Bush Judges Rightly on Dred Scott

The Claremont Institute ^ | October 9, 2004 | Ken Masugi

[Stoat]

Bush Judges Rightly on Dred Scott

 

Democratic politico Susan Estrich on television and the LA Times (see the last paragraph) both went after Bush for his comments on Dred Scott, in response to his answer about whom he would pick for the Supreme Court. But Bush was in fact right in using the Dred Scott case as an example of bad judging and a bad reading of the Constitution.

 

Like the justice he has expressed admiration for, Clarence Thomas, Bush believes that the Declaration’s “principle of inherent equality … underlies and infuses our Constitution.” Bush’s understanding differs from that of not only Chief Justice Taney but most contemporary legal and historical scholars. He does have one significant ally though—Abraham Lincoln.

 

While the ownership of slaves is certainly implied in the original Constitution, Chief Justice Roger Taney went far beyond reasonable interpretation when he argued that the Declaration of Independence had no regard for the humanity of black people, who “were never thought of or spoken of except as property.” Because Taney misunderstood the radicalism of the Declaration, he could not understand the Constitution. Lincoln, however, rejected Taney’s bad history and regarded the Declaration’s equality principle as a “standard maxim of free society.”

 

Contrast this with Kerry’s preposterous endorsement of the Potter Stewart test of judicial craftsmanship, which is no more useful than that justice’s definition of pornography. Kerry appears to be precise in his obscurantism, while Bush is often obscure in articulating the clarity of his principles.
 

[Restorer]

Mr. Bush: "I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words under God in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution. "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."

I'm missing something here again. Are the Democrats now trying to say that the Dred Scott decision was correct?

[Savage Beast]

They would if it would serve their purposes. These people would stop at nothing to seize power.

[clee1]

That's exactly what they are saying. Truly sKerry.

[clee1]

That's exactly what they are saying. Truly sKerry.

[Johnnyboy2000]

Susan Esterich is Charlie Rangel in disguise.

[Prophet in the Wilderess]

To bad the SHEEPLE would just check the FACTS of history, and look and see, that YES !! it's true, that the Democrats were the ones who wanted to disenfranchise the blacks in the south and kept them from voting in the south after ABE freed them.
Go check it our yourself.
It was the Republican party who were the ones who wanted to free the slaves , but, the Democrats wanted to keep them as slaves.
I just can't understand, why they chose to pick the party ( DEMOCRATS ) who wanted to keep them as slaves.
Why can't they see, and open there eyes to the FACTS OF HISTORY.
The ( LIE ) of, the " REPUBLICAN PARTY is the party of the rich " line has been played over & over 7 and over. Why can't people look and see, they are the party ( REPUBLICANS ) who want ALL PEOPLE TO GET AHEAD, and not just for the rich.
THE REPUBLICANS WERE THE ONES WHO FREED THE SLAVES IN THE SOUTH IN THE CIVAL WAR, with ABE , not the DEMOCRATS.
How long will the Afro Americans believe the lie of the DEMOCRATS ? and keep pulling the wool over the Afro Americans eyes ?

[Prophet in the Wilderess]

There were Black congressman in the south who were trying to run for congress, but, were stopped by the Democrats. Some of those black congressmen were killed, harrased in the south for trying to run for congress.
Why does the Afro Americans check these facts out ?

[remember]

I'm missing something here again. Are the Democrats now trying to say that the Dred Scott decision was correct?

No, I believe that they think that Dred Scott is code for Roe v. Wade and indicates that Bush would nominate a judge to help overturn that decision. For example, you can find the following excerpt on the site of OR/OSA (Operation Rescue / Operation Save America) at http://www.operationsaveamerica.org/walk/live/pressReleases.html:

A broken set of the Ten Commandments, a baby killed by abortion, a white horse (Judgment) and donkey (Mercy), will bring God’s message to St. Louis.

