Ex Parte McCardle
74 U.S. (7 Wall.) 506 (1869)

  • During the Civil War Reconstruction, McCardle, a newspaper publisher in Mississippi, published some “incendiary” articles. He was arrested and charged with violating a law passed by Congress against libel and impeding Reconstruction (aka the Reconstruction Acts).
  • The Military Court convicted McCardle. He appealed.
    • McCardle argued that the Reconstruction Acts were an unconstitutional violation of his rights under the 5th Amendment because he wasn’t a member of the military and shouldn’t be tried in a military court.
  • The Mississippi Appellate Court refused to hear the case. McCardle appealed to the US Supreme Court.
    • McCardle based his appeal on the Habeus Corpus Act of 1867 which authorized Federal courts for the first time to issue writs of habeas corpus whenever persons held in State custody challenged it on Federal grounds..
  • After the case was argued but before an opinion was delivered, Congress repealed the Habeus Corpus Act.
  • The US Supreme Court found that the repeal of the Habeus Corpus Act meant that they did not have jurisdiction to hear McCardle’s case.
    • US Supreme Court validated congressional withdrawal of the Court’s jurisdiction.
      • Basically, the Court found that Congress has the power to not give jurisdiction to the Court for certain cases.
    • Because the Court held it lacked jurisdiction to hear the case, they left McCardle’s argument about his 5th Amendment rights unanswered
    • Since Congress withdrew jurisdiction to hear the case, McCardle had no legal recourse to challenge his imprisonment in Federal Court.
      • McCardle could have brought the case again, basing his arguments on laws that hadn’t been repealed instead of basing them on the Habeus Corpus Act. However, the military let him go, so the case went away.
  • In Marbury v. Madison, it was determined that the judiciary had the right to say what the law is. But this case says that maybe it’s only in cases where the Congress says the judiciary has the right to say what the law is.
    • The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established, it was an almost necessary consequence that acts of Congress, providing for the exercise of jurisdiction should comes to be spoken of as acts granting jurisdiction, and not was acts making exceptions to the constitutional grant of is.
    • Basically, the original jurisdiction of the Supreme Court is protected by the Constitution, but appellate jurisdiction is solely an act of Congress, and Congress can restrict that jurisdiction.
  • If you recognize the power of mere majorities of Congress to deprive the Supreme Court’s jurisdiction in any case, you have severely broken down the concept of separation of powers.
    • This is known as the essential functions hypothesis.
    • If Congress wrote a law saying that the courts couldn’t hear any cases involving congressmen taking bribes, would that be constitutional?