Robert Waldmann draws our attention to Section 1 of Amendment XII to the Constitution of the United States, ratified in 1865:
Article XIII: Section 1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
And he notes that everybody before 1865--everyone--believed that the Constitution (as it was back then) allowed slavery. When George W. Bush said that if Roger B. Taney had been ruling according to the Constitution rather than his "personal opinions" inDred Scott v.Sanford he would then and there have abolished slavery in the United States, Bush was completely wrong:
Posted by DeLong at October 8, 2004 09:37 PM | TrackBackBush: 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.
This kind of statement by Bush really does reveal the heart of the discussion process he (and Cheney) use when deciding what we would like to hear. They toss these lines out to make a good story, they don't verify them, they certainly don't research them, they use them because they sound good when they're saying them. It was obvious by the third sentence that Bush didn't have any real grasp of the Dred Scott decision beyond the fact that it was the wrong decision at the wrong time and cost this country a great many lives. By the fact that he is unable to admit the parallel between this bad decision with his Iraq war decision says a great deal about his intellect - by being unable to admit a mistake says even more about his disconnection with the rest of the world.
Posted by: pt martin at October 8, 2004 09:50 PMThere you go again Brad. I did not draw anyone's attention to the text of the 13th amendment (which I have somewhere on my hard disk so I could have). I think Bush was trying to quote the 14th amendment, but, since he didn't manage to quote two successive words from anywhere in the Constitution, it's hard to say.
I assumed that Bush would lose the debate to Kerry. I never imagined that he would manage to lose a debate to Taney at the same time. That requires upside down genius.
Posted by: Robert Waldmann at October 8, 2004 10:13 PMbut since the 14th amendment was not part of the Constitution when Taney ruled, how could Bush have been trying to quote from it? And what part of it was he trying to quote from? (The fourteenth amendment is the only place where the equality of citizens is referred to, IIRC: "equal protection of the laws.") Equality of citizens is nowhere referred to in the body of the 1787 Constitution ("equal suffrage" of states in the Senate is as close as you get.)
Posted by: Brad DeLong at October 8, 2004 10:21 PM'[...]since he didn't manage to quote two successive words from anywhere in the Constitution, it's hard to say."
[outrage overflow]Isn't that amazing from the President of the United States of America??? [/outrage overflow]
Posted by: Jean-Philippe Stijns at October 8, 2004 10:28 PMThe big legal problem with Dred Scot is that it forced states that abolished slavery to enforce slavery with regard to fugitive slaves in their jurisdiction. The big problem with Bush using it as an example is that it doesn't represent any debate that currently exists in this country (unless you draw parallels to our Taneyization of fugitive Cubans).
Bush wanted more than one example of judicial fiat, but evidently he didn't want to pick the most divisive, such as Roe or Lawrence. So he picked one that everybody not associated with the Sudanese elite can agree on.
He could have taken the high road and picked a case in which the activist in question shares his view on the policy being ruled on. For an ancient example, one can criticize the dissenting opinion in the Slaughterhouse Cases, on the basis that exclusive rights to the slaughterhouse industry in selected regions is a bad thing but not unconstitutional.
Posted by: Alan K. Henderson at October 8, 2004 10:35 PMBush has never had to run a race where he needs to solidify his base by speaking the code. Strom or Trent Lott or Ashcroft would have all done a better job at speaking the code. Bush knew he was supposed to wink at those who opposed Brown V Board of Education but it just didn't come out quite right. Every single day the Missouri GOP gives thanks that East Saint Louis is across the river in Illinios.
A Bush Supreme would come from the ranks of the Federalist Society. Starr and Olson have discredited themselves enough in the Clinton Wars to lose a nomination fight. Unfortunately, there are a lot more lizards that could crawl out from under those rocks.
Posted by: bakho at October 8, 2004 10:43 PMBrad: The 13th amendment wasn't a part of the Constitution in 1857 either :P
Posted by: cyclopatra at October 8, 2004 10:58 PMIndeed, prior to the civil-war inspired amendments, the Constitution had specifically (with weasel words --- as actually using the word 'slavery' was too far over the line) sanctioned slavery to the extent of forbidding Congress to interfere with the slave trade for the first 20 years of life under the Constitution.
