Barry Friedman


On his book The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution

Cover Interview of April 03, 2011

A close-up

It is 1867.  The Civil War is over, but the Union is struggling to bring the Confederate States back in.  A procedure has been announced that requires ratifying the 14th Amendment.  Some Confederates are fighting the process every way they can, boycotting elections, bringing court battles.  They are hoping if they can stave off ratification until the 1868 elections, the tide will turn in their favor.  The Confederates argue military rule of the South is unconstitutional, and must cease.  The Supreme Court has ducked a number of attempts to bring the issue to it.

Then, Union troops take into custody an unreconstructed newspaper editor named William McCardle who is writing scurrilous editorials and publishing the names of southern citizens that vote in Union elections.  McCardle sues for his freedom (and keeps the litigation going even after released on bail) arguing martial law violates his rights.

Congress is petrified the Supreme Court will take the case and strike down the whole congressional Reconstruction plan.  No way Congress will allow this after all the Union blood spilled.  Indeed, at the very same time, Congress is trying the impeachment of President Andrew Johnson, basically accusing him of disloyalty.  So Congress takes action:  it strips the Court’s jurisdiction to hear McCardle’s case, all the while pretending it is not doing much.

What will the Court do in the face of this threat to power?  Stand idly by, to be, as one member of Congress put it, ravished without a cry?

(Hint:  the Court knows a superior force when it encounters one!)