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Dred Scott and Bush's Comments on it

Old 10-09-04, 06:55 PM
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Dred Scott and Bush's Comments on it

This is not a Bush bashing thread. I just wanted to ask about Bush's comments about the Dred Scott opinion.

I just read the Dred Scott opinion for my Con Law II class about 2 weeks ago and am a bit confused by Bush's statement.

In the debate, he states that the justices that decided the Dred Scott opinion were reading their own opinions into the constitution and that he would want justices that read the constitution strictly. Bush specifically stated that the Constitution does not say anything about slavery.

The problem is that the Constitution did have slavery written into it. Article IV, section 2 paragraph 3. Bush was wrong when he said the Constitution had nothing in it about slavery. Wasn't the Dred Scott court opinion a strict reading of the constitution?

It seems to me that Bush was railing on that court(justifiably as it was a horrible opinion) for the wrong reasons. The Dred Scott court were sctrict constructionists weren't they? Wasn't their inability to see anything in the Constitution beyond the words and intentions of the founders the reason why that court voted the way they did?

As such, it seemed to me that Bush was advocating that he will actually want to appoint people to the court that will strictly read the constitution. People like the justices in the Dred Scott?
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Old 10-09-04, 09:49 PM
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Perhaps you should re-read the Constitution. It doesn't give anybody rights to own slaves.

It does say (now repealed) that other states must respect other states laws regarding fugitive slaves.

It also prohibited Congress from passing any bill banning importation of slaves until I believe 1808 or something like that.


Federalism at its highest form (albeit a wrong cause)

Secondly, Bush did not say the Constitution did not say anything about slavery

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.
I'm not sure what the last line means its probably just an error by Bush or the transcript person, but the point is that Bush didn't say the Constitution says anything about salvery.

Last edited by chanster; 10-09-04 at 09:59 PM.
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Old 10-09-04, 10:51 PM
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Interesting. I though I heard him say that the constitution does not say anything about slavery. I just thought he made it almost sound like slavery was was created by the Supreme Court. I mean, he cites a case that few people know much about and says that they said the constitution allows salvery. Sounds like he is saying these damn activist judges created slavery which is obviously not so.

While I do firmly believe that the Dred Scott court was motivated by personal views, I'm not sure I agree that they did not rest their views in what they saw was a strict reading of the constitution. Meaning that if states must respect slave owners rights, obviously the constitution was written with the belief that slave ownership was legal.
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Old 10-09-04, 11:13 PM
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The reason he cited Dred Scott was probably because the case was originally filed in St. Louis and Dred Scott lived there after he was released by his owner.
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Old 10-09-04, 11:39 PM
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I was pretty baffled when Bush brought up the case. First of all he totally got the case wrong. Its also a bit hard to say the constitution didn't allow for slavery ... why else bother writing an ammendment that abolishes it? Did the constitution saying slaves were 3/5 of a person speak to the equality of America?

According to the chief justice at the time, Scott wasn't a citizen (the Constitution defined slaves as 3/5 a human being) and therefore didn't even have the right to sue.

Oh, and Condie Rice thinks the Dred Scott case was a strict constructionist decision:

http://www.nationalreview.com/commen...dunn082703.asp

Earlier this month, during an otherwise laudable speech given before a gathering of black journalists, Condoleezza Rice endorsed the constitutional theory behind the infamous Dred Scott decision.

Her offending comment was brief. It came within a noble defense of our efforts in Iraq, in which she challenged the fashionable theories denying the ability (and desire) of non-Western peoples to live in liberal peace and toleration.

Still, Rice's claim that "when the Founding Fathers said 'We the People,' they did not mean the people in this room," was surprising stuff coming from a Republican. In adopting Chief Justice Taney's appropriately discredited vision of the Constitution, Rice joined everyone from abolitionists, to secessionists, to the academy — and even Thurgood Marshall. The one person she did not follow was Abraham Lincoln, who rose to the presidency attacking Taney's theory.
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Old 10-10-04, 12:09 AM
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That's a great quote chanster. Pretty revealing about the President's knowledge of the Constitution.
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Old 10-10-04, 12:18 AM
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I think Bush's point about the Scott case was correct. He may have been wrong about it being based on personal property, but he was right about it being a ruling by activist jurists.

The justices did use the rationale mentioned above to rule that Scott was not a citizen, and therefor had no standing to bring a case. The fallacy of that argument is discussed in the article Astro posted. But they went well beyond that and issued rulings on the federal gov. ability to outlaw slavery in general. If Scott's case was invalid then they should not have addressed the other issues at all.

They were probably right in that by the letter of the constitution Congress did not have the power to abolish slavery in all states. Hence, the Civil war and the amendments.

Overall, the case was a completely politically influenced mess. Two of the justices violated their ethics by writing to president-elect Buchanan to give him a heads up about the decision so he could safely say in his inauguration speech that the people should abide by the decision no matter what the outcome. Originally there was to be one majority opinion (which didn't go beyond the denial based on Scott's lack of standing), but when the dissenting judges revealed they were going to write opinions discussing the deeper constitutional issues that fell apart and every justice wrote an opinion. I think the final decision was over 200 pages long.
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Old 10-10-04, 01:03 AM
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I have no doubt that the Dred Scott court was activist in its rulings in that they went far beyond their power in invalidating the Missouri Compromise after they clearly stated that they had no jurisdiction.

However, their rationale was based on the strict text of the constitution and what they believed was the intention of the founding fathers.

This is the problem I have with the "stict constructionist" theory. It seems to me just a stealthy method for justices to bring about a result in favor of a majority class by simply saying the right or issue is not in the text of the constitution or of the intention of the Framers.

