Marshall vs. Gonzales

"To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?"

John Marshall, Chief Justice of the Supreme Court, Marbury vs. Madison, 1803.

"WASHINGTON - Attorney General Alberto Gonzales rapped federal judges yesterday for ruling on cases that affect national security policy. Judges, he contended, are unqualified to decide terrorism issues that he said are best settled by Congress or the president."

Admittedly, it's a tough call, a little like pitting the 1958 Baltimore Colts against the 1984 San Francisco 49ers in a Fantasty Football League game. On one side we have John Marshall, the originator of the concept of judicial review, who in one lapidary moment of legal insight deduced that the courts must have the right to decide the constitutionality of laws promulgated or enforced by other branches of government. On the other, we have Alberto "The Torque" Gonzales, chief apologist and general manager of the Torture Division of Bush's War on Civilized Standards. A tough call, and rife with the danger of subjective over-reaction. Marshall...or Gonzales? Let us examine some of the crucial data in an effort to divine a wise conclusion.

The Torque notes, with stupendous irrelevance (I try to be objective, but the bilge rises anyway), that federal judges, such as Justice Anna Diggs Taylor in Detroit who ruled that Bush has been committing felonies and violating the Fourth Amendment's prohibition against unreasonable searches and seizures more or less on a daily basis since 2001, do not have access to embassy communications and other "security" data. Bush does. Who better, then, to decide what's good for the USA? If Bush decides that an end-run (returning to the football analogy) around the Foreign Intelligence Surveillance Act (FISA), and flipping the bird at the Foreign Intelligence Surveillance Court (FISC) helps in his all-out pursuit of al-Qaeda (other than, of course, the two head men at a-Q), who the hell are the courts to tell him he's off base?

There are two possible reactions to The Torque's denunciation of the courts:

1. He's a complete idiot (charitable interpretation).
2. He's a fully paid-up member in Satan's Kiwanis Club (realpolitik analysis).

I lean toward the second conclusion, perhaps telegraphed by (a) the limited nature of the listed options, and (b) my persistent use of the pejorative "The Torque." How can we put this in terms even Torkie might grasp?

Let us analyze by reductio ad absurdum, always apt when talking about the Bushies, since almost everything they do is tainted with the absurd. Suppose that Bush simply said that all mail delivered by the U.S. Postal Service will now be routed through the office of the USPS's Inspector General, who will open and read all mail and decide what will be redacted, what will be confiscated, and what will be sent on. Admittedly, this will have a chilling effect on First Amendment rights and involve a wholesale invasion of privacy. Still, Bush (squinting at the camera from some heretofore unused sound stage in the White House) will point out that the military employs such censorship routinely in a time of war; the whole country is now at war; ergo, the whole country's mail will now be opened and read. Got it? Let's break for lunch.

Some troublemaking judge rules unfavorably under the First (speech), Fourth (search) and Ninth (privacy) provisions of the Bill of Rights. But really - how many embassy cables has this black-robed meddler read today? The country is safer from foreign (and domestic!) threats under the Domestic Espionage Surveillance Total Review of Your mail (DESTROY mail) program. Isn't it? Of course it is. We're at war, dammit, and always will be. Constitutions are for sissies without the stomach to do what's necessary to take on The Enemy.

There is no difference in principle whatsoever between the reductio example and Gonzales's latest mash note to the "unitary Presidency," by which he means: let's simply put all power in a new monarch and stop this silly "check & balance" bullshit. I think, however, that John Marshall is the better bet. He was deciding a simple, seemingly trivial issue involving John Adams's right to appoint Justice Marbury as justice of the peace for Washington D.C., even at the 11th hour of his term, and Thomas Jefferson's obstruction in seeking to block his appointment immediately after his oath of office. In other words, like Justice Anna Taylor Diggs, Marshall was a judge who was willing to stare down some major heavyweights, even his political patron, to make certain a Constitution, and not regal whimsy, would prevail. By 1803, the United States of America had had enough of that. Why on earth would we want it now, and from this guy in particular?