Rev. Flip Benham, Director of Operation Rescue / Operation Save America will join Angela and Daniel Michael of Small Victories Ministry at the Historic Old Courthouse, where the infamous Dred Scott case was heard. "The Supreme Court was wrong in the Dred Scott Case that declared our black brothers and sisters non-human and in Roe v. Wade that declared innocent little boys and girls non-human. Judgment and Mercy are calling America to repent." Rev. Flip Benham, National Director, OR/OSA

As the excerpt says, the Dred Scott case was heard in St. Louis, the same place where Bush made his remark. This, of course, may be a coincidence. In any case, many in the pro-life movement equate Dred Scott and Roe v. Wade.

[capitan_refugio]

Stoat - thanks for posting this article.

It would be interesting to hear what the "Confederate Cabal" has to say about this? They seem to think the Dred Scott v Sandford (sic) was fine example of strict constitutional construction. And they don't like anything coming out of the Claremont Institute.

[Casloy]

why they chose to pick the party ( DEMOCRATS ) who wanted to keep them as slaves.

Actually, for years they did vote Republican as the Party of Lincoln. In the South it was a moot point since they lost the right to vote fairly soon after reconstruction. What got them voting Democrat as a group was Roosevelt. During the 60's, when the back of the DixieCrat voting bloc was broken, it was Republicans who were against most of the civil rights legislation based on principle and generally not for racist reasons. But, the Dems did one helluva good job of pinning the racist label on them, and it is hard to break.

[AmericanVictory]

And the truth is that Roe v. Wade is very much like Dred Scott and that those upholding it, like Taney upholding slavery, are biased in favor of what is ultimately an insupportable outcome and thesis. Killing the innnocent in the womb is as morally insupportable as slavery was.

[nolu chan]

[Johnnyboy2000] Susan Esterich is Charlie Rangel in disguise.

So, what have you got against Charlie Rangel?

[Non-Sequitur]

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.

It might have helped if Bush read up on the case before including it in his response. Scott v Sandford had nothing to do with the Constitutionality of slavery, and everything to do with the power of the Congress to limit the expansion of slavery. Slavery was Constitutional because there was nothing in the Constitution which prevented it. It would remain Constitutional until the 13th Amendment went into effect.

[Stoat]

You're quite welcome and thank you for your kind words :-)

I regret that I have not up to this point been made familiar with any Confederate Cabal, and remain perplexed as to why they might be unhappy with the fine work of the Claremont Institute. For years the C.I. has impressed me as being responsible for publishing numerous articles brimming with insight and elouquence. The Claremont Review of Books is only one example of their dedication to literary excellence, and my suspicion is that perhaps this Confederate Cabal is suffering from a dietary deficiency, possibly involving insufficient ingestion of gumbo or steak with bearnaise sauce :-)

Numerous clinical studies have shown that such deficiencies commonly result in a lack of appreciation for fine writing :-)

[Stoat]

OWWWWW!! OWWWWWW!! You hurt my eyes :-(

[reg45]

Are the Democrats now trying to say that the Dred Scott decision was correct?

Yes, in the sense that Dred Scott v. Sandford, 60 U.S. 393 (1856) represents a classical example of judicial activism.

[Gianni]

Curious as to what response you're looking for here, El Capitan of Deception.

I guess (better sit down for this one) I'd have to agree with Non, that Bush blew the reference by misrepresenting the case and it's context. I would add that Non's statement, "Slavery was Constitutional because there was nothing in the Constitution which prevented it," is incomplete in that the Constitution explicitly protected the practice, and bound the ratifying states also to its protection by the fugitive slave clause.

The mistake that you're trying to justify is to grant the DoI the weight of the Constitution, or even the law. The DoI contains the force of neither, nor could it have ever. Taney made clear that the DoI and the Constitution were written by slavers, and signed/ratified by slavers. Nothing the Clermont Institute writes can change the clear fact that the man who penned the Declaration could not possibly have believed it applied universally, let alone the lame attempts to incorporate it into the Constitution via some metaphysical underpinning/connection.

Ultimately, all Taney did was to reiterate Lincoln's statement that the DoI represented, "the white man's charter of freedom."

We have no need to scrub our history and take out all the bad stuff. Leave it there as testament to our mistakes and our honesty.

