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.
 

[Non-Sequitur]

yup - in some states, the ratio of slave to free was that high

Try 55% in Mississippi and 57% in South Carolina.

[Gianni]

Then why did you say it did?

I didn't. You're lying again. Please stop.

Only if you ignore the speech as a whole and only look for those parts that fit your agenda.

Only if you ignore the man as a whole, and select only those speeches that fit your agenda.

[Gianni]

One (big) problem: The slaveowning aristocracy was against secession. Their way of life was safe only within the confines of the existing Union.

[Non-Sequitur]

I didn't. You're lying again. Please stop.

Fine. Whatever. I've grown used to southron revisionism.

Only if you ignore the man as a whole, and select only those speeches that fit your agenda.

And you expect me to believe that you've actually read one of his speeches in full?

[Gianni]

101 posted on 10/13/2004 12:15:42 PM PDT by Grigorii Efimovich Rasputin (...pleased to meet you, hope you guess my name...)

Since Oct 13, 2004

I've got my guess... and it's not Mick Jagger.

Who's holding the money in this week's pool?

[Gianni]

And you expect me to believe that you've actually read one of his speeches in full?

Many of them... Like I said, keep calling the man an 'enigma' all you want.

[Non-Sequitur]

Many of them...

Sure you have.

Like I said, keep calling the man an 'enigma' all you want.

Your words, not mine. Lincoln is not that hard to understand, if you have an open mind.

[Non-Sequitur]

One (big) problem: The slaveowning aristocracy was against secession. Their way of life was safe only within the confines of the existing Union.

Say what?

[GOPcapitalist]

$1 says he's a fan of Charles Sumner and Thaddeus Stevens.

[GOPcapitalist]

Make that the odious Charles Sumner and Thaddeus Stevens.

[A Jovial Cad]

That was a fine moment in the last debate--I was very proud of Bush for having the courage to bring that up. The Dred Scott decision was doubly tragic in that it was of the same kind of legal "reasoning" that later gave us Roe v. Wade.

[capitan_refugio]

If you are going to quote Fehrenbacher, please do it in context.

[capitan_refugio]

"Tell us, Oh Capitan my Capitan, what should the ruling have been in Scott?"

The other way around.

[Non-Sequitur]

You realize that you're debating a guy who admitted that he never even read the Scott decision, don't you?

[nolu chan]

[cr #115] If you are going to quote Fehrenbacher, please do it in context.

I did, and you have failed to show otherwise. Of course, you are the one who has repeatedly regaled us with imaginary Opinions of the Court.

For what the Court officially decided in the Scott case, Fehrenbacher offered the following:

============================

From one point of view, of course, there is nothing to puzzle over. What the Court decided was what the designated opinion of the Court announced as having been decided. To wit:

1. The ruling of the circuit court on the plea in abatement was subject to review by the Supreme Court.
2. Negroes were not citizens of the United States and therefore had no right to bring suit in a federal court under the diverse citizenship clause of the Constitution.

Consequently the circuit court had been wrong in its ruling on the plea in abatement and should not have accepted jurisdiction of the case.

3. Dred Scott, a slave, had not become a free man during his residence at Fort Snelling; for the Missouri Compromise restriction under which he claimed freedom was unconstitutional because Congress had no power to prohibit slavery in the federal territories.
4. Scott was not free as a result of his residence in Illinois; for his status, after his return to Missouri, depended entirely upon the law of that state as determined in Scott v. Emerson.

Consequently, Scott was still a slave, therefore not a citizen and therefore incapable of bringing suit in a federal court under the diverse-citizenship clause.

For these reasons, the suit must be returned to the circuit court with instructions that it be dismissed for want of jurisdiction.

 

 

============================

Source: Don E. Fehrenbacher, The Dred Scott Case, Chapter 14, "What the Court Decided," pp. 323-4.

[nolu chan]

(...pleased to meet you, hope you guess my name...)

Bad Mikey, how ya doin'?

[nolu chan]

Vegas would not give a line on that bet.