Dred Scott: All Is Revealed

Silly me. I couldn't understand why on earth Bush mentioned the Dred Scott decision last night. I put it on my list of three informative moments from the debate, but only because, as I said, it seemed to me to provide an answer to the question, does Bush not know what's in the Constitution, or does he just not care? (My reasoning being that in both cases there is a fairly straightforward constitutional argument in support of the decisions he mentioned, whether you agree with it or not, and therefore neither is a remotely plausible candidate for the title 'decision requiring judges to interject their personal opinions'.) The Dred Scott example raised some other minor questions -- did Bush think that slavery was likely to be an issue in this race? If not, why mention Dred Scott? And why would someone who knew enough to be able to mention Dred Scott not also know that at the time the Constitution did allow slavery, which is why we needed the 13th Amendment? But at bottom I thought it was just another bizarre Bush moment, like his reference to medicines from 'a third world'.

Boy, was I wrong. It turns out that 'Dred Scott' is actually code for 'Roe v. Wade'. From Paperwight (the first link):

"Some people seem to be a bit boggled by Bush's Dred Scott remark last night. It wasn't about racism or slavery, or just Bush's natural incoherence. Here's what Bush actually said:

If elected to another term, I promise that I will nominate Supreme Court Justices who will overturn Roe v. Wade.

Bush couldn't say that in plain language, because it would freak out every moderate swing voter in the country, but he can say it in code, to make sure that his base will turn out for him. Anti-choice advocates have been comparing Roe v. Wade with Dred Scott v. Sandford for some time now. There is a constant drumbeat on the religious right to compare the contemporary culture war over abortion with the 19th century fight over slavery, with the anti-choicers cast in the role of the abolitionists."

And you know what? Paperwight is right. Here are a few quotes:

Ronald Reagan: "Over the first two years of my Administration I have closely followed and assisted efforts in Congress to reverse the tide of abortion — efforts of Congressmen, Senators and citizens responding to an urgent moral crisis. ... This is not the first time our country has been divided by a Supreme Court decision that denied the value of certain human lives. The Dred Scott decision of 1857 was not overturned in a day, or a year, or even a decade. At first, only a minority of Americans recognized and deplored the moral crisis brought about by denying the full humanity of our black brothers and sisters; but that minority persisted in their vision and finally prevailed. They did it by appealing to the hearts and minds of their countrymen, to the truth of human dignity under God. From their example, we know that respect for the sacred value of human life is too deeply engrained in the hearts of our people to remain forever suppressed. But the great majority of the American people have not yet made their voices heard, and we cannot expect them to — any more than the public voice arose against slavery — until the issue is clearly framed and presented."

Rick Santorum: "“Roe v. Wade is Dred Scott II,” he said. “There is something inherently wrong and unjust here.” Just as the Dred Scott Case of antebellum America effectively put the rights of the slave-owner over the rights of the slave, Santorum argued that Roe v. Wade placed fetal liberties subordinate to those of mothers."

Gary Bauer: "Today, we mourn the anniversary of one of the two most damaging Supreme Court decisions in our nation's history. In 1857, the Supreme Court denied the personhood of black Americans in the infamous Dred Scott decision. Twenty-five years ago, seven people decided that a mother has a constitutional right to have her baby killed up until the moment of birth."

A statement signed by, among others, Chuck Colson, Ralph Reed, James Dobson, and various religious figures: "The crisis created by Roe and its legacy is not without precedent in our national life. Our present circumstance is shadowed by the memory of the infamous Dred Scott decision of 1857. Then the Court, in a similar act of raw judicial power, excluded slaves of African descent from the community of those possessing rights that others are bound to respect."

There are many, many more. For what it's worth, Dred Scott also seems to be code for "judicial activism" and for "a decision we are not bound to accept."

The President's hitherto perplexing remark is clear to me now.

Comments

[kenB]

Funny, I was just about to add a comment in the Post-Debate Thread saying that I had seen this theory in the comments at Drezner and asking whether it seemed plausible. It's certainly difficult to come up with any other explanation for the reference, but on the other hand this seems to have just a tiny taste of foil.

[Hal]

I also love the fact that the Dred Scott decision was made on strict reading of the constitution.

We think they are not, and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.

So we have the most bizarre situation where a decision Bush doesn't agree with was made using the very judicial philosophy he (and his supporters) want to see returned to the judiciary.

These guys crack me up.

[hilzoy]

I don't think it's too tinfoil-y, though of course, as the author of this post, I wouldn't. At any rate, I think that this President often talks in terms that have heightened meanings for parts of his base, meanings that are not immediately identifiable to others; and that there's nothing pernicious about this. (Compare Amy Sullivan's list of religious references in Barack Obama's speech at the Democratic Convention; that's the sort of thing I'm talking about.)
Plus, there's the fact that his comment made no sense otherwise. As I said, though, your mileage may vary.

