and the genesis of a confederate constitutional culture forged by state judges. This emerging constitutional culture was distinguished by states’ rights more elastic than those animating secession because substantive rights of the sovereign states as sovereigns, such as that to raise a militia, were constitutionally subordinate to federal military power. This suggests the states’ rights for which the Confederacy ostensibly had been formed did not resonate, amongst legal actors, at least outside the politics of slavery.

The state courts’ embrace of state habeas deepens our understanding of Confederate legal history.[6] Law professors David P. Currie and G. Edward White examined the Confederacy’s constitutional identity crisis—the tension between the Confederacy’s secessionist founding principles and the unprecedented expansion of confederate federal power during the War—in the context of the Confederate Congress and Constitution.[7] White addresses the Confederacy’s judicial architecture under the new Constitution and the war’s central legal issues to conclude that the Confederacy was plagued by an internal and external struggle regarding how to live up to states’ rights ideals while also expanding military power to fight the war.[8] In Currie’s account, the Confederate Constitution represented a measured half step in the direction of states’ rights, and the Confederate Congress, as well as the Davis administration to a lesser extent, readily controverted those secessionist states’ rights principles in the Constitution for the sake of the war effort.[9] J.G. de Roulhac Hamilton likewise addressed the confederate constitutional identity crisis in his seminal work on state courts in the Confederacy.[10] Hamilton presents a trend wherein judges raised states’ rights argument in their opinions before inevitably accepting the general government’s strong wartime prerogative.[11] White and Currie’s findings can be applied to the jurisdictional aspect of the conscription cases, where a multitude of legal voices wrestled with the constitutional identity crisis in an evolving judicial context. How judges could give credence to states’ rights while supporting centralization makes sense when it is understood that the exercise of state habeas jurisdiction was an expression of state sovereignty. White, Currie, and Hamilton’s works raised the question of what happened to all the South’s states’ rights rhetoric once the war began. State habeas provides the answer: judges took care to represent state habeas as a proxy for state sovereignty rather than use that jurisdiction as a platform to strike at military centralization.

Those who have studied the confederate conscription cases at length missed the meaning of the state judges’ decision to embrace state habeas jurisdiction. James G. Randall identified the jurisprudential fodder contained in Union state habeas cases, but failed to capitalize on the opportunity of expanding his analysis beyond a cursory treatment, or recognizing the doctrine’s role in the Confederacy.[12] Law professors Alfred Brophy and James Gardner do not remark on state habeas as a distinct legal issue in their studies of state conscription cases.[13] The former adopts the methodology of contextualizing decisions within the judges’ antebellum political affiliations, the latter focuses on whether the judges employed regionally distinct constitutional analyses. Neither perceived anything substantively out of the ordinary in state judges’ reasoning beyond the prominence of the doctrine of necessity.[14] Hamilton and historian Sidney Brummer give greater attention to state habeas, but do not incorporate the doctrine into a larger argument. Hamilton gives little analysis beyond detailing the arguments for and against state habeas in a prominent North Carolina conscription case.[15] Brummer takes note of how state habeas “vitally” affected relations between the Confederate and state governments, but gives no additional commentary other than outlining the three habeas cases discussed below.[16] Currie gives state habeas only a cursory mention in a footnote.[17] All reached these conclusions because the state habeas cases’ outcomes did not fit the normative states’ rights mold, leading these scholars to ignore the significance of state habeas jurisdiction.

A study of state habeas contextualizes a Confederate struggle for constitutional identity. Both Currie and White portray the Confederate Congress’s failure to establish a Supreme Court as central to the constitutional identity crisis.[18] For White, the debate over whether to establish the Supreme Court, as was constitutionally mandated, captures the Confederacy’s essential spirit: “it was constantly struggling to establish its identity as a government separate from, as well as the agent of, the states that formed it.”[19] White’s observation manifests in the administration’s relationship with state habeas. Because the administration disagreed with the legal basis for state habeas, but participated in state habeas litigation instead of circumventing the state courts, the administration respected the judges’ decision to honor states’ rights through state habeas. How the administration grappled with whether to suspend habeas illustrates the shifting boundary of the administration’s respect for states’ rights, expanding on Currie and White’s work and our understanding of Confederacy.[20]

This article expands on recent interest in state habeas as a constitutional doctrine by federal courts scholars.[21] These scholars have not critically examined Confederate state judges’ defense of state habeas. Consequently, there is a gap in the scholarship between Ableman v. Booth and Tarble’s Case,[22] in which the Supreme Court first addressed and then conclusively struck down the state habeas doctrine as unconstitutional. This article fills that gap by presenting the ways in which state habeas jurisdiction was defended in practice as an offshoot of state sovereignty, characterized as a bastion for individual liberty, and conceived of as an integral component in the separation of powers.

Part I of this article covers the origins of the state habeas doctrine and explores how conscription brought the tension between the Confederacy’s founding states’ rights principles and military centralization to the fore of an evolving discourse between statesmen and judges. Part II examines the three flagship cases on state habeas jurisdiction,[23] as well as how state habeas empowered state courts in the Confederacy’s federal structure absent a Supreme Court. Arguments for state habeas illustrate how judges conceived of habeas jurisdiction as an extension of state sovereignty by framing the jurisdiction as a substantive liberty right integral to sovereignty and a crucial judicial check on executive power. Finally, Part III explores how the Davis administration’s relationship with state habeas doctrine marked the evolving boundaries of the administration’s deference to states’ rights principles.

Antebellum State Habeas and Confederate Constitutionalism

In the early 1800s the writ of habeas corpus evolved beyond procedure to a substantive right to liberty. American colonists had copied portions of the English Habeas Corpus Act of 1679 verbatim in colonial charters and incorporated habeas into American courts’ common law jurisdiction.[24] By the Revolution, all thirteen colonies’ legal systems had access to the writ, which Americans had begun to conceive of as a distinct right, part of the fabric of their nascent American law apart from that administered by English governors, and as a substantive legal doctrine rather than solely a common law procedural device.[25] United States Supreme Court Justice Joseph Story described the writ as the “bulwark of personal liberty,” which could be “applied to every case of illegal restraint.”[26] Writing in 1843, Pennsylvania Congressman Richard Vaux, noted of habeas corpus, “[i]ts sole object is to prevent oppression and injustice, and give to innocence every opportunity to manifest itself.”[27] State courts drew on this tradition to support their habeas jurisdiction extension to federal officers, holding the exercise of that jurisdiction as central to a sacrosanct common law doctrine for the protection of individual liberty predating the Constitution itself.[28]

The earliest state habeas cases involved soldiers seeking discharge from the military. These cases generally arose when underage soldiers second-guessed their martial enthusiasm and sought discharge by virtue of their age.[29] The Supreme Court of New Hampshire in State v. Dimick held that a detention under the color or pretense of United States law “neither confers an exclusive jurisdiction on the courts of the United States, nor ousts the ordinary jurisdiction of the courts of the state.”[30] Writing for the Supreme Court of Pennsylvania in Commonwealth v. Holloway, noted constitutional authority and jurist William Tilghman asserted the right of state courts to discharge those in federal custody, adding that because of the limited availability of federal courts, “it would be an intolerable grievance to have no relief from imprisonment but by application to the district judge.”[31]

Mid-nineteenth century constitutional authorities Thomas Seargeant and James Kent affirmed state habeas doctrine in the constitutional literature of the day, noting that while many states maintained the doctrine, the Supreme Court admittedly had not decided the issue.[32] Rollin Hurd, author of the leading antebellum habeas corpus treatise, concluded: “It may be considered settled that state courts may grant the writ in all cases of illegal confinement under the authority of the United States.”[33] Support from state court judges and legal commentators provided the precedential support for the Confederate state judges’ construction of state habeas as a substantive right attendant state sovereignty. Federal case law, culminating in the Supreme Court’s decision in Ableman v. Booth, generally presented the countervailing position that only federal courts could issue habeas writs to federal officers; a wrinkle that Confederate state judges had to address because, in one of the first congressional acts, the Confederacy adopted United States case law as controlling precedent.[34]

The Supreme Court first addressed the state habeas doctrine in Ableman v. Booth. In 1854, abolitionist newspaper editor Sherman M. Booth led a crowd to free a former slave working in Wisconsin. After his arrest by a federal officer for aiding and abetting a fugitive slave’s escape, Booth obtained a habeas writ from a Wisconsin Supreme Court Justice discharging him on the grounds that the 1850 Fugitive Slave Act was unconstitutional.[35] A federal grand jury subsequently indicted Booth for the same charge, but Booth again obtained a release from the Wisconsin Supreme Court, after which the United States Attorney General filed a petition with the United States Supreme Court Chief Justice Roger Taney, an open supporter of slavery, on the grounds that state courts lacked habeas jurisdiction over federal officers.[36] Taney’s opinion in Ableman denying the Wisconsin supreme court’s habeas jurisdiction fit into the broader jurisprudential trend in federal law constricting the states’ concurrent jurisdiction and expanding federal power.[37]

Writing for a unanimous Court, Taney portrayed state habeas as a usurpation of federal power threatening to upset the careful balance of federalism, a viewpoint later shared by the Davis administration.[38] State habeas doctrine, Taney declared, rested on the presumption of the state courts’ paramount power.[39] To permit state habeas in practice would mean “no offence against the laws of the United States can be punished by their own courts, without the permission and according to the judgment of the courts of the state in which the party happens to be imprisoned.”[40] Taney’s misgivings were rooted in the belief that state judges beholden to local interests would control federal officers at will and upset national policy.[41] A harmonious federal structure demanded federal exclusivity. The Tenth Amendment stated as much, Taney argued.[42] Any attempt for a government to exceed its sovereign boundaries would result in “lawless violence.”[43] This position was informed by Taney’s dual sovereignty conception of the Union. In Taney’s view, both governments derived power directly from the sovereign people and the Supreme Court had been granted final authority in the Constitution to arbitrate disputes about whether state and federal governments wandered outside their proper spheres.[44] The Constitution had been entered into by the states as an agreement.[45] Per the binding contractual terms of that relationship, states had given up part of their sovereignty to secure harmony, creating distinct sovereign bodies independent within their constitutionally granted spheres.[46] For the integrity of the sovereignty of both governments, complete separation was imperative. Wisconsin then had no right to confer state habeas jurisdiction.[47] Upon receiving a writ from a state judge, a federal officer need only explain that the petitioner is in custody under federal authority.

Contemporary legal reactions to Taney’s opinion’s and the constitutionality of state habeas doctrine was mixed until 1871 when the United States Supreme Court decided Tarbles Case.[48] Confederate state judges framed their opinions on state habeas as a clarification of Ableman, which they reasoned a priori could not have stripped the states’ of an integral part of their sovereignty by congressional or constitutional implication. Taney, confederate state judges opinions insisted, had unduly transposed the threat posed to the federal-state equilibrium by Abelman’s facts onto the state habeas doctrine, which only created equality between state and federal courts for the purpose of protecting citizens’ liberty against unlawful detention. Confederate state judges read Ableman’s holding as controlling only in instances when a state judge issued a writ after a federal court had begun process, a viewpoint apparently widely held enough, both North and South, to prompt the United States Supreme Court to hear Tarbles Case to expressly settle state habeas unconstitutionality.

The jurisprudential grounds for state habeas can be understood as a moderated form of the compact theory of federalism. State habeas aligned with the compact theory in that state habeas proponents reasoned that when the states as sovereigns entered into the constitutional compact the states had agreed to transfer only enumerated sovereign powers to the new federal government. All residual attributes of state sovereignty, including state habeas, remained with the states unless explicitly forfeited.[49] Where ambiguity arose about whether federal power superseded that of the states it was assumed the states had not ceded over sovereign power, which necessitated a narrow reading of federal sovereignty, and a correspondingly narrow grant of federal jurisdiction. But state habeas doctrine diverged from the compact theory in that state habeas did not necessarily presuppose that what the states as sovereigns had bestowed the states could also take away, or that states shared authority commensurate with the United States Supreme Court’s to interpret the national laws’ constitutionality.[50] State habeas doctrine was not imbued with the pro-secession and nullification theories’ conviction that the states’ sovereign prerogative prevailed when in conflict with the federal. The spirit of the state habeas doctrine was cooperation. The doctrine’s imperative was that a judicial body reviews the lawfulness of a citizen’s detention. For this task state courts were fungible with lower federal courts. As a matter of practicality, in the antebellum United States state courts were far more accessible than federal.

Attachment to the secessionist variant of states’ rights quickly faded from the evolving dialogue about the nature of states’ rights in the Confederacy, belying the secessionists’ commitment to the compact theory as a jurisprudential doctrine rather than as a political expedient to protect slavery. Secessionism and the Confederate Constitution, modeled on the United States’, had not begot clarity about the balance of federal-state power in the Confederacy. The constitutional disputes for which southerners purportedly fought the war remained alive with the Confederacy as the Confederate government interpreted the new Constitution to support a more expansive federal prerogative than any exercised by the United States before the war. Conscription created the medium for state judges to introduce coherency into this muddled constitutional landscape by supporting the moderated compact theory of states’ rights embodied in the state habeas doctrine, thereby formulating a nascent confederate constitutionalism that institutionalized a variant of states’ rights that did not interfere with the war effort.

By spring of 1862, the Confederacy’s manpower deficit convinced the Davis administration and the Confederate Congress that conscription, along with other iterations of military centralization, was imperative to conduct a successful war effort. From its beginning, conscription incited controversy as a significant minority of politicians decried the contravention of the states’ rights principles for which the South had left the Union. Regardless of conscription’s salutary effect for the war effort, for many the antebellum specter of federal tyranny had become a manifest reality in the Confederacy. The Confederate Congress and Davis administration passed the First Conscription Act on April 16, 1862, as a war measure permissible under the Congress’s constitutional authority to raise armies.[51] The First Conscription Act granted the Davis administration authority to call to service all men between eighteen and thirty-five, and stipulated that conscripts could hire substitutes or apply for exemptions pursuant to War Department regulations.[52] Those regulations required those applying for military exemption to provide a certificate evincing their qualification for exemption to a federal enrolling officer; principals furnishing substitutes had to furnish the substitute to the enrolling officer, who would then provide the principal with a certificate of exemption.[53] Growing demand for troops prompted another conscription act expanding the draft age in September 1862.[54] Another exemption act and further regulations followed to close loopholes and narrow access to exemption.[55] Previously exempted conscripts who found themselves liable for military service under subsequent laws turned to state courts to contest the expanding conscription regime.

The confederate constitutional identity crisis took form in the controversy over conscription. The Confederate Constitution had enshrined states’ rights in certain provisions, but its similarity to the United States Constitution, particularly with regards to the President’s expansive war powers, did not create much of a clearer road map for navigating the boundaries between federal-state sovereignties than had existed in the United States. Because the Confederate Congress had not yet established the constitutionally mandated Supreme Court, state courts were the primary forums for adjudicating constitutional grievances in the Confederacy. Conscripts favored state courts over federal because the prior were more readily accessible and familiar than federal courts.[56] It could also be reasonably assumed that a local judge would be more sympathetic than a federal appointee. Because state courts entertained concurrent jurisdiction with confederate federal courts under state habeas doctrine, and because there was no appeal available from state to federal courts absent a Supreme Court with appellate review, the state courts’ decisions were of greater importance than in the North.[57] The Davis administration accepted as much by litigating conscription controversies in state courts, possibly assuming legal actions in state courts would command more popular respect.[58]

In droves conscripts appealed to state courts to release them from confederate service, necessitating that state courts weigh in on the evolving conscription regime. When conscripts petitioned state judges to issue habeas writs to conscription officers, officers’ commonly responded by denying states judges’ jurisdiction over federal prisoners. The North Carolina, Georgia, and Alabama supreme courts gave the most extensive and authoritative riposte to the conscription officers’ arguments, argued by the conscription officer as proxies, against the state habeas doctrine’s constitutionality.[59] The integrity of states’ rights to these supreme court judges, and by insinuation the corresponding role for states’ rights in the confederate constitutional landscape, comes across in how they framed arguments in favor of state habeas as integral to state sovereignty as a substantive right of liberty and as an element of the separation of powers.

State Courts’ Defense of State Habeas

The Alabama, Georgia, and North Carolina supreme courts handed down opinions in favor of state habeas within months of each other in 1863. In re Bryan arose when Bryan applied to the North Carolina Supreme Court after his arrest pursuant to the Second Conscription Act because the substitute conscript Bryan hired had become liable for service.[60] North Carolina Supreme Court Chief Justice Richmond M. Pearson wrote the majority opinion for Bryan, joined also by Justice William H. Battle in a concurrence.[61] In Georgia, a J.K. Wimberly applied for a habeas writ alleging unlawful detention by conscription officers, who counterclaimed that “the case is within the limits of the sovereignty assigned by the Constitution to the Confederate States, and a habeas corpus issued by a State Judge or Court has no authority within said limits.”[62] Georgia Supreme Court Justice Charles J. Jenkins delivered the opinion in Mims v. Wimberly. Ex parte Hill consisted of two claims, the gravamen of both was unlawful detention of conscripts who had previously procured substitutes.[63] Alabama Supreme Court Justice George W. Stone wrote the majority opinion for Ex parte Hill, with a dissent written by Chief Justice A.J. Walker.[64] Although written by judges with diverse jurisprudential leanings, the opinions upheld the same principle that state habeas doctrine was constitutional under both the United States and Confederate Constitutions.[65]

The judges’ underlying argument that state habeas ensured the integrity of state sovereignty presented procedure as the bulwark of states’ rights in the balance of federalism. Pearson emphasized in Bryan that his court’s habeas jurisdiction derived from North Carolina’s sovereignty.[66] A judge’s authority to protect state citizens with the habeas writ was an obligation attendant sovereignty the North Carolina courts inherited from the King’s obligation “to inquire by his courts into the condition of any of his subjects.”[67] Battle framed the issue presented by Bryan as “[an inquiry into] whether the State gave up any portion of that sovereignty, which was necessary to be retained for the purpose of enabling her to discharge the duty of protecting the personal liberty of her citizens.”[68] Battle’s impression was that, of all the duties imposed by sovereignty, “none was higher than that of protecting all her citizens in the full and free enjoyment of life, liberty and private property,” accomplished by judges through the writ of habeas corpus.[69] In Mims Jenkins explained that the states entered into the United States Constitution at the behest of the people of the states (and not as a common people) so United States sovereignty existed by virtue of a grant from states, not from its citizens as a collective.[70] That neither the United States nor Confederate Constitution had explicitly deprived the states of their habeas jurisdiction was to Jenkins an undeniable “truth of history” as Georgia had never “yielded the prerogative of protecting the personal liberty of her citizens.” [71] Wary of how the United States government had encroached on the states’ sovereignty, Stone concluded that because the states existed as separate sovereigns, they, through their judges, could exercise overlapping power to review whether an enrolling officer had acted outside his authority.[72] For Stone, the question was whether a usurpation of power had occurred rather than whether power had been applied properly, so state and federal judges were equally competent to protect one another’s sovereignty.[73]

The judges may have found state habeas as an attractive expression of states’ rights because the doctrine rested on the sovereign’s imperative to preserve individual liberty, with a mandate rooted in the common law. With great care and veneration, Pearson expounded on state habeas’ connection with the common law. For Pearson, the statutes conferring habeas jurisdiction on North Carolina’s courts confirmed the courts’ preexisting common law jurisdiction that had remained unbroken from colonial times.[74] The state courts’ habeas jurisdiction in Person’s opinion resided on an elemental and sacrosanct jurisprudential plane; without habeas authority writ large North Carolina could not hope to fulfill its sovereign duty to protect its citizens. In contrast to federal courts, whose authority must be conferred by the Constitution, Pearson believed state courts may derive their jurisdiction from common law principles.[75] His understanding of state courts’ common law jurisdiction vis-à-vis federal courts was not without merit as it had been handed down by John Marshall in Ex parte Bollman.[76] Pearson’s opinion presented state judges’ common law authority to issue habeas writs as a “sacred trust” that flowed from North Carolina’s sovereignty to ensure laws were administered so as not to infringe personal liberty, part and parcel to the Bill of Rights North Carolina was bound to maintain.[77] Jenkins and Battle’s opinions echoed Pearson’s sentiment by framing state habeas as a common law doctrine dating back before independence in 1783.[78]As a common law doctrine entwined in the fabric of the Anglo-American legal tradition, the judges’ deductions about state habeas had far reaching implications. The purpose for which state habeas existed, they claimed, was to check executive tyranny, a duty incumbent upon judges to defend the sovereignty granted the state by the people. So the habeas writ prevented lawlessness by executive and protected the integrity of the state-people sovereign compact. The argument for state habeas lauded that jurisdiction to issue writs rather than a particular outcome because it was the ability of judges to serve as a check that satisfied the duty to protect the people and the rule of law.

