And if you didn’t pick that up in Illinois you haven’t been paying attention to Alan Keyes.
For a rant on how Bush is completely confused on the Constitutional Law involvedin Dred Scott read Jack Balkin. For those that care about such matters, this is exactly why Bush shouldn’t be choosing Supreme Court Justices. The Taney Court was probably correct on the narrow decision given the, you know, language of the Constitution:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due
Dred Scott’s claim was that since he had been in free territory, he should no longer be property. The issue is difficult in terms of how to decide if one is a strict constructionist–but not in the way Bush thinks. Bush misses the fact that personal property rights in regards to slavery were guaranteed under the Constitution–Taney didn’t dream them up.
A man who doesn’t understand Dred Scott shouldn’t be President. And yes, everyone before him did understand it. The overreaching was claiming no African-American could be a citizen-not that slaveholders had property rights. This is why Thurgood Marshall called the doument flawed at its inception. It was. One can understand that historically and still celebrate it, but one would hope the President would know a case that no one should get out of a PoliSci 101 class without knowing.
The interesting part of the right-wing using the Dred Scott case to bolster its arguments against Roe v Wade is that Chief Justice Taney’s opinion in Dred Scott contains a very concise argument for exactly the type of “strict interpretation” that the conservatives admire in federal judges. In other words, the justices who said that slaves were merely property, not humans, share the same judicial philosophy that would overturn Roe v Wade.
Compare Taney in the Dred Scott opinion:
The duty of the court is, to interpret the instrument [the Founding Fathers] have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.
And the Federalist Society statement of purpose:
We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.
Sounds like today’s judicial conservatives kind of agree with then-Chief Justice Taney, eh?
On a slightly different note: how can Bush refer to the Dred Scott decision in St. Louis without mentioning that the original case was argued in that city? It certainly would have made his mention of the case a lot less random.
I did my own comparative of both Roe v. Wade and Dred Scott. Needless to say, my comparison was and still is incomplete. I have read Taney’s opinion as well as a couple of the concurring one’s. I did note with awe that they actually did care about the Constitution back then. It was a very sad thing to read as I’m sure it would be to anyone.
While it is true that Roe v. Wade’s constitutionality is very doubtful (I have read Roe v. Wade), the fact that Taney probably made a correct judicial decision based on the Constitution as it was written in his day is deeply saddening to me.
The commonality between Roe v. Wade and Dred Scott though is solely in this:
Roe v. Wade decided that the writers of the 14th Amendment (that was used by the PL side) probably didn’t mean to include unborn children. Dred Scott also made a similar ruling on the status of African Americans. The commonality is where we have two groups of human beings who were and are considered inferior and not deserving of the basic rights that everyone else enjoys. That is the commonality. Both court cases also referred to the laws of other states to prove that the Constitution was not meant to include these respective classes of human beings. Taney referred to the fact that slavery was still in existence as the Constitution was written. He said that ‘obviously’ African Americans were not included as persons deserving of liberty under the Constitution. He referred to the laws of other states where inter-racial marriage was concerned and where slavery was concerned at the very time when the Constitution was signed and afterwards. Blackmun did the same sort of thing where abortion laws were concerned in order to prove that fetuses could not possibly have been meant in the fourteenth amendment recognizing that if that was the authors’ intentions then the plaintiff in the case would lose.
It may seem interesting to you, Vasyl. It only substantiates the necessity for constitutional amendments. It means very little otherwise. This is odd. It’s like you are insinuating that conservatives and libertarians do not believe the Amendment process is necessary sometimes..(?)…Understandably, you can’t really expect that Dred Scott/Roe comparison would be perfect. No comparison is perfect. The fact that some people (African Americans and unborn children) were denied basic human rights under law is the relevant issue. Cute way of trying to skirt around that, though.
Sorry, ArchPundit, I was addressing Vasyl. Of course, I agree with what you originally wrote.