[Josh]

I think that this President often talks in terms that have heightened meanings for parts of his base, meanings that are not immediately identifiable to others; and that there's nothing pernicious about this.

I have read (although I can't recall where) that the phrase "culture of life" is another of these terms, and that it's specifically aimed at Catholic voters. As you said, it's not that there's anything pernicious about it; knowing about it puts some of Bush's comments in better context, though.

[Julio Reilley]

The more of Bush's words on that subject you read

[[
Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.
That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.
]]

The more plausible it seems that he is using it as a code.

Bush knows nothing about the case, realizing in mid sentence that everything he had said up to that point about the constitution was wrong.

He was trying to compare it to the judicial activism that conservatives say resulted in Roe v. Wade before he realized that his point was invalid.

It seems that he is not comfortable enough with the facts surrounding the case to just spontaneously bring it up, but he forced it up, it came entirely out of the blue from the man who skipped the NAACP convention.

[Jesurgislac]

In order to give fetuses rights, it is necessary to remove rights from women - specifically, from pregnant women, but the concept of "fetal rights" puts any woman who can become pregnant into an invidious position.

From a quick assessment using Google, it's certain that "Dred Scott" and abortion are linked - but the irony is that the story of Dred Scott also makes the case that women ought not to be deprived of their rights - that no group of people ought to be intrinsically made less than citizens of the United States. Justice McLean's comment on interpreting the Constitution presents a point of view that Sebastian Holsclaw would profoundly disagree with - but McLean was one of the dissenters.

Justice McLean, one of the two dissenters in the Dred Scott case:

I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings, rather than to look behind that period, into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground. Our independence was a great epoch in the history of freedom; and while I admit the Government was not made expecially for the colored race, yet many of them were citizens of the New England States, and exercised, the rights of suffrage when the Constitution was adopted, and it was not doubted by any intelligent person that its tendencies would greatly ameliorate their condition.

[liberal japonicus]

This brings up the memory of Reagan using the phrase 'I believe in states' rights' at the Neshoba Co. Fair in Philadelphia, Mississippi. Has there ever been anything presented about who was the person or persons directly responsible for getting that into the speech? I realize that speech writers (with the exception of Peggy Noonan) aim to stay behind their bosses, but I wonder if people have dug into the story to find out.

Obviously, it would be almost impossible to find out who was responsible for Bush bringing it up, though idle speculation is always encouraged (by me, anyway)

[caleb]

So, the President says he is a man of conviction and fine with taking unpopular stances.....and then he has to use secret code to address abortion?

The fact that it even has to be explained to...well...just about every living person in this country isn't a good sign that it connected with the undecided.

Is this Bush's second Gore moment(first being the "I proposed the hydrogen car.")?

[CharleyCarp]

I'm with Hal on this. Surely it is an article of faith amongst our conservative friends that DS was CORRECTLY decided, and that amendments 13-15 were therefore required.

[Katherine]

You could argue that the conservative view is that, where there is a dispute over whether someone is a person or not, the Supreme Court has no business settling the question in favor of non-personhood. Which both Roe and Dred Scott do, though the Roe court claims not to. (This is why I think Roe was incorrectly decided, though I think Griswold and Lawrence were correctly decided and I think abortion should be legal. I do NOT believe Roe was as incorrect as Dred Scott; it is clear that a slave is a person while it is genuinely unclear whether a fetus is a person. I do think it is clear enough that a fertilized, unimplanted embryo is not a person for the court to decide Griswold as it did.) But Justice Scalia believes that illegal immigrants living in the United States should be seen as constitutional non-persons, so....

If Bush is afraid to say he will appoint justices to overturn Roe on national television, why do anti-abortion voters believe he will DO it?

Anyway, if you want to use code words you should do so in a way that's not nonsensical to people who don't understand the code words.

One more thing--doesn't this ridiculous statement:
"That's a personal opinion; that's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America."

suggest that he's actually thinking about gay marriage rather than abortion?

[dmbeaster]

I did not believe this meme when I first heard it, but I am sold now.

I was amazed that Bush referred to Dred Scott at all, given his basic illiteracy. Then amused somewhat that he screwed up explaining it. And also mystified as to why he would mention it at all -- it seemed strangely wonkish even for someone who indulges in policy arguments (and that certainly ain't Bush).

As for Dred Scott, it was correctly decided under a literal reading of the original intent of the Constitution. Funny how Bush seems to knock it as a decision based on "personal opinions."

But since its a buzzword equivalent for Roe v. Wade for the anti-abortion crowd, all of his comments make sense.

The Dred Scott case is interesting for a lawyer wonk, and highlighted a classic legal problem with the compromises adopted to tolerate the slavery/anti-slavery split of the country. But as law, the Constitution implicitly endorsed slavery, as well as the concept of slaves as less than full persons. If slaves are property first and people second (which they obviously were), the decision is correct.