To give state habeas the full weight of precedential legitimacy, these confederate state judges took great care to explain that state habeas was not a new doctrine, but existed as part of a continuum of states’ rights in American constitutional history. State habeas existed because the sovereign states had never parted with this jurisdiction, these judges reasoned. This argument depended on a textualist understanding of federalism wherein federal sovereignty was strictly limited to those areas enumerated in the constitution the sovereign states, which held true in their minds under both the United States and Confederate States of America Constitutions; the federal government’s sovereign authority could not grow by implication. The Tenth Amendment, taken at face value, evidenced as much according to Judge Battle.[79] Early United States Constitutional authorities such as Alexander Hamilton in Federalist No. 82 and eminent jurist James Kent, were of the opinion that the state courts’ existing jurisdiction remained untouched except where Congress had expressly excluded state courts in a proper constitutionally enumerated mode.[80] Members of the antebellum bench and bar could assume the state courts’ concurrent jurisdiction with federal courts ran even to cases arising under federal law (i.e., the interpretation of military enlistments). And of all the jurisdictional realms over which the state courts had previous cognizance, Battle argued, “none were more important” than habeas corpus.[81] Battle doubted that North Carolina, or any other sovereign state for that matter, would have entered into a constitution under which they lost habeas jurisdiction within their boundaries, regardless of whether detention was under the aegis of state or federal authority; in his opinion, he ventured: “A jurisdiction so essential to the great privilege of going where one may please—a privilege which every citizen of the State would wish to enjoy as freely as he did the air he breathed—the State courts would hardly have parted with, except upon the most urgent necessity.”[82] In a similar vein, Pearson’s opinion placed the onus on those claiming federal judicial exclusivity to show that a positive grant of constitutional authority existed to oust state jurisdiction. Congress must prove it first has the authority to take away the state jurisdiction, and then that it has exercised that power and nothing in the historical record of the United States or Confederacy, Pearson observed, explicitly had limited the states’ habeas jurisdiction.[83]

One need only read federal and state precedent for support of state habeas, but the invocation of stare decisis in support of state habeas under the United States Constitution demanded a discussion of Ableman v. Booth.[84] Pearson read the Supremacy Clause in the United States Constitution to require state courts not to interfere with the federal judicial process by issuing a habeas writ after a federal court had asserted its jurisdiction over the matter. This, Pearson reasoned, had been the holding in Ableman because, in that case, the United States Marshall detaining the habeas petitioner had been acting on a federal district court’s indictment. So Taney had not precluded state courts’ habeas jurisdiction over federal detainees before federal process began.[85] A broader reading of Ableman “against the jurisdiction of the State courts in all cases where one is restrained of his liberty” by a federal officer was merely obiter dictum and could not be taken seriously lest “such an inference . . . do great injustice to that able jurist [J. Taney].”[86] Jenkins likewise asserted that compliance with Ableman required only that, upon learning that a Confederate district court with jurisdiction over the subject of detention had begun proceedings, a state judge dismiss the writ to avoid conflict.[87] Stone explained that a proper application of state habeas jurisdiction abided by federal precedent because the judges would not control federal officers, as state judges could only adjudicate whether an “accident incidental to proper federal authority” occurred.[88]

Jenkins notably discussed state habeas under the Confederate Constitution at length. There was no question for him that Georgia had entered the Confederacy as a sovereign power, and the sovereignty of its people remained explicitly unimpaired.[89] To limit Georgia courts’ habeas jurisdiction, “it must appear that by the Constitution exclusive jurisdiction has been given to the Confederate Courts” in order to divest state courts of their previous jurisdictional authority, and no such thing had occurred in the Confederacy according to Jenkins.[90] Embedded throughout other judges’ opinions was the suggestion that while state habeas served as part of the separation of powers under the United
States Constitution, state habeas had greater import in the Confederacy.[91]

State habeas doctrine had value to the separation of powers in nascent Confederate constitutionalism because state habeas checked executive action in theory, without hamstringing executive action to win the war in practice. The cases’ outcomes illustrate the degrees to which the judges accepted the Davis Administration’s federal prerogative. On the merits of Bryan, Pearson and Battle discharged Bryan based upon two earlier cases, which held that, when War Department regulations conflicted with the Conscription Acts, the latter controlled.[92] In contrast, the court in Hill concluded that one petitioner had been properly discharged by a probate court under the First Conscription Act, but had then become liable under the Second Conscription Act’s expansion of the conscription age, because congressionally authorized War Department regulations stipulated that the exemption lasted only as long as the substitute is not liable for conscription.[93] The other petitioner could not be discharged as the War Department alone could hear questions of fraud vel non cases involving substitutes; such an inquiry involves only how federal officers make a factual decision under lawful authority, just like a land office register would make preliminary proofs of a preemption claim.[94] According to Stone, state habeas did not upset the balance of federalism because state courts were only discerning where federal authority ended so as to protect individuals, pursuant to their duty as agents of the state sovereign.[95] In the case of Armistead, as the question of law was whether Armistead’s initial discharge exempted him from later conscription under the Second Conscription Act, it involved “nothing more nor less than determining whether the officer rightly decided the legal question as to the effect of the substitution and discharge—the accident in Mr. Armistead’s case,” so it could be decided by a state court,[96] as they were equally competent with federal courts to answer such a question. That diverging state opinions about federal laws could disorder the application thereof, a point raised by Taney in Ableman, was not treated as a serious concern in the majority of these opinions. Jenkins believed the obligation placed upon judges to obey the Confederate Constitution “remove[d] any well-founded apprehension that they will unduly obstruct or hinder the Confederate government in the exercise of its proper functions.”[97]

Pearson emphasized that state habeas strengthened the balance of judicial power, both federal and state courts acting together, against their executive colleagues.[98] The reasoning went that when a prisoner was detained, state and federal judges were equally competent to construe national laws to determine whether detention was lawful, as both interpreted constitutional law as a matter of course.[99] State habeas review did not interfere with federal executive action in Pearson’s estimation because executive officers did not have the power of judicial review, and for all intents and purposes, federal and state courts were fungible in the habeas realm. Review of the executive’s implementation of congressional acts was the proper role of the judiciary, and state judges were supplementing rather than usurping the federal courts’ prerogative.[100] A fellow North Carolina justice had argued in an earlier habeas case that the Confederate Congress had delegated the War Department with quasi-judicial powers precluding state court review of the Conscription Act.[101] Pearson’s riposte was that: (1) Congress could not make the Secretary of War a judge without violating constitutionally mandated separation of powers; (2) Congress had in fact not attempted to delegate judicial power as there were no plain and direct terms suggesting as much; and (3) if such judicial power existed in conscription officers, federal courts would be excluded from reviewing their decisions as well.[102] Pearson wrote that it was “surely not” the case that individual liberty depended “solely on the action of the War Department and its subordinate officers;”[103] such circumstances would be tantamount to an abdication of judicial authority.

The defense of state habeas coincided with an expectation that state courts would play a more active role in the balance of federalism than they had in the United States. Confederate policymakers sought to weaken the federal judiciary by limiting review of state court decisions, a divergence from a tenant of United States federalism wherein, after the Supreme Court’s ruling in Martin v. Hunter’s Lesssee, all state court decisions touching on civil matters of federal law were subject to appeal to the United States Supreme Court.[104] With no Confederate Supreme Court, state habeas represented the new vision for the Confederacy’s judicial structure in practice. State judges took the initiative to forge a new landscape of federalism by staking a claim for their courts to act as a check on abuses of executive power and engaging in an active discussion of federal policy. Conveniently for the war effort, the state habeas check generally did not interfere with conscription.[105] Alabama’s Justice Walker’s dissent teased out this tension and questioned why, with the internal threat to slavery gone and a war raging in their midst, the courts should concern themselves with the nuances of states’ rights.[106]

In a tone reminiscent of Taney’s in Ableman, Walker challenged the position that state habeas was essential to state sovereignty. In Walker’s eyes, the use of state habeas was nothing more than judicial politicking. Stripped of the grand trappings of state sovereignty, Walker argued that the issue before the court was whether a court could “by writ of habeas corpus, supervise, control, and annul the act of officers of the Confederate States, done in the exercise of authority given by the law of that government, and required to be done under regulations prescribed by the secretary of war?”[107] The sovereign states had delegated the power to provide for the national defense to the Confederate government as they had under the United States Constitution. The Confederate states were thereby bound by the Constitution not to interfere with the execution of congressional law pursuant to those war powers. The relinquished portion of state sovereignty imbued federal executive officers as the sole authorities to investigate and decide conscription liability.[108] It was the exclusive province of federal courts to address the wrongful impairment of a citizen’s liberty by the Confederacy because,

[t]o concede the power of a State court to apply that remedy, and thus to interfere with, and control and govern as to the manner of executing the law, is to confess that the power of execution is qualified and restricted to such mode and to such line of conduct as a State judge may approve.[109]

The antebellum use of state habeas by northern judges to challenge the Fugitive Slave Act loomed large in Walker’s opinion of state habeas. Animated by sectional antipathy, northern judges had employed state habeas to oppose the federal prerogative with “a boldness and ingenuity without a parallel in the history of the country;”[110] a far cry from the hallowed depiction of state habeas precedent the majority opined. Walker saw no jurisprudential distinction between the fugitive slave and conscription cases. Indignantly he questioned: “Upon what ground, then, can it be maintained, that the State courts can interfere with the execution of the conscript law, and yet were without power to interfere with the enforcement of the fugitive-slave act?”[111] Walker seemed to suggest that Confederate state judges’ jurisdictional overreach was more brazen than their northern counterparts because the former circumvented Ableman, which Walker read to have laid the state habeas doctrine to rest.[112]

Walker honed in on the practical implications of state habeas to undermine the more abstract constitutional arguments offered in support by his colleagues. To Walker, and soon thereafter the Davis administration, state habeas was a gratuitous impediment to the nation’s future. The Confederate Congress passed laws for the nation’s benefit that were too important for local tribunals to undermine with varying interpretations. National defense would suffer if a judge could “utterly subvert the application of the power to raise armies to that State,” which could in turn induce “peculiar rulings” in other states.[113] Further, state habeas would unjustly leave an enrolling officer open to criminal conviction for false imprisonment only because “a State court differs from him upon the question which he is bound to decide.”[114] Drifting into hyperbole, Walker warned that judges with peculiar views and clothed with state habeas power could disband an army in a day.[115] After Lincoln recast the war as a struggle over the existence of slavery with the Emancipation Proclamation, Confederate victory became all the more imperative. In the early days of the war, reunion may have been possible without abolition, but the war evolved into an existential contest over slavery’s survival. Against this backdrop, states’ rights were a distraction at best, and a viper in the nest at worst, to state habeas opponents.

Walker well understood that he was in the minority about state habeas. At the time of his dissent, he lamented, “[t]he question has been now, expressly and by implication, passed upon by several of the appellate State tribunals in our Confederacy; and in no case known to me has an appellate State court sustained the doctrine which I maintain.”[116] Although he remained convinced that legal reasoning and precedent was on his side, and that a hypothetical Confederate Supreme Court would agree, Walker resigned himself to “suffer the State jurisdiction to be exercised, to the extent agreed upon by this court, without further controversy.”[117] Practical and precedential points of contention raised by Walker about state habeas suggest that majority authors defended state habeas as a matter of principle out of respect for state sovereignty in a post-secession environment where such concerns were increasingly subordinate to the war effort.

The Davis Administration and State Habeas

The tenor of the Davis administration’s relationship with state habeas shifted from tolerance to hostility over the course of 1862-1864. The administration may have declined to officially oppose state habeas because its members may have felt a constitutional identity crisis about the role of states rights’ in the Confederacy amidst military centralization and a corresponding impulse to respect state sovereignty where practicable.[118] Instructions to conscription officers to ignore state habeas writs may have been seen as an undiplomatic gesture in an already tense environment—critics accused Davis of ignoring states’ rights from the war’s onset.[119] Instead, conscription officers contested the legitimacy of state habeas in state courts. The fact that the administration’s legal minds disputed the constitutionality of state habeas doctrine, but instructed its officers to answer state habeas writs in state courts, suggests the administration may have felt constrained by respect for state sovereignty. But the war ultimately eroded that respect. Delays imposed by litigating conscription in state courts, and the discharge of conscripts by Justice Pearson in particular, wore down the administration’s patience, and in early 1864, Davis suspended habeas corpus across the Confederacy.[120]

Jefferson Davis extolled habeas corpus as a central pillar of individual liberty in the war’s early days. In a message to Congress in late 1861, Davis villainized Lincoln as one who threatens judges for maintaining the writ of habeas corpus, thereby trampling the rule of law “under the armed heel of military authority.”[121] Davis implicitly sought to distinguish himself as a protector of the rule of law, as protected by the writ of habeas corpus. In an exchange with Georgia’s governor, Joseph E. Brown, in mid-1862, Davis denied that conscription would upset the balance between federal and state power: “The right of each State to judge in the last resort whether its reserved powers had been usurped by the general government, is too familiar and well settled a principle to admit of discussion.”[122] In a letter to Governor Francis W. Pickens of South Carolina, Davis pointed to the state courts as the proper venue for solving exemption disputes to assuage public fears about conscription: “Let him apply to the judges of the land for relief from the action of the Confederate officer, and if the State law be indeed valid and operative in his favor he will be released.”[123] The conciliatory tone Davis took early in the war possibly reflected the popular perception that the war would be a limited conflict that would not disrupt existing institutions.[124] Before the war effort demanded centralization to mobilize and direct the South’s resources, engagement with state governments was political. In late 1862, Davis informed the Mississippi legislature that he had intended for state officials rather than federal officials, to administer the conscription process to further diminish points of contention between the two governments.[125] As the import of states’ rights to Confederate policymakers waned, functionaries of the administration increasingly contested the constitutionality of state habeas.

The question of who would pay for conscription officers’ attorneys’ fees prompted the Confederate Attorney Generals Office to address state habeas. On November 26, 1862, Attorney General Thomas H. Watts gave his opinion to Secretary of War James A. Seddon that conscription officers pay for counsel retained to contest conscription in state courts out of conscription funds.[126] The question of which department would foot the bill required Watts to respond a few weeks later, although only to clarify that the Department of Justice was not on the hook for attorneys’ fees arising from state habeas cases.[127] The decision to contest state habeas in state courts through conscription officers was an accommodation for states’ rights from the administration’s perspective. In contrast, the Lincoln administration instructed army officers to explain only why conscripts were held in response to habeas writs from state judges, and that thereafter officers need not respond to further orders from state judges.[128] But, the Davis administration’s response to state habeas grew increasingly conflicted. Later in 1863, Watts was ambiguous about the authority a general had to detain a conscript when challenged by a state court.[129] Watts instructed that the general was required to answer a state habeas writ with specificity and the conscript in question should be brought before the judge or “could not otherwise enjoy his full constitutional privileges” given that it was undoubted state judges could issue the writ within the territorial limits of their state.[130] But Watts then tacked in the other direction, and, echoing Taney in Ableman, suggested to Davis that,

[w]hen . . . it is ascertained, in proceedings under the writ of habeas corpus issued by a State Judge or State Court, that the prisoner is held by a Confederate Officer, under the Authority of the Confederate States, for any matter over which the Confederate laws operate, the State Judge or State Court can proceed no further.[131]

Attorneys representing the Confederacy in the flagship state habeas cases in 1863 captured the administration’s doubts about the constitutionality of state habeas.[132] In Bryan, District Attorney George V. Strong argued on behalf of the Confederacy with the help of Thomas Bragg, a former Confederate Attorney General and later governor of North Carolina.[133] Bragg and Strong communicated what became the administration’s official position that state habeas was an improper assertion of states’ rights

based upon recent antebellum precedent, claiming that “[t]he old Union was destroyed, not by the encroachments of the General Government upon the rights of the State, but by the encroachments of the fanatical States of the north and northwest upon the Constitution. . . . These encroachments took the shape of ‘personal liberty bills,’ and interference of the courts by writs of habeas corpus with the proper jurisdiction of the General Government. Let us avoid the bad example.”[134]

By the latter half of the war, Jefferson Davis changed his tone and began to label state habeas officially as obstructionist and unconstitutional. Even if conscripts were not discharged en masse, state courts slowed down the conscription process. In a message to Congress on February 3, 1864, Davis asserted state judges exerting habeas were an undue obstruction to conscription. The danger, Davis warned, could come from just one judge, for “[i]f a single judge, in any State, should hold the act to be unconstitutional, it is easy to see that that State will either furnish no soldiers from that class, or furnish them only when too late for the pressing need of the country.”[135] Regardless of whether discharge was the final result, the appeal of an initial state habeas determination was “tantamount in its consequences to a discharge,” according to Davis.[136] By nature, state habeas lent itself to abuse as,

[a] petition for a habeas corpus need not and ordinarily does not declare the particular grounds upon which the petitioner claims his discharge . . . and every enrolling officer will be kept in continual motion to and from the judge, until the embarrassment and delay will amount to the practical repeal of the law.[137]

Weighed against the costs, the benefits of state habeas did not justify its continuation to Davis: “Must the independence for which we are contending, the safety of the defenseless families of the men who have fallen in battle and of those who still confront the invader, be put in peril for the sake of conformity to the technicalities of the law of treason?”[138] Davis was hardly alone in his opinion. Other members of the administration shared in Davis’s frustration and disdain. In a letter dated March 19, 1864, Secretary of War Seddon complained to a general: “This Department has experienced much embarrassment from the eccentric decisions of inferior judges who have had the power to issue writs of habeas corpus, and can appreciate the difficulties that General Greer has had to encounter on that subject.”[139] Robert Kean, Chief of the Bureau of War, captured a trend within the administration to view the use of state habeas as complicit in an anti-confederate agenda, writing in his diary immediately after Bryan: “The local judiciary are doing what they can to defeat the conscription and encourage desertion in many places . . . I mistrust that these feelings have a good deal to do with these decisions by which they thwart and obstruct the execution of the conscription.”[140]

The administration’s shifting position on state habeas illuminates the elastic allegiance to states’ rights. Military necessity trumped all other considerations in a constitutional discourse delineating boundaries between state and federal sovereignty. Allowance for states’ rights wore so thin that the relatively minor number of conscripts discharged by Justice Pearson tipped the scales against state habeas.

Congress had suspended habeas twice before at Davis’ urging in more limited circumstances. In February 1862, Congress had authorized a habeas corpus suspension for a finite period of time and only in those localities where there was “such danger of attack by the enemy as to require the declaration of martial law for their effective defen[s]e.”[141] Davis suspended habeas corpus in counties along Virginia’s coast, eastern Tennessee, and a swath of South Carolina, which were either under Union occupation or home to large concentrations of unionist sympathizers.[142] Later in 1862, Congress granted Davis authority to suspend habeas corpus wherever the public safety so required, with the caveat that the administration investigate the cause of arrest to ensure release of improperly detained persons.[143] A year passed until Davis again requested authority to suspend habeas corpus. In February 1864, Davis, citing state habeas as raison d’etre, implored Congress to pass a comprehensive habeas corpus suspension act.[144] Congress obliged and licensed the suspension of habeas corpus across the entire Confederacy until mid-September 1864 for a laundry list of offenses including “attempts to avoid military service.”[145] Although cause for suspension affected the entire Confederacy, Davis singled out Justice Pearson’s use of state habeas as compelling justification.[146] With state habeas at an end, Davis believed the war effort would run more smoothly absent “treasonable practices” by obstructionist state judges.[147]

Conclusion

The state habeas cases provide unique insight into how confederate state judges and the Davis administration sought to navigate the tension between states’ rights and military centralization in the Confederacy. The cases were a product of, and solution to, the Confederacy’s constitutional identity crisis. Although individual motivations cannot be known, southern state judges’ near universal decision to embrace the hitherto unsettled state habeas doctrine was a public declaration, crossing judges’ various antebellum jurisprudential leanings,[148] in favor of expansive concurrent jurisdiction and a vision of federalism wherein the state judiciary occupied a greater role as a check on the federal executive. Bryan, Hill, and Mims reveal how the state habeas doctrine both gave meaning to states’ rights and represented a nascent confederate constitutionalism in which state judges took a more active role in charting the boundaries of federalism. Historian J.G. de Roulhac Hamilton observed that the unanimity with which state judges accepted conscription was a “wonder” when eleven courts, each of last resort because no federal appeal existed, independently construed organic law.[149] The unanimity with which state judges accepted state habeas and the commonalities of reasoning in the flagship state habeas cases are a previously unexplored wonder.


*   J.D., 2015, University of Virginia School of Law; M.A. (History), 2015, University of Virginia; B.A., 2011, University of Virginia. Many thanks to Aryana Gharagozloo, without whose indefatigable support I would not have finished this article, and to Professor Cynthia Nicoletti for her patience.

        [1].    Ex parte Walton, 60 N.C. 350, 359 (1864) (quoting Chief Justice Richmond M. Pearson, North Carolina Supreme Court).

        [2].    Harris v. Nelson, 394 U.S. 286, 290–91 (1949).

        [3].    See 28 U.S.C. § 1651(a) (2012).

        [4].    See Ex parte Hill, 38 Ala. 429, 430 (1863).

        [5].    Act of Apr. 16, 1862, ch. 31, Pub. Laws, 1st Sess., § 1, in Statutes at Large of the Confederate States of America, Passed at the First Session of the First Congress 45 (R.M. Smith ed., Richmond 1864) [hereinafter Statutes at Large, 1862].

        [6].    Historians agree as to the centrality of states’ rights ideology to Confederate leaders. One school of thought concludes that southern constitutionalism was purely instrumental for defending slave interests. See generally Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (1989); Albert Burton Moore, Conscription and Conflict in the Confederacy 162–63 (1924) (concluding that state courts neglected to “maintain the dignity and prerogatives of the States against encroachments of the Confederate Government,” because state sovereignty as a political philosophy has never taken root on the bench, and that the judges “were . . . completely indoctrinated” to follow Marshall Court precedent favoring federal over state power); Mark E. Neely, Jr., Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism 7–8 (1999) (arguing that many state judges, like southerners themselves, preferred order to grander libertarian principles; and thus, acted as ready accomplices to Richmond’s centralizing policies); Emory M. Thomas, The Confederate Nation: 1861–1965 32 (1979) (noting that “in 1860, states’ rights was a viable doctrine in Southern minds”). Pursuant to this school of thought, whether southerners turned to majoritarian politics or states’ rights depended on what position proved a more effective defense for slavery. Historians on the other side of the spectrum hold that sincere attachment to states’ rights crippled on the Confederacy. See generally Frank Owsley, State Rights in the Confederacy (1925); May Spencer Ringold, The Role of the State Legislatures in the Confederacy 24, 37 (1966); Frank E. Vandiver, Rebel Brass: The Confederate Command System 125–26 (1956). For examples of more recent scholarship examining internal fissures within the Confederacy, please see the following sources, see Richard E Beringer et al, Why the South Lost the Civil War 65–81 (1986); William W. Freehling, The South vs. The South: How Anti-Confederate Southerners Shaped the Course of the Civil War xiii (2001); Stephanie McCurry, Confederate Reckoning: Power and Politics in the Civil War South 2 (2010); David Williams, Bitterly Divided: The South’s Inner Civil War 1, 2 (2008).

        [7].    David P. Currie, Through the Looking-Glass: The Confederate Constitution in Congress, 1861–1865, 90 Va. L. Rev. 1257, 1261–62 (2004); G. Edward White, Recovering the Legal History of the Confederacy, 68 Wash. & Lee L. Rev. 467, 528–31 (2011).

        [8].    White, supra note 7, at 528–31.

        [9].    Currie, supra note 7, at 1260–62.

      [10].    See generally J.G. de Roulhac Hamilton, The State Courts and the Confederate Constitution, 4 J. S. Legal Hist. 425 (1938) (arguing the Confederacy was harmed by the lack of a national supreme court).

      [11].    See id. at 447–48. Hamilton characterizes the state habeas conscription cases as a missed opportunity for making a stronger stand on state habeas, acquiescing to Richmond’s centralizing policies.

It is clear that by the middle of 1864 the state courts had all fully accepted the military power of the Confederacy. Even Chief Justice Pearson, its most consistent and logical opponent among all the judges—as well as the most interesting and colorful judicial figure in the Confederacy—however great his disagreement with his colleagues, yielded in good faith to their decisions.

Id. at 447.

      [12].    James G. Randall, Constitutional Problems Under Lincoln 432 (2d ed. 1951) “The decisions on the subject read like commentaries on the fundamental doctrine of our constitutional law and are replete with citations drawn from the Federalist, Marshall, Story, Kent and other sources that rank among our legal classics.” Id.

      [13].    Alfred L. Brophy, “Necessity Knows No Law: Vested Rights and the Styles of Reasoning in the Confederate Conscription Cases, 69 Miss. L.J. 1123–25 (2000). See generally James A. Gardner, Southern Character, Confederate Nationalism, and the Interpretation of State Constitutions: A Case Study in Constitutional Argument, 76 Tex. L. Rev. 1219 (1998).

      [14].    Brophy, supra note 13; Gardner, supra note 13.

      [15].    See Hamilton, supra note 10, at 433–40; see also Ex parte Hill, 38 Ala. 429, 436 (1863).

      [16].    Sidney D. Brummer, The Judicial Interpretation of the Confederate Constitution, 8 Law. & Banker & S. Bench & B. Rev. 387, 397–400 (Charles E. George ed., 1915).

      [17].    Currie, supra note 7, at 1331 n.318. Currie opines that the Confederate Attorney General “might have been on firmer ground had he said simply that state jurisdiction to release Confederate prisoners, like state power to tax the Bank of the United States, was the power to interfere with legitimate operations of the central government.” Id.; compare Tarble’s Case, 80 U.S. (13 Wall.) 397, 408–09 (1871) (holding no state habeas corpus jurisdiction), with McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819) (holding states do not have the power to tax the federal government).

