Guest Essayist: Joerg Knipprath

Ex parte McCardle was forged in the superheated atmosphere of Southern reconstruction after the Civil War. The struggle to shape that reconstruction pitted the “Radical” Republicans (representing the pre-war abolitionist wing) against moderates within the party. Democrats, reduced to a rump faction, could do little more than get out of the way and, if palatable, delicately offer support to the Republican moderates. The political and constitutional fault line cut between the restrained Lincoln-Johnson presidential reconstruction based on maintaining the existing federalism, but with abolition of slavery, and the program of congressional radicals to treat the South as a conquered province reduced to territorial status, prostrate before Northern arms and to be cleansed of the twin stains of slavery and secession by stripping the erstwhile states of their old constitutional privileges.

A moderate alternative eventually emerged as the template for reconstruction. It was based on the “grasp-of-war” theory that the Civil War had been a war in fact, but not between international belligerents. Since secession was constitutionally impossible, the Confederate States had been merely a simulacrum of a nation. Thus, the states were still within the union, but suffered at the moment from disorganized governments. It was up to the North to restore to those states republican forms of government, consistent with the constitutional obligations imposed on the general government under the “Guarantee Clause” of Article IV, Section 4. The only effective authority to oversee that restoration in the South was the military.

A key component of the eventual program, one that came closest to the Radicals’ vision, were the Military Reconstruction Acts of 1867, adopted over President Andrew Johnson’s veto. Relying on the grasp-of-war theory, these laws declared the lawfully-elected Southern states’ “Johnson governments” to be merely provisional and subject to the control of Northern military commanders. Those commanders could overrule and, indeed, abolish those governments; remove state officials; control the adoption of new state constitutions that protected the rights of Blacks to vote; oversee voter registration; and arrest, try by military commission, and confine in military prison disturbers of the peace and other criminals.

Many aspects of these acts were constitutionally suspect, to say the least. As to the last provisions, control by the military over ordinary criminal matters during peacetime was already a part of the re-enacted Freedmen’s Bureau Act of July, 1866. However, in December, 1866, in Ex parte Milligan, the Supreme Court gave notice that, in places where the civil courts were open, trial of civilians by military commission was unconstitutional. That decision cast serious doubt about the constitutional viability of using the military to protect the rights of Blacks.

When the Court followed up with two other decisions that appeared to undercut the overall approach of Congressional reconstruction, several cases were brought that challenged directly the constitutionality of the Military Reconstruction Acts of 1867. Ex parte McCardle was one. As editor of a Mississippi newspaper, William McCardle had written articles critical of the national government’s policies. He was charged with disturbing the peace for publishing “incendiary and libelous” articles and held for trial by military commission.

Using the Habeas Corpus Act of 1867 (the “Act”), McCardle filed a petition for a writ of habeas corpus in a lower federal court, which was denied. McCardle then appealed to the Supreme Court. Given the portentous nature of his argument, his case was heard at great length between March 2 and 9, 1862. Both sides rolled out the legal heavy artillery. Jeremiah Black (President Buchanan’s attorney general) and David Dudley Field (top New York attorney and legal reformer, progenitor of the Field Codes that set the model for the then-beginning statutory codification of law, and brother of sitting Supreme Court Justice Stephen Field) were among those arguing for McCardle. Senator Lyman Trumbull of Illinois, the major force behind the Freedmen’s Bureau legislation and the Civil Rights Act of 1866, and two prominent Supreme Court litigators defended the law.

Congress, alarmed by reports that the arguments against the military commissions were so persuasive that this portion of the acts would likely be struck down, quickly intervened. Relying on its constitutional authority to control the specifics of the Supreme Court’s appellate jurisdiction, Congress moved to repeal the portion of the Act that gave the Court the power to review habeas petitions that were brought under that statute and denied by lower federal courts. When the Justices met in conference to consider McCardle’s case, the bill had passed Congress but had not been signed by the President. The justices then delayed proceedings to give the political branches time to act. President Johnson vetoed the bill. Congress overrode the veto. The Court postponed its ruling for a year to allow the parties fully to consider the effect of the repeal, and to allow Chief Justice Salmon Chase to focus on his duties as presiding officer over the Senate’s impeachment trial of President Johnson.

Upon reconvening and hearing arguments in April, 1869, the Court dismissed the case. The Chief Justice’s opinion focused on the broad power given to Congress under Article III, Section 2 of the Constitution to make “Exceptions, and…Regulations” to the full scope of the Supreme Court’s appellate jurisdiction defined in that same section. The Chief noted that, had Congress never passed any law on the matter, the Supreme Court might well exercise the full appellate power as it saw fit. However, uninterrupted practice since the Judiciary Act of 1789 showed that Congress regulated the Court’s appellate jurisdiction. Therefore, Congress could directly revoke the Court’s jurisdiction to review McCardle’s case.