Interesting how the dissent in Dred Scott quoted above (never read it before, and thanks Jesurglisac for posting it) reflects the more modern approach to Constitutional law -- i.e., adherance to first principles matters more than adherance to literalism or "original intent" (whatever that is).

As for Roe v. Wade, I disagree with Katherine that you can have the privacy cases but not Roe v. Wade. (The same is true of Lawrence v. Texas -- kudos to the conservative for getting that one right). The privacy cases are a Constitutional stretch in the first instance, but its hard to imagine our legal landscape now without this doctrine. I think it was overlooked as a specific right by the "orignial intenters" simply because the founding fathers, aware as they were of governmental tyranny, never imagined that level of government intrusiveness into our lives.

[Katherine]

Sure you can. You can believe in a fundamental right to privacy, but also believe that the government has a compelling interest in protecting the life/potential life of the fetus. The right to privacy is no more absolute than the right to free speech.

I also don't think Dred Scott was correctly decided on legal or moral grounds. It was an awful decision across the board. But it does show that "strict constructionists" judges professing faith in the "original intentions of the founders" are no less likely to abuse their power than any other judge.

[Anarch]

I also don't think Dred Scott was correctly decided on legal or moral grounds.

Moral grounds, sure, but in what way were the legal aspects of Dred Scott decided poorly in the context of the time?

[dmbeaster]

Katherine: You convinced me on relevance of the balancing test idea re privacy and Roe v. Wade (although not on the outcome), although I think that means you can also balance away the rights at issue in Lawrence, et al. Problem with privacy cases is that with all of that balancing, they tend to end up looking like legislation (although so does a lot of other Constitutional law).

I am not endorsing the Dred Scott reasoning, but legally it made a lot of sense at the time.

[Prodigal]

IIRC, Dred Scott was originally filed in the courthouse that was located something like a block away from where the debate was being held - so aside from the "code" angle, you have the "local interest" thing going for it.

As for "Gore moments"? That would require Bush to say something that was true, but which the press then started lying about.

[Prodigal]

IIRC, Dred Scott was originally filed in the courthouse that was located something like a block away from where the debate was being held - so aside from the "code" angle, you have the "local interest" thing going for it.

As for "Gore moments"? That would require Bush to say something that was true, but which the press then started lying about.

[Prodigal]

Sorry about the double post - my browser 404'd on me when I made the first attempt to post, and since I didn't think to confirm whether my post had been eaten, I sent it again. Mea culpa.

[Sebastian Holsclaw]

"You could argue that the conservative view is that, where there is a dispute over whether someone is a person or not, the Supreme Court has no business settling the question in favor of non-personhood."

Pretty much.

As far as Roe goes, the Supreme Court puts up some unusally arbitary numbers about where the cutoff points are. Not only does the Constitution say nothing about abortion, it doesn't say anything about there being theoretical differences at exactly 3 and 6 months of gestation. Not that those differences are respected in practice.

[CharleyCarp]

It's all very well to say that where there's a "dispute" the Court should come down on the side on "non-personhood," but this seems to me to be a complete evasion. Chief Justice Taney's analysis of the original intent was sound, I think. If you conservatives want to abandon relying on original intent for an interpretative method that looks at the end result -- coming down on the side of personhood no matter what the text -- I'm happy to have you over on my side.

[Sebastian Holsclaw]

"Chief Justice Taney's analysis of the original intent was sound, I think. If you conservatives want to abandon relying on original intent for an interpretative method that looks at the end result"

Taney came to the crazy ruling that no black people could become citizens. That wasn't a sound reading of original intent or of original text.

[CharleyCarp]

And the textual support for the proposition that personal property can become a citizen is . . .

[Sebastian Holsclaw]

And the textual support that suggests a non-slave cannot become a citizen is?

The textual support that suggests slaves cannot be freed is?

The textual support that suggests different states can't have different rules is?

The common law understanding was that states didn't have to enforce the rules of other states that were repugnant to them. Nothing in the Constitution contradicts that. And before you suggest the interstate commerce clause, realize that Congress had already ruled on the issue. And before you mention the full faith and credit clause, read the whole thing: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Dred Scott declared all people of African descent (including non-slaves) unable to become citizens. An idea supported nowhere in the text even if you believed that the Constitution wholly supported the institution of slavery. It also declared the Missouri Compromise unconstitutional, a decision not supported by the text.

[Jesurgislac]

Sebastian Holsclaw: Not only does the Constitution say nothing about abortion, it doesn't say anything about there being theoretical differences at exactly 3 and 6 months of gestation. Not that those differences are respected in practice.

Oh yes, they are. And you know it, because last time we had a discussion on abortion, I cited you the figures that prove it.