Article I Section 9 Clause 1: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
As we all know, 'such Persons' were only counted as 3/5 for purpose of allocating representation in Congress and taxes levied on a per capita basis.
Bush's entire answer to this question was pretty much of a trainwreck, as he started off with that incredibly sour joke about picking judges who'd vote for him ("Hey, how about that Bush Vs. Gore? What a knee-slapper!").
But I think you risk reading too much into Bush's mention of Dred Scott. Was Bush saying he'll be the bulwark against a tide of pro-slavery judges? Or was he simply looking for a non-controversially wrong decision, and came up with the only one he could remember? Even though it was a bizarre issue to be bringing up for a debate in the year 2004?
I have a hard time believing Bush would be capable of coherently discussing constitutional jurisprudence in any depth. Like an unprepared student trying to BS his way through an exam question, Bush seized on the only even slightly germaine fact he was aware of and tried to force it into an answer, no matter how silly it ended up looking.
Posted by: jimBOB at October 8, 2004 11:25 PMIndeed, Wills argues, it was the 3/5ths weighted vote of the southern slaveowners that propelled and maintained Jefferson--and the South -- into control of the US government. As John Quincy Adams remarked, "The election of Mr. Jefferson to the presidency was, upon sectional feelings, the triumph of the South over the North -- of the slave representation over the purely free."
Wills reviews much of this in a recent article: "Though everyone recognizes that Jefferson depended on slaves for his economic existence, fewer reflect that he depended on them for his political existence. Yet the latter was the all-important guardian of the former. Like other Southerners, Jefferson felt he had to take every political step he could to prevent challenges to the slave system. That is why Southerners made sure that slavery was embedded in the very legislative process of the nation, as it was created by the Constitution -- they made the three-fifths "representation" of slaves in the national legislature a nonnegotiable condition for their joining the Union." (New York Review of Books, Nov. 6, 2003)
At least twelve of Jefferson's electoral votes in the presidential elections of 1800 "were not based on the citizenry that could express its will but on the blacks owned by Southern masters," Wills writes. "A bargain had been struck at the Constitutional Convention -- one of the famous compromises on which the document was formed, this one intended to secure ratification in the South. The negotiated agreement, as I have said, decreed that each slave held in the United States would count as three fifths of a person in setting the members of the Electoral College."
Posted by: mauisurfer at October 9, 2004 12:20 AMIndeed, Wills argues, it was the 3/5ths weighted vote of the southern slaveowners that propelled and maintained Jefferson--and the South -- into control of the US government. As John Quincy Adams remarked, "The election of Mr. Jefferson to the presidency was, upon sectional feelings, the triumph of the South over the North -- of the slave representation over the purely free."
Wills reviews much of this in a recent article: "Though everyone recognizes that Jefferson depended on slaves for his economic existence, fewer reflect that he depended on them for his political existence. Yet the latter was the all-important guardian of the former. Like other Southerners, Jefferson felt he had to take every political step he could to prevent challenges to the slave system. That is why Southerners made sure that slavery was embedded in the very legislative process of the nation, as it was created by the Constitution -- they made the three-fifths "representation" of slaves in the national legislature a nonnegotiable condition for their joining the Union." (New York Review of Books, Nov. 6, 2003)
At least twelve of Jefferson's electoral votes in the presidential elections of 1800 "were not based on the citizenry that could express its will but on the blacks owned by Southern masters," Wills writes. "A bargain had been struck at the Constitutional Convention -- one of the famous compromises on which the document was formed, this one intended to secure ratification in the South. The negotiated agreement, as I have said, decreed that each slave held in the United States would count as three fifths of a person in setting the members of the Electoral College."
see Gary Wills, "Negro President: Jefferson and the Slave Power (Houghton Mifflin)
reviewed at
http://www.counterpunch.org/cohen11292003.html
The article by Wills in NYReview of Books contains the same material, but it is only available (now)
for $4.
