Constitutional Law I, Pages 58–60

Ex parte McCardle

1869

Facts:

McCardle was a former confederate general who became a newspaper editor and frequently published attacks on Ord, the military governor of Mississippi under the Reconstruction Acts. Ord had McCardle arrested for this under the Reconstruction Acts, and McCardle sought his release due to an 1867 federal statute.

Procedural History:

  • McCardle lost in federal circuit court and appealed to the Supreme Court.

  • The Supreme Court sustained its jurisdiction over the case, but we interrupted by President Jackson's impeachment before it could try it. During the impeachment, Congress repealed the 1867 statute McCardle was basing his case on and overrode Jackson's veto.

Issue:

Does the Supreme Court have jurisdiction to hear McCardle's appeal?

Reasoning:

The Supreme Court does not derive its appellate power from statue but from the Constitution. However, it is conferred "with such exceptions and under such regulations as Congress shall make." One of the first things Congress ever did was to prescribe regulations for this exercise of jurisdiction. This act actually limits the court's appellate jurisdiction to only what is affirmed by Congress, essentially requiring Congress to grant the Supreme Court its power.

The 1867 act did affirm the Supreme Court's power in this case. However, the 1868 act expressly repealed this. Thus, this is plainly an exception to the Supreme Court's power, and thus this case cannot be heard.

Holding:

The Supreme Court does not have jurisdiction to hear McCardle's appeal. Appeal dismissed.

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