Ex Parte McCardle

EX PARTE McCARDLE,

EX PARTE McCARDLE, 7 Wallace 73 U.S. 506 (1869), is the most famous judicial acquiescence in the Radical Republican punishment of the postwar South. The Southern rebellion having ended in 1865, despotic military occupation had continued across the Southern states, and military courts afforded no civil rights under the Constitution.

William McCardle, a Natchez, Mississippi, newspaper editor, had criticized Congress and General E. O. C. Ord, the military commander of Mississippi. McCardle was tried before a military commission, which convicted him of publishing inflammatory articles. He sought habeas corpus from the circuit court, which denied it, and he appealed to the U.S. Supreme Court, seeking release through habeas corpus.

The Supreme Court had issued an opinion in 1866 strongly limiting the power of military commissions over civilians, but it had refused to hear two cases brought by states against federal officials in 1867. In December of that year, it took jurisdiction over McCardle's appeal, which was brought under an 1867 law that assured that freedman and federal officials could have federal review of unlawful arrests in state court by allowing an appeal of cases seeking habeas corpus from any federal or state court. The press, and increasingly the Congress, believed that McCardle's case would lead the Court to invalidate most of the Reconstruction statutes. While McCardle's case was being argued, Congress rushed through, over President Andrew Johnson's veto, a repeal of the 1867 law that allowed McCardle's appeal.

Chief Justice Salmon P. Chase, speaking for a unanimous Supreme Court, ruled the amendment of the statute was binding upon the Court, and the effect of the repeal was to make it as if the 1867 statute had never existed. Thus, he ruled that the Court lacked jurisdiction and McCardle's appeal was dismissed. Later that same term, Chase wrote another habeas case, Ex Parte Yerger, 75 U.S. 85 (1869), reasserting the courts' powers of habeas corpus under the law existing prior to 1867.

The McCardle opinion was both immediately and repeatedly criticized for allowing Congress to determine the outcome of cases pending before the courts, as well as for allowing the military trial of civilians. The under-lying policy of not allowing military jurisdiction over American civilians was clearly resolved in Reid v. Covert (1946). Still, several points of Chase's opinion remain the law in force, particularly that a repeal of habeas jurisdiction applies to pending cases but that it does not affect habeas jurisdiction that existed prior to that statute.

BIBLIOGRAPHY

"Ex Parte McCardle: Judicial Impotency: The Supreme Court and Reconstruction Reconsidered." American Historical Review 72 (1967).

Foner, Eric. Reconstruction, 1863–1877: America's Unfinished Revolution. New York: Harper and Row, 1988.

Kutler, Stanley I. Judicial Power and Reconstruction Politics. Chicago: University of Chicago Press, 1968.

Van Alstyne, William O. "A Critical Guide to Ex Parte McCardle." Arizona Law Review 15 (1973).

Steve Sheppard

See also Reconstruction .