There is a post floating around on Facebook that "quotes" the Supreme Court's ruling in Ex parte Milligan, 71 U.S. 2 (1866):

enter image description here

I'm certain that the author's interpretation of the ruling is strained (at best), but is there any validity to this interpretation? Does this ruling make something like a "mask mandate" unconstitutional?

  • 1
    I'd say "making war against us" rather than "making war against we." Dec 14, 2020 at 20:30

1 Answer 1


Let’s look at the full paragraph

Neither the President nor Congress nor the Judiciary can disturb any one of the safeguards of civil liberty incorporated into the Constitution except so far as the right is given to suspend in certain cases the privilege of the writ of habeas corpus.

So what it actually says is: you can’t unless you can.

The Constitution says this to say about habeas corpus:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

The case decided that military commissions (and the denial of habeas corpus) were constitutional where there was no civilian court available. Because Indiana had never been in rebellion and civil courts continued to function there, military tribunals could not be used. However, they could be uses in states that had been in rebellion.

You can’t unless you can.

This is specifically about rights guaranteed in the Constitution

In this particular case, the right of habeas corpus.

There is no equivalent right applicable to face masks so a law mandating them in certain circumstances does no more infringe a Constitutional right than mandating the wearing of clothes in public.

You can’t unless you can.

Breaking the law doesn’t cause you to lose your job

The second quote, the origin of which is unknown and definitely not in the case, is total fantasy.

Even if a law against face masks was unconstitutional, the authors of that law have overreached and the remedy is to go to a court to have it declared unconstitutional. They don’t lose their jobs as a result.

Even if they wrote the law with criminal intent, they must be removed from office in accordance with the normal procedures such as impeachment for the President, by a two-thirds majority vote of their house for a Congressperson etc.

  • This is very helpful. Thank you!
    – ARich
    Dec 14, 2020 at 20:08

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .