Common Sense and Marbury v Madison

Today marks the 206th year since the world famous Marbury v Madison case was decided.

If a nation's statutes are governed by a constitution that guides those statutes toward the betterment of the nation, then the betterment of the nation will depend on the legal hermeneutics (a.k.a textual interpretation) of that constitution.

The Marbury case made it crystal clear this means that "betterment" will depend on what judges say the constitution says.

In that light it is an every day occurrence for a common citizen to read the text of the constitution and say "it says thus and such", and for that citizen's lawyer to respond "actually it says what the judge says it says".

And that is where the rubber meets the road. The famous Marbury case has a common sense foundation:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

(Marbury v Madison, 5 U.S. 137 (1803), italics added). A federal district judge in San Francisco is tasked with that problem at the moment. In Hepting v AT&T these issues are currently being litigated.

In a case that concerns what is called "immunity", the congress passed a bill allowing the DOJ to, in effect, give retro-active immunity to telephone companies that helped Bush II get access to all of your phone and email records without a warrant. Contra the 4th Amendment of our Constitution.

Bush II said he needed to know all about you to protect you, and therefore he asked congress to give DOJ the power to give the phone companies retroactive immunity. Because they gave your records to Bush II illegally.

Why Bush II did not simply pardon the telecoms is a mystery, because that act would have ended the matter.

Perhaps Bush II was tired of taking all the blame and wanted congress to share the blame load? Who knows.

Then senator, and now President, Obama voted for that statute to the chagrin of many civil rights activists (me included). Now his Attorney General, Eric Holder, is supporting the statute as did Bush II Attorneys General.

Federal Judge Walker has ordered the parties in the telecom immunity cases, including AG Holder, to explain why that statute does not violate, among other things, the separation of powers doctrine.

The basis of the order stems in part from a 1944 Supreme Court ruling which requires a statute to clearly define the bounds of performance of the administration of that statute so as to constitutionally delineate legislative will from administrative will:

[T]he only concern of courts is to ascertain whether the will of Congress has been obeyed. This depends not upon the breadth of the definition of the facts or conditions which the administrative officer is to find but upon the determination whether the definition sufficiently marks the field within which the Administrator is to act so that it may be known whether he has kept within it in compliance with the legislative will.

(Walker's Order, 2/11/09), quoting from Yakus v United States, 321 US 414, 425 (1944)).

Judge Walker ordered the parties to further brief the court and to answer the following question:

Does the retroactive immunity statute give the DOJ unfettered authority, thereby, in effect giving it the power to make law - which is the sole province of the legislative branch of government?

(ibid). In essence congress can't say to the president, "you make the laws", and if it did so in this retroactive immunity case, then that statute is unconstitutional.

In the final analysis, Judge Walker must decide not whether anyone or any company is above the law, but whether or not congress can lift them that high.