Bush's bizarre Dred Scott reference is evidence that he took Keyes up on his offer of debate coaching.
Posted by: TreeTop at October 9, 2004 12:57 AMBush expressed himself badly and mangled history. What he is trying to say is he would not appoint judges who would engage in “results based jurisprudence.” This is exactly what Taney did in Dread Scott, and what modern courts have done in cases like Roe, and more recently in Lawrence. Only they try and dress it up with oxymoronic phrases like “substantive due process” or highly elastic notions like “liberty interest.”
Posted by: A. Zarkov at October 9, 2004 02:06 AMNope, he would appoint those who would overturn the ADA, but really not on any results basis. Do you really believe that?
Posted by: Rob at October 9, 2004 04:17 AMI thought the key to bush's thought was the stumbling over the phrase "personal property" I think that the entire issue in his mind was clouded by a vague feeling that the "personal" of "personal property" was the same as the personal in "personal morality" or "feelings" or values all of which he thinks are "personal" (ie idiosynratic) and not, somehow, "in" the constitution. It didn't make any sense because the example doesn't fit what he thinks it does, but he thinks it does because the phrase reminds him of something he heard once about "activist" judges putting their "personal" beliefs above the law...or something.
Posted by: Kate Gilbert at October 9, 2004 06:58 AMThe whole argument was bizare. Bush looks to me like he is going senile. Too much alchohol and too much coke up the nose.
The answer is the sort of thing that you would expect a D student to give in a constitutional law exam on a question they had not done the background reading on but tried to wing it.
The context of the question by the way was fitness to choose supreme court justices.
Posted by: Phill at October 9, 2004 07:09 AMSilly me. I always thought Dred Scott was really about whether states could enforce their slavery laws outside their borders--whether, that is, Dred Scott had ceased to be a slave when his owner took him from a slave state.
The institution of slavery was never in question. It was just its reach.
Posted by: Paul at October 9, 2004 07:27 AM"Activist judges" = "judges I disagree with"
Posted by: lightning at October 9, 2004 07:29 AMThat Bush, upon being asked to name just three decisions he made that were wrong and what he did to correct them, could not name a single erroneous choice, and instead launched into how his decisions successfully avoided "erroneous" alternative strategies promoted by "liberals", only shows how clearly this Emperor of ours has no clothes, and not very many brain cells left.
Didn't anyone tell George that snorting coke and slamming tequilas isn't good for your health?
It does provide a clear window into the bizarre psyche of a disturbed Al-Anon refusnik, as many psychologists have publicly pointed out. Bush is a walking, barely talking freak-show about to time out. Everyone can see it, even the faces of the debate citizens for Bush showed their dismay.
So the far-out right launches more smear in kind:
http://www.captainsquartersblog.com
Didn't anyone tell George that snorting coke and slamming tequilas isn't good for your health?
Yes, they did, he didn't listen, and now it's too late to do anything about it.
If even the Bush audience members were dismayed, but pundits go on about how Bush improved, what does that tell you? That the press lives in a bubble, too?
Posted by: sm at October 9, 2004 07:53 AMJosh's turn to slam DeLong commenters (TomR gets the most credit, for pointing out that the Constitution explicitly allowed the importation of slaves, and, by extension, slavery).
Who are Bush's favorite Justices? Scalia and Thomas.
Who has said he was a fan of the Taney court? Rhenquist.
Bush is the new Religious Right, not the Racist Right, although has a libertarian's qty of compassion for the pre-Civil Rights. That's what the whole "Move Lott Out, Move Frist In" business was about, not some comment Lott had made several times before.
MESSAGE? Watch more C-SPAN.
Posted by: Josh Narins at October 9, 2004 08:37 AMEquating Roe v. Wade with Dred Scott is one of Bork's themes, and that may be where Bush got the idea. Someone gave me Bork's "Tempting of America" as a Christmas present and I was snowed in for a day or two with a shortage of printed matter, so I actuallly read the thing. It's poorly organized and padded, so he uses Dred Scott as a bogeyman several times, with evident pride in his cleverness. But he never mentions Brown v. Board, perhaps the most influential SC case of the Twentieth Century.