It seems to me just as activist as those who read rights into the constitution based on it being a living document designed to fit the needs of a changing nation.
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Old 10-10-04, 01:16 AM
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However, their rationale was based on the strict text of the constitution and what they believed was the intention of the founding fathers.
Those are two opposing viewpoints. A strict reading of the Constitution is a "strict constructionist" whereas purpoting to tell people that a decision is based on "what they believed was the intention of the founding fathers" is an activist judge - whether it be for noble social causes or poor ones.

An activist judge could make a ruling saying that only White People Have Rights because that is what the intetions of somebody was - that isn't about expanding rights.
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Old 10-10-04, 01:26 AM
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How do you determine if the decision was based on a strict interpretation of the constitution? I understand it was a pro-slavery court, but the constitution at the time wasn't exactly coming out against slavery.

I also don't buy Dunn's argument concerning the three-fifth's clause. While the south may have wanted slaves to count as a full person, it certainly didn't mean they would want them counted as citizens with all the rights of whites. Regarding morality, that's a tough call. Is the original constitution patently immoral for providing provisions for slavery or was it merely dealing with a necessary problem which had no solution at the time?

Regarding strict constructionism... How can someone's personal opinion be completely removed from their interpretation?
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Old 10-10-04, 01:27 AM
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But doesn't Scalia always talk in his opinions about what the intention of the founding fathers were? He is always talking about Tradition. He uses the word so much that I think he must get paid $5 each time he uses it.

He is known as a strict constructionist. But, he always looks at tradition and history in his decisions. He uses it to support his view of what the text means.

Last edited by sherm42; 10-10-04 at 01:31 AM.
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Old 10-10-04, 01:30 AM
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Originally posted by Astro

Regarding strict constructionism... How can someone's personal opinion be completely removed from their interpretation?
This is my point exactly. I don't think you can remove your personal opinion from interpretation. This is why I believe that even justices like Scalia who argue they are merely strictly interpreting the constitution are using that as a way of furthing their own personal beliefs.
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Old 10-10-04, 05:41 AM
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Dred Scott is code for Roe v. Wade. Bush was giving the message to his base that he would appoint justices who would overturn Roe v. Wade, but disguising it so he doesn't risk the votes of moderates.

This is a popular argument among the pro-life/anti-abortion movement. A couple of the many web pages that put forward the notion:

http://prolife.liberals.com/articles/casey93.html
As everyone knows, the Court can be -- and has been -- seriously wrong. The Court erred in the case of Dred Scott. And I believe that the Court erred in the case of Roe vs. Wade.
http://swissnet.ai.mit.edu/~rauch/nv...nberg_roe.html
...Roe vs. Wade, the Dred Scott decision of our time.
http://www.nrlc.org/news/1999/NRL699/slave.html
The reasoning in Dred Scott and Roe v. Wade is nearly identical.
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Old 10-10-04, 09:34 AM
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I think Bush can scratch "Constitutional scholar" off his resume.
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Old 10-10-04, 09:57 AM
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Why is he even talking about slavery? Is Vietnam a little to current for him now?
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Old 10-10-04, 10:17 AM
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The Dred Scott opinion, by the way, can be found here. That opinion was a lot of things, but activist was not one of them. Tradnor's got it right. Bush said "Dred Scott," but he really meant "Roe v. Wade," and his base knew it.
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Old 10-10-04, 11:08 AM
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Yes, thats a nice activist interpretation of what was said.
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Old 10-10-04, 11:23 AM
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Dred Scott was black.
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Old 10-10-04, 11:31 AM
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Everyone knows that Dred Scott is code for Scot1458.
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Old 10-10-04, 11:32 AM
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Appears Bush does have something in common with Clinton about not being constitutional scholars.

"The last time I checked, the Constitution said, 'of the people, by the people and for the people.' That's what the Declaration of Independence says."

President Bill Clinton, campaigning October 17, 1996. From a campaign speech given in California. Quoted in Investor's Business Daily October 25, 1996

As far as the citing of the case, It has less to do with Roe v. Wade but more to do with judges ruling constitutionality on opinion or like O'Connor who opined that american courts need to pay more attention to international legal decisions.

http://www.worldnetdaily.com/news/ar...TICLE_ID=35367
"She cited two recent Supreme Court cases that illustrate the increased willingness of U.S. courts to take international law into account in its decisions. "
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Old 10-10-04, 12:23 PM
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bhk, so that makes you feel better that the stewards of the Constitution don't know the Constitution on either side of the aisle?
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Old 10-11-04, 10:58 AM
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Originally posted by Bandoman
I think Bush can scratch "Constitutional scholar" off his resume.




Yeah - he is right up there with Dick Gephardt when it comes to understanding the Constitution.

I'll go with the 'code' argument too (and you can throw the Lawrence and MA SCt decision on gay marriage in with Roe). He sure did pick a curious way to make the argument though. When I think of the Dred Scott decision, the word 'activist' does not come to mind.
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Old 10-11-04, 11:40 AM
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I agree it was meant to send a signal. Voters don't about the rationale of the Scott case.

It was a bit obscure, but Scott lived in St. Louis and the case was originally argued there. They probably picked it in debate prep as a nod to the locals.
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Old 10-11-04, 11:56 AM
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Originally posted by Astro
(the Constitution defined slaves as 3/5 a human being)
Not really, for the census they were counted that way so that the South didn't "stack the deck" with overrepresentation in the Senate and HoR.
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Old 10-11-04, 01:50 PM
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bhk, so that makes you feel better that the stewards of the Constitution don't know the Constitution on either side of the aisle?
The ones that are really the stewards of the constitution are the judges in this country.

Does Bush making this gaffe worry you as much as the chief law enforcement officer in this country breaking the law?
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