Thursday, January 8, 2009

McCardle take 2, making an omelet

I went slightly overboard when I scored Ex Parte McCardle a massive victory for Congress. Let's keep some big picture perspective and remember checks and balances. Yes, Congress can regulate the judiciary. But we shouldn't forget that it is actually SCOTUS who decides whether the regulations are necessary and proper. On the podcast, Weheneman offers an excellent image. In McCardle, SCOTUS is basically saying to Congress, "We'll cut you some slack, but don't forget that we're still the ones holding the leash."

Also, his summary of the case is much better than mine. McCardle will make more sense with some historical perspective. Let revisit it.

The period immediately after the civil war is known as Reconstruction. During this time the military became the temporary acting government in some (all?) of the former Confederate states. President Lincoln suspended habeus corpus (which protects citizens from imprisonment without due process) to ease the transition.

Later habeus corpus was reinstated, and shortly thereafter McCardle (a former Confederate soldier) began speaking out against the military government in his newspaper. When his appeal reached SCOTUS, Congress had a very strong interest in seeing him lose. If McCardle and others were allowed to speak freely against the military government/tribunal, reconstruction would be threatened. Congress took the opportunity to revoke habeus corpus, and it was up to SCOTUS to decide whether that action was unconstitutional. And SCOTUS let it happen!

Why would the Supreme Court allow a citizen to be detained without due process? Why would it tacitly allow a citizen's freedom of speech to be denied? Doesn't this decision sort of violate the spirit of the Constitution?

Actually, no.

Let's keep the necessary and proper clause in mind. SCOTUS must have felt that reconstruction of the country warranted denying a citizen his basic rights. If you want to make an omelet, you have to force an egg to be tried in front of a military tribunal, on penalty of death by hanging. Ouch.

For the history buffs out there, habeus corpus was suspended or limited 3 more times in U.S. history. In the aftermath of WWII and the Oklahoma City bombings, and currently. The current exceptions to habeus corpus (for suspected terrorists) are being pretty hotly contested in the courts.

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