Does Ex Parte Milligan make lockdowns in US unconstitutional? Fact Check
Rumours online claim that the Supreme Court ruling referred to as Ex parte Milligan prevents the US Government or authorities from orchestrating lockdown or social distancing measures since it is a violation of the US Constitution.
The rumours purport to quote the ruling, and claim any attempt to prevent rights such as travel, peaceful assembly and worship is a “war on the constitution” and the person(s) involved would be required to forfeit office.
An example of the claim spreading online is below.
This is NOT an opinion.
This was the ruling of The United States Supreme Court shortly after the “civil war” in Ex parte Milligan, 71 U.S. 2 (1866) which yet stands to this day: “Neither the legislature nor any executive or judicial officer may disregard the provisions of the constitution in case of emergency …”
”Section 98 therefore, ANYONE who declares the suspension of constitutionally guaranteed rights (to freely travel, peacefully assemble, earn a living, freely worship, etc.) and or attempts to enforce such suspension within 50 independent, sovereign, continental United States of America is making war against our constitution(s) and, therefore, we the people. They violate their constitutional oath and, thus, immediately forfeit their office and authority and their proclamations may be disregarded with impunity and that means ANYONE; even the governor and President.”
The US in particular has seen a significant uproar against its lockdown measures amid the coronavirus pandemic, with a number of protests appearing across the country. This has led to a high volume of misinformation about the coronavirus spreading across the Internet, including this claim.
The message claims that the 1866 Supreme Court ruling on the case Ex parte Milligan prevents the US Government or any authority from preventing things such as free travel. However, that is simply untrue. While Ex Parte Milligan is a genuine Supreme Court ruling from 1866, it is actually concerned with whether the US Military has the ability to try civilians in military courts.
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The ruling was spurred by the arrest of Lambdin P. Milligan in 1864, who was tried and convicted for allegedly aiding the Confederacy. His trial took place in a military court where he was found guilty and sentenced to hang. However his lawyers argued that his trial was unconstitutional since Milligan was not in the military and civilian courts were still operational at the time. His case eventually reached the Supreme Court, whose ruling – Ex parte Milligan – resulted in his conviction being quashed and Milligan being freed.
Given the above, it’s difficult to determine how this ruling in particular has any potential consequence on the US Government’s ability to orchestrate a lockdown amid a pandemic. The garble that vaguely refers to “Section 98” isn’t from such a ruling (of which can be seen here.) which is demonstrable by the fact that the ruling was made in 1886 and as such could not refer to all 50 states (as the rumour above does) since there were only 36 at the time. The entire text of the rumour appears to have been authored by the same person, as opposed to quoting legislation from elsewhere.
Given that the text is not from any legal text we can find and the Supreme Court ruling is irrelevant to the point the rumour is making, we rank the claim false.
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