|Prof. Martin S. Lederman|
It is no accident that “military men generally have hesitated to regard the occasion as a sound precedent or, indeed, as anything more than an indication of the intensity of popular feeling at the moment.” For that is exactly what it was. And thus, until very recently, not only for “military men” but for lawyers and historians, too, to cite the Lincoln tribunal as constitutional authority would have been akin to invoking Korematsu, Dred Scott, or Buck v. Bell as authoritative precedent: Like those cases, the Lincoln assassination tribunal has long been firmly ensconced in the constitutional “anticanon.”
Of course, there is nothing inherently illegitimate about an effort to transform once discredited constitutional ideas or examples into tomorrow’s orthodoxy. The burden, however, is on those who would resuscitate the Lincoln assassination trial—and use it to justify a deviation from Article III norms in a very different historical context and in a starkly different armed conflict—to offer compelling reasons why that singular proceeding should, all of a sudden, emerge from its century and a half of constitutional exile.Prof. Lederman's earlier Georgetown Law Journal article on wartime military tribunals can be found here.