Ex parte McCardle

Ex parte McCardle (1869) was a landmark case in which the US Supreme Court recognized Congress’s power to make exceptions to the court’s appellate jurisdiction. Today, both opponents and supporters of contemporary proposals to restrict Supreme Court jurisdiction cite McCardle as precedent.

William McCardle, editor of the Vicksburg Times, published a series of articles highly critical of Reconstruction. US Army officials arrested him under the Military Reconstruction Act of 1867, which gave the military jurisdiction over much of the South following the Civil War. McCardle was charged with disturbing the peace, inciting insurrection, libel, and impeding Reconstruction. He sought release by bringing an action for habeas corpus in the US Circuit Court for the Southern District of Mississippi. The court dismissed the writ and remanded McCardle to military custody. He was released on bail subject to the disposition of an appeal of that decision to the US Supreme Court. On appeal, McCardle argued that the Military Reconstruction Act was unconstitutional.

Under the Judiciary Act of 1789, federal courts could hear habeas petitions only of those who were held in federal custody. However, the Habeas Corpus Act of 1867 had empowered the US Supreme Court to hear appeals from lower courts in habeas corpus cases, a Radical Republican–backed measure intended to protect former slaves from southern state courts. The US government argued that the new act did not give the federal courts jurisdiction to grant habeas corpus to McCardle since he was not being held by the State of Mississippi. The Supreme Court rejected that argument and set the case for argument on the merits. Radicals faced the possibility that a statute drafted with the goal of preventing southern states from impeding Reconstruction would be used to attack the Military Reconstruction Act itself.

On 9 March 1868 the Supreme Court held oral arguments on McCardle’s constitutional claims. Later in the month Congress repealed part of the Habeas Corpus Act, specifically to prevent the court from hearing McCardle’s case. The Supreme Court then considered whether it had jurisdiction to hear McCardle’s constitutional claims. On 12 April 1869 the court held that it could not decide McCardle’s case because Congress had constitutional authority to regulate the court’s appellate jurisdiction. Writing for the unanimous court, Chief Justice Salmon P. Chase observed that although the court’s authority stems from the Constitution, it “is conferred ‘with such exceptions and under such regulations as Congress shall make.’” And the court concluded that the 1868 act was an unmistakable exception to the court’s appellate jurisdiction. However, the court also expressly indicated that it still had jurisdiction in habeas corpus cases, notwithstanding the partial repeal of the Habeas Corpus Act.

Further Reading

  • Erwin Chemerinsky, Federal Jurisdiction (2007)
  • Ex parte McCardle, 74 US 506 (1869)
  • Peter W. Low and John C. Jeffries Jr., Federal Courts and the Law of Federal State Relations (2004)
  • William Van Alstyne, “A Critical Guide to Ex parte McCardle,” Arizona Law Review (1973)

Citation Information

The following information is provided for citations.

  • Article Title Ex parte McCardle
  • Author
  • Keywords ex parte mccardle
  • Website Name Mississippi Encyclopedia
  • URL
  • Access Date July 13, 2020
  • Publisher Center for Study of Southern Culture
  • Original Published Date
  • Date of Last Update April 14, 2018