December 19, 2003 - It is amazing how the document in which James Madison summarized and recorded the compromises reached that hot summer in 1787 continues to vex overreaching autocrats. Cousin Jemmy's ink was barely dry when John Adams' attempts to insulate his cronies against his friend and enemy Thomas Jefferson led to Marbury v. Madison and the authority of the judiciary to examine the acts of government by the light of the Constitution. This week, after 200 years the Federal Courts were still at that task, defending the people from the parapets of that grand bulwark of the Republic.

As is usual, the object of their protection is less than appealing - a street thug born in a Brooklyn slum; bred on the streets of Chicago 's south side; and a migrant from the world of the Disciples and Latin Kings to radical Islam. Jose Padilla is far from a model of citizenship but he is a citizen non-the-less. The President declared him an "enemy combatant" after he was arrested on a warrant alleging that he was a material witness under subpoena issued by a Federal grand jury sitting in New York.

When the Second Circuit Appellate Court declared " The president, acting alone, possesses no inherent constitutional authority to detain American citizens seized within the United States , away from the zone of combat, as enemy combatants," it was reaffirming the principle that under our Constitution America is ruled by laws and not at the arbitrary whims of men, however well intentioned those whims might be. In America the means are not justified by the ends sought. In America the authority of the Federal government to impose its will on the individual must find its source in the law of the United States and its Constitution and not in a naked declaration of arbitrary power by its President.

The majority that directed that the District Court issue a writ of Habeas Corpus securing the release of Mr. Padilla from Donald Rumsfeld's custody was made up of one Clinton appointed Judge and one Judge appointed by President Bush himself. Partisan interests were submerged in Constitutional principle as they have been throughout the 200 years since Cousin Jemmy stood in Donald Rumsfeld's place in Marbury. It is important to remember that Padilla v. Rumsfeld does not set Jose Padilla free. He may still be held, charged and brought face justice in the criminal courts affording all the rights and protections accorded any citizen under the Constitution.

President Bush has announced that he has ordered the Justice Department to seek further review of this restriction of his exercise of arbitrary power. That is as it should be. There is no better way to mark the two centuries of American constitutional development than for Padilla v. Rumsfeld to be recorded in the history of the United States as reaffirming the principle that we are a government of laws and not of men. It is that heritage of individual liberty that the President of the United States and all of his officers have sworn to defend.