The McCardle proceedings triggered much negative reaction, on and off the Court. Justices Grier and Field filed a statement condemning the original postponement. Counsel for McCardle, Jeremiah Black, reacted with an unusually bitter, though colorful, denunciation of the Court. Secretary of the Interior, Orville Browning, and Secretary of the Navy, Gideon Welles, accused the Court of cowardice and weakness. Historians generally have been critical of the opinion and accused the Court of abandoning its constitutional duty.

That judgment is not without basis, in that the Court was well aware of its precarious position against a Congress bent on imposing its vision of reconstruction. Declaring the Military Reconstruction Acts unconstitutional so soon would only embolden stronger action against the Court. Moreover, Chief Justice Chase’s perennial ambition to become President of the United States by way of whichever party would have him also counseled caution.

However, unnoticed unless one is trained to read the judicial tea leaves, Chase’s opinion at the very end remarks that it would be an error to assume that the repeal law deprived the Court of all appellate power in habeas corpus cases. McCardle involved only jurisdiction, then repealed, given by the Act. There remained the Court’s jurisdiction to issue writs of habeas corpus under the Judiciary Act of 1789.  Just six months after the McCardle decision, the Court ruled in Ex parte Yerger that it had such jurisdiction under the 1789 law. Again speaking through Chief Justice Chase, the Court described its McCardle decision as an exception—indeed a narrow, explicit one—to the general trend of expanded habeas corpus jurisdiction.

The McCardle case raises three constitutional points. First, other than the rare occasion when the Supreme Court sits as a trial court in “original jurisdiction,” the jurisdiction of federal courts is not simply set under the Constitution, but requires a statutory “grant” from Congress. Anything not granted by Congress constitutes an “exception” to the full potential scope of jurisdiction listed in Article III, Section 2, and is implicitly denied.

Second, Chief Justice Chase suggested that Congressional curtailment of the Court’s power to review or issue writs of habeas corpus might require more express restriction than a mere failure to grant such authority affirmatively. The historically recognized nature of the writ as a fundamental guarantee of individual liberty places it in a unique position. Chase referred to the historical trend to expand the judiciary’s role in that regard. Indeed, the Act for the first time extended federal court power to issue such writs against state courts.

This view of the writ’s special status came up recently in attempts by unlawful enemy combatants held at Guantanamo Bay to have their detentions reviewed through habeas corpus petitions. In a series of cases beginning in 2004, the Court frustrated attempts, first, by the Executive Branch and, subsequently, by Congress and the President acting in tandem, to restrict the detainees’ access to federal courts. The Court repeatedly emphasized the special nature of the writ and, eventually, in 2008 in Boumediene v. Bush, held that even an express statute cannot effectively deny such access to the courts and review by the Supreme Court.

Third, the Court’s artful efforts in McCardle and other contemporaneous cases to avoid deciding the constitutionality of the controversial Military Reconstruction Acts of 1867 reflect classic judicial deference to the political branches in the conduct of military and national security matters. It remains to be seen whether the current federal judiciary will respect that constitutional tradition, emboldened as they may be by the legal elite’s campaign to superimpose a structure of “lawfare” on Congress and the President.

Ex parte McCardle (1869) Supreme Court decision:

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

2 replies
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Professor, it seems the Courts internal conflict of deference to military and national security interests exist today in the activities of the NSA to invade our privacy for national security reasons. It also seems to apply to the war on drugs and security where the Government has over 166 statutes or regulations that allow various agencies to seize personal assets without court order or trial. Please elaborate if and how this case and precedent has impact on these issues.

    As technology increases it is conceivable, if not likely that we will soon have the ability to read people’s thoughts. Nothing in recent court rulings leads me to believe that our thoughts will be protected under Constitution.

    “Wherever the real power in a Government lies, there is the danger of oppression. In our Governments, the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from the acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.” James Madison

    “The fantastic advances in the field of electronic communication constitute a greater danger to the privacy of the individual.” Earl Warren

    “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” [Olmstead v. U.S., 277 U.S. 438 (1928) (dissenting)]” Louis D. Brandeis

    “Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.” Edward Snowden


  2. William Smith
    William Smith says:

    “As editor of a Mississippi newspaper, William McCardle had written articles critical of the national government’s policies. He was charged with disturbing the peace for publishing ‘incendiary and libelous’ articles and held for trial by military commission.”

    Where can I find copies/reprints of the published articles that were alleged to be “incendiary and libelous”?

    What was the name of the military commander who charged McCardle?

    What was/were the charge(s)?

    Where can I find copies of original materials documenting proceedings against McCardle in the federal circuit court?



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