Tommy Denton

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Chief Justice John Marshall contributed to the aggravation of at least one layer in the stomach lining of his cousin President Thomas Jefferson as a result of some of his Supreme Court rulings.

Through such precedents, controversies over legal interpretation have been an inherent exercise in directing the course of the democratic experiment. Today is no exception.

Certainly the court is not exempt from the ebb and flow of political tides, either in the appointment and confirmation processes or in the response to the dynamics of national life by members of the court as dutiful citizens.

Consequently, since passage of the Judiciary Act of 1789, much court-made law has shifted and settled as times and circumstances have imposed change on American institutions and attitudes.

Yet fidelity to bedrock principles -- the pre-eminent status of the rule of law over brute force or human caprice, equal protection of the law, due process -- represents the greatest safeguard of the values embodied in the Declaration of Independence and the evolving Constitution.

Certainly, the judicial system from the outset has been under scrutiny and criticism, as it should be if the restorative vitality of democracy is to have any meaning or influence.

Franklin Roosevelt tried to pack the Supreme Court; the Warren Court invited what its enemies called the purging of patriotism, and liberal commentators now are condemning President Bush's effort to install an Antonin Scalia-led court that would release any unprofitable fetters on corporate aspirations, while also deferring to the executive in whatever military or national security predations it deemed desirable.

Those last two charges against a Bush-packed court smack somewhat of hyperbole, but only somewhat. As corporate fraud and anti-trust cases make their way to the Supreme Court, the developing "conservative" majority will determine whether the K Street benefactors of Congress and the administration will receive their desired return on investment.

The war-making powers received another lift last week in a 2-1 vote by a panel of the U.S. Court of Appeals for the District of Columbia. The panel upheld the Military Commissions Act of 2006 that stripped federal judges of authority to review foreign prisoners' challenges of their imprisonment at Guantanamo Bay.

The Constitution, the judges ruled, does not extend habeas corpus rights to foreign citizens detained outside the United States.

Virtually certain to be appealed, that position may be defensible under the 2006 statute, but the Supreme Court twice has whacked the administration for holding detainees indefinitely and without charges. Now we'll see how important upholding the spirit of the law is to this court.

Credit the administration's legislative architects and their confederates in Congress for persistence and ingenuity in making geographic location a binding constitutional consideration that would elevate the letter of the law above its spirit. These folks are good, considering the factual basis for what has led to the travesty at Guantanamo.

In five years, about 775 detainees from 45 countries have been held at various times at Gitmo. According to Amnesty International USA, about 430 detainees -- purportedly "vicious killers" and the "worst of a very bad lot" -- today languish there, some of whom the administration says may never be released.

A recent study by Seton Hall School of Law found that of 517 cases reviewed, only 5 percent had been captured by U.S. forces. Most, 90 percent, were rounded up by Pakistani or Afghan Northern Alliance forces or warlords for bounties of as much as $20,000 each -- a fortune in that poor region -- and placed in U.S. custody.

Talk about a perverse incentive to "round up the usual suspects."

After public outcries against such travesties, including revelations of extraordinary rendition and torture, U.S. officials formed military tribunals, which relied on coerced, secret evidence that the unrepresented detainees were not allowed to see. Unsurprisingly, 520 of the 558 cases reviewed by tribunals resulted in designations as "unlawful enemy combatants."

Only 10 have been charged with crimes. No one has been tried, much less convicted.

So much for due process. Too many Americans seem to have forgotten that its exercise is not merely for the sake of the prisoners at Guantanamo but for the reaffirmation of a precious ideal and the preservation of our collective republican soul.

Denton's column appears in the Sunday and Tuesday editions of The Roanoke Times.