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Endless row of white marble gravestones continues above hilltop at the Fort Logan National Cemetery in Denver, Colorado. American flags decorating each grave to mark the Memorial Day. image

Perspectives: Memorial Day recalls legal memories here

“The Civil War was the rebirth of the Union.”

President Woodrow Wilson (Memorial Day address, 1919)

* * * * * * * * * * * * * * *

“… a new birth of freedom.”

Abraham Lincoln, Gettysburg Address (November 19, 1863)

This coming Memorial Day, Monday, May 29, evokes special memories here in Minnesota.

It was on the evening of the holiday three years ago, on May 25, 2020, that George Floyd was killed by Minneapolis police officers at what is now the square named after him in south Minneapolis. That event reawakened the city, state, nation and, indeed, the world to issues of racial inequity and injustice that regrettably have long tainted history. Those disparities were addressed, but hardly solved In the Civil War, which was the predicate for the Memorial Day observance to be celebrated again this Monday.

Although a new state at the time — established on May 11, 1858, after nine years as a territory — Minnesota played a major role in that conflict. It was the first state to dispatch a force to the Union cause at President Abraham Lincoln’s call for 300,000 troops after the Confederate attack on Fort Sumter in April 1861.

What is now Memorial Day began as a small gathering of women in Mississippi placing flowers on graves of Confederate soldiers a year after the Civil War ended. The practice was picked up two years later by military officials in the North and soon spread to more states on both sides of the Mason-Dixon Line.

Originally known as Decoration Day, it morphed into the national holiday of Memorial Day, commemorating all deceased service members on May 30. In 1968, Congress enacted a measure, effective in 1971, designating it as the last Monday of May, creating the three-day weekend ushering in the unofficial beginning of summer. Despite repeated, unsuccessful efforts to switch it back to its May 30 origin, the holiday remains on the last Monday of the month.

Minnesota matter

Although a new state at the time, Minnesota played a prominent role in the Civil War.

Minnesota was untouched physically by the war, but it made more than its share of contributions to it. The illustrious 1st Minnesota Volunteer Infantry Regiment played a decisive role in repelling Confederate forces at Cemetery Ridge during the second day of the tide-turning Battle of Gettysburg in July 1863.

Minnesota law also has felt the effects of the Civil War. The commemoration of this Memorial Day provides an opportune occasion to remember some of them.

Dreadful decision

The long-simmering and escalating sectional dispute over slavery was the catalyst of the Civil War, and Minnesota was at the heart of the controversy even before it became a state.

Events occurring in Minnesota territory gave rise to the infamous Dred Scott case, in which the U.S. Supreme Court validated slavery and insulated it from legal challenge. Known officially as Scott v. Sandford, 60 U.S. 393 (1857), the case raised what one high court jurist termed “Constitutional principles of the highest importance,” Id. at 454 (Wayne, J. concurring).

Minnesota’s connection to the case was that Dred Scott, originally a slave in Missouri, sued for his freedom on the basis that he and his wife had lived in “free” territory from 1836 to 1838, while enslaved to a military doctor, before being returned to Missouri, a slave state. The “free” area in which they had spent the two years was then known as the Upper Louisiana Territory, where slavery had been proscribed by Congress in the Missouri Compromise Act of 1820. The particular place where Scott and his wife, Harriet, resided along with their daughters during that two-year period was an isolated military outpost described by the high court as sitting “on the west bank of the Mississippi River.” In fact, the place where the family lived, the basement of a medical facility, still stands on the site of Historic Fort Snelling.

The litigation arose in both the Missouri state and federal court systems, and was argued twice before the U.S. Supreme Court, which decided the case in 1857, one year before Minnesota became a state. The holdings that slaves are not “citizens” under the Constitution, that residing in “free” territory does not emancipate a slave, and that the Due Process provision of the Fifth Amendment prohibits Congress from legislating against slavery, had dreadful consequences, precipitating the Civil War four years later.

It took the Civil War to bind what some historians refer to as the “self-inflicted wound” of the Dred Scott case. The legal damage caused by the decision was rectified by the Civil War amendments to the Constitution: the 13th (barring slavery), the 14th (privileges and immunities, equal protection, and due process clauses), and the 15th (the right to vote). But the economic, human and political suffering has lasted for more than 1½ centuries.

A former Illinois state legislator, one-term congressman, and unsuccessful aspirant twice for the U.S. Senate, Abraham Lincoln was propelled back into politics by the Dred Scott decision, which he expressly described as relaunching his political career. After 1½ years in office, Lincoln issued the Emancipation Proclamation, after the Battle of Antietam, freeing all slaves in Union-occupied military territory, while preserving the practice elsewhere, including four border states loyal to the Union. It took the 13th Amendment to the U.S. Constitution to put a formal end to involuntary servitude throughout the nation.

Constitutional considerations

Although never practiced in Minnesota — and expressly prohibited by law — the institution of slavery played a role in Minnesota’s birth. After Minnesota entered the Union in 1858, it was joined in 1861 by Kansas, where the legitimacy of slavery was an open issue. The open warfare over slavery in Kansas, which prompted the term “bloody Kansas,” was yet another factor in precipitating the Civil War, along with the Dred Scott decision.