      [18].    White, supra note 7, at 516–29; Currie, supra note 7, at 1366–77; see also, Curtis A. Amlund, Federalism in the Southern Confederacy 83–84 (1966); William M. Robinson, Justice in Grey: A History of the Judicial System of the Confederate States of America 437–57 (1941); W. Buck Yearns, The Confederate Congress 37–38 (1960). In an on and off debate, Congress decided it would only establish a Supreme Court without appellate jurisdiction over state courts due to persistent fears born from the antebellum experience with the Marshall Court that a Court would trample on states’ rights. Congress never got around to actually establishing that Court, but proceeded to implement the very centralized war policies congressman had that feared the Court would sanction.

      [19].    White, supra note 7, at 528.

      [20].    See discussion infra Part III.

      [21].    See generally William F. Duker, A Constitutional History of Habeas Corpus 126 (1980) (arguing that the original intent of the habeas clause was to protect state’s powers of habeas relief); Justin J. Wert, Habeas Corpus in America: The Politics of Individual Rights 2 (2011) (analyzing the political evolution of habeas corpus throughout American history); Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1510 (1987) (arguing that federal courts should not be allowed to suspend state-law habeas); Marc M. Arkin, The Ghost at the Banquet: Slavery, Federalism, and Habeas Corpus for State Prisoners, 70 Tul. L. Rev. 1, 4 (1995) (arguing that discussions of the “collateral review of state court convictions” should focus on the twentieth century); Earl M. Maltz, Slavery, Federalism, and the Constitution: Ableman v. Booth and the Struggle Over Fugitive Slaves, 56 Clev. S. L. Rev. 83, 83-84, 104 (2008) (examining the constitutionality of the Supreme Court’s state habeas power holding in Abelman); Ann Woolhandler & Michael G. Collins, The Story of Tarble’s Case in Federal Courts Stories 141, 141 (Vicki C. Jackson & Judith Resnik eds., 2010) (discussing the constitutionality of the Supreme Court’s decision holding state courts lack jurisdiction to grant habeas relief for federally detained persons).

      [22].    State habeas doctrine was unsettled after Ableman v. Booth, 62 U.S. 506 (1859), where the Supreme Court ruled the Wisconsin Supreme Court’s use of state habeas to free a prisoner indicted by a United States district court unconstitutional. Tarble’s Case reiterated the points made by Taney in Ableman and can be understood as a clarification that Ableman’s holding had ruled state habeas jurisdiction unconstitutional by stating:

Some attempt has been made in adjudications, to which our attention has been called, to limit the decision of this court in Ableman v. Booth, and The United States v. Booth, to cases where a prisoner is held in custody under undisputed lawful authority of the United States, as distinguished from his imprisonment under claim and color of such authority. But it is evident that the decision does not admit of any such limitation. It would have been unnecessary to enforce, by any extended reasoning, such as the Chief Justice uses, the position that when it appeared to the judge or officer issuing the writ, that the prisoner was held under undisputed lawful authority, he should proceed no further.

Tarble’s Case, 80 U.S. 397, 410–11 (1871).

      [23].    See Ex parte Hill, 38 Ala. 458 (1863); Mims v. Wimberly, 33 Ga. 587 (1863); In re Bryan, 60 N.C. 1 (1863).

      [24].    Anthony Gregory, The Power of Habeas Corpus In America: From the King’s Prerogative to the War on Terror 52 (2013).

      [25].    Id. at 53–55. Habeas corpus tied in with popular conceptions of personal liberty and an idealized form of English law free from monarchical influence of statutory formality that defined part of revolutionary ideology. Courts’ habeas jurisdiction was a consequence of historical experience—largely a function of politics in early modern English history—rather than neutral legal principles, and was distinct in that it was defined both by common law and statute. Wert, supra note 21, at 27; Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575, 679–80 (2008).

      [26].    3 Joseph Story, Commentaries on the Constitution of the United States 111, 206 (1833). Conception of state habeas as defense against tyranny can be associated with the decentralist position held by the Antifederalists. Id.

      [27].    Richard Vaux, Some Remarks on the Writ of Habeas Corpus: And Proceedings Under the Same 5 (1843).

      [28].    A writ of habeas was not granted as a matter of course; a petitioner must show proper cause why his detention was unlawful and the statute could restrict the writ’s availability such as where a party was detained under the final decree of a competent court. See Edward Ingersoll, The History and Law of the Writ of Habeas 1–2 (1849); Wert, supra note 21, at 51. If issued, a writ was directed to the detainer commanding him to produce body of prisoner with the cause of detention. If the judge believed a detention was unlawful, he would discharge the petitioner, who could not be re-imprisoned on the same grounds and who could subsequently pursue private action of trespass for false imprisonment on the detainer. 1 James Kent, Commentaries on American Law 637 (1826).

      [29].    See, e.g., Commonwealth v. Harrison, 11 Mass. (11 Tyng) 63, 163–64 (1814). George Ribkin, prenticed as a sailor, falsely swore he was twenty-one to enlist in the United States Army without permission from his master, who then sought a habeas petition on his apprentice’s behalf. Id. at 64–65. Because United States law required a minor under twenty-one to have a parent or guardian’s permission to enlist, the court declared Ribkin’s enlistment void and discharged him from the Army against the protests of the Government’s counsel, who claimed the state courts had no jurisdiction to discharge a United States solider from service. Id. at 63, 65; see also Case of J.H. Pleasants, Am. Jur. & L. Mag. 257, 258 (1834) (discharging a prisoner held by a United States Marshal); In re Carlton, 7 Cow. 471, 472 (N.Y. 1827) (affirming the right to discharge a minor who had enlisted in the United States Army); Commonwealth v. Murray, 4 Binn. 487 (Pa. 1812) (asserting habeas jurisdiction over an eighteen year old solider, but declared the enlistment contract binding); Rollin C. Hurd, A Treatise on the Right of Personal Liberty, and on the Writ of Habeas Corpus and the Practice Connected With It 165, 171 (1858); cf. In re Ferguson, 9 Johns. 239 (N.Y. 1812). This was the silent case denying state habeas and arose from a petition to discharge an underage soldier who had enlisted without the consent of his father. Writing for the court, judge and noted legal scholar James Kent took an expansive view of what was exclusive to the federal government’s jurisdiction, arguing that state jurisdiction was an all or nothing affair, either there was full concurrent jurisdiction or none at all. Id. at 240. Because enlistments occurred under the authority of the United States, claims stemming from proper enlistment are therefore the sole province of federal courts. Id.

      [30].    12 N.H. 194, 197 (1841).

      [31].    5 Binn. 512, 515 (1813).

      [32].    Thomas Sergeant, Constitutional Law: Being A Collection of Points Arising Upon the Constitution and Jurisprudence of the United States Which Have Been Settled by Judicial Decision and Practice 280 (1822). Even Kent, who opposed the writ on the bench, noted in a treatise that in New York after Stacey (over- turning his decision in Ferguson), “[t]he question was therefore settled in favor of a concurrent jurisdiction in that case, and there has been a similar decision and practice by the courts of other states.” Kent, supra note 28, at 401.

      [33].    Hurd, supra note 29, at 156. Of the states that had addressed state habeas jurisdiction when Hurd was writing in 1858, Georgia and South Carolina had disclaimed state habeas, but it had been affirmed in Virginia, Georgia, Massachusetts, Maryland, New York, and Pennsylvania. Id. at 155.

      [34].    The District Court of Kentucky in 1867 captures the federal case law perspective:

The decisions and opinions in the district and circuit courts of the United States, both before and since the decision in Ableman v. Booth, have denied the state jurisdiction . . . I might fortify my decision by copious extract from the opinions of federal and state judges, but the opinion of the supreme court is so conclusive, and I shall be obliged to quote from it so extensively, that I can not, without extending this opinion to an inordinate length, make any further reference to them than has already been made.

In re Farrand, 8 Fed. Cas. 1070, 1072 (No. 4678) (D. Ky. 1867). At the Confederacy’s outset, Congress declared the United States laws as of November 1, 1860 would be law in the Confederate States, so United States federal precedent would remain controlling in the Confederacy. Act of Apr. 19, 1862 ch. 37, Pub. Laws, 1st Sess., in Statutes at Large, 1862, supra note 5, at 27. Secession did not alter state precedent either because the states did not see secession as an interruption in their sovereignty, as Robinson writes:

No change had been necessary in the organic or statutory law except the simple substitution for the word Confederate for United wherever the name of the federal union occurred .  .  . . The executive, legislative, and judicial branches served out their terms under the new confederation in complete harmony with the will of the people . . . . The transition was so orderly and natural that the very fact of secession fails to appear in many classes of State records . . . . The State judicial systems remained intact.

Robinson, supra note 18, at 70–71. Firebrand secessionist and Confederate Senator William Yancey argued United States precedents should never be followed and that the Confederate Constitution ought to be construed on its own terms. Currie, supra note 7, at 1375 (citing Senate Proceedings (Mar. 17, 1863) (statement of Sen. Yancey), reprinted in 48 Southern Historical Society Papers 318, 318–19 (1992).

      [35].    Ableman v. Booth, 62 U.S. 506, 507–08 (1858).

      [36].    Id. at 508.

      [37].    See generally Ingersoll, supra note 28 (explaining how the lower federal courts denied state habeas); see also M’Clung v. Silliman, 19 U.S. (6 Wheat.) 598, 600–04 (1821) (holding that a state court could not issue a writ of mandamus to the United States land surveyor because he was acting as a functionary of United States law); Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 124 (1819) (asserting the supremacy of the federal prerogative whenever the two sovereigns come into contact); Slocum v. Mayberry, 15 U.S. (2 Wheat.) 1, 12 (1817) (ruling that the Rhode Island state court did not exceed its jurisdiction by bringing a writ of replevin against the cargo of a ship held in custody by a United States official under an embargo law because the federal law only extended exclusive federal jurisdiction to the ship). Further, the federal government expanded its habeas authority over those detained by state officers, with acts in 1833 and 1842 nationalizing habeas corpus. Gregory, supra note 24, at 85. The 1833 Force Act granted federal judges habeas authority over any prisoner for an act pursuant to a United States law, prompted by South Carolina’s detention of federal tariff officials during the Nullification Crisis. See Act of Mar. 2, 1833, ch. 57, 4 Stat. 632–33 (1833) (providing for the collection of duties imports). The 1842 Habeas Corpus Act granted federal courts habeas jurisdiction over foreign nationals held by state officials. See Gregory, supra note 24, at 85–86. These acts were more symbolic of the way the wind was blowing, as “[t]he changes to habeas jurisdiction did not really come into effect until after the Civil War.” Id. at 86.

      [38].    On this point, the Lincoln and Davis administration’s agreed, though the former was more effective in having its way. Solicitor of the Union War Department, William Whiting issued a circular on July 1, 1863, that conscription officers should follow Taney’s instructions in Ableman, the only duty to state judges was to respond that the prisoner/petitioner was in their care. Act of Aug. 29, 1842, ch. 263, 5 Stat. 543 (1842). The Supreme Court of Pennsylvania similarly read Ableman to have ended state habeas, which the court went on to characterize as “simply the Calhoun heresy of nullification.” Kneedler v. Lane, 45 Pa. 238, 293–94 (1863). Northern state judges did not broadly assert their habeas jurisdiction over conscriptees during the war, leading Civil War historian James Randall to treat state habeas in the North as an annoyance for the Lincoln administration by a small number of local judges employing state habeas to oppose conscription. Randall, supra note 12, at 428–32. The United States Congress passed the Indemnity Act of 1863 in order to protect federal officials from state courts jurisdiction so that acting on the President’s orders provided a complete defense and required removal of actions against federal officers to the Federal courts. Id. at 428; see also James G. Randall, The Indemnity Act of 1863: A Study in the War-Time Immunity of Governmental Officers, 20 Mich. L. Rev. 589, 595 (1922).

      [39].    Ableman, 62 U.S. at 514.

      [40].    Id.

      [41].    Earl Maltz suggests Taney conceived of the Court as a neutral arbiter—in spite of its place in the federal government—well positioned to mediate conflicts between the state governments and federal branches. Maltz, supra note 21, at 105–06. Ableman should consequently not be read as a strong endorsement of federal power so much as of the Supreme Court’s power. Taney biographer Bernard Steiner questioned how anyone could speak of Taney as a states’ rights man after reading Ableman, an advocate of Jacksonian federalism. Bernard C. Steiner, Life of Roger Brooke Taney: Chief Justice of the United States Supreme Court 428, 430 (1922). A large number of scholars suggest he acted primarily to serve the slave interests. See, e.g., Gregory supra note 24, at 89 (explaining the constants in both Ableman and Dred Scott are a support for slavery and opposition to legal obstruction to slavery, rather than any principled attachment to either federal supremacy or states’ rights). See generally Fehrenbacher, supra note 6.

      [42].    See Ableman, 62 U.S. at 518.

      [43].    Id. at 524.

      [44].    Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 342–43 (1816) (holding the United States Supreme Court as the ultimate authority over state courts in civil matters under federal law, so the Supreme Court has appellate power over any state supreme court decision touching on federal law).

      [45].    Scott v. Sandford, (Dred Scott), 60 U.S. (19 How.) 393, 449–50 (1856).

      [46].    Ableman v. Booth, 62 U.S. 506, 516 (1858).

      [47].    Jurisdiction must be conferred by a government or sovereignty and, according to Taney, the United States had neither conferred the habeas authority claimed by the Wisconsin court, nor did Wisconsin have the power to do so. Id. at 515–16. “[N]o State can authorize one of its judges or courts to exercise judicial power, by habeas corpus or otherwise, within the jurisdiction of another and independent government.” Id. In fact, Taney pointed out, Wisconsin statute mandated a state judge remand a person brought up on a habeas corpus if a United States court had begun process. Id. at 516. Since “the writ of habeas corpus, nor any other process issued under State authority, can pass over the line of division between the two sovereignties.” Id. at 523

      [48].    So too, modern federal courts scholars increasingly question the strength of Taney’s argument. William Duker argues the Suspension Clause’s location, contemporary commentary and records of the state ratification conventions suggest there was a fear of federal interference with personal liberties, and that state courts were the proper forums for redressing unjust detention claims. Duker, supra note 21, at 126–35. Duker prominently injected this argument to existing constitutional historiography, but this is by no means a minority position. Noted federalism scholar Akhil Amar reads William Duker to have “established that the very purpose of the habeas non-suspension clause of Article I, section 9, was to protect the remedy of state habeas from being abrogated by the federal government.” Amar, supra note 21, at 1509. Anthony Gregory similarly posits,

The status of the American states as free and independent before the adoption of the Constitution, and the American understanding of habeas corpus as a common law right merely acknowledged, not created, by state statutes and constitutions, suggest that it was understood at the birth of the American nation that state courts had the power to review federal detentions—a radical states’ rights power and institutionally diffuse check on federal authority.

Gregory, supra note 24, at 62–63. Ann Woolhandler and Michael Collins argue nothing in debates over 1789 Judiciary Act or Habeas Statute suggests federal exclusivity for habeas outside criminal prosecutions and constitutionally granted maritime jurisdiction. “To interpret the statute as making federal court jurisdiction exclusive may therefore require resort to a common law of federalism whereby the Court might decide that reading the statute to make the grant exclusive is necessary to avoid needless conflict in the federal system.” Woolhandler & Collins, supra note 21, at 157. Moreover, the availability of habeas corpus would be virtually non-existent if Congress had not created lower federal courts, and without a grant of widespread habeas jurisdiction to inferior courts and the Supreme Court’s appellate jurisdiction. See Duker, supra note 21, at 140. See generally Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807) (granting federal courts widespread habeas corpus jurisdiction).

      [49].    Even Alexander Hamilton in Federalist No. 82 presumed the states’ jurisdiction would carry on exactly as before under the United States Constitution.

I hold that the State courts will be divested of no part of their primitive jurisdiction further than may relate to an appeal, and I am even of opinion that in every case in which they were not expressly excluded by the future acts of the national legislature, they will of course take cognizance of the causes to which those acts may give birth.

The Federalist No. 82 (Alexander Hamilton).

      [50].    Randall, supra note 12, at 14.

The people, they said, may bestow supreme power where they will, and what they bestow they may recall. Thus the people of the States, possessing the right to bestow supreme governmental power as they should see fit, conferred such power upon a general government as their agent, limiting, to that extent, their State governments, but not limiting their own sovereignty.

Because the Union was a compact between sovereign equals, each state had an equal right to construe national laws’ constitutionality, a power commensurate with that of the Supreme Court because the federal government could not be expected to decide the extent of its own power. Hayne took the extreme states’ rights position that because the Union was a compact between sovereign equals, each individual state has the right to construe federal law and refuse to abide, to “nullify,” by those laws that are repugnant to the state. Mathew Brogdon, Defending the Union: Andrew Jackson’s Nullification Proclamation and American Federalism, 73 Rev. Pol. 245, 251–52 (2011). Note, the most prominent proponent of extreme states’ rights, John C. Calhoun, relied less on the doctrine of state sovereignty, because concurrent jurisdiction deferred too much to the national government, preferring the concurrent majority theory that a state majority was needed to affirm national policy in that state. Fehrenbacher, supra note 6, at 52.

      [51].    Act of Apr. 16, 1862, ch. 31, Pub. Laws, 1st Sess., in Statutes at Large, 1862, supra note 5, at 29.

      [52].    Id. After the President made the call for conscription all men within the specified range were to enroll with enrolling officers, who could be state officers if the Governor consented to their use for national conscription. Once enrolled a man became liable for military duty and if he refused the call to active service—whenever casualties in existing state regiments necessitated replacements—the conscripted man could be apprehended and detained as a deserter. “An Act to exempt certain persons from enrollment for service in the Armies of the Confederate States [First Exemption Act],” Id., § 6, § 9 at 62–63. War Department regulations required those applying for exemption to provide a certificate evincing their qualification for exemption to an enrolling officer; principals furnishing substitutes must furnish the substitute to the enrolling officer who would then provide the principal with a certificate of exemption. General Orders No. 30, 1 The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies 1097–1100 (Gov’t Printing Office 1880–1900) [hereinafter Official Army Records], General Orders No. 37, Official Army Records, supra at 1123–24.

      [53].    Act of Apr. 16, 1862, ch. 31, § 1, Pub. Laws, 1st Sess., in Statutes at Large 1862, supra note 5, at 45.

      [54].    The Second Conscription Act was enacted on September 27, 1862, and expanded the age of those liable for conscription to forty-five and required those already enlisted to serve for the war’s duration. Act of Sept. 27, 1862, ch. 15, Pub. Laws, 2d Sess., in Statutes at Large of the Confederate States of America, Passed at the Second Session of the First Congress 61–62 (R.M. Smith ed., Richmond 1864).

      [55].    Act of Apr. 21, 1862, ch. 74, Pub. Laws, 3d Sess., in Statutes at Large of the Confederate States of America, Passed at the Third Session of the First Congress 57 (R.M. Smith ed., Richmond 1864). For example, laborers no longer were considered railroad personnel and a “Twenty Negro Rule” for exempt overseers was implemented. Id. On May 1, 1863 Congress repealed the Second Exemption Act and imposed further restrictions, including section 4, which required that exempted state officers also be exempted by their states.

      [56].    See generally Robinson, supra note 18, at 122–72 (recognizing that the Confederate district courts essentially replaced the United States courts and continued to operate throughout the war, but there were far fewer Confederate courts than United States courts).

      [57].    Brummer, supra note 16, at 388.

      [58].    See id. at 389.

      [59].    See In re Bryan, 60 N.C. 1, 9 (1863); Mims v. Wimberly, 33 Ga. 587, 598 (1863); Ex parte Hill, 38 Ala. 458, 462–63 (1873).

      [60].    In re Bryan, 60 N.C. at 1 (1863) (citing Second Conscription Act).

      [61].    Id. at 2, 9.

      [62].    Mims v. Wimberly, 33 Ga. 587, 588 (1863). The record indicates only that Wimberly was “in truth and in fact” exempt from military duty from the Conscription Acts. Id.

      [63].    Ex parte Hill, 38 Ala. 458, 459–60 (1863). W.B. Armistead had procured a substitute who was not liable for conscription, at which time Armistead was discharged. He was later held in custody as liable for conscription by L.H. Hill, a Confederate enrolling officer, and sought discharge through a habeas petition. Id. Hill applied for a writ of prohibition to the Alabama Supreme Court to enjoin further proceedings by the probate judge to which Armistead had made his habeas petition. Id. Charles H. Dudley applied for a remedial writ against a state chancellor to obtain a full hearing on habeas corpus and then a discharge from custody as a conscript. Id.

      [64].    Id.

      [65].    Id.

      [66].    See generally In re Bryan, 60 N.C. 1 (1863).

      [67].    Id. at 42 (noting that the King had the obligation “to protect all of his subjects in the enjoyment of their right of personal liberty”).

      [68].    Id. at 29.

      [69].    Id. at 28.

      [70].    Mims v. Wimberly, 33 Ga. 587, 592 (1863). In Jenkins’ reading of history, “we find ourselves, at every step, treading in the footprints of State sovereignty, the most severe test, the clearest demonstration, is to be found in the ratification, which alone gave efficacy to the instrument.” Id. at 590. This account closely resembles that given by Davis, see note infra re ratification. Further, it resembles Calhoun’s account of the founding: “[t]he several states of the Union, acting in their confederated character, ordained and established the Constitution.” John C. Calhoun, A Disquisition on Government, and A Discourse on the Constitution and Government of the United States 131 (Richard K. Cralle ed., 2002) (1851). The United States Constitution had lent itself to all manner of confusion regarding the locus of sovereignty, but, “happily for us” Jenkins noted, the Confederate drafters had replaced “We the people” with “We, the people of the Confederate States,” thereby conforming to “the truth of history.” Mims, 33 Ga. at 591.

      [71].    Mims, 33 Ga. at 589, 593, 598. If the question before a court is whether a federal officer has “erroneously applied his authority . . . to a person” outside the subject matter of his proper jurisdiction, then courts of either government may “determine the question of such erroneous application of authority, unless the law, in its terms, inhibit such inquiry.” Ex parte Hill, 38 Ala. 458, 463 (1863).

      [72].    Ex parte Hill, 38 Ala. at 462–63 (basing his conclusion on Slocum v. Mayberry and McClung v. Silliman).

      [73].    Id.

      [74].    In re Bryan, 60 N.C. 1, 42 (1863). The nation that habeas jurisdiction was derived from the common law was featured more prominently in Pearson’s opinion than in other judges’. Id. In his opinion, Pearson noted that the North Carolina Habeas Corpus Acts copied longstanding English habeas statutes and that one need only look to North Carolina positive law if they were unconvinced of the courts’ common law jurisdiction. Id. at 43–45. Secession theory held a state’s sovereignty had not been fundamentally changed by secession from the Union because the states had acted as established and recognized sovereigns. John W. Burgess, The Civil War and the Constitution, 1859–1865 77 (1908). Habeas jurisdiction attached to North Carolina’s sovereignty when it entered the union, therefore, it had existed unabated into the Confederacy. The other judges made little mention of the actual state statutes conferring habeas jurisdiction except in passing. In re Bryan, 60 N.C. at 37. In response to such arguments, Mr. Strong, arguing on behalf of the Confederacy, stated, “The Common Law itself, in this State, depends for its force upon a statute. And the Legislature could uproot it to-morrow, and establish the code of Napoleon in its stead.” Id. (internal citations omitted).

      [75].    In re Bryan, 60 N.C. at 19. Because state courts’ authority flowed from the common law, Pearson argued, “the power of the Legislature to confer jurisdiction is unlimited.” Id.

      [76].    In Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93 (1807), Marshall acknowledged the state courts’ expansive common law jurisdiction, stating, “[c]ourts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles.” Id. Regarding habeas as part of that jurisdiction, Marshall further suggested all common law courts innately could exercise the writ without indicating any limit upon that power if the prisoner be in federal, opposed to state, detention:

The reasoning from the bar, in relation to it, may be answered by the single observation, that for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law.

Id. at 93–94.

      [77].    See In re Bryan, 60 N.C. at 9.

Our conclusion is that the Court has jurisdiction to discharge a citizen by the writ of habeas corpus, whenever it is made to appear that he is unlawfully restrained of his liberty by an officer of the Confederate States; and that when a case is made out, the Court is bound to exercise the jurisdiction, which has been confided to it as a sacred trust, and has no discretion and no right to be influenced by considerations growing out of the condition of our country, but must act with a single eye to the due administration of the law, according to the proper construction of the acts of Congress.

Id. (internal quotation marks omitted). Even Taney could not help but pay service to the writ’s venerated place in Anglo-American jurisprudence after Lincoln first suspended the writ, writing: “From the earliest history of the common law, if a person were imprisoned, no matter by what authority, he had a right to the writ of habeas corpus, to bring his case before the king’s bench.” Ex parte Merryman, 17 Fed. Cas. 144, 150 (1861).

      [78].    See Mims v. Wimberly, 33 Ga. 587, 597 (1893); In re Bryan 60 N.C. at 11–12.

      [79].    See In re Bryan, 60 N.C. at 9–10. Battle specified that the United States Constitution’s Tenth Amendment had been “unnecessary, as the General Government had no powers except what the States had granted to it.” Id.

      [80].    The Federalist No. 82. (Alexander Hamilton). Hamilton extolled concurrent jurisdiction: “Among the cause, of which the State courts had previous cognizance, none were more important than those in which they claimed the right to inquire, through the means of writs of habeas corpus, into the reasons for the imprisonment of person alleged to be illegally restrained of their liberty.” In re Bryan, 60 N.C. at 11.

      [81].    In re Bryan, 60 N.C. at 11.

      [82].    Id. at 11–12.

      [83].    Id. at 4 (quoting Lockington’s Case, Brightly 269, 273 (Pa. 1813)).

      [84].    For state support, Pearson pointed to, inter alia, State v. Brearly, 5 N.J.L. 555 (1819) and treatises by Hurd and Kent. See In re Bryan, 60 N.C. at 4. Pearson reasoned the weight of precedent from state courts was on his side: “It must be presumed that this long series of cases which establish the concurrent jurisdiction of the State Courts, and their power to put a construction on acts of Congress, when necessary to the decision of a case before them, is supported by the most clear and satisfactory reasoning . . . .” Id. Not only did state decisions support habeas jurisdiction, but so did federal precedent according to Pearson, particularly Slocum v. Mayberry, in which a customs officer, suspecting an intention to violate the U.S. embargo laws, seized a vessel in Newport Rhode Island. Id. at 5; see also Slocum v. Mayberry, 15 U.S. (2 Wheat.) (1817). The owners of the cargo aboard the ship brought an action in state court seeking a writ of replevin, which the state judge granted, to have the cargo discharged from the custom officer’s control. In re Bryan, 60 N.C. at 5. The Supreme Court affirmed the state court’s action because it determined the United States officer was entitled only to detain the ship under the federal law, not the cargo. Id. Although Slocum’s facts differed from the present case—habeas was not involved—Pearson understood Slocum to broadly support state courts’ concurrent jurisdiction when a federal officer detained an object or person without proper congressional authorization.

[S]o, it is directly in point to show that a State court has jurisdiction wherever the law gives no authority to detain the person or the thing; and, in order to decide that question, the State court has power to put a construction on the act of Congress under which the officer justifies the imprisonment or detention.

In re Bryan, 60 N.C. at 5. Stone and Jenkins likewise sought to legitimize state habeas by looking to United States precedent rather than by crafting a new argument under the Confederate Constitution. Jenkins argued that one need only look to United States law to understand why state habeas was unproblematic to the federal scheme as part of the states’ concurrent jurisdiction. Procedurally, Jenkins pointed out, judicial power under the United States Constitution extended to cases “between citizens of different States,” but plaintiffs could elect between pursuing their claims in state or federal courts. Mims v. Wimberly, 33 Ga. 587, 595 (1863).

      [85].    See In re Bryan, 60 N.C. at 5–6.

      [86].    Id.

      [87].    Mims, 33 Ga. at 596.

      [88].    That Stone framed his discussion as whether federal authority exceeded authority, rather than exercised authority properly, evinces his greater concern for the Confederacy’s survival. The difference between his reasoning style and the stronger advocates of state habeas illustrates his amenability to strong federal power. Stone’s opinion relied almost exclusively on federal precedent, Slocum v. Mayberry and McClung v. Silliman especially. There was little mention of state law and none of the common law discussion, which occupied so much of Pearson’s opinion. Ex parte Hill, 38 Ala. 458, 463–64 (1863).

      [89].    Mims, 33 Ga. at 593.

      [90].     Id. at 595.

The first paragraph, second section, third article, of the Constitution, defines the extent of the judicial power of the Confederate States. There are sundry specifications, and among others this, ‘all cases arising under the laws of the Confederate States,’ and such is the case before us. But it is not declared that this jurisdiction shall be exclusive.

Id.

      [91].    See Donald E. Wilkes, From Oglethorpe to the Overthrow of the Confederacy: Habeas Corpus in Georgia, 1733–1865, 45 Ga. L. Rev. 1015, 1062–63 (2011).

      [92].    In re Bryan, 60 N.C. 1, 20 (1863). Pearson reasoned that the Second Conscription Act did not make those serving as substitutes liable for conscription because they were already bound in service, and it would be redundant for the act to merely reclassify them as liable to effectuate the Act’s purpose of increasing the Army. Id. Yet, the Secretary of War’s regulation holding principals liable required that the substitutes had become liable for conscription, to which Pearson responded:

A decent respect for our lawmakers forbids the courts from adopting a construction which leads to the conclusion that it was the intention, by the use of general words, to include within the operation of the act, substitutes who were already bound for the war; not for the purpose of affecting them, but for the indirect purpose of reaching parties who had furnished substitutes, and in that way asserting a power, which is at least doubtful, and certainly involves repudiation and a want of good faith.

Id. at 21–22 (quoting In re Irvin, 60 N.C. 20, 21–22 (1863)). Pearson relied on a similar interpretation of the Conscript Act with regards to the substitutes in the case, In re Meroney, when he pointed out that a different construction, such as that embodied by the War Department’s regulation in question, was inconsistent with a congressional act. Id. at 22; see also In re Meroney, 60 N.C. 22 (1863). Further, to render the substitutes service void so as to exempt the principal, the War Department regulation would have had to insert an additional condition to the substitution contract—that a substitute cannot be made liable afterward by a subsequent act of Congress—which could only be accomplished by a legislative, rather than a bureaucratic, act. In re Bryan, 60 N.C. at 23–25 (Battle, J., concurring).

      [93].    Ex parte Hill, 38 Ala. at 475.

The order of May [General Order No. 37] is too clear to admit of a cavil or doubt. It provides, that the exemption obtained on putting in a substitute, ‘is valid only so long as the substitute is exempt.’ This regulation, being made pursuant to authority conferred by congress, has the binding efficacy of law. It was part of the public law when Mr. Armistead put in his substitute, and therefore became part and parcel of the act done. He cannot complain of a breach of governmental faith, for he is charged with a knowledge of the terms on which his substitute was received. Neither can it, with any plausibility, be contended, that the order of 19th of May, declaring when the exemption shall expire, must be restricted in its operation to a certain limited number of contingencies, on the happening of some one of which the exemption of the principal shall cease. . . . If under forty, he ceased to be legally exempt when the call was made for conscripts up to that age; and Mr. Armistead’s exemption, by reason thereof, then ceased to be valid.

Id.

      [94].    In Ex parte Hill, Justice Stone articulated:

In passing upon the question of fraud vel non, the commanding officer, commandant of conscripts, or secretary of war, as the case may be, must necessarily and uniformly hear and decide upon evidence, and draw inferences from facts. These things inhere in the very nature of the inquiry to be made. They always come up, and, hence, are not the accidents of the particular case. They are like the preliminary proofs, and documentary exemplifications, which pertain to the functions of a land-office register, in the matter of pre-emption claims. To allow the State courts to re-try or re-examine the facts on which such decision is pronounced, is to give to the courts of the State government appellate jurisdiction over the commanding officers, commandant of conscripts, or the secretary of war; officers who receive their appointments from the Confederate government, and who are specially charged, by that government, with the performance of these functions. The issue is not solely, nor even mainly, between the principal and the substitute. The Confederate government is directly concerned in the result; and, in its military service, will be the chief sufferer from a reversal of the decision pronounced by the commanding officer, or other officer acting in the premises. State courts have no authority to re-try the question of fraud vel non, in the matter of putting a substitute into the army, under the rules above copied.

Ex parte Hill, 38 Ala. at 470.

      [95].    Id.

      [96].    Id. at 465–66.

      [97].    Mims v. Wimberly, 33 Ga. 587, 598 (1863). David Currie suggests Jefferson Davis largely acted within the bounds of the Confederate Constitution; whereas, Congress was generally willing to follow strong national policies—“virtually everything can be made necessary and proper to military success.” See Currie, supra note 7, at 1355, 1399. Fehrenbacher concluded, “the truly striking feature of this constitution written and adopted by representatives of the deep South is not the extent to which it incorporated states-rights doctrines, but rather the extent to which it transcended those principles in order to build a nation.” Fehrenbacher, supra note 6, at 63. Richard Bensel asserts the confederate governing culture and Constitution were “much more centralized tha[n] those of the Union.” Richard F. Bensel, Southern Leviathan: The Development of Central State Authority in the Confederate States of America, 2 Am. Pol. Dev. 68, 90 (1987).

      [98].    In re Bryan, 60 N.C. 1, 1–16 (1863).

      [99].    Cf. Slocum v. Mayberry, 15 U.S. 1, 6 (1817) (applying this reasoning to the seizure of cargo).

    [100].    Pearson reiterated that any construction by a Confederate district court would be controlling and non-reviewable by state courts, but because the executive branch has no judicial power,

any construction it might give to an act of Congress would be the subject of review, either by the State courts or the Confederate courts; and when a citizen is unlawfully deprived of his liberty or property by an executive officer, acting under an erroneous construction of an act of Congress, the State courts may give redress, as in [Slocum] v. Mayberry.

In re Bryan, 60 N.C. at 8.

    [101].    Id. at 15–16.

    [102].    Id. at 26.

    [103].    Id. at 9.

    [104].    See 14 U.S. (1 Wheat.) 304, 314–15 (1816). The relationship between state and federal courts in the Confederacy was a topic of much debate. The Confederate Constitution stipulated that there would be a Supreme Court and the Senate Judiciary Committee, at Davis’ behest, offered a bill to establish the Court in March 1861. Currie, supra note 7, at 1368–69. This bill was indefinitely postponed after a debate arose regarding whether or not to repeal the Judiciary Act provision for Supreme Court review of state judgments. Id. at 1369–70; see Act of Mar. 16, 1861, ch. 61, Pub. Laws, in Statutes at Large of the Provisional Government of the Confederate States of America 75 (J. Matthews ed., Williams, Hein & Co. 1988) (1864) [hereinafter Statutes at Large, Provisional Government of the Confederate].

That a final judgment or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the Confederates States . . . the decision may be re-examined, and reversed or affirmed in the Supreme Court of the Confederate States.

See Act of Mar. 16, 1861, ch. 61, § 45, Pub. Laws, in Statutes at Large of the Provisional Government of the Confederate, supra.

Currie notes that this provision mirrors section 25 of the Judiciary Act of 1789. See Currie, supra note 7, at 1368. During the following session of Congress in September 1863, another attempt was made to set up the Supreme Court in order to address a number of questions that had arisen, such as whether an income tax would be constitutional, and to fulfill the constitutional mandate. Currie, supra note 7, at 1370. Yet, opponents pointed to the history of the United States’ Court, which time and again, they cautioned, had sanctioned the expansion of federal power to the states’ detriment. See id. at 1375. Opponents and proponents vigorously debated the virtues and drawbacks of establishing a Supreme Court. The former had the better of the argument—a Supreme Court would be beholden only to Richmond rather than to protect the states’ sovereignty, they argued.                               See id. at 1371–75. The Senate consequently voted in favor of establishing the Court only after the 1861 Judiciary Act’s provision for Supreme Court review of state supreme court decisions was repealed. Id. at 1375 (citing Senate Proceedings (Mar. 18, 1863), reprinted in 48 Southern Historical Society Papers (1992)). The bill then stalled in the House. Id.

    [105].    Judges took a role in pushing back against policy on the fringes. The Supreme Court of Texas reasoned that nothing in the Constitution prohibited Congress from violating contractual obligations (this had only been denied to the states), and that the ex post facto provision related only to criminal legislation. Ex parte Mayer, 27 Tex. 715, 716 (1864). Other courts took a more generous view of whether an exemption contract had been formed. Assuming an exemption contract had been formed, the Court of Appeals of South Carolina discharged a man who had been exempted as an overseer on the basis that subsequent legislation changing the exemption qualifications for overseers could not operate retroactively absent a clear intention to do so. Ex parte Graham, 47 S.C.L. 277, 283–84, 290 (S.C. Ct. App. (1864). The Supreme Court of Alabama relied on contract law in 1864 when it held that a party has a right to have acceptance and approval of an exemption application within a reasonable time, and that if a reasonable time has passed after such an application was made, exemption could be assumed. Ex parte Mitchell, 39 Ala. 442, 496–49 (1864). Judges utilized state habeas to define the boundaries of the War Department’s regulations and the evolving conscription-exemption regime, thereby assuming the empowered role in the Confederate federal structure discussed.

    [106].    Ex parte Hill, 38 Ala. 429, 430 (1863).

    [107].    Id. at 435. In 1861, Walker had set a similar tone in Ex parte Kelly, by holding based on Ableman v. Booth, that state courts had no jurisdiction to interfere with a detention under federal law. See Ex parte Kelly, 37 Ala. 474, 476 (1861).

    [108].    Ex parte Hill, 38 Ala. at 439. Walker stated:

I do not say that congress can abridge or qualify the jurisdiction of the State courts. The want of authority in the State tribunals, to supervise and control the executive officers of the Confederate States, in the exercise of their appointed functions, by the writs of injunction, replevin, habeas corpus, or other process, results from the delegation in the constitution of an unqualified power to execute the laws which congress may enact, and not from any denial of such authority by act of congress. If a State court cannot correct, under a writ of habeas corpus, the errors of the enrolling officers engaged in enforcing the law of conscription, it is because the constitution bestows the power to execute the law without any qualification that it shall be done in a manner consistent with the judgment of a State judge, and not because congress has suspended, or can suspend, the writ of habeas corpus.

Id. at 479.

    [109].    Id. at 478–79.

I maintain, that so much of that jurisdiction as is exercised in the application of judicial correctives to the irregularities and errors of the executive officers of that government, charged with the enforcement of the conscript law, is necessarily exclusive; and that such officers, when acting within the limits of their authority, can not be interfered with by a State court, although they may commit errors.

Id. at 477.

    [110].    Id. at 490.

    [111].    Id. at 489. War Department clerk Robert Kean observed, on February 26, 1864, “It is pitiful to see how closely the factionists of North Carolina and Georgia, in their resistance to the conscription by the abuse of the habeas corpus, are imitating the tactics with which the Abolitionists fought the fugitive slave law.” Robert G. Kean, Inside the Confederate Government: The Diary of Robert Garlick Hill Kean 138 (Younger ed., 1957). In a letter from mid-1863, Assistant Secretary of War J.A. Campbell similarly linked contemporary state habeas with the abolitionists’ use of habeas, expressing frustration that the state habeas problem could not presently be settled:

The Department has been forced to inquire into the extent of the jurisdiction of local judges to determine such questions. It is well known to you that the writ of habeas corpus was the favorite instrument by which the Abolitionists sought to defeat the fugitive slave law. In some cases they decided that law to be unconstitutional, and discharged from the custody of the Federal officers those who were held for violation of it.

Letter from J.A. Campbell to Hon. E. Barksdale (July 21, 1863), in 2 Official Army Records, supra note 52, at 655–56.

    [112].    See Ex parte Hill, 38 Ala. 429, 496–98 (1863). In response to the charge that Ableman’s “broad and comprehensive principle” denying state habeas was merely obiter dictum, Walker replied, “It is not right to denounce the statement of a principle as obiter dictum, because it is large enough to cover other cases than those decided.” Id. at 495. That the Supreme Court had been unanimous in Ableman suggested there was no ambiguity about the ruling. The Court’s language had been precise, indicating the true opinion of each justice, and should not be read narrowly. See id. at 494. Because Ableman broadly denied state habeas, Walker dismissed the variety of state precedent and constitutional theory relied upon in Bryan. Id. at 496–97.

    [113].    Id. at 499.

    [114].    Id. The Union anticipated this concern and passed an Indemnity Act so that federal officers would not be held personally liable for, inter alia, carrying out the draft. See James G. Randall, The Indemnity Act of 1863: A Study in the War-Time Immunity of Governmental Officers, 20 Mich. L. Rev. 589, 589 (1922).

    [115].    Ex parte Hill, 38 Ala. at 499. The Davis Administration took a similar view. In a message to Congress on February 3, 1864, Davis characterized state judges exerting habeas as an undue obstruction to conscription. The danger, Davis warned, could come from just one judge for, “[i]f a single judge, in any State, should hold the act to be unconstitutional, it is easy to see that that State will either furnish no soldiers from that class, or furnish them only when too late for the pressing need of the country.” 3 Official Army Records, supra note 52, at 69. Even with the law on the Confederacy’s side, Davis expressed aggravation that appealing decisions through the courts would create a delay that “will be tantamount in its consequences to a discharge.” Id.

    [116].    Ex parte Hill, 38 Ala. at 503–04.

    [117].    Id. at 504.

    [118].    Historian Burton J. Hendrick concluded Jefferson Davis quickly abandoned states’ rights philosophy “when faced with the inexorable realism of war” and only the opposition of other leaders such as Alexander Stephens made him tread warily on the path towards centralized nationalism. Burton J. Hendrick, Statesmen of the Lost Cause: Jefferson Davis and His Cabinet 429 (1939). An influential work on why the Confederacy failed posits Confederate nationalism failed, and that states’ rights had little effect on the war effort. Beringer et al., supra note 6, at 428–29. Paul D. Escott has argued Davis failed to respond to the needs of the common people. See Paul D. Escott, After Secession: Jefferson Davis and the Failure of Confederate Nationalism 146 (1978). The interplay between the self-identity crisis and state habeas provides fuller context than these works for Davis’ complicated relationship with states’ rights. The administration’s relationship with habeas further marks the irretrievable shift in policy where states’ rights lost meaning, and winning the war for independence took precedence over all else.

    [119].    Hendrick, supra note 118, at 429.

    [120].    Id.

    [121].    Jefferson Davis Address to the Congress of the Confederate States (Nov. 18, 1861), in 1 A Complication of the Messages and Papers of the Confederacy, 1861–1865 140–41 (James D. Richardson ed., 1904) [hereinafter Messages and Papers of the Confederacy].

    [122].    Jefferson Davis Address to Gov. Joseph E. Brown (July 10, 1862), in Messages and Papers of the Confederacy, supra note 121, at 54.

    [123].    Letter from Jefferson Davis to Gov. Francis W. Pickens (Sept. 3, 1862), in Messages and Papers of the Confederacy, supra note 121, at 74–75. Further placed state courts on par with federal courts as avenue to redress grievances:

The Confederate courts, as well as those of the State, possess ample powers for the redress of grievances, whether inflicted by legislation or executive usurpation, and the direct conflict of executive authorities presents a condition of affairs so grave and is suggestive of consequences so disastrous that I am sure you cannot contemplate them without deep-seated alarm.

Id. at 75.

    [124].    Internal problems in the Confederacy multiplied as the war went on, and the administration increasingly contended with the populace’s discontent as commodity prices skyrocketed and supplies became scarce, leading to riots by women in a number of southern cities. Paul D. Escott, The Confederacy: the Slaveholders’ Failed Venture 49, 60 (2010). On January 1, 1863, the Emancipation Proclamation raised the stakes by making the war about the very existence of slavery as opposed to slaveholders’ rights. In his memoirs, Davis wrote, “[Lincoln] put arms in their hands, and trained their humble but emotional natures to deeds of violence and bloodshed, and sent them out to devastate their benefactors.” 2 Jefferson Davis, The Rise and Fall of the Confederate Government 193 (1881). A series of new legislation in early 1864 signaled the dire measures Confederate leaders thought necessary to continue the war. In addition to a still more expansive conscription act, Congress passed laws establishing higher taxes, a compulsory funding measure to reduce the currency in circulation by as much as two-thirds, an act strictly regulating the trade of commodities, and the suspension of habeas corpus. See Thomas, supra note ­­6, at 263–65.

    [125].    Address to Legislature of Mississippi at Jackson (Dec. 26, 1862), in 8 The Papers of Jefferson Davis 572–73 (Lynda L. Crist & Mary Seaton Dix eds., 1995).

    [126].    Letter from Thomas H. Watts to James Seddon (Nov. 28, 1862), in The Opinions of the Confederate Attorneys General, 1861–1865 183 (Rembert W. Patrick ed., 1950) [hereinafter, Opinions of the Confederate Attorneys General.].

    [127].    Letter from Thomas H. Watts to James Seddon (Dec. 15, 1862), in Opinions of the Confederate Attorneys General, supra note 126, at 188–91.

    [128].    Circular No. 36 from James B. Fry (July 1, 1863), in 3 Official Army Records, supra note 52, at 460–61; see also, Randall, supra note 12, at 431.

    [129].    Letter from Thomas H. Watts to Davis, (Aug. 8, 1863), Opinions of the Confederate Attorneys General, supra note 126, at 311, 313.

It may be that Genl. Buckner, as a Military Commander of a Department, by virtue of his powers and duties to defend the country, independent of any specific laws of Congress, had the right to arrest and hold temporarily, suspicious persons, to prevent them communicating with, or otherwise giving aid and comfort to the enemy. (emphasis added).

    [130].    See id. at 313. Watts’ instructions were prompted because General Buckner had only replied, “Abe Tipton is held as an open and avowed enemy of the Confederate Government. He is held by the Military Authorities, under the laws of the Confederacy.” Id. Watts further stated, “The Court or Judge of a State has the clear right to inquire in this mode of proceeding for what cause, and by what authority the prisoner is confined within the territorial limits of the State Sovereignty.” Id. at 314.

    [131].    Id. at 314.

    [132].    Id. That federal officers had always disputed the doctrine suggests the administration’s tacit support of state habeas in 1862–1863 was lukewarm at best.

    [133].    In re Bryan, 60 N.C. 1, 141–15 (1863).

    [134].    Id.

    [135].    3 Official Army Records, supra note 52, at 69.

    [136].    Id.

    [137].    Id.

    [138].    Id.

