Ex Parte McCardle

[최우형]

EX PARTE McCardle

Fact

- Newspaper publisher McCardle printed some “incendiary” articles opposing the Reconstruction laws enacted by Congress.

- He was jailed under the Military Reconstruction Act of 1867. (sedition –폭동선동)

- McCardle invoked habeas corpus in the Circuit Court of Southern District of Mississippi (연방2심). He lost.

- Appealed to the Supreme Court under the Habeas Corpus Act of 1867, which granted appellate jurisdiction to review denial of habeas corpus petitions.

- Congress suspended the Supreme Court’s jurisdiction over the case, exercising the powers granted under Article III section 2 of the Constitution.

- Habeas Corpus Act of 1867 was repealed by the Habeas Corpus Act of 1868

Issue

- Whether the Supreme Court had jurisdiction to hear the case if the act of 1868 took away the jurisdiction defined by the act of 1867, which the case is based on.

Rule

1. Article III Section 2

- …the Supreme Court shall have appellate jurisdiction, both as law and fact, with such exceptions, and under such regulations as the Congress shall make.

2. Durousseau v. The United States

- while the appellate powers of this court are not given by the judicial act, but are given by the Constitution, they are nevertheless limited and regulated by that act, and by such other acts as have been passed on the subject.

- The judicial act was an exercise of the power given by the Constitution to Congress “of making exceptions to the appellate jurisdiction of the Supreme Court.”

- The Congress described affirmatively the court’s jurisdiction and this affirmative description has been understood to imply a negation of the exercise of such appellate power as is not comprehended within it.

3. Norris v. Crocker, Insurance Company v. Ritchie

- It was held that no judgement could be rendered in a suit after the repeal of the act under which it was brought and prosecuted.

4. Habeas Corpus Act of 1867 à expressly repealed by Congress

- granted appellate jurisdiction in cases of habeas corpus.

Application

1. & 2. While the appellate jurisdiction of the Supreme Court is derived from the Constitution, it is under regulations by Congress. Congress, at its first session, issued the act of 1789 to establish the judicial courts of the United States. It provided for the organization of this court, and prescribed regulations for the exercise of its jurisdiction. Congress had the constitutional power to enact the judicial act. And because it affirmatively described the role of this court, it is implied that exceptions to the ascribed jurisdictions is not allowed.

“Affirmative description of certain judicial powers implied a negation of all other powers” (https://en.wikipedia.org/wiki/Ex_parte_McCardle)

3. and 4. The Supreme Court no longer has the jurisdiction because the act of 1867 was repealed by Congress. Thus it has no power to make a ruling.

Repealing the act of 1867 by Congress is a legitimate and constitutionally secured right.

Conclusion

The case is dismissed as the court does not have jurisdiction over it.

Feedback

Article I Section 9

- The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

6^th Amendment

- Guarantees citizens the right to a speedy and public trial by an impartial jury…and to be informed of the nature and cause of the accusation (Miranda); to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

1심 군사법원에서 구속적부심사 (habeas corpus applied) 해서 불구속 상태로 판결을 받았는데.. 항소를 다시 Habeas Corpus Act of 1867로 적용한다? 구속적부심사 already favored McCardle?

**Trick question ** he wasn’t freed from imprisonment. He was sent for bail, custody, and promising future appearance in court.

- Habeas Corpus was rejected in the first place. 보석금 내고 풀려난 것은 habeas corpus로 불구속 풀려난 것이 아니라…

Habeas Corpus와 bail 석방은 다른 내용.

구석적부심사와 보석석방은 다르다.

구석적부심사 – 심사를 통과하면 구속이 아예 안 되는 것이고

보석금을 내는 것은 구속이 적절하나 돈을 내고 판결 전에 풀려나는 것.

Marbury v. Madison과 다르게 판사는 legislative intent를 자기에게 묻지 말라고 함.. 위헌인지 아닌지 판결할 수 있는 권한이 있음에도 불구하고..