Coincidentally, in both Minnesota and Kansas, two state constitutions were drafted because of partisan disputes. In Minnesota, the two documents actually coexisted, distinguished only by minor grammatical, punctuation and slight semantic differences, until consolidated in 1974.

Shortly after the Civil War, Minnesota voters twice defeated measures to amend the constitution to allow African Americans to vote. The voters finally approved the measure in 1868, a year before ratification of the 15th Amendment, granting male citizens the franchise regardless of race. A year later, 1869, the state provided for racial integration in public schools while also allowing Black men to serve on juries, both uncommon features at the time.

The abolition of slavery, one of the legacies of the Civil War, is reflected in some Minnesota cases. A century later, the ban on slavery and involuntary servitude did not extend to compulsory military service in U.S. v. Crocker, 420 F.2d 307, (8th Cir. 1970). The 8th Circuit affirmed a ruling by Judge Philip Neville in Minnesota upholding the constitutionality of the military draft over 13th Amendment objections, which had been “squarely forced, and rejected” by other courts as well. 420 F.2d at 309. Judge Harry McLaughlin of the federal court in Minnesota more than two decades later held that the 13th Amendment prohibitions do not extend to work performed by prison inmates “who have been convicted of crimes” in McMaster v. State, 819 F. Supp. 1442, 1442 (D. Minn. 1993).

the Lincoln Memorial in Washington, D.C.

Abraham Lincoln was propelled back into politics by the Dred Scott decision. This photo shows the Lincoln Memorial in Washington, D.C. (AP file photo: Mark Tenally)

Lincoln’s legacy

More than a century later, Lincoln’s legacy was reflected in a case decided by the Minnesota Court of Appeals regarding jurisdiction of state courts over activities conducted on Native American tribal reservations. In Granite Valley Hotel Limited Partnership v. Jackpot Junction Bingo and Casino, 559 N.W.2d 135 (Minn. Ct. App. 1997), the appellate court affirmed a ruling of the Redwood County District Court upholding its jurisdiction over contracts involving Indian tribal government. But a concurrence by Judge James Randolph ruminated about the independence of Native American tribes and social justice for the sovereign entities. His missive of nearly 50 pages discussed Lincoln’s moral doubts about slavery, noting that “[h]istory graciously has vindicated Lincoln … 100 percent, 500 percent, 1,000 percent. At the time [Lincoln] spoke contemporary history was not so kind.” Id. at 177.

Another military clash also prompted a Minnesota jurist to refer to Lincoln’s legacy. The case of ex parte Ortiz arose after the United States obtained Puerto Rico from Spain at the end of the Spanish-American War, 100 F. 955 (D. Minn. 1900). The U.S. District Court in Minnesota encountered the issue of what to do with Puerto Ricans who were captured and sentenced to death for murder.

After his sentence was commuted by President William McKinley and he was confined at the state prison in Stillwater, the convicted killer brought a habeas corpus proceeding in federal court here. The judge denied the petition, reasoning that the Puerto Rican was properly tried and convicted by ancillary tribunal for crimes committed during wartime. But, in so doing, the judge quoted from Lincoln’s Gettysburg Address “in language not yet forgotten” of the authority of the “government of the people, by the people, for the people.” Id. at 957.

Lincoln’s adored sayings, including his eloquent and acute observations about the human condition are legion. One of his most well-known aphorisms was reflected in State v. Craig, 2002 WL 1050344 (Minn. Ct. App. May 28, 2002) (unpublished). Accused of terroristic threats and fifth-degree domestic assault, the defendant sought to represent himself despite several warnings by the Stearns County District Court judge. At a pretrial hearing, after the judge asked him, “You know what Lincoln said?” The defendant answered affirmatively, “Yes. I do,” although neither judge nor the defendant explicitly stated the remark.

But it could have been Lincoln’s saying that it is “better to be silent and be thought a fool, than to speak and remove all doubt.” More likely, the judge was discouraging pro se representation, based upon Lincoln’s recognition that if one is “resolutely determined to make a lawyer of [one]self, the thing is more than half done already.” A view that has been re-articulated as: “A person who represents himself has a fool for a client …”

Despite the adoration, Lincoln’s birthday is not recognized as an official holiday but is incorporated into Presidents Day, a celebration on the third Monday of February (another long weekend) derived from the birthday of George Washington. For that holiday, the courts are closed, which affected a timely filing determination in City of Eagan v. O’Neil, 437 N.W.2d 736 (Minn. Ct. App. 1989). Because most employees do not work, they are not entitled to workers’ compensation benefits for that day, according to Jasnoch v. Schwab Company, 495 N.W.2d 204 (Minn. 1993), a proscription that probably would not be warmly welcomed by Lincoln, who was considered a great friend of working people.

As Minnesotans commemorate Memorial Day, they also can recall the ways that the state has contributed to it.


Some other Lincoln observations

  • “It is a good policy to never plead what you need not, lest you oblige yourself to prove what you cannot.”
  • “Never stir up litigation. A worse [person] can scarcely be found than one who does this.”
  • “The leading rule for the lawyer as for [those] of every other calling, is diligence. Leave no thing for tomorrow which can be done today.”

Marshall H. Tanick is an attorney with the Twin Cities law firm of MEYER NJUS TANICK. 

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