    [139].    Letter from James Seddon to General Edmund Kirby Smith (Mar. 19, 1864), in 3 Official Army Records, supra note 52, at 231.

    [140].    Kean, supra note 111, at 64; cf. John B. Jones, A Rebel War Clerk’s Diary 443, 457 (Earl Shenck Miers ed., 1958) (indicating War Clerk John B. Jones’ attitude, who expressed concern over Jefferson Davis assuming absolute power (October 19, 1864) and the preference conscription superintendents gave the rich (December 6, 1864)).

    [141].    Act of Feb. 27, 1862, ch. 2, Pub. Laws, in Statutes at Large, Provisional Government of the Confederate, supra note 104, at 1 (James Matthews ed,. 1862).

    [142].    Currie, supra note 7, at 1328–29.

    [143].    Act of Oct. 13, 1862, ch. 21, Pub. Laws, in Statutes at Large, Provisional Government of the Confederate, supra note 104, at 84 (James Matthews ed. 1862) (“The President shall cause proper officers to investigate the cases of all persons so arrested, in order that they may be discharged, if improperly detained, unless they can be speedily tried in due course of law.”

    [144].    See supra notes 122–25 and accompanying text.

    [145].    Act of Feb. 15, 1864, ch. 37, Pub. Laws, 4th Sess., in Statutes at Large of the Confederate States of America, Passed at the Fourth Session of the First Congress 1863–64, 28–30 (R.M. Smith ed., Richmond 1864). Neely frames the February 1864 Act as the request to end civil liberties in the Confederacy. Representing a departure from earlier requests to suspend habeas, it was purportedly necessary for protection from disloyalty within the heart of the Confederacy. See Neely, supra note 6, at 166. Neely further argues that, similar to Lincoln, Davis showed little sincere interest in constitutional restrictions on government authority in wartime. Id. at 167.

    [146].    Pearson took an expansive view of state habeas jurisdiction even after Congress passed a comprehensive grant for the suspension of habeas corpus across the Confederacy. Addressing the Act’s scope in In re Roseman, Pearson concluded that the petitioner’s case was not covered because by applying for the writ, the petitioner was not seeking to “avoid” service, which implied that the petitioner would have kept out of the way, “taking to the woods, instead of coming up and appealing to the courts to decide upon their rights.” 60 N.C. 368 (1 Win.) 443, 445 (1863). But other North Carolina judges’ unwillingness to push the boundary of state habeas was more representative of the general relationship between state judges and the doctrine. See J.G. de Roulhac Hamilton, The North Carolina Courts and the Confederacy, 4 N.C. Hist. Rev. 366, 366, 390 (1927). The administration resolved that something had to be done before other judges start following Pearson’s example. Perceived disruption arising from Pearson’s decisions, more than any other judge, prompted Davis to recommend suspension of the writ. Id. at 390. Detractors called Pearson a traitor and “predicted that North Carolina would become a haven for all those desiring to shirk their military duties.” Jennifer Van Zant, Confederate Conscription and the North Carolina Supreme Court, 72 N.C. Hist. Rev. 54, 70–71 (1995). In a letter to Thomas Bragg, who had argued for the Confederacy in Bryan, Davis wrote:

The decision of Judge Pearson releasing the conscript in the case before him will of course be respected until the action of the appellate court, for the case was before him prior to the passage of the law suspending the writ of habeas corpus; and although I do not believe that his decision is right, the public interest will not suffer by awaiting the result of the appeal in the one case before him.

Letter from Jefferson Davis to Thomas Bragg (Mar. 7, 1864), in 3 Official Army Records, supra note 52, at 201. Davis placed faith in the North Carolina supreme court’s other justices to counteract Pearson’s meddling influence. Should they fail and should Pearson continue to “pursue the factious course,” Davis ominously pledged, “I shall not shrink from the issue.” Id.

    [147].    Resolution to House of Representatives (May 14, 1864), 3 Official Army Records, supra note 52, at 429–30.

    [148].    Their northern counterparts, the principal advocates for state habeas before the war, did not defend state habeas doctrine with the same vigor. Notable, the Supreme Court of Michigan in In re Spangler adopted a tone similar to Walker in Ex parte Hill in holding state habeas unconstitutional. In re Spangler, 11 Mich. 298, 307 (1863). Echoing Taney in Abelman, the Michigan Supreme Court reasoned:

The Constitution was not framed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home: for if this object could be attained, there would be but little danger from abroad; and to accomplish this purpose it was felt by the statesman who framed the Constitution, and by the people who adopted it, that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the general government, and that in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities.

Id.; see also Ex parte Anderson, 16 Iowa 595 (1864) (giving a lukewarm defense of state habeas by the Supreme Court of Iowa, but deciding the case on other grounds); cf. Commonwealth ex rel. M’lain v. Wright, 3 Grant 437 (Pa. 1863) (defending the state habeas jurisdiction). After the war, northern courts remained divided regarding state habeas until Tarble’s Case. See In re Farrand, 8 Fed. Cas. 1070, 1072 (D. Ky. 1867); Ex parte Hill, 5 Nev. 154 (1869) (following Abelman and denying state habeas).

    [149].    Hamilton, supra note 10, at 448.

Race and the Law

Race and the Law

Cassandra Conover, Race and the Law, 51 U. Rich. L. Rev. Online 91 (2017).

Click here to download PDF.


Cassandra Conover *

When one looks at the topic “Race and the Law,” as this applies to African Americans, the first question that comes to mind is this: Do we want to examine how race and the law have worked together or apart? The answer(s) could be lengthy either way. “Black skin was filled with so many barriers, so many restrictions, so many.”[1] What could those barriers and restrictions be?

There was a time the law used the color of our skin for many reasons, to include the notion that our color made us inferior to others. Although white men worded the Fourteenth Amendment in 1868 specifically so newly freed slaves would be protected citizens against unjust state actions, the acceptance of African Americans as 5/5 of a person versus the 3/5 of a person still contained in the Constitution was a bitter pill for many to swallow.[2] The Jim Crow laws of segregation passed in several states from 1890 to 1945.[3] Those laws were enacted “to subordinate blacks as a group to whites and to enforce rules favored by dominant whites.”[4] Those laws were so strongly supported throughout the South.

Thanks to having the backing of the law, businesses were free to treat blacks almost any way they wished. For example, African Americans during this time could not just stop while traveling on the highways to eat or use a restroom at any establishment. Some places were extremely hostile. A solution was the publication of a green book. Appropriately named the “Negro Motorist Green Book,” this handy document gave “the Negro traveler information that will keep him from running into difficulties, embarrassments, and to make his trip more enjoyable.”[5] This book could almost be called a variation of the concept of the Underground Railroad. The case of Loving v. Virginia, eliminating the ban on interracial marriages, has been acknowledged as the ultimate defeat of the Jim Crow laws.[6]

Over the years, we as a people have not let our race keep us from entering the legal field. Although the Constitution did not recognize African Americans as being whole, a free African American named Macon Allen passed the bar exam in Maine in 1844, twenty-four years before the passage of the Fourteenth Amendment.[7] The first African American police officer came on board in 1886 in California.[8] The integration of African Americans has continued to expand to all facets of the law.

Here I stand on the shoulders of giants as an African American female District Attorney of twenty-seven years, looking forward to retiring in one month, with concerns. The giants struggled so hard for me and others. However, there appears to be generations of African Americans who either do not know or do not appreciate those struggles. Whereas we have more African Americans working in the legal field as probation officers, policemen and women, lawyers, and judges, we also continue to have African Americans being killed in the name of the law, by black and white officers. The dialogue of “Race and The Law” must continue and take on these new and strange dynamics.

    Commonwealth’s Attorney, Petersburg, Virginia. Ed.D., 2017, Concordia University-Portland; M.B.A., 2006, Regis University; J.D., 1985, North Carolina Central University School of Law; B.A., 1982, University of Virginia. The author holds the titles of senior ranking female Commonwealth Attorney in the State of Virginia and senior ranking African American female District Attorney in the United States.

        [1].    Randi Pink, Into White 77 (2016).

        [2].    July 28, 1868: 14th Amendment Adopted, History.com, http://www.history.com/ this-day-in-history/14th-amendment-adopted (last visited Apr. 27, 2017).

        [3].    David Pilgrim, What Was Jim Crow, Ferris State U., http://www.ferris.edu/ jimcrow/what.htm (last visited Mar. 1, 2017).

        [4].    J. Morgan Kousser, Jim Crow Laws, in 4 Dictionary of American History 479 (Stanley I. Kutler ed., 3d ed. 2003).

        [5].    Mark S. Foster, In the Face of “Jim Crow”: Prosperous Blacks and Vacations, Travel and Outdoor Leisure, 1890–1945, 84 J. Negro Hist. 130, 142 (1999).

        [6].    See Loving v. Virginia, 388 U.S. 1, 12; Kousser, supra note 4, at 479.

        [7].    Macon Bolling Allen, Biography.com, http://www.biography.com/people/macon-bolling-allen-21342461 (last updated Apr. 2, 2014).

        [8].    125 Years of African-Americans in LAPD, L.A. Police Dep’t, http://www.lap donline.org/home/content_basic_view/47101 (last visited Mar. 1, 2017).

Anchors Aweigh: Analyzing Birthright Citizenship as Declared (Not Established) by the Fourteenth Amendment

Anchors Aweigh: Analyzing Birthright Citizenship as Declared (Not Established) by the Fourteenth Amendment

Elizabeth Farrington, Anchors Aweigh: Analyzing Birthright Citizenship as Declared (Not Established) by the Fourteenth Amendment, 51 U. Rich. L. Rev. Online 71 (2017).

Click here to download PDF.


Elizabeth Farrington*

Much has been and will be said concerning President Donald Trump’s immigration policies. The vast majority of commentary has focused on his plans to enforce existing policy by deporting undocumented immigrants currently living in the United States and, of course, to build a wall on the United States border with Mexico. Less has been said, however, about any potential plans to change existing law regarding birthright citizenship—the process by which children of undocumented immigrants born on United States soil are granted full citizenship status.

On what he calls “anchor babies,” President Trump wrote: “[W]omen who have zero connection to the United States cross the border, deliver a baby, and their kid magically becomes an American citizen eligible to receive all the rights and benefits of those who have lived, worked, and paid taxes in our country.”[1] Mr. Trump notes the constitutional provision allowing this practice is, of course, the Fourteenth Amendment. Passed in June 1866[2] and ratified two years later (after contentious debate),[3] it provides in pertinent part: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”[4] This clause has historically granted citizenship to “anyone born on
American territory, no matter their national origin, ethnicity, or station in life.”[5]

Relatively recently, this interpretation has come under fire. Some scholars believe we must repeal this clause due to policy concerns surrounding immigration and undocumented immigrants. Others argue that we could remove the promises of birthright citizenship without repealing the clause or the amendment; they argue that we have misinterpreted this clause.[6] This is not merely a scholarly debate; the Pew Institute estimates nearly 300,000 children were birthed into citizenship under this clause in 2013.[7] Though President Trump espoused his views on the issue loudest and most often, every presidential candidate—on both sides of the aisle—spoke publicly about birthright citizenship.[8] This essay aims to analyze this debate without regard to political party or current policy implications. Rather, this essay will seek to find its own answer to the growing birthright citizenship debate, drawing on primary sources from the time it was passed (and applied to a few nineteenth century cases after the Reconstruction Amendments were passed).

The amendment was passed in response to, inter alia, the Dred Scott decision denying citizenship to former slaves;[9] in that respect, the citizenship clause was perhaps included to guarantee the right to citizenship for all newly freed African Americans born within United States borders. Although this clause seemed to put forth a straightforward test, that anyone born within the country’s borders is a citizen, some argue it was passed only to grant citizenship to former slaves freed by the Thirteenth Amendment and that full birthright citizenship is not warranted.[10]

This essay argues that birthright citizenship is in accordance with both the original intent and public understanding of the Fourteenth Amendment’s citizenship clause. Furthermore, it argues that Congress’ inclusion of the clause was not to change the definition of citizenship, but rather to affirm the practice established long before Reconstruction. For that reason, Part I will briefly address the early English common law of jus solis[11] (citizenship defined by soil) and the other option available after the revolution, jus sanguinis[12] (citizenship defined by blood). Part I will also analyze the effect of Dred Scott v. Sanford, where Chief Justice Taney struck down the Compromise of 1850 and held that slaves could never be citizens despite their birth on U.S. soil.[13]

Next, and most importantly, this essay will turn to Reconstruction in Part II. Specifically, it will analyze Attorney General Bates’ 1862 opinion regarding the citizenship of a free, black ship master, providing unique insight into the question of citizenship prior to formal Reconstruction. Next, drawing on the citizenship clause debates surrounding both the Civil Rights Act and the clause in the amendment itself, this essay will address the “framers’ intent” standard, insofar as anyone can surmise such intent from the text of debates and speeches alone. Finally, Part III will look to Reconstruction-era legal scholarship to provide insight on public meaning and then to instances following Reconstruction when the Supreme Court or lower courts applied or interpreted birthright citizenship immediately after the Fourteenth Amendment was ratified.

Using all of the above, this essay will outline the absurdity of the birthright citizenship debate. That is, the historical analysis proves that the clause was enacted with, at the very least, full acknowledgement of the effect of guaranteeing birthright citizenship and, in some cases, shows the explicit intent to do so. This paper argues the clause was included to overrule Dred Scott and was intended to reach beyond newly freed slaves and their children; it was included not to expand citizenship, but to declare and ensure jus solis remained the supreme law of the land.

I. Laying the Groundwork: How Did We Get Here?

English Common Law: The First United States Citizens and the Doctrine of Jus Solis

Citizenship was one of the many doctrines early American courts adopted from the English Common Law. According to Blackstone: “The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.”[14] Across the ocean, then, “[w]ith the exception of a few years before the Civil War, the United States followed the British rule of jus solis (citizenship defined by birthplace), rather than the rule of jus sanguinis (citizenship defined by that of parents) that prevails in much of continental Europe.”[15]

This doctrine is seen throughout English and American common law cases;[16] most notably in Calvin’s Case,[17] “one of the most important English common-law decisions adopted by courts in the early history of the United States.”[18] In Calvin’s Case, the court addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI, would be considered “subjects” in England.[19] The court found that persons born on sovereign land, no matter the status of his or her parents, were “natural subjects.”[20] This decision established “the American common-law rule of birthright citizenship.”[21]Across the pond, the United States Supreme Court cited Calvin’s Case and found that “[n]othing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the governments, and owing a temporary allegiance thereto, are subjects by birth.”[22] This case remains good law, and is cited to this day.[23]

Dred Scott and the Court’s Role in the Civil War

In 1820, President James Monroe signed the Missouri Compromise,[24] “which prohibited slavery in all of the federal territories north and west of the state of Missouri.”[25] Fourteen years later, enter Dred Scott, a slave belonging to a United States Army surgeon.[26] That surgeon, Dr. Emerson, took Scott with him to Illinois and to present day Minnesota, an area covered by the Missouri Compromise’s prohibition on slavery.[27] Mr. Scott later attempted to buy his freedom, and when Dr. Emerson’s wife refused (Dr. Emerson himself having died), Scott sued for his freedom.[28] After lengthy legal battles, Scott’s case (now in the form of Scott v. Sandford) eventually made its way to the United States Supreme Court. This decision is taught in every law school in the country and widely discussed in constitutional scholarship,[29] largely due to its timeliness (immediately before the Civil War), its implications, and the nature of the opinion itself, with each of the nine justices penning an opinion. Chief Justice Taney’s majority opinion, despite finding that the Court lacked jurisdiction, found that slaves were ineligible for citizenship and denied Scott his freedom.[30] Taney did not discuss the doctrine of jus soli, nor did he find the place of Scott’s birth relevant. Rather, he found that black Americans were excluded altogether from citizenship on account of their race and status. Justices Curtis dissented (as did Justice McLean); in Justice Curtis’ seventy-page dissent, he noted:

I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption; nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is, that, under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States.[31]

Curtis, then, had a fundamentally different understanding of citizenship—and the possibility of black citizenship—than Taney and the rest of the majority. To Curtis, the Constitution’s use of “natural-born citizen” “assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”[32] The majority opinion was lauded by Southerners and many Northern Democrats, who “hoped it would forever end debate over slavery in the territories and, thus, eliminate the newly formed Republican Party as a political force in the North.”[33] Republicans had a different plan, and the opinion simply fanned the flames of an increasingly fragile union of states: “Though surely an exaggeration, it has been said that the case caused the Civil War. While other forces caused secession and the War, Dred Scott surely played a role in the timing of both.”[34]

References to this decision are found throughout the Congressional Globe, even before the records of the 39th Congress and throughout Reconstruction.[35] Representative Calvin Chaffee, for example, explained that “[t]he dictum of the Court is a very different affair from a decision,[36] and that became the party line for Republicans seeking to use the opinion (and Justice Curtis’ dissent) in their favor. The drafters of the Fourteenth Amendment often cited to the decision when probed on the necessity of the law. Cases following Reconstruction cited the decision as the impetus of the Reconstruction Amendments generally and the Fourteenth Amendment in particular.[37] Frederick Douglas “optimistically predicted that, in the long run, the decision would help the antislavery movement. . . . [T]his decision would lead to more support for abolitionists and thus put greater pressure on slavery.”[38] And he was right, as the decade that followed brought about the bloodiest war in American history, but also brought with it the abolition of slavery and Reconstruction.

II. Reconstruction

Attorney General Bates on Citizenship

Edward Bates, a Republican Congressman from Missouri, unsuccessfully ran for his party’s presidential nomination in 1860, but his loss was short-lived: President Lincoln appointed him Attorney General in 1861.[39] Just one year into his appointment, Treasury Secretary Chase sent Bates a letter asking for his opinion on “whether or not colored men can be citizens of the United States.”[40] The question was posed in response to a ship commanded by a free black man detained off the coast of New Jersey. Bates explained: “The Constitution of the United States does not declare who are and who are not citizens, nor does it attempt to describe the constituent elements of citizenship. It leaves that quality where it found it, resting upon the fact of home-birth, and upon the laws of the several States.”[41] Drawing from Calvin’s Case, he wrote that the Constitution “uses the word citizen only to express the political quality of the individual in his relations to the nation; to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other.”[42]

Much of Bates’ opinion is devoted to traits or privileges of citizenship, and understandably focuses on correcting the dangerous notion that there is a lower, “denizen” class of black citizens, but one crucial passage provides insight on birthright citizenship as Bates understood it: “We have natural born citizens, not made by law or otherwise, but born . . . The Constitution itself does not make the citizens . . . It only intends and recognizes such of them as are natural—home-born; and provides for the naturalization of such of them as were . . . foreign-born.”[43] He continued:

[I]t is too late now to deny the political rights and obligations conferred and imposed by nativity; for our laws do not pretend to create or enact them, but do assume and recognize them as things known to all men, because pre-existent and natural; and therefore things of which the laws must take cognizance. . . . [P]rima facie, every person in this country is born a citizen.[44]

With that, Bates issued his opinion and answered Chase’s question about black citizenship with a resounding “yes”—and gave a formal endorsement of birthright citizenship in the process.

The Civil Rights Act of 1866

As Congress was drafting the Fourteenth Amendment, the Thirty-ninth Congress had already declared “all persons born in the United States and not subject to any foreign Power, excluding Indians not taxed . . . to be citizens of the United States” in the Civil Rights Act of 1866.[45] On January 5, 1866, Senator Lyman Trumbull (R-IL) introduced S. No. 61, a bill “to protect all persons in the United States in their civil rights and furnish the means of their vindication.”[46] Trumbull believed the Citizenship Clause, which “declares that all persons of African descent shall be citizens of the United States,” was “the basis of the whole bill.”[47]

Senator Morrill (R-ME) found that the bill was “not an enactment in the sense of the law, in the sense of legislation, but a declaration of a grand, fundamental principle of law and politics,”[48] and hailed it as such. Responding to opposition from Senator Garrett Davis (D-KY), Morrill said:

As matter of law, does anybody deny here or anywhere that the native born is a citizen, and a citizen by virtue of his birth alone? . . . [Davis] has forgotten the grand principle both of nature and nations, both of law and politics, that birth gives citizenship of itself. . . Everywhere where the principles of law have been recognized at all, birth by its inherent energy and force gives citizenship . . . The Constitution speaks of “natural born,” and speaks of them as citizens in contradistinction from those who are alien to us. Therefore, sir, this amendment, although it is a grand enunciation, although it is a lofty and sublime declaration, has no force or efficiency as an enactment. I hail it and accept it simply as a declaration.[49]

For purposes of citizenship, then, Senator Morrill understood birthright citizenship in the jus solis sense prior to Reconstruction and saw formal codification as nothing more than an affirmation of existing law. Trumbull generally agreed, noting that he and Morrill “desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance to the United States.”[50] The qualification Trumbull made was for foreign diplomats: “We cannot make a citizen of the child of a foreign minister who is temporarily residing here.”[51]

Not everyone agreed with Senator Trumbull, with Senator Garrett Davis (D-KY) serving as the most vocal opponent. He challenged the proposition that the bill was merely declaratory law, and instead insisted that “Congress may create the [uniform rule of naturalization]; it may prescribe the authority to make a citizen; but it cannot exercise that power itself. . . . Congress has no power to make a citizen.”[52] Senator Davis was not alone in his objections,[53] but he was unable to convince the Senate; the bill passed on February 2, by a vote of thirty-three to twelve.[54]

As the bill proceeded to the House (where the citizenship clause was not heavily debated), Representative James Wilson (R-IA) concurred with Senator Morrill that the citizenship clause formally declared the already settled law: “This provision, I maintain, is merely declaratory of what the law now is.”[55] Representative Wilson proceeded to cite relevant legal authority and precedent in support of his conclusion[56] before voting for the bill, which passed in the House on March 13 by a vote of 111–38 (with 34 not voting).[57]

Shocking members of both houses, President Johnson vetoed the Civil Rights Bill two weeks later, noting among his objections his concern with “granting” citizenship:

This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, people of color, negroes, mulattoes, and persons of African blood. Every individual of these races, born in the United States, is by the bill made a citizen of the United States. . . . The right of Federal citizenship, thus to be conferred in the several excepted races before mentioned, is now, for the first time, proposed to be given by law. If, as is claimed by many, all persons who are native-born, already are, by virtue of the Constitution, citizens of the United States, the passage of the pending bill cannot be necessary to make them such. If, on the other hand, such persons are not citizens, as may be assumed from the proposed legislation to make them such, the grave question presents itself, whether, when eleven of the thirty-six States are unrepresented in Congress, at this time it is sound policy to make our entire colored population and all other excepted classes citizens of the United States?[58]

Thus, even President Johnson acknowledged the thesis of this essay; that is, many understood birthright citizenship as the existing law, merely declared in this bill, and even those that rejected that premise understood the effect of birthright citizenship. This portion of his veto seems to argue that the citizenship provision is either redundant (because it is already the law) or entrenches birthright citizenship without input from Southern representatives. Crucially, over these and President Johnson’s other objections, Congress passed the Civil Rights Bill with the two-thirds majority required to override, and the Act became law on April 9, 1866.[59]

This discussion is valuable to the citizenship clause of the Fourteenth Amendment because the members drafting, debating, and passing the Act were, of course, those same members drafting, debating, and passing the amendment. Moreover, “the [Fourteenth Amendment’s Citizenship] Clause was intended to entrench an earlier statutory citizenship guarantee in the Civil Rights Act of 1866.”[60] Clearest of all, the United States Supreme Court noted that the two pieces of legislation were linked and its use of language was in no way coincidental: “The same congress, shortly [after passing the Civil Rights Act], evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent congress, framed the fourteenth amendment of the constitution.”[61]

The Fourteenth Amendment’s Section One

One issue with analyzing the Fourteenth Amendment’s citizenship debate is that the same members, having understood it during the Civil Rights Act, felt the matter was settled by the time the clause was introduced in this separate context. The “debate” on the clause was correspondingly much shorter than other provisions (i.e., the Equal Protection Clause debates). Nevertheless, Congress did introduce and discuss the amendment’s citizenship provision, as outlined below. Introducing it on May 30, 1866, the clause’s author Senator Jacob Howard (R-MI) explained:

I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.[62]

That, in and of itself, is not only innocuous, it seems to support the premise that the Citizenship Clause—both in the Civil Rights Act (to which Howard refers) and the Fourteenth Amendment—was merely declaring formally the established doctrine of jus soli. Howard did not stop there, though, and his next statement is the loose end to which birthright citizenship opponents cling: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”[63] Senator Howard’s proposal was immediately discussed, but mainly within the context of the Indian population.[64]

Senator Cowan (R-PA), the first to give Senator Howard’s clause a closer look, “supposed that every human being within their jurisdiction was in one sense of the word a citizen, that is, a person entitled to protection.”[65] That concept frightened Cowan, who noted Chinese immigration to California, and feared that if a state “was likely to be invaded by a flood of Australians or people from Borneo, man-eaters or cannibals if you please, [that state] would have the right to say that those people should not come there.”[66] He went on:

[T]here are nations of people with whom theft is a virtue and falsehood a merit. There are people to whom polygamy is as natural as monogamy is with us. It is utterly impossible that these people can meet together and enjoy their several rights and privileges which they suppose to be natural in the same society; and it is necessary . . . that society shall be more or less exclusive.[67]

That xenophobia notwithstanding, over the course of the next few days, several other Senators weighed in on the matter, and in doing so lent no support to the concept that this proposed Citizenship Clause should (or would) remove the doctrine of jus soli from the established law.

Senator Conness (R-CA) responded immediately to Senator Cowan’s fears about the impending invasion of his own California. He succinctly and directly addressed Senator Howard:

The proposition before us . . . relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for
the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.[68]

He then “beg[ged]” Senator Cowan not to concern himself with the Chinese, and noted with incredulity the notion that the United States was being overtaken by Gypsies and other immigrants while expressing his belief that these individuals must be protected in their civil rights.

Senator Reverdy Johnson, a Democrat (D-MD), followed Senator Conness’ lead. Expressing concern for the lack of defined United States citizenship, he said:

Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power . . . shall be considered as citizens of the United States. . . . If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.[69]

Two weeks later, the Senate once again took up the issue of Senator Howard’s Citizenship Clause. Senator Henderson (R-MO) began the discussion and was the last Senator to speak on the issue:

I propose to discuss the first section only so far as citizenship is involved in it. I desire to show that this section will leave citizenship where it now is. It makes plain only what has been rendered doubtful by the past action of the Government. . . . Justice McLean, in the Dred Scott case, said: “Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen. The most general and appropriate definition of the term citizen is a ‘freeman.’”[70]

Henderson understood Justice McLean’s dissent to mean “that any person, black or white, born upon the soil of a State, is a citizen of that State, unless he be born in slavery, and if he be born a slave, he becomes a citizen so soon as by the laws of the State he becomes a free man.”[71] Thus, the citizenship debate ended with Senator Henderson’s statement: “All born on the soil free are citizens of the respective States of their birth, and therefore citizens of the United States.”[72]

III. Evidence of Public Meaning

Scholarship

Early Supreme Court cases used conventions of British common law to interpret it’s constitutional meaning, including not only Calvin’s Case but also Sir Edward Coke’s report on the case, who insisted that the King’s reciprocal obligations to a subject’s allegiance protected the rights of any subject born within his domain.[73] Of course, it was not only the courts that seemed to adopt this understanding. Several prominent law review articles contribute to the discussion, with near unanimous support for the jus soli understanding of citizenship.[74] Thus, pre-Reconstruction, the generally accepted public meaning of birthright citizenship was relatively unchallenged: “[A] child was a citizen at birth if born within the territory of a sovereign and under the sovereign’s authority. This was true even if the child’s parents were aliens.”[75] Insofar as scholars can accurately provide evidence of public meaning, this understanding is supported by St. George Tucker,[76] William Rawle,[77] Joseph Story,[78] and James Kent:[79] “In drafting the Fourteenth Amendment, the framers drew on preexisting legal terminology. Hence, if ‘jurisdiction’ originally meant ‘sovereign authority’ at the framing, we should expect to see this meaning used in antebellum discourse. A variety of sources demonstrate that it was.”[80]

Court Cases

Though not entirely helpful for understanding the Framer’s intent surrounding birthright citizenship, Supreme Court decisions concerning citizenship (or, as in The Slaughterhouse Cases, cases that discuss the concept in dicta) help frame our understanding of the public meaning.

The Slaughterhouse Cases (and Their Limited Utility)

In the Slaughterhouse Cases, just five years after the Fourteenth Amendment was ratified, the Court famously found that the Privileges or Immunities Clause did not protect citizens against state encroachment, but rather protected only those conferred by the federal government.[81] In dicta, the Court wrote that “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of . . . citizens or subjects of foreign States born within the United States.”[82] Opponents of birthright citizenship argue that this is “as absolute and complete a statement as can be imagined, and it would deny birthright citizenship to a child born in this country to undocumented immigrants or to a transient alien mother.”[83] As further proof, opponents point to Minor v. Happersett, decided just two years after Slaughterhouse, where the same Court “expressly recognized the existence of ‘doubts’ that citizenship was automatic for ‘children born within the jurisdiction without reference to the citizenship of their parents,’ after noting that citizenship attaches only when the immigrant owes ‘allegiance’ to this country.”[84]

While noting the non-binding nature of these provisions, Gerald Walpin argues that both opinions “should be considered authoritative insofar as they were expressed by Justices who lived through the enactment of the provision they were construing, and thus were well positioned to comprehend the meaning and intention of the words.”[85] If that was all the Court said on the matter during the decades immediately following Reconstruction, that would seem a valid proposition. However, that was not the end of the discussion, even in that case. Mr. Justice Field, in a dissenting opinion, in which Chief Justice Chase and Justices Swayne and Bradley concurred, said of the same clause: “It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any state or the condition of their ancestry.”[86] What’s more, the Court backed away from the majority Slaughterhouse decision and, in later cases, seemingly directly overruled that portion of the decision that addressed birthright citizenship.

In 1884, Justice Field was on circuit in California and heard the case of In re Look Tin Sing concerning the citizenship of a child born in the United States of Chinese parents.[87] To use Walpin’s own words, Justice Field’s decision on the matter is as absolute and complete a statement on the matter as could be imagined, especially since the case was specifically about birthright citizenship.[88] Quoting the Citizenship Clause of the Fourteenth Amendment, Field explains: “This language would seem to be sufficiently broad to cover the case of the petitioner. He is a person born in the United States.”[89] He goes on to explain the phrase “subject to the jurisdiction thereof”:

They alone are subject to the jurisdiction of the United States who are within their dominions and under the protection of their laws, and with the consequent obligation to obey them when obedience can be rendered; and only those thus subject by their birth or naturalization are within the terms of the amendment. [90]

Justice Field listed those children that would not be guaranteed citizenship by virtue of their birth: (1) “children born in the United States of persons engaged in the diplomatic service of foreign governments, such as ministers and ambassadors”;[91] (2) “[p]ersons born on a public vessel of a foreign country, while within the waters of the United States, and consequently within their territorial jurisdiction”;[92] (3) persons who, though born or naturalized in the United States, have renounced their allegiance to our government, and thus dissolved their political connection with the country.”[93] Directly contradicting the Slaughterhouse Cases, Justice Field explains:

[T]he words in the fourteenth amendment, “subject to the jurisdiction thereof,” . . . do not exclude the petitioner from being a citizen. He is not within any of the classes of persons excepted from citizenship, and the jurisdiction of the United States over him at the time of his birth was exclusive of that of any other country.[94]

Of course, Justice Field’s opinion is not that of the Court, but rather his opinion binding only on courts within the California Circuit Court’s jurisdiction. But it does effectively demonstrate that not all justices agreed with the Slaughterhouse dicta’s treatment of the Citizenship Clause.

United States v. Wong Kim Ark

Two months after Look Tin Sing, in November 1884, the Court (and not simply Justice Field) issued some guidance in Elk v. Wilkins.[95] Opponents of birthright citizenship also cite to this decision as proof positive that the Court (and public meaning at the time) understood the Citizenship Clause as reported in the Slaughterhouse dicta. This mistakes the facts of the case; John Elk was a Winnebago Indian, born on an Indian reservation, who later renounced his tribal allegiance in an effort to gain U.S. citizenship.[96] Thus, when the Court found that Mr. Elk was not a citizen of the United States under the Fourteenth Amendment, it did so within the context of the contentious debate surrounding the sovereignty of Indian tribes and the reach of the court system within that sovereignty.[97]

Conversely, in United States v. Wong Kim Ark,[98] the Court squarely and definitively addressed the issue of birthright citizenship in facts nearly identical to Look Tin Sing; that is, the Court was asked to decide whether Ark, a child born in the United States to Chinese parents, was a United States citizen.[99] After Ark left to visit China temporarily and sought to return, he was denied reentry “upon the sole ground that he was not a citizen of the United States.”[100] Distinguishing Elk was simple and succinct: “The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African, or Mongolian descent, not in the diplomatic service of a foreign country.”[101] The Court found: “In the fore front, both of the Fourteenth Amendment of the Constitution, and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.”[102] The majority continued:

As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect.[103]

The Court further distanced itself from Slaughterhouse, noting the non-binding nature of the Citizenship Clause discussion. Citing Chief Justice John Marshall, the Court noted the maxim:

[N]ot to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.[104]

That maxim is of great use in this essay, because if the best arguments against birthright citizenship, each discussed above, are found in dicta, and in minority theories, they are indeed respected, but do not control the judgment of this subsequent debate.

Conclusion

The doctrine of jus soli was the law of the land prior to the Civil War and was formally constitutionalized by the Fourteenth Amendment. Lawmakers, scholars, and the general public agreed, at the very least, in an understanding that the citizenship clause would guarantee birthright citizenship and, perhaps more likely, intended that consequence. The current debate surrounding birthright citizenship is political, policy-driven, and—with regard to immigration reform—may be necessary. But make no mistake; this debate is not grounded in history. On that, history is clear.


* Judicial Law Clerk to the Hon. Nanette K. Laughrey, Western District of Missouri. J.D., 2016, University of Illinois College of Law; M.A., 2013, Old Dominion University; B.S., 2007, United States Naval Academy.

        [1].    Donald J. Trump, Time to Get Tough: Make America Great Again! 141 (2011).

        [2].    Cong. Globe, 39th Cong., 1st Sess. 3040 (June 8, 1866) (recording passage in the Senate); id. at 3148 (June 13, 1866) (recording passage in the House of Representatives).

        [3].    13 Stat. 708–11 (July 28, 1868).

        [4].    U.S. Const. amend. XIV, § 1, cl. 1.

        [5].    Gerald Walping, David B. Rivkin, Jr. & John C. Yoo, Birthright Citizenship: Two Perspectives, 17 Engage 21 (Feb. 2016).

        [6].    See id. at 21–22; Walping et al., supra note 5, at 18–21; John C. Eastman, We Can Apply the 14th Amendment While Also Reforming Birthright Citizenship, Nat’l Rev. (Aug. 24, 2015, 4:00 AM), http://www.nationalreview.com/article/422960/birthright-citizenship-reform-it-without-repealing-14th-amendment; Peter Schuck, Birthright of a Nation, N.Y. Times (Aug. 13, 2010), http://www.nytimes.com/2010/08/14/opinion/14schuck.html?_r=1.

        [7].    Jeffrey S. Passel & D’Vera Cohn, Number of Babies Born in U.S. to Unauthorized Immigrants Declines, Pew Research (Sept. 11, 2015), http://www.pewresearch.org/fact-tank/2015/09/11/number-of-babies-born-in-u-s-to-unauthorized-immigrants-declines/.

        [8].    See Mark Murray, Where the GOP 2016 Candidates Stand on Birthright Citizenship, MSNBC (Aug. 18, 2015, 3:39 PM), http://www.msnbc.com/msnbc/where-the-gop-2016-candidates-stand-birthright-citizenship.

        [9].    Scott v. Sanford, 60 U.S. (19 How.) 393 (1856), superseded by constitutional amendment, U.S. Const. amend. XIV.

      [10].    Id. at 406

      [11].    Jus Soli, Black’s Law Dictionary (10th ed. 2014).

      [12].    Jus Sanguinis, Black’s Law Dictionary (10th ed. 2014).

      [13].    60 U.S. at 397–99, 427.

      [14].    1 William Blackstone, Commentaries on the Laws of England 373 (1765); see also James Kent, 2 Commentaries On American Law 33 (3rd ed. 1827) (“Natives are all persons born within the jurisdiction of the United States.”); William Rawle, A View of the Constitution of the United States of America 86 (2d ed. 1829) (“[E]very person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution.”).

      [15].    Walping et al., supra note 5.

      [16].    But see Mark Shawhan, “By Virtue of Being Born Here”: Birthright Citizenship and the Civil Rights Act of 1866, 15 Harv. Latino L. Rev. 1, 6 (2012) (discussing a “Consensualist Alternative” to this doctrine).

      [17].    Calvin v. Smith, 77 Eng. Rep. 377 (K.B. 1608).

      [18].    Polly J. Price, Natural Law and Birthright Citizenship in Calvin’s Case (1608), 9 Yale J.L. & Human. 73, 74 (1997).

      [19].    Id. at 73.

      [20].    Calvin, 77 Eng. Rep. at 383 (“By all which it evidently appeareth, that they that are born under the obedience, power, faith, ligealty, or ligeance of the King, are natural subjects, and no aliens.”).

      [21].    See Price, supra note 18, at 74.

      [22].    Inglis v. Tr. of Sailor’s Snug Harbor, 28 U.S. (3 Pet.) 99, 164 (1830).

      [23].    See, e.g., Tuaua v. United States, 788 F.3d 300, 304 (D.C. Cir. 2015) (citing Inglis, 28 U.S. at 164) (“The doctrine of jus soli is an inheritance from the English common law. Those born ‘within the King’s domain’ and ‘within the obedience or ligeance of the King’ were subjects of the King, or ‘citizens’ in modern parlance. The domain of the King was defined broadly. It extended beyond the British Isles to include, for example, persons born in the American colonies.”).

      [24].    Missouri Compromise of 1820, ch. 22, 3 Stat. 545.

      [25].    Paul Finkelman, Scott v. Sandford: The Court’s Most Dreadful Case and How It Changed History, 82 Chi.-Kent L. Rev. 3, 4 (2007).

      [26].    Scott v. Sandford, 60 U.S. 393, 397 (1856).

      [27].    See also Finkelman, supra note 25, at 15; Jack M. Balkin & Sanford Levinson, Thirteen Ways of Looking at Dred Scott, 82 Chi.-Kent L. Rev. 49, 51 (2006).

      [28].    Finkelman, supra note 25, at 19–20.

      [29].    See, e.g., Finkelman, supra note 25, at 3; Balkin & Levinson, supra note 27, at 49.

      [30].    See Scott, 60 U.S. at 427.

      [31].    Id. at 576 (Curtis, J., dissenting).

      [32].    Id.

      [33].    Finkelman, supra note 25, at 5.

      [34].    Id. at 3.

      [35].    See, e.g., Cong. Globe, 39th Cong., 1st Sess. 1116 (1866) (statement of Rep. Wilson) (“The opinion of the court was soon after given to the country, but instead of becoming a triumphant platform for the Democratic party, it proved to be the scaffold on which the party was executed.”).

      [36].    Cong. Globe, 35th Cong., 1st Sess. 854 (1858) (statement of Rep. Chaffee).

      [37].    See, e.g., In re Look Tin Sing, 21 F. 905, 909 (C.C.D. Cal. 1884) (Field, J., on circuit) (“The clause as to citizenship was inserted in the amendment not merely as an authoritative declaration of the generally recognized law of the country, so far as the white race is concerned, but also to overrule the doctrine of the Dred Scott Case, affirming that persons of the African race brought to this country and sold as slaves, and their descendants, were not citizens of the United States, nor capable of becoming such.”)

      [38].    Finkleman, supra note 25, at 12–13.

      [39].    Cabinet and Vice Presidents: Edward Bates (1793–1869), Mr. Lincoln’s White House, http://www.mrlincolnswhitehouse.org/residents-visitors/cabinet-vice-presidents/ca binet-and-vice-presidents-edward-bates-1793-1869/ (last visited Feb. 17, 2017); Edward Bates (1861–1864)—Attorney General, Miller Ctr. of Pub. Affairs, Univ. of Va., http:// millercenter.org/president/essays/bates-1861-attorney-general (last visited Feb. 17, 2017).

      [40].    Citizenship, 10 Op. Att’y Gen. 382, 382 (1862).

      [41].    Id. at 385.

      [42].    Id. at 388 (internal citation omitted).

      [43].    Id. at 389.

      [44].    Id. at 395–96.

      [45].    Cong. Globe, 39th Cong., 1st Sess. 1115 (1866).

      [46].    Id. at 129.

      [47].    Id. at 474.

      [48].    Id. at 570.

      [49].    Id.

      [50].    Id. at 572.

      [51].    Id.

      [52].    Id. at 597.

      [53].    See, e.g., id. at 600 (statement of Sen. Guthrie).

      [54].    Id. at 606–07.

      [55].    Id. at 1115.

      [56].    See id. at 1116 (quoting 1 Sherwood’s Blackstone 304).

      [57].    Id. at 1367.

      [58].    Id. at 1679.

      [59].    Id. at 1809, 1861.

      [60].    Shawhan, supra note 16, at 2.

      [61].    United States v. Wong Kim Ark, 169 U.S. 649, 675 (1898).

      [62].    Cong. Globe, 39th Cong., 1st Sess. 2890 (1866).

      [63].    Id.

      [64].    Id. (statement of Sen. Doolittle) (“I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians. I move, therefore, to amend the amendment—I presume he will have no objection to it—by inserting after the word ‘thereof’ the words ‘excluding Indians not taxed.’”); id. (statement of Sen. Howard) (“Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.”).

      [65].    Id.

      [66].    Id. at 2891.

      [67].    Id.

      [68].    Id.

      [69].    Id. at 2893.

      [70].    Id. at 3031.

      [71].    Id.

      [72].    Id.

      [73].    See Price, supra note 18, at 73–74; Nicole Newman, Birthright Citizenship: The Fourteenth Amendment’s Continuing Protection Against an American Case System, 28 B.C. Third World L.J. 437, 445 (2008).

      [74].    For an overview of this literature, see Bernadette Meyler, The Gestation of Birthright Citizenship, 1868–1898: States’ Rights, the Law of Nations, and Mutual Consent, 15 Geo. Immigr. L.J. 519, 532–37 (2001); John A. Hayward, Who Are Citizens?, 2 Am. L.J. 315, 317 (1885); Thomas P. Stoney, Citizenship, 34 Am. L. Reg. 1, 1–2 (1886); D.H. Pingrey, Citizens, Their Rights and Immunities, 36 Am. L. Reg. 539, 540 (1888); cf. Henry C. Ide, Citizenship by Birth—Another View, 30 Am. L. Rev. 241, 241 (1896).

      [75].    Matthew Ing, Birthright Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause, 45 Akron L. Rev. 719, 725 (2012).

      [76].    1 Blackstone’s Commentaries: With Notes of Reference to the Constitution And Laws of the Federal Government of the United States; and of the Commonwealth of Virginia 152 (St. George Tucker ed., 1803).

      [77].    William Rawle, A View Of The Constitution Of The United States Of America 236 (2d ed. 1829).

      [78].    3 Joseph Story, Commentaries On the Constitution of the United States § 1646 (1833).

      [79].    James Kent, Commentaries On American Law 15 (William Kent ed., 9th ed. 1858).

      [80].    Ing, supra note 75, at 725–29 (discussing treatises and state court opinions on the subject).

      [81].    83 U.S. 36, 73, 80 (1873).

      [82].    Id.

      [83].    Walping et al., supra note 5, at 18.

      [84].    Id. (quoting Minor v. Happersett, 88 U.S. 162, 167–68 (1875)).

      [85].    Id. (“Note that, because the meaning of the Birthright Citizenship provision did not determine the outcome in either case, the Court’s statements in both decisions are dicta, not binding holdings.”).

      [86].    Slaughterhouse, 83 U.S. at 95.

      [87].    In re Look Tin Sing, 21 F. 905 (C.C.D. Cal. 1884).

      [88].    Walping et al., supra note 5.

      [89].    In re Look Tin Sing, 21 F. at 906 (C.C.D. Cal. 1884).

      [90].    Id.

      [91].    Id.

      [92].    Id.

      [93].    Id. at 907.

      [94].    Id. at 908–09.

      [95].    112 U.S. 94 (1884).

      [96].    Id. at 94–95.

      [97].    Id. at 109; see also Cong. Globe, 39th Cong. 1st Sess. 2895 (1866) (statement of Sen. Howard) (“I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages . . . are to become my fellow-citizens.”); id. at 2897 (statement of Sen. Doolittle) (classifying Indians as “utterly unfit to be citizens of the United States”).

      [98].    169 U.S. 649 (1898).

      [99].    Id. at 652–53.

    [100].    Id. at 653.

    [101].    Id. at 682.

    [102].    Id. at 675.

    [103].    Id. at 676.

    [104].    Id. at 679 (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)).

 

 

Remarks on Campus Sexual Assault

Remarks on Campus Sexual Assault

Allison M. Tinsey, Remarks on Campus Sexual Assault, 51 U. Rich. L. Rev. Online 101 (2016).

Click here to download PDF.


Allison M. Tinsey *

I was appalled to learn how the first-year criminal law curriculum addresses the subject of criminal sexual misconduct. Criminal sexual misconduct was the last topic covered in class and reserved for the last day of class. My section was forewarned of the upcoming conversation with an added bonus of knowing the material covered in class would not be on the exam. The assigned textbook reading on criminal sexual misconduct was condensed and edited. I heard a similar story from my friends in other sections: they were warned, told it would not be tested, and even given the option of not showing up to class that day.

While my professor took a diplomatic and thoughtful approach to the subject, the class discussion was less than productive. No one was on the same page in regards to what constitutes criminal sexual misconduct or what it means to give consent, especially if alcohol is involved. I did not walk away from that class, as I had from others, with a clear view of what the law is, what the main issues are, and how courts tend to address them. I proactively followed up with my professor and the Title IX coordinator to discuss my frustrations with the law school’s lack of emphasis placed on these issues.

I am told sexual misconduct is a messy subject, especially for lawyers. I am also told that tax is a messy subject, but at least it is a useful LL.M degree. The follow-up conversations I had with my professor and the Title IX coordinator specifically addressed how we, as lawyers, ought to study and address criminal sexual misconduct in the classroom, on campus, and in our careers.