[Prophet in the wilderness]

Yes your right.
We even had ( SPIN DOCTORS back then ).
Our true enemy in this country is not just the terrorist overseas, but,, THE MAIN STREAM MEDIA .
And the true enemy of the Afro Americans are the LIBS/FEMS/GAYS , it's just, the Afro Americans have believed a lie for so many years that they have been lulled to sleep. For me, I have some GOOD experiences with black people, and bad. I accept a person on ( WHO THEY ARE , NOT THEIR COLOR OR RACE ) I think, the problem now in our country is not ( for white people ) the color of the person, but, the ( ATTITUDE )of that person. The LIBS/FEMS/GAYS/ have used RACE/ and the RACE card to bring a ( DEVIDE ) between black people and whites. Like I said,, it's not the color, I respect the person for WHOM ( CHARACTOR ) they are, not the race, the problem is, is with the ATTITUDES. I remember, when my mom and dad were separated, and getting a divorce, WE HAD NOTHING, WE WERE POOR, SO POOR, we had to cook our food from a hole in the ground ( and you can thank the FEMS for divorce for being at a high rate in this country ). Yes, we had to make a hole in the ground outside, to cook our food, because, the divorce took a devastating toll on us, we had no money. This next story is before we moved to the other house, the house were we had to make a hole in the ground to cook our food. I remember, our close neighbors were a black family, ( they cut the lawn behind our house, without being asked, or paid, they did it out of LOVE ) I still remember, they took us into their home ( AS THEIR OWN, and cooked food for us ) so, I do have some good memories of black people in my life, and I thank GOD they were in our life. All I can say to the black people is, REVINGE will make you blind, REVINGE will get you no were. Getting back at someone will make you blind to the truth. I have had good times with black people, and I have had bad times, but, life goes on. I asked this black man at my work one time ( it was just me in the room, I was the only white person in the room ) and my co workers in the room were black. I was bold enough to get into the discussions between Blacks and Whites. I asked him before all the others. I said " what is it ? that the black people want from us white people " and he said " ACCEPTANCE, the black people want to be accepted " and I said, well, I can't speak for the rest of the white people, but, as for me, and in my life, I try to accept ( ALL PEOPLE ) I give the next person I meet, the same respect as I would want from them, thats all. By the way, when I first meet this guy, he was a HARD CORE DEMOCRAT, but, a few months ago, before he left to go to another job, we got into the political debate, and he said in front of his Afro American brothers ( I LIKE BUSH ) , for me ? I could not believe my ears. But, a few years ago, I told him, One day, your going to be REPUBLICAN, and he ( in a JOKING WAY ) argued that with me, and said,, naaaaaa never happen, but, WITH GOD ? ALL THINGS ARE POSSIBLE. yup, thats what I told him, YOUR GOING TO BE A REPUBLICAN ONEDAY. By the way ? even though we had our differences of option, they respected me. They knew I was not WISHY WASHY, OLD FLIPPER. Guess who were the ones who defended me if someone at work was giving me a hard time at work ? ( the Afro American ) guys, in a way, they adopted me as they own kid.

[Non-Sequitur]

Ultimately, all Taney did was to reiterate Lincoln's statement that the DoI represented, "the white man's charter of freedom."

If you once presented a quote in context I would be amazed. "But I would also, if I could, array his (Henry Clay's) name, opinions, and influence against the opposite extreme -- against a few, but an increasing number of men, who, for the sake of perpetuating slavery, are beginning to assail and to ridicule the white man's charter of freedom -- the declaration that "all men are created free and equal." Note 'all men are created free and equal', not just white men, and Lincoln went on to say "So far as I have learned, the first American, of any note, to do or attempt this, was the late John C. Calhoun; and if I mistake not, it soon after found its way into some of the messages of the Governors of South Carolina.? So Lincoln is contrasting Henry Clay against the usual mob of southern leaders who didn't believe that the black man was in any way the equal of a white man, and that they had any rights that the white man was bound to respect. They were the ones who swallowed the Taney decision hook, line, and sinker and not Lincoln.