[Peace-discuss] NYTimes.com Article: Marbury v. Madison v. Ashcroft

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Marbury v. Madison v. Ashcroft

February 24, 2003
By ANTHONY LEWIS 




 


BOSTON 
Two hundred years ago today Chief Justice John Marshall
delivered the judgment of the Supreme Court in the case of
Marbury v. Madison. As a kindness to Justice Samuel Chase,
who was ill, he announced the decision in the Capitol Hill
rooming house where most of the justices lived. In that
humble setting Marshall and his colleagues established the
great principle that judges have the power to declare acts
of Congress void because they conflict with the
Constitution. 

After 200 years Americans are so accustomed to judges
having the last word that alternatives seem unthinkable. We
rely on the courts to enforce what the Constitution
promises us. 

But in one area the courts have disappointed us. In time of
war, actual or threatened, they have repeatedly abdicated
their function, bowing to claims of national security. A
dramatic example in the last century was the internment of
Japanese-Americans during World War II; bowing to
government claims that they were a security threat, the
Supreme Court, in the Korematsu case, refused to interfere.


We are now headed for a profound test of our commitment to
the Constitution in time of war: the war on terrorism, as
President Bush has proclaimed it. His administration has
taken steps that radically impinge on the right to counsel
and other fundamental liberties. Will the courts, in the
end the Supreme Court, subject those measures to real
constitutional scrutiny, or give way to arguments of war
emergency? 

The war on terrorism is an especially dangerous occasion
for judges to close their eyes to violations of our rights.
In every other historical case of the courts yielding to
wartime claims, the emergency ended before long and the
country regretted the abandonment of constitutional values.
It is extremely unlikely that the Supreme Court today would
follow the Korematsu decision and uphold the internment of
hundreds of thousands of Americans of a particular ethnic
background. 

But no one can imagine this war coming to an end any time
soon. So every piece of judicial deference to the power of
government in war may crimp the rights of citizens forever.


Aliens, both visitors and permanent residents, were harshly
affected by Bush administration measures after 9/11.
Attorney General John Ashcroft ordered more than 1,000
aliens detained, keeping their names and places of
detention secret. He also ordered many deportation hearings
held in secret. He required visitors from 25 countries,
predominantly Muslim, to register with the government.
Those who failed to do so within 40 days were subject to
arrest, detention and deportation. 

But the measure that most gravely menaces constitutional
rights is the arrest and indefinite detention of Americans
without trial and without access to a lawyer. The president
has claimed the power to thus seize and hold any American
whom he designates an "enemy combatant." And the basis of
the designation, administration lawyers argue, is not
subject to effective review in any court. 

Two American citizens are now held in solitary confinement
under this asserted presidential power. One, Yasser Hamdi,
was found under unexplained circumstances on a battlefield
in Afghanistan. The other, Jose Padilla, was arrested on
arrival at O'Hare International Airport in Chicago after
spending time in Egypt and Pakistan. Both are totally
isolated. They are not allowed to speak to a lawyer. They
may not see their families. 

Lawyers appointed to act for Mr. Hamdi and Mr. Padilla
challenged their detention. The United States Court of
Appeals for the Fourth Circuit, in Richmond, Va., made the
first appellate ruling - against Mr. Hamdi. It held that
the constitutional guarantee of the right to counsel "in
all criminal prosecutions" did not apply because Mr. Hamdi
was not being prosecuted. 

That reasoning reduced constitutional law to sleight of
hand: The government can impose solitary confinement,
perhaps for life, if it simply avoids giving the prisoner a
trial. If what was done to Mr. Hamdi did not technically
violate the Sixth Amendment, it surely deprived him of
liberty without due process of law. James Madison, the
principal author of the Bill of Rights, would have been
astounded at the notion. So would the average American
today if told he could be taken off the street and
imprisoned forever without being able to call a lawyer. 

The Fourth Circuit also agreed with the government that
courts must defer to the president in wartime. It held that
the president can detain indefinitely anyone he calls an
enemy combatant. And it said that judges could not look
into the basis of that designation if the president
produced any evidence for it, however slight and untested
by cross-examination. 

The last point, making it all but impossible to challenge
the president's designation of anyone as an enemy, is
crucial. Throughout American history the courts have
accorded conclusive weight to claims of security threats -
claims that turned out to be hollow after the crisis had
passed. 

The claim that people of Japanese descent were likely to
commit sabotage or espionage on the West Coast in World War
II is a signal example. In 1983 a government study found
that the internments were the result of "race prejudice"
and "war hysteria"; there was no threat. Congress paid
survivors modest compensation. The country similarly
regretted the Sedition Act of 1798, passed to deal with the
threat - a phantom threat - of French revolutionary terror
in America. Attorney General A. Mitchell Palmer's harsh
roundup of assertedly radical aliens after World War I also
came to be seen as an outrage. 

Justice William J. Brennan Jr., looking back over the
record of punitive actions justified by claimed threats to
national security, said in 1987 that the claims were "so
baseless that they would be comical if not for the serious
hardship they caused." He made the point in a lecture at
the Hebrew University in Jerusalem. Israel has had to cope
with terrorism since its rebirth in 1948. Yet its Supreme
Court has gradually - if not always consistently -
developed a determination not to sacrifice the values of
freedom in the fight against terrorists. 

Aharon Barak, president of the Israeli Supreme Court, put
his conclusions as follows: "The real test of [judicial]
independence and impartiality comes in situations of war
and terrorism. . . . Precisely in these times, we judges
must hold fast to fundamental principles and values; we
must embrace our supreme responsibility to protect
democracy and the constitution." 

American judges are not immune to the sense of
vulnerability that Sept. 11 left in almost all Americans.
That must help to explain the decision of the United States
Court of Appeals for the Second Circuit upholding New York
City's ban on a march to protest the planned war on Iraq.
The decision's logic would have justified bans on marches
led by Dr. Martin Luther King Jr. in the 1960's. 

The terrorist threat in this country is real, and the
government naturally wants a free hand to deal with it. The
question is whether judges can treat that demand with
respect without abandoning their highest calling: as
guardians of freedom. 

Marbury v. Madison was not a universally popular decision
at the time. President Jefferson, Marshall's cousin and
bitter critic, condemned the "twistifications in the case
of Marbury." But the case has become part of the bedrock of
our system. 

"It is emphatically the province and duty of the judicial
department to say what the law is," John Marshall wrote in
Marbury v. Madison. It has never been more important for
judges to perform that duty unflinchingly. 


Anthony Lewis is a former Times
columnist.

http://www.nytimes.com/2003/02/24/opinion/24LEWI.html?ex=1047130464&ei=1&en=ef34687d6f516633



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