Posted by
NOTLEGALROADKILLYET on Sunday, September 17, 2006 5:43:55 PM
Very few journalists understand either the Constitution or precedents and ignore them when they do. One precedent that should be receiving much more attention than it is is Ex Parte McCardle, an 1868 Supreme Court case.
McCardle was attempting to have reconstruction declared unconstitutional and his imprisonment overturned. His attorneys argued that the Supreme Court's power came from the Constitution and that part of the Constitution which reads "The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make" should be ignored.
Congress had passed a law giving the Supreme Court jurisdiction in 1867, and McCardle had filed an appeal. The appeal languished because of the need of Chief Justice Chase to preside over the impeachment trial of Andrew Johnson. During this period, Congress expressly repealed the law over the President's veto.
Chief Justice Chase wrote the Court's opinion, part of which is reproduced here: "The first question necessarily is that of jurisdiction; for, if the act of March, 1868, takes away the jurisdiction defined by the act of February, 1867, it is useless, if not improper, to enter into any discussion of other questions. . . It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer. . . The appeal of the petitioner in this case must be DISMISSED FOR WANT OF JURISDICTION."