As advocates, we are called to serve our clients and help them navigate the muddied waters of the law when they encounter issues. The law may or may not be on their side—the law may not even exist yet—but we are obligated to represent their best interests as they face pending judgment. Why, then, do we treat criminal sexual misconduct as if it is a nonissue that lawyers rarely encounter? Why do we only set aside one hour of class time to discuss a topic that affects every person in the room?

No one is immune to the effects of criminal sexual misconduct. Thus, we are all responsible to each other as these crimes perpetuate. While some are privileged—and perhaps, in their minds, blighted—to only have to sit through one hour of discussion on criminal sexual misconduct, those of us who are the friends and family of victims do not have such a privilege. We are haunted by our inability to protect our loved ones.

As survivors, we know that there is no such thing as a “safe space.” We would like to think that the systems in place to investigate and bring justice to claims work because when victims have faith in the system, they encourage others to report and the level of deterrence grows. But as the recent events at the University of Richmond—and that occur every day on campuses around the country—show, the system continues to fail victims.

Every message that the University disseminated in light of recent events speaks of a commitment to our values as a community. Ostensibly, those values do not include promoting criminal sexual misconduct. Those values promote bodily autonomy. They promote respect and fair treatment. They promote empowerment for women to say, “No,” and for men to listen, or at least these values should.

Instead, the bifurcation of gender promoted by Richmond and Westhampton Colleges as well as the Greek system on this campus perpetuates a lack of accountability to these values. Because when students do not look each other in the eye and say, “I will not do that to you. I respect your body and your choices. I will be accountable for my actions,” then the values the University seeks to promote lie dormant. Sexual violence does not happen in a vacuum, and neither does the law. Until the University—and the country as a whole—is willing to address its cultural and legal indifference to sexual violence, it will continue to destroy the lives of young women.

As we have seen, there are many driven and intelligent young women on this campus who refuse to be silenced. To that end, I ask the law school to listen. In its capacity as an institution of professionalism and continued learning, I ask the law school to expand the discussion of criminal sexual misconduct in the curriculum, to create a culture where sexual harassment in the workplace is brought into the light and addressed, to fight against sexism in our male-dominated industry, and to integrate our student community into the campus at large, because criminal sexual misconduct does not end after we earn our bachelor’s degree.


 *   J.D. Candidate, 2018, University of Richmond School of Law. B.A., 2014, Kalamazoo College. These remarks were originally presented at an informal forum on sexual assault at the University of Richmond School of Law on September 14, 2016, in the presence of faculty, staff, administrators, and students. The author acknowledges that these remarks are heterocentric, but stresses that the message is not limited to heterosexual interactions. Further, these remarks have been edited from their original presentation for clarity.

The Future of the Practice of Law: Can Alternative Business Structures for the Legal Profession Improve Access to Legal Services?

The Future of the Practice of Law: Can Alternative Business Structures for the Legal Profession Improve Access to Legal Services?

James M. McCauley, The Future of the Practice of Law: Can Alternative Business Structures for the Legal Profession Improve Access to Legal Services?, 51 U. Rich. L. Rev. Online (2016).

Click here to download PDF.


James M. McCauley *

Nationwide, law school admissions have plummeted to levels not seen in years. From 2010 to 2015, applications were down by 38 percent and down by nearly one-half over the last eight years.[1] Excluding perhaps some first-tier law schools, on the average, law schools are only placing about half of their new graduates in jobs that require a law degree and a law license.[2] The American Bar Association (“ABA”) mandated disclosure policies which forced law schools to reveal that they pay stipends to graduates to work short-term jobs in an effort to beef up their placement statistics.[3]

Yet law schools are currently graduating 40,000 plus graduates per year[4] with well over 1.2 million lawyers already in the United States, which translates to four lawyers for every 1000 persons.[5] Notwithstanding these disturbing statistics, new law schools continue to come on line each year. At the same time, significant increases in law school tuition coupled with widespread reliance on student loans as the primary funding source has left many young lawyers looking for work while facing significant financial challenges.[6] Encouraging even more students to go to law school only to enter a shrinking legal job market places the legal profession in jeopardy of not being able to correct this course and self-regulate its membership.[7]

Notwithstanding the oversupply of lawyers and the shrinking opportunities for placement in the legal services market, the unmet legal needs of the poor and middle class continues to grow. While there is approximately one lawyer for every 265 persons living in the United States,[8] only one legal aid attorney is available for every 6415 low-income people.[9] It is ironic that the job market challenges facing lawyers is occurring at a time when a substantial segment of the population cannot afford to retain a lawyer when confronted with a situation in which legal assistance would be advantageous. Multiple state and federal studies show that 80 to 90 percent of low and moderate income-Americans with legal problems do not obtain legal representation.[10] In its final report, the Virginia State Bar’s Study Committee on the Future of Law Practice observed:

Research shows that legal services in civil matters for low and moderate income persons or families are an unmet need. One study reports that 80% of civil legal needs of the poor and up to 60% of the needs of middle-income persons remain unmet. The reasons for this are varied: funding for legal aid for the indigent has been substantially reduced (legal aid funding in Virginia has been reduced by 20% and IOLTA revenue decreased from $500,000 in 2006 to $50,000 today); the cost of private legal representation has increased; individuals often fail to recognize that a problem requires legal assistance; some want to avoid involvement in the legal system and resolve the issue another way; and funding for the court system to assist unrepresented litigants is limited. The decrease in federal funding resulted in a 20% reduction of legal aid attorneys and staff statewide. At the same time, the population in poverty increased by more than 30%. There is no question that the need to increase legal services to these groups exists now and will continue to exist in the future.[11]

A consequence has been an explosion in self-representation in both transactional and litigation work.[12] Numerous commentators have sounded the alarm that the organized bar and its regulators need to rethink the nature and provision of legal services.[13] Some commentators believe that if the legal profession fails to take heed and right its course, the profession and its self-regulation will become irrelevant.[14]

The Virginia State Bar’s Study Committee on the Future of Law Practice has identified some other forces or trends challenging the profession and the traditional means by which it delivers legal services:

(1) advances in technology that have changed the way lawyers practice, giving clients the expectation that lawyers will provide services more efficiently and cheaply, and giving consumers the belief that they can obtain legal information and handle many legal matters on their own; (2) increasing competition from non-lawyer service providers that offer legal information and legal documents to consumers; (3) generational pressures that are likely to impact law firm business models—estimates are that 70% percent of law firm partners are baby boomers, while millennials are expected to make up half the global workforce by 2020; (4) clients’ dissatisfaction with billable hour arrangements encouraging lawyers to offer fixed fees and other alternative billing arrangements; (5) increased insourcing of legal services by corporate clients, along with increased unbundling of tasks so that lawyers are only asked to complete the specific tasks that require legal judgment; and (6) accelerated globalization of legal services via both traditional models and technology, leading to an increase in multijurisdictional law practice and a decreasing relevance of geographical boundaries.[15]

As can be seen, some of the forces come from within the profession, i.e., law school policies and billing for legal services. Other forces, though, are external and are beyond the legal profession’s control. Further, some of these forces appear permanent in nature,[16] indicating that there will be no turning back to “the good old days,” and therefore the profession must determine how to retool and reinvent itself in this post-recession global market.[17]

Enforcement of unauthorized practice laws against nonlawyer service providers will not be a cost-effective solution to stem the stronghold taken by companies like LegalZoom, a billion dollar enterprise which has served more than one million customers with its legal document preparation service.[18] Companies like LegalZoom, Avvo and Rocket Lawyer are prepared to fight for their share of the consumer legal services market through litigation[19] and by lobbying state legislatures to pass bills protecting them from being charged with unauthorized practice of law (“UPL”).[20] Professional regulatory authorities, with limited resources, are not equipped to wage war with the growing number of competitive nonlawyer service providers. Moreover, an unsympathetic public, a large portion of which is finding their legal needs largely unmet by the legal profession, will only view the bar’s enforcement of the UPL rules as anti-competitive barriers to access to legal services.

Some organized bars in the United States, including the American Bar Association, and Law Societies in British Columbia and Ontario, Canada,[21] have been studying developments in the United Kingdom and Australia which now allow professional service firms composed of lawyers and nonlawyers to serve the public. In the United Kingdom and New South Wales, Australia, lawyers are permitted to practice as part of an alternative business structure (“ABS”) in which nonlawyers hold an ownership interest and participate in the delivery of law-related services or are passive investors in firms that deliver legal services. In 2001, New South Wales enacted legislation permitting legal practices to incorporate, share receipts, and provide legal services either alone or alongside other legal services providers who may, or may not, be legal practitioners.[22] In addition to nonlawyer ownership, an incorporated legal practice (“ILP”) may be listed on the public stock exchange in Australia and outside investors may provide capital.[23]

In England and Wales, under the Legal Services Act of 2007,[24] alternative business structures that have lawyer and nonlawyer management and ownership are permitted and may either provide only legal services or legal services along with non-legal services.[25] In October 2010, Scotland’s Parliament approved a Legal Services Act[26] that permits and regulates alternative business structures in which Scottish solicitors are permitted to partner with nonlawyers and to seek capital from outside investors, provided solicitors hold the controlling ownership of the firm.[27] Under this regime, privileged communications by and between solicitors or nonlawyers with clients of the firm are protected by law.[28] As in England and Wales, a nonlawyer participant in the ABS must meet a “good character” requirement.[29]

Multidisciplinary practices are now permitted in Ontario, British Columbia and Quebec.[30] Lawyers must maintain control over the services the firm provides. Multidisciplinary Practices (“MDP”) are now permitted in Germany, the Netherlands, and Brussels.[31]

The District of Columbia is the only United States jurisdiction that permits nonlawyers to hold an ownership interest in a law firm.[32] The ABA rejected MDP in 2000[33] and the Virginia State Bar’s Council rejected MDP in 2003. Since that time, no organized bar in the United States has reconsidered either MDP or ABS; however, the legal services market landscape has changed dramatically over the ensuing years making it desirable to reexamine what regulatory structures may need reform, and how to implement those changes without sacrificing the core values of the lawyer-client relationship and the profession’s role of serving the public.

While the “Big-5” accounting firms’ encroachment into legal services was the impetus for the MDP movement,[34] a paradigm shift has since occurred in both the domestic and foreign legal services market in which smaller, but far greater in number, nonlawyer providers are competing with lawyers and law firms. Unable to obtain regulatory reform in the United States, some United States firms are forming alternative business structures in the United Kingdom where up to 25 percent of the ownership of the firm may be held by nonlawyers.

A key component to regulating ABS in the United Kingdom and in Australia is called proactive management-based regulation (“PMBR”). This regulatory framework holds the firm or entity accountable for noncompliance with ethical requirements. Each firm must designate a practice manager that interacts with the regulator on an informal, collaborative, and proactive basis, including random audits by regulators and required self-assessments, to ensure that their systems and procedures meet ethical and regulatory requirements. While an individual lawyer may be subject to professional discipline, sanctions may also be imposed against the legal services firm for non-compliance. In contrast, attorney regulation in the United States is reactive, based upon lawyer misconduct having occurred. In most United States jurisdictions, a law firm cannot be sanctioned if one of its lawyers engages in professional misconduct. The system implemented in Australia, which the profession there has embraced, is credited with up to a 40 percent reduction in disciplinary complaints against regulated firms and lawyers.

However, the legal profession in the United States remains steadfastly opposed to any regulatory reform that would permit either ABS or MDP.[35] The ABA Commission on Ethics 20/?20 was tasked with looking at the effects of globalization on the practice of law in the United States. The Commission considered a proposal to permit a limited form of nonlawyer ownership. That proposal was put out for comment, but ultimately the Commission did not make any recommendation, concluding that there did not appear to be a sufficient basis for recommending a change to ABA policy on lawyer ownership of law firms.”[36]

The New York State Bar Task Force on Nonlawyer Ownership was charged with evaluating the nonlawyer ownership proposal of the Ethics 20/?20 Commission. The Task Force found in a survey of its membership that over 78 percent of the members were opposed to the change, with the largest majority representing solo and small firms.[37] In the end, the 2012 Task Force Report found that there was a “lack of meaningful empirical data about nonlawyer ownership of law firms and what its potential implications are for the future of the legal profession.”[38] Similarly, a study conducted by the Ontario Trial Lawyers Association concluded that there is “no empirical data to support the argument that [nonlawyer ownership] has improved access to justice” in England or Australia.[39]

In 2014, the ABA Commission on the Future of Legal Services (“ABA Commission”) was created and charged with examining how legal services are delivered in the United States and recommending innovations to improve the delivery of, and the public’s access to, those services.[40] The ABA Commission held open forums across the country and looked at different types of legal service providers authorized to perform clearly defined roles at the state and federal level. The closest they came to addressing ABS was a resolution, passed by the ABA House of Delegates in February 2016, that urged “each state’s highest court, and those of each territory and tribe, be guided by the ABA Model Regulatory Objectives for the Provision of Legal Services when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.”[41] That resolution, however, reaffirmed support for the long-standing ABA policy against nonlawyer ownership of law firms.[42]

In April 2016, the ABA Commission stoked the debate again by issuing a sixteen-page issues paper for public comment on whether it should ask the ABA House of Delegates to pass a resolution encouraging state courts to liberalize ethics rules forbidding nonlawyer ownership in law firms and multidisciplinary partnerships between lawyers and other professionals.[43] Ultimately, since no proposal was submitted before the deadline for consideration by the House of Delegates, no action will be taken this year.

Thus, after two years of studying the delivery of legal services in the United States, the ABA Commission issued its final report, finding that 80 percent of the poor and middle income populations do not get the legal help they need and recommending broad changes for improving the delivery and access to legal services. Paralleling much of what has been recommended in the Virginia State Bar’s report, the ABA Commission did not suggest how the profession might address the issues of nonlawyer ownership of law firms, nonlawyers giving legal advice, and the regulation of nonlawyer legal service companies such as LegalZoom, Rocket Lawyer and Avvo Legal Services. The ABA Commission acknowledged that the traditional law firm model inhibits innovations that could enhance, and make more cost-effective, the delivery of legal services but did not recommend any changes in regulation that would remove the ethical constraints on nonlawyer ownership and fee sharing with nonlawyers.

The practicing bar’s resistance to nonlawyer ownership in law firms has been soundly criticized by scholars who view such resistance as “lawyer exceptionalism” or “lawyer-centric” thinking, based on an overwrought fear that nonlawyer ownership and investment will erode the core values of the profession and lawyer independence.[44] Academics are challenging the practicing bar’s insistence that only lawyers can perform and deliver all aspects of legal services:

There is an insidious consequence of believing that lawyers are the best, or only, resource for all tasks: it is that it downplays and demeans the “non-lawyer” input, whether that is another person, technology, a process or management. It is not surprising that there is an “us and them” divide between lawyers and others, that inefficiencies persist, or that potential remains unrealized, when such an unhelpful and insulting attitude is prevalent.[45]

There are legitimate concerns about ABS. Lawyers worry that concerns over profits and nonlawyer influence will override the lawyer’s professional obligations to the client and to the public, i.e., rendering pro bono legal services to the indigent.[46] But a categorical ban on any nonlawyer ownership and investment in the delivery of legal services assumes that professional and entity regulation are incapable of addressing these problems. Professor Judith McMurrow aptly describes the debate which I have witnessed as a liaison to the Virginia State Bar’s Study Committee on the Future of Law Practice:

U.S. bar opposition remains in part due to an empirical standoff. In policy discussions and informal conversations, proponents of change point to the benefits of non-lawyer ownership and investment and ask for proof that new models will erode professional judgment; opponents question whether there are meaningful benefits and demand proof that the changes will not impair professional judgment.[47]

While there is a concern that ABS and nonlawyer ownership will impair the lawyer’s independent professional judgment, the ABS firm, like any law firm, must attract, satisfy, and keep its clients. This factor alone should motivate professionals in the firm to perform their work competently and diligently, protect clients’ confidential information, and avoid conflicts of interest. Moreover, the regulatory systems in the United Kingdom and Australia offer additional checks and client protection. What remains to be seen, however, is whether ABS will materially increase pro bono legal services and move the profession closer to meeting the unmet legal needs of low and middle income populations in the United States.

A primary factor cited for these changes in the United Kingdom and Australia was public dissatisfaction with the traditional law practice model and the professional regulation of lawyers.[48] The regimes in the United Kingdom and Australia have been in place now for eight years or longer, so there soon should be some experiential and empirical data to analyze regarding their impact on the legal profession, service to the public, lawyer regulation and public protection. In fact, the ABA Commission has cited to eight empirical studies that were published in 2014–2015, that support at least these conclusions.

  1. There is no evidence that ABS has caused any harm or any erosion of the “core values” of the legal profession.
  2. ABS has increased the availability of capital and funding for law firms to innovate.
  3. Those jurisdictions that have adopted ABS have not abandoned it.[49]

With globalization of legal services, rapidly advancing technology and growing acceptance of new business structures in other foreign countries, traditional United States firms may face stiff competition from their overseas competitors or be economically pressured to form new business alliances with those firms. United Kingdom-regulated ABS firms have the potential to open the legal services market worldwide.[50] Consequently, the legal profession in the United States may not have the luxury to sit back and wait too long to seriously consider ABS. Some commentators believe that ABS will become a reality in the United States whether the organized bar accepts or opposes it.[51]


*   Ethics Counsel for the Virginia State Bar, Richmond, Virginia. J.D., 1982, University of Richmond School of Law; B.A., 1978, James Madison University.

        [1].    “The number of applicants dropped from 87,900 for fall 2010 admission to 54,500 for fall 2015 admission—a 38 percent overall decrease in applicants, according to the Law School Admission Council.” Daniel Coogan, Drop in LSAT Scores Could Affect Applicants, U.S. News & World Rep. (May 3, 2016, 8:30 AM), http://www.usnews.com/education/blo gs/law-admissions-lowdown/articles/2016-05-03/drop-in-lsat-scores-for-law-students-could-affect-applicants.

The 202 ABA-approved J.D. programs reported that 39,675 full-time and part-time students began their law school studies in the fall of 2013. This is a decrease of 4,806 students (11 percent) from the fall of 2012 and a 24 percent decrease from the historic high 1L enrollment of 52,488 in the fall of 2010.

ABA Section of Legal Education Reports 2013 Law School Enrollment Data, ABA (Dec. 17, 2013), http://www.americanbar.org/news/abanews/aba-news-archives/2013/12/aba_section _of_legal.html. Also, law school enrollments fell for the fourth straight year according to statistics released by the ABA.

The number of first-year students who showed up on law campuses this fall declined by 4.4 percent compared with the previous year, which amounts to 1751 fewer students. That means new student enrollment is down by nearly 28 percent since its historic peak in 2010, when many flocked to law school during the economic recession.

Karen Sloan, Law School Enrollment Continues Historic Decline, Nat’l L.J. (Dec. 16, 2014), http://www.nationallawjournal.com/id=1202679988741/Law-School-Enrollment-Con tinues-Historic-Decline. “US law school applications are down by nearly half from eight years ago.” Richard Gunderman & Mark Mutz, The Collapse of Big Law: A Cautionary Tale for Big Med, The Atlantic (Feb. 11, 2014), http://www.theatlantic.com/business/ar chive/2014/02/the-collapse-of-big-law-a-cautionary-tale-for-big-med/283736/.

        [2].    Jordan Weissman, The Jobs Crisis at our Best Law Schools is Much, Much Worse Than You Think, The Atlantic (Apr. 9, 2013), http://www.theatlantic.com/business/arch ive/2013/04/the-jobs-crisis-at-our-best-law-schools-is-much-much-worse-than-you-think/27 4795/ (“Nine months after graduation, just 56 percent of the class of 2012 had found stable jobs in law—meaning full-time, long-term employment in a position requiring bar passage, or a judicial clerkship.”). See Most People Attend Law School to Obtain Jobs as Lawyers, Above the Law: Top 50 Law Schools 2014, http://abovethelaw.com/careers/2014-law-sch ool-rankings/ (reporting 43 percent of graduates failed to secure a job in law in 2013) (last visited Nov. 17, 2016).

        [3].    The Price of Success, The Economist (Mar. 15, 2014), http://www.economist.com/ news/business/21599037-some-american-law-schools-are-paying-many-their-graduates-sal aries-price-success. Even leading law schools like University of Virginia and George Washington University were paying many of their newly graduated stipends or salaries to work in private law firms, non-profit organizations, and government. Id. For example, GWU paid salaries to 22 percent of its graduating class of 2012 and UVA paid salaries to 17 percent in order to pump up their job placements statistics for rankings in U.S. News & World Report. Id.

        [4].    Eric Posner, The Real Problem with Law Schools, Slate (Apr. 2, 2013, 2:50 PM), http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/04/the_real_prob lem_with_law_schools_too_many_lawyers.html (indicating median starting salaries have declined from $72,000 in 2009 to only $60,000 in 2012).

        [5].    “In other words, one lawyer for every 265 Americans.” Stephen J. Harper, The Lawyer Bubble: A Profession in Crisis 4 (2013); see also ABA National Lawyer Population Survey, 10-Year Trend in Lawyer Population by State (2016), http:// www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/2011_national_lawyer_by_state.autocheckdam.pdf.

        [6].    See Gunderman & Mutz, supra note 1 (noting that 85 percent of law graduates carry at least $100,000 in debt).

        [7].    As Eric Posner notes:

The figures are grim, and the human cost is real. Ninety-two percent of 2007 law school graduates found jobs after graduation, with 77 percent employed in a position requiring them to pass the bar. For the class of 2011 (the latest class for which there are data), the employment figure is 86 percent—with only 65 percent employed in a position that required bar passage. Preliminary employment figures for the class of 2012 are even worse. The median starting salary has declined from $72,000 in 2009 to $60,000 in 2012. A while back, the Bureau of Labor Statistics estimated that 218,800 new legal jobs would be created between 2010 and 2020. As law professor Paul Campos points out, because law schools graduate more than 40,000 students per year, those jobs should be snapped up by 2015—leaving only normal attrition and retirement spots left for the classes of 2016 to 2020. Meanwhile, tuition has increased dramatically over the last several decades. Students who graduate from law school today with $100,000 or more in debt will default on their loans if they cannot get high-paying work in the law.

Posner, supra note 4.

        [8].    See Harper, supra note 5, at 4.

        [9].    Legal Services Corp., Documenting the Justice Gap in America 21 (2007), http://www.lsc.gov/sites/default/files/LSC/images/justicegap.pdf.

      [10].    See Robert Ambrogi, Washington State Moves Around UPL, Using Legal Technicians to Help Close the Gap, ABA J. (Jan. 1, 2015, 5:50 AM), http://www.abajournal.com/m agazine/article/washington_state_moves_around_upl_using_legal_technicians_to_help_clo se_the_gap. The author attributes failure to retain a lawyer to the cost of legal services. Id. “The economics of traditional law practice make it impossible for lawyers to offer their services at prices these people can afford.” Id.

      [11].    Va. State Bar, Report: The Committee on the Future of Law Practice 13 (Sept. 24, 2016), http://www.vsb.org/docs/FINAL_Report_of_the_Study_Committee.pdf.

      [12].    Mark Andrews, Duties of the Judicial System to the Pro Se Litigant, 30 Ala. L. Rev. 189 (2013) (“Across the United States, an increased number of litigants have chosen to forego attorneys and instead represent themselves in court, particularly in civil matters.”); see also Madelynn Herman, Pro Se Statistics, Nat’l Ctr. for State Courts (June 21, 2006), https://www.nacmnet.org/sites/default/files/04Greacen_ProSeStatisticsSumma ry.pdf.

