The Civil War Congress and Tactical Battlefield Decisionmaking
I was doing a bit of research on Congress’s constitutional war powers vis-a-vis the President’s war power as Commander-in-Chief (CiC) and came across the 1862 Additional Article of War (AAW). This was an act passed by Congress in the midst of the Civil War that criminalized the act of returning fugitive slaves to the South by Union military forces.
True, abolitionist sentiments helped the AAW pass into law, but Congress’s main agenda was to deplete the South of able-bodied fighters more than it was to ensure freedom for slaves. Especially where the North enjoyed a significant manpower advantage -19 million fighters to the 12 million for the South- the ability to constrict rebel forces by a possible 4 million fighters was of no small strategic interest.
Being the “great emancipator,” one would think Lincoln was supportive of this measure, but not so. The historical record indicates Lincoln was actually opposed to the AAW, fearing that it would severely undermine his Border-state strategy dependent on garnering support from slave-owning border states. Despite being an ardent believer in robust CiC powers, Lincoln signed the AAW into effect.
Passage of the AAW underscores the breadth of war power Congress has previously enjoyed when it comes to dictating the tactical course of war. The common notion is that the President’s Article 2, Section 2 CiC enables him to exclusively command the Armed Forces; however, here is a situation where Congress, in the midst of war, commands President Lincoln to subject any Union military member to court martial if he returns escaped slaves to the South.
This despite Lincoln’s concern that southern slave owners, especially in border states like Kentucky, would not be happy with the Act since it further motivated slaves to escape and precluded slave owners from recapturing their property. For Lincoln, who preferred a gradual emancipation of slaves to quell Southern and border state antagonism, the Act was contrary to his strategic preference in commanding the Union troops during the Civil War.
In light of the Yoo memos claiming inherent and exclusive CiC war powers, the AAW stands in sharp contrast demonstrating Congress’s ability to impede on the President’s command and control of the Armed Forces.
Law Enacting an Additional Article of War
CHAP. XL.–An Act to make an additional Article of War.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter the following shall be promulgated as an additional article of war for the government of the army of the United States, and shall be obeyed and observed as such:
Article –. All officers or persons in the military or naval service of the United States are prohibited from employing any of the forces under their respective commands for the purpose of returning fugitives from service or labor, who may have escaped from any persons to whom such service or labor is claimed to be due, and any officer who shall be found guilty by a court-martial of violating this article shall be dismissed from the service.
SEC. 2. And be it further enacted, That this act shall take effect from and after its passage.
APPROVED, March 13, 1862.
Confronting the Religious Right to Cover »
The Michigan Supreme Court will be hearing a case this term involving a Muslim woman, Ginnah Muhammad, who has sued a district judge that dismissed her small claims case after Ms. Muhammad refused to remove her niqab for religious reasons. The niqab, not to be confused with the head covering hijab, is worn by a small fraction orthodox Muslims in the United States to cover their entire face.
In response to this specific Muslim woman’s case, the Michigan state legislature passed an amendment that changed Michigan Rules of Evidence 611 to allow district judges more discretion in ordering how parties and witnesses appearing before the court may be dressed. Here’s the key language in the rule:
611(b): Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to:
(1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.
Staff Comment: This proposed amendment would clarify that a judge is entitled to establish reasonable standards regarding the appearance of parties and witnesses to evaluate the demeanor of those individuals and to ensure accurate identification.
Resolution of the case will require reconciling two fundamental constitutional rights: The Sixth Amendment Confrontation Clause guarantee that defendants have the right to confront witnesses to ensure adequate due process and the First Amendment protection of the freedom of religion. If the court can find an alternative to the amendment that is less burdensome on religious rights and does not “unduly interfere” with the government achieving its state interest in identifying a witness and assessing his or her credibility, the amendment will likely fail.
You can read how the ACLU constructs this argument on behalf of the Muslim appellant, here.
It’s important to keep in mind that the court is really in no position to determine whether the niqab is a justified exercise of religious freedom as long as the religious claims are made in good faith. It matters little, for example, that a number of prominent Islamic scholars have determined that covering the face is not compulsory in Islam and that Islamic rules of necessity (darura) and public interest (maslaha) make it permissable to remove religious coverings for official medical and security purposes.
Especially for those not willing to take a culturally relativist position on the matter, the vision of a woman draped in dark cloth with only her eyes exposed to the world is an inherently oppressive one. But it is precisely to safeguard against common negative predispositions like this one that an individual’s right to freely practice his or her religion is constitutionally protected. Leaving it in a judge’s discretion to order the removal of religious clothing seems to increase the liklihood that a judge’s negative biases leak into a court proceeding in the name of due process, ultimately risking perceptual fairness in the final judicial outcome. Even more troubling, the ACLU brief points out that Muslim women are less likely to pursue legal avenues in domestic violence cases if forced to testify in a manner inconsistent with precieved religious dictates. (It’s bad enough that your husband opposes you, but now God?!) Finally, just as a judge may be concerned with a fact-finder’s ability to effectively adduce the truthfullness of a statement made by a woman fully covered on the stand, it’s also more probable that an orthodox Muslim woman would feel more comfortable and, therfore, is more likely to provide honest and accurate testimony if allowed to wear the niqab in court.
In the end, where the religious practice does not “unduly interfere” with the rights of others or that of the state, a liberal democracy like ours demands its free exercise.
