THE COLUMN: Which Is to Be Master?

As adult readers know, there is a great deal of wisdom in the works of Lewis Carroll, particularly in Through the Looking-Glass, the second of Alice's adventures in Wonderland during her encounter with Humpty Dumpty. The key exchange is this:

Humpty Dumpty took the book, and looked at it carefully. “That seems to be done right—” he began.

“You’re holding it upside down!” Alice interrupted.

“To be sure I was!” Humpty Dumpty said gaily, as she turned it round for him. “I thought it looked a little queer. As I was saying, that seems to be done right—though I haven’t time to look it over thoroughly just now—and that shows that there are three hundred and sixty-four days when you might get un-birthday presents—”

“Certainly,” said Alice.

“And only one for birthday presents, you know. There’s glory for you!”

“I don’t know what you mean by ‘glory,’” Alice said.

Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’”

“But ‘glory’ doesn’t mean ‘a nice knock-down argument,’” Alice objected.

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

And so here we are, with the battle for the soul of the Constitution now having assumed semi-human shape in the person of a "Maryland man" named Kilmar Abrego Garcia who is now dwelling in a maximum security prison in El Salvador -- his native land, as it happens. On one side is President Trump and the plain language of Article 2 of our founding document, and the principal members of his cabinet. On the other is the federal judiciary, whose sole constitutionally mandated member in Article 3 is the chief justice of the Supreme Court, all other federal justices and judges having been invented by Congress. The rest of Team 3 consists of the fleets of legal barnacles who feed off the body of the Republic and whose devotion to punctilious adherence to their own largely invented rules and principles is purely self-interested.

To justify their very expensive parasitical role in the conduct of policy, no doubt they can all quote Robert Bolt's speech for St. Thomas More in A Man for All Seasons by heart:

William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I’d cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

Spoiler alert: More wound up separated from his head shortly thereafter, first placed on a pike on London Bridge and later in a casket, which his daughter Margaret and her family kept for many years as the ultimate memento mori.  It's a pretty speech but are the sentiments expressed in it correct? As former Justice Arthur Goldberg wrote in 1963: "the Constitution is not a suicide pact." In this, he echoed Justice Robert Jackson's opinion in a 1949 case that "there is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." Jackson knew whereof he spoke, having been one of the lead prosecutors of National Socialist German Workers Party war criminals at Nuremberg.

Eight years ago, at the old PJ Media, I wrote a column titled, "About Those 'Co-Equal' Branches of Government..." whose thesis was and remains that the three branches of the American are not, and were never intended to be, "co-equal." That there was a hierarchical logic to their order, and while Article 2 was quite clear that the Executive power was entirely vested in one man, the President, Article 3 established a Supreme Court with extremely limited enumerated powers, and left the questions of associate justices and the entire federal judiciary up to Article 1, Congress, on the expectation that the states would handle most of the local legal legwork. They could hardly imagine a land in which literally everything would become a federal case.

Then as now, the issue was over illegal immigration:

Doesn’t sound very “co-equal,” does it?

Clearly, this wasn’t good enough for our supreme solons, which is why they engaged in an astonishing power grab in 1803, when the court under John Marshall decided in Marbury v. Madison to grant itself the power of judicial review. The theory was that the justices had sworn an oath to uphold the Constitution — but then, so does the President (Article II) and every member of Congress (Article I). It’s impossible that the Court’s obligation to the Constitution outweighs either the executive’s or the legislature’s, and it certainly does not trump theirs.

And yet the Left loves judicial supremacy, since it allows them to end-run the legislative process, deploy their armies of lawyers, and argue in front of single judges, a small panel, or (in the case of the Supreme Court) nine Ivy League lawyers in black robes. What could be less democratic than that? So it’s no wonder that there’s a movement brewing — long-overdue — to rein in the federal judges who are, after all, employees of the Congress, which is to say, the people.

Fight to win, or you will surely lose.

And now we're here again. It's been instructive to watch friends of mine in the legal profession, with experience at top levels, choose pettifogging and punctiliousness in a time of national existential crisis as the hill on which to die. They conveniently forget that presidents Jefferson and Jackson both chose to ignore Marshall's ukase, that Lincoln suspended habeas corpus -- but kept elections! -- during the Civil War and that other presidents have treated the Court with derision when it served their political needs and, in most cases, the needs of the nation.

Since the Battle of 9/11 was lost by the pusillanimous Bush administration -- a point I make in the final chapter of my new book, A Rage to Conquer -- the U.S. has been in a one-sided war by declared enemies and has chosen not to believe it because to fight back would be rude and probably racist. Indeed, modern lawyers and law firms eagerly rush to the pro bono defense of non-uniformed enemy soldiers of Allah and savage tattooed Aztecs and Mayans without hesitation on their self-proclaimed theory that everybody is entitled to representation at public expense, even mortal enemies.

Enough of this. There are times when you must cut a great road between the law and the Devil. To finish World War II we firebombed Hamburg and Dresden, and dropped the Bomb on Japan. Neither the Germans nor the Japanese had American lawyers working feverishly on their behalf in order to frustrate President Roosevelt's declaration (the last in American history) that total, righteous victory was the only acceptable outcome.

A functioning country cannot have the president subject to whimsical overruling by some 3,300 regional judges, many of whom are also political activists. (It’s instructive to remember that when Marshall was chief justice, he was also acting secretary of state in the John Adams administration, which despised the Jeffersonians.) Congress has it within its power to re-organize the judiciary below the Supreme Court level in any way it sees fit. It can also change the rules concerning lifetime tenure, removal and anything else it chooses.

Historically, the courts have been no collection of disinterested secular saints, as the Dred Scott, Plessy, Roe v. Wade and Obergefell decisions amply demonstrate. President Trump and the GOP Congress should take this opportunity for a thoroughgoing re-examination of the federal judiciary, leaving nothing off the table. To continue on this path lies anarchy.

Couldn't have said it better myself, but there's glory for you. The only question that matters is "which is to be master?" And it doesn't take learned interpretation of the Constitution to know what the answer is. All you have to do is know how to read.