      [13].    See generally Richard Susskind, The End of Lawyers: Rethinking the Nature of Legal Services 7 (2010) (explaining that more efficient techniques for delivering legal services are emerging and lawyers should be encouraged to use them); Harper, supra note 5 (explaining the current culture of the legal profession).

      [14].    See, e.g., Susskind, supra note 13, at 7 (discussing the sustainability of the traditional lawyer’s role in today’s legal marketplace).

      [15].    Va. State Bar, supra note 11, at 1.

      [16].    Jeff Jacoby states:

Only some of [these forces] is cyclical. The legal profession, like so many others, has been permanently disrupted by the Internet and globalization in ways few could have anticipated 10 or 15 years ago. Online legal guidance is widely accessible. Commercial services like LegalZoom make it easy to create documents without paying attorneys’ fees. Search engines for legal professionals reduce the need for paralegals and junior lawyers.

Jeff Jacoby, U.S. Legal Bubble Can’t Pop Soon Enough, Bos. Globe (May 9, 2014), https: //www.bostonglobe.com/opinion/2014/05/09/the-lawyer-bubble-pops-not-moment-too-soon/q AYzQ823qpfi4GQl2OiPZM/story.html.

      [17].    As Noam Scheiber explains:

There are currently between 150 and 250 firms in the United States that can claim membership in the club known as Big Law, the group of historically profitable firms that cater to the country’s largest corporations. The overwhelming majority of these still operate according to a business model that assumes, at least implicitly, that clients will insist upon the best legal talent instead of the best bargain for legal talent. That assumption has become rickety. Within the next decade or so, according to one common hypothesis, there will be at most 20 to 25 firms that can operate this way—the firms whose clients have so many billions of dollars riding on their legal work that they can truly spend without limit. The other 200 firms will have to reinvent themselves or disappear.

Noam Scheiber, The Last Days of Big Law, New Republic (July 21, 2013), https://newre public.com/article/113941/big-law-firms-trouble-when-money-dries.

      [18].    Robert Ambrogi, Latest Legal Victory Has Legalzoom Poised For Growth, ABA J. (Aug. 1, 2014, 8:00 AM), http://www.abajournal.com/magazine/article/latest_ legal_victory_ has_legalzoom_poised_for_growth/. LegalZoom had provided services to about two million customers as of August 2012, according to a prospectus it filed with the U.S. Securities and Exchange Commission in advance of a planned, but still postponed, initial public offering. Id. In 2011, LegalZoom’s revenues reached $156 million and it was on track to bring in almost $200 million in 2012. Id.

      [19].    Va. State Bar, supra note 11, at 10.

LegalZoom does business in all 50 states and has delivered online legal document preparation since 2001. Efforts by regulatory bars to enjoin or shut down LegalZoom have not met with success. In 2014 the Supreme Court of South Carolina approved a settlement agreement in which it was stipulated that LegalZoom’s business model is not the unauthorized practice of law. On October 22, 2015, the North Carolina Bar and LegalZoom settled their case by a consent order, permitting LegalZoom to continue operating in North Carolina subject to some conditions[.] In June 2016, lawmakers ended the long-running dispute between the North Carolina State Bar and LegalZoom by passing legislation that allows online services to provide legal documents in that state.

Id.

      [20].    See id.

      [21].    See Canadian Bar Ass’n, Futures: Transforming the Delivery of Legal Services in Canada 34, 41 (Aug. 2014), http://www.cba.org/CBAMediaLibrary/cba_na/ PDFs/CBA%20 Legal%20Futures%20PDFS/Futures-Final-eng.pdf.

      [22].    See Slater & Gordon Ltd., Submission to the American Bar Association Commission on the Future of Legal Services (Dec. 29, 2014), http://www.american bar.org/content/dam/aba/images/office_president/slater_and_gordon_submission.pdf. Australia commenced an expansive approach to ABS that began in 1994 with the development and growth of Incorporated Legal Practices (ILPs). ABA Comm’n on Ethics 20/20 Working Grp. on Alt. Bus. Structures, Issues Paper Concerning Alternate Business Structures 7–8 (Apr. 5, 2011), http://www.americanbar.org/content/dam/aba/ administrative/ethics_2020/abs_issues_paper.authcheckdam.pdf [hereinafter ABS Issues Paper]. There were over 2000 ILPs reported in 2010 and their number is growing rapidly. Id. There are around seventy known multidisciplinary practice (“MDPs”) and, as of the Working Group’s report in 2011, at least 20 percent of the lawyers in New South Wales were working in non-traditional business practices, including thirty MDPs. Id.

      [23].    Slater & Gordon Ltd., supra note 22.

New South Wales (NSW) was the first jurisdiction in Australia and indeed the rest of the (common law) world to permit external and non-lawyer ownership of law firms. This occurred on July 1, 2001 with the enactment of legislation permitting legal practices to incorporate, share receipts and provide legal services either alone or alongside other legal service providers who may, or may not be legal practitioners. Since the enactment of this legislation more than 3,000 law firms in Australia have altered their practice structures through incorporation (representing 30% of law firms). These law firms are known as “incorporated legal practices” (ILPs).

Id.

      [24].    Legal Services Act 2007, c. 29 (Eng.), http://www.legislation.gov.uk/ukpa/2007/29/ contents.

      [25].    ABS Issues Paper, supra note 22, at 13.

      [26].    Legal Services Act 2010, c. 2, § 49 (Scot.), http://www.legislation.gov.uk/asp/2010/ 16/section/49.

      [27].    Id.; ABS Issues Paper, supra note 22, at 15.

      [28].    ABS Issues Paper, at 16. The rule states:

The legal professional privilege applies to communications made to or by licensed providers in the course of providing legal services for any of their clients, as well as to or by others employed by the licensed entity who are acting in connection with the provision of legal services or who are working at the direction or under the supervision of a solicitor.

Id. (citing Legal Services Act 2010, c. 2, § 75 (Scot.)).

      [29].    ABS Issues Paper, supra note 22, at 11.

      [30].    Id. Some provinces have permitted nonlawyer ownership and/or MDP for some time. In Quebec, nonlawyers may own up to 50 percent of law practices, and law firms may engage in multidisciplinary practice. British Columbia permits MDPs. Id. at 6, 11.

      [31].    Id. at 16.

      [32].    See id. at 2.

      [33].    See id.

      [34].    Id. at 5; see also James M. McCauley, The Delivery of Legal Services Through Multidisciplinary Practices, Va. State Bar, http://www.vsb.org/site/regulation/legal-services-multidisciplinary-practices (last visited Nov. 17, 2016).

      [35].    Except for the District of Columbia, all U.S. jurisdictions have adopted versions of ABA Model Rule 5.4, which prohibits lawyers from sharing legal fees with nonlawyers and working in a firm in which nonlawyers have an ownership interest or hold positions of authority or control. See McCauley, supra note 34; Model Rules of Prof’l Conduct 5.4 (Am. Bar Ass’n 2016).

      [36].    See ABA Comm’n on Ethics 20/20, Introduction and Overview 8 (Feb. 2013), http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20121112_ethics_20_20_overarching_report_final_with_disclaimer.authcheckdam.pdf.

      [37].    N.Y. State Bar Ass’n, Report of New York State Bar Task Force on Nonlawyer Ownership 43 (Nov. 12, 2012), https://www.nysba.org/WorkArea/Download Asset.aspx?id=26682.

      [38].    Id. at 72.

      [39].    Memorandum from Jasminka Kalajdzic to Linda Langston, Ontario Trial Law Ass’n, ABS Research (Dec. 1, 2014), http://www.canadianlawyermag.com/legalfeeds/in dex.php?option=com_k2&Itemid=101&id=47&lang=en&task=download&view=item.

      [40].    See ABA Comm’n on Future of Legal Services, Issue Paper on the Future of Legal Services (Nov. 3, 2014), http://www.americanbar.org/content/dam/aba/images/offi ce_president/issues_paper.pdf.

      [41].    ABA Comm’n on Future of Legal Services, Report on the Future of Legal Services in the United States 69 (Feb. 8, 2016), http://www.americanbar.org/content/ dam/aba/images/abanews/2016FLSReport_FNL_WEB.pdf.

      [42].    See id.

      [43].    See ABA Comm’n on Future of Legal Services, Issues Paper Regarding Alternative Business Structures 1–5 (Apr. 8, 2016), http://www.americanbar.org/con tent/dam/aba/images/office_president/alternative_business_issues_paper.pdf.

      [44].    See Judith A. McMurrow, UK Alternative Business Structures for Legal Practice: Emerging Models and Lessons for the US, 47 Geo. J. Int’l Law 665, 673  (2016) (citing Sung Hui Kim, Lawyer Exceptionalism in the Gatekeeping Wars, 63 SMU L. Rev. 73, 74–76 (2010)); see also Leslie C. Levin, The Monopoly Myth and Other Tales About the Superiority of Lawyers, 82 Fordham L. Rev. 2611, 2612–14 (2014); Bridgette Dunlap, Anyone Can “Think Like a Lawyer”: How the Lawyers’ Monopoly on Legal Understanding Undermines Democracy and the Rule of Law in the United States, 82 Fordham L. Rev. 2817, 2818–19 (2014).

      [45].    McMurrow, supra note 44, at 673 (citing Stephen Mayson, Restoring a Future for Law 5 (Oct. 2013), http://stephenmayson.files.wordpress.com/2013/10/mayson-2013-restoring-a-future-for-law.pdf).

      [46].    See, e.g., Lawrence J. Fox, Accountants, The Hawks of the Professional World: They Foul Our Nest and Theirs Too, Plus Other Ruminations on the Issue of MDPs, 84 Minn. L. Rev. 1097 (2000); Cindy Alberts Carson, Under New Management: The Problem of Non-lawyer Equity Partnership in Law Firms, 7 Geo. J. Legal Ethics 593 (1994). A lawyer is supposed to render at least two percent of his or her professional time to pro bono legal services. Va. Rules of Prof’l Conduct 6.1(a) (Va. State Bar 2016). It is estimated that actual hours of pro bono service rendered is far below this aspirational goal. Va. Access to Justice Comm’n, Final Proposal to Adopt Pro Bono Reporting for Virginia Lawyers 2 (July 1, 2016), http://www.vsb.org/docs/access-reporting-2016/VATJ-VSB-prop-probono-report-070116.pdf. However, since there is no required reporting or recordkeeping it is difficult to determine how the bar is measuring up to its aspirational goal. Moreover, the organized bar is resistant to any regulatory measures that would require recordkeeping and reporting of pro bono hours an attorney has worked. Peter Vieth, Bar Won’t Back Pro Bono Reporting, Va. Law. Wkly. (Oct. 17, 2016).

      [47].    McMurrow, supra note 44 at 675.

      [48].    Id. at 707.

      [49].    ABA Comm’n on Future of Legal Services, supra note 43, at 11–15. New South Wales, Australia has now had ABS for fifteen years, and after witnessing the positive experience in New South Wales, all other jurisdictions in Australia decided to permit ABS. Id. at 5.

      [50].    For example, LegalZoom and Jacoby & Meyers are registered as ABS firms in the United Kingdom. Both firms have a long-term strategy to export their work product worldwide. Laura Snyder, Flexing ABS, 101 ABA J. 62, 68–70 (2015).

      [51].    Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future 122–31 (2013) (predicting new business structures to employ lawyers, such as global accounting firms, major legal publishers, legal know how providers, legal process outsourcers, high street retail businesses, legal leasing agencies, new-look law firms, online legal service providers, and legal management consultancies).

Some Thoughts Raised by Magna Carta: The Popular Re-Election of Judges

Some Thoughts Raised by Magna Carta: The Popular Re-Election of Judges

W. Hamilton Bryson, Some Thoughts Raised by Magna Carta: The Popular Re-Election of Judges, 51 U. Rich. L. Rev. Online 49 (2016).

Click here to download PDF.


W. Hamilton Bryson *

I take as my text and begin with Chapter 29 of the final version of Magna Carta of 1225,[1] which reads as follows:

No free man shall be taken or imprisoned or disseised of any freehold or of liberties or free customs . . . except by the lawful judgment . . . of his peers or by the law of the land . . .  to no one shall we sell, to no one deny or delay right or justice.[2]

This is said to be one of only three parts of the Great Charter still in force in Great Britain. But this is rightly so, for it is the heart and soul of the statute.[3]

This text ensures that a person’s property, body, and reputation will not be taken away before and without a trial in a court of law in which the judge observes the law and the due process thereof. This requires hearing the evidence and the arguments of all of the parties, after which, the judge applies the law to the facts of a case in order to reach a decision.[4]

This is the rule of law. This is the foundation of civilization.

Consider the opposite of the rule of law. It is the rule of force. The rule of force is tyranny by the powerful, not by the just. It is where the big fish eat the little fish and it is simply because they can; they have the power to do it. The rule of law is that right makes might. Without the rule of law, there can be no human rights. Human rights are the rights of an individual asserted against everyone else, if needed, such as the freedom of religion and of no religion. By contrast, if might makes right, society slips into anarchy as power moves from one person or group of persons to another. Anarchy is the opposite of freedom for these reasons. I hope that we can agree that anarchy is bad and that the rule of law is good. And I hope that we can agree that the rule of tyrants who are above the law is bad and the rule of law is good.

Consider another opposite of the rule of law. It is the rule of no law, anarchy. Anarchy is where the tyrants who are powerful do whatever they please because they can. It is unpredictable, and, therefore, not even the tyrants are safe. Anarchy is the opposite of civilization.

The rule of law requires access to the courts of law, and Chapter 29 of Magna Carta requires it.[5] The courts enforce the rule of law by putting it into effect by their due process, i.e., procedures for hearing the evidence and arguments of the parties before it. The procedure of the courts is the skeleton of the substantive law; the substance is the muscle of right.

The courts of law cannot function properly to administer the rule of law if they are not independent, independent not only of the political branches of the government but also of the will of the people. Human rights are not to be taken away by popular opinion or votes. Human rights are often unpopular with the majority of the people as well as with tyrants. A popular majority can act tyrannically and sometimes does.

The independence of the judiciary can be destroyed by financial corruption and by political intimidation. The focus of the remainder of my remarks is political control of judges. This is evil because it destroys the ability of the judges to administer the rule of law. Our federal and state constitutions all have checks and balances to prevent, or at least minimize, the political control of the judges. But most states provide for the popular election and re-election of the judiciary,[6] and this power of control has no limitation whatsoever. The abuses come from the power to reelect or not to reelect a sitting judge.

The power of popular election and re-election of judges was not intended to oppress the judiciary. The original idea was that, as we have popular election of the other branches government, so there should be a democratic election of the judiciary as well. Historically, this system worked satisfactorily because, as a matter of professional courtesy, no one ran in opposition to the re-election of a sitting judge. However, since about forty years ago, this convention has no longer been observed.

The sad, shocking result has been the intimidation of judges by the press and by the general public. If a judge’s application of the law in a particular lawsuit will cost votes and result in not being re-elected, this strikes at the independence of the judiciary, the foundation of due process and the rule of law.

Here are some examples of why the popular re-election of judges has become an evil thing.

One of the most notorious examples of judicial intimidation by the press was the prosecution of Dr. Samuel H. Sheppard of Cleveland, Ohio, for the murder of his socialite wife.[7] The judge in the case was due for an immanent re-election, and the prosecutor was running for election to a different judgeship.[8] Therefore, both needed the support of the press, and the press corp had decided that the defendant was guilty.[9] The United States Supreme Court eventually set aside of the conviction because the public pressure of the press corp on the judge had denied the defendant his fundamental right of due process in an impartial court of law.[10]

There is another recent United States Supreme Court case that illustrates this problem. In a recent trial in West Virginia, the defendant corporation was ordered to pay the plaintiff $50 million.[11] The defendant was going to and did appeal to the Supreme Court of Appeals of West Virginia.[12] Before the appeal was to be heard, one of the justices of that court came up for re-election.[13] A lawyer challenged that justice’s retention, running a campaign for his seat on the court. The challenger and his re-election committee received several million dollars from one person, the chief executive officer and president of the defendant-appellant in the case mentioned.[14] This was by far more money than from any other contributor to either judicial candidate and more than from all of the other contributors to both of them. The sitting judge was removed from the bench and the challenger was elected by a small majority.[15] Shortly thereafter, the appeal by the major contributor’s company, his employer, came before that court and before that new judge on a request for a reversal. The new judge refused to recuse himself. The court then, on a three to two vote, reversed the $50 million verdict, the new judge casting the tie-breaking vote to reverse this large verdict and judgment against his benefactor’s company.[16] Had he recused himself, the verdict and judgment would not have been reversed. The United States Supreme Court set the West Virginia judgment aside on the ground that the failure to recuse allowed that judge to influence the outcome of the litigation in favor of his financial supporter and denied the appellee due process of the law because it appeared that the court was not neutral.[17] The United States Supreme Court’s holding was by a vote of five to four.[18] An appellate court judge from Virginia said to me in a private conversation that she was shocked that it was not a unanimous decision, being such an egregious breach of judicial ethics.

A former student of mine who practices law in Richmond, Virginia, recounted to me that he was trying a case in West Virginia, and, during a recess, the bailiff said that the judge wished to see counsel in his chambers. When they went to see the judge, he asked for a contribution to his re-election fund. My friend refused to name the judge or say what he and the opposing counsel did.

Another student of mine from Texas told me that her father was a trial court judge there. In one case, he ruled against a lawyer’s motion in a completely routine case, and the lawyer went into a rage and started a campaign to defeat her father’s re-election. The ground of the campaign was that he abused his children and was soft on criminals. His daughter, my student, said that this was totally false as to any abuse and, in fact, he sat in a civil court that lacked criminal jurisdiction. However, in spite of the falsehoods, the good judge was not reelected.

When driving through the state of Maryland, one sees huge, expensive billboards urging the re-election of someone as judge of a particular court. One knows that the judge cannot afford to pay for the billboard; so one wonders who did and why. The speculation does not lead to confidence in the judicial system in the state of Maryland.

There was a recent campaign for a judicial position in Maryland near the District of Columbia. One of the candidates campaigned with the promise that, if elected, she would impose the maximum sentence on every person convicted of drunk driving. A very distinguished judge from Northern Virginia opined in a presentation to a meeting of the Richmond Bar Association that, if this judicial candidate were elected, then she must recuse herself from every drunk driving case because she had committed herself to the sentence before hearing argument on its appropriateness. I do not know the outcome of the election, but the campaign promise itself impugned the integrity of the judicial process.

Justice Penny J. White, while a member of the Supreme Court of Tennessee, ruled against the death penalty as applied in a particular case.[19] Her position was highly unpopular with the law and order and victims’ rights element of her state; they clearly did not understand the subtle distinctions of the law that Justice White was applying. She was not reelected because of the legal position she had taken, even though she was part of a majority of the judges in the court’s decision and her opinion was entirely rational.[20]

Here are some random examples from Ohio, West Virginia, Texas, Maryland, and Tennessee. I am sure many others can be easily found elsewhere.

The desire to influence the outcome of litigation in one’s own favor is, of course, only natural. It is, in fact, the purpose and goal of every lawyer’s argument in court. But this is done according to the due process of the court. However, to attempt to influence the judge’s decision, not by argument and evidence presented in open court, but by an appeal to the judge’s sympathy for an unfortunate person or to corrupt the legal process by bribing him or her or appealing to a fear of not being reelected, this is the problem. All judges will be tempted to unworthy behavior, as they live in the same world as the rest of us; they should resist temptation to do evil, as we all should. Fortunately, they usually do. But we need to make it as easy as possible for them to do so. The one thing that can and should be done is to remove the fear that an upright and honest judge has in an insecure system of judicial tenure that requires re-election by a popular vote, which must be subject to irrational political pressures. Where popular re-election of the judiciary interferes with a judge’s application of the law, the rule of law itself is defeated.

The problem, therefore, is to find a workable way of protecting the good judges and of removing the bad ones. The solution of the English and the American federal systems is to have judges sit during good behavior, which means in effect for life because it takes a judicial proceeding in a court of law to prove bad behavior. Virginia and some few other states protect sitting judges by having the periodic re-election done by the legislature. This provides an effective shield against misdirected popular opinion. However, the popular vote for re-election of sitting judges is the norm for state judiciaries.

The conclusion that comes to mind to correct this is to amend the thirty-nine state constitutions that require the popular re-election of judges to find another method of removing bad judges. While it may be unpalatable to the press corps, the politicians, and petty tyrants, it is necessary to preserve the rule of law, which is the foundation of our liberty. This is the requirement of the spirit of Magna Carta.

Democracy, freedom, and the rule of law we have, more or less, but we need to make things better for ourselves and for our nation. We must strive for improvement, and we cannot take for granted what we have.


* Blackstone Professor of Law, University of Richmond School of Law. LL.D., 2013, University of Cambridge; Ph.D., 1972, University of Cambridge; LL.M., 1968, University of Virginia School of Law; LL.B., 1967, Harvard Law School; B.A., 1963, Hampden-Sydney College.

This essay was first presented at the Magna Carta anniversary symposium of the Baronial Order of Magna Charta on April 16, 2015, at The Cosmos Club, in Washington, D.C.

        [1].    The original version of 1215 was immediately repudiated by King John with the consent of the pope. See W.H. Bryson, Papal Releases from Royal Oaths, 22 J. of Ecclesiastical Hist. 19, 21–22 (1971).

        [2].    Sir J. Baker, The Legal Force and Effect of Magna Carta, in Magna Carta: Muse & Mentor 65, 70 (Randy J. Holland ed., 2014).

        [3].    See generally id. at 70–84 (discussing why chapter 29 is the key surviving provision of Magna Carta).

        [4].    See id. at 71–75.

        [5].    See id. at 84.

        [6].    See Fact Sheet on Judicial Selection Methods in the States, Am. Bar Ass’n, http:// www.americanbar.org/content/dam/aba/migrated/leadership/fact_sheet.authcheckdam.pdf (last visited Oct. 21, 2016) (noting thirty-nine states total hold partisan, nonpartisan, or uncontested retention elections for trial courts of general jurisdiction).

        [7].    Paul Holmes, The Sheppard Murder Case 3–8 (1961); Cynthia L. Cooper &  Sam Reese Sheppard, Mockery of Justice: The True Story of the Sheppard Murder Case 14–19 (1995); James Neff, The Wrong Man: The Final Verdict on the Dr. Sam Sheppard Murder Case 56–57(2001).

        [8].    Sheppard v. Maxwell, 384 U.S. 333, 341–42 (1966).

        [9].    Id. at 362.

      [10].    Id. at 362–63.

      [11].    Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 872 (2009).

      [12].    Id. at 873.

      [13].    Id.

      [14].    Id.

      [15].    Id.

      [16].    Id. at 874.

      [17].    Id. at 889–90.

      [18].    Id. at 871, 890.

      [19].    Dan Levine & Kristina Cooke, Uneven Justice: In States With Elected High Court Judges, A Harder Line On Capital Punishment, Reuters (Sept. 22, 2015, 2:00 PM), http:// www.reuters.com/investigates/special-report/usa-deathpenalty-judges/.

      [20].    State v. Odom, 928 S.W.2d 18, 33 (Tenn. 1996).

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