In passing, I note that people like Bork adore Dred Scott because it can be used to justify violence by the losing side. The implied threat of force appeals to a certain kind of mentality.
Bush's comment reveals a total ignorance of what the case decided. He said the judges of the Taney Court substituted their own preferences for the Constitution in falsely declaring that slaves were "personal property". But that's exactly what the Constitution says, as any intelligent high school student knows after a decent course in American History or even Civics. It's in the "three-fifths" compromise and the passage protecting the slave trade for 20 years. That part of Dred Scott isnt just strict construction, its the only construction. Bush seemed to be saying that the Justices in Dred Scott should have declared slavery unconstitutional under some principle of "equality". But that would have violated the Constitution, dozens of precedents and the judicial background of the Justices. And it would have been unenforceable. I mean, really.
"Bush seemed to be saying that the Justices in Dred Scott should have declared slavery unconstitutional under some principle of "equality". But that would have violated the Constitution, dozens of precedents and the judicial background of the Justices. And it would have been unenforceable. I mean, really."
Especially since there was no notion of equality in the Constitution before the ratification of the 14th amendment.
Posted by: TreeTop at October 9, 2004 11:40 AMRoger Bigod almost has it right.
The Dred Scott reference has nothing to do with Dred Scott. It has everything to do with abortion. Dred Scott is code for Roe v. Wade. Seriously. Google this: +abortion +"Dred Scott"
Bush promised the anti-choice people, in code on national television, that he would appoint Justices who would overturn Roe v. Wade.
He promised in code, because he can't say that on national television -- it would freak out every moderate voter in the country.
Posted by: paperwight at October 9, 2004 12:36 PMPaperweight, you are absolutely right. Bush's intentional and calculated reference to the Dred Scott decision was a "coded" reassurance to his anti-choice base that any Supreme Court appointee will have to pass an anti-Roe v. Wade litmus test. Bush's understanding (or lack thereof) of the Dred Scott decision is wholly irrelevant. This is a hugely important point that has been entirely lost on the media and those not in the anti-choice know.
Posted by: Jennifer in Chicago at October 9, 2004 12:50 PMPaperweight, you are absolutely right. Bush's intentional and calculated reference to the Dred Scott decision was a "coded" reassurance to his anti-choice base that any Supreme Court appointee will have to pass an anti-Roe v. Wade litmus test. Bush's understanding (or lack thereof) of the Dred Scott decision is wholly irrelevant. This is a hugely important point that has been entirely lost on the media and those not in the anti-choice know.
Posted by: Jennifer in Chicago at October 9, 2004 12:52 PMDarn, paperweight. What you are saying is that I was pedantic and literal-minded to be concerned about the substance of Dred Scott. Also naive in not picking up on Bush's slyness and doubletalk.
On consideration, I think you're correct. With this crowd, the motto should be "Never attribute to ignorance what can be explained by mendacity." Now I can appreciate the wonder-working power in his remaeks.
Posted by: Roger Bigod at October 9, 2004 01:12 PMIt's not that deep.
Dred Scott was DECIDED in Saint Louis. Washington University recently digitized the proceedings from that case and dozens of others from that period. The building in which the case was heard still stands.
This was Bush's implicit attempt to use Missouri history to make a point.
Posted by: Lester Spence at October 9, 2004 01:21 PMSo Bush chose a 160 year old case, which reminds everyone in the Missouri audience that MO was a slave state, in order to make a point about judicial activism, and it just happens to be the case that the anti-choice crowd analogizes to Roe v. Wade, and Bush uses the same argument about why Dred Scott decided the way it was that the anti-choice people make?
No takers. Sorry.
Posted by: paperwight at October 9, 2004 01:37 PMUS Constitution Article IV section 2
"Clause 3: 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."
The Dred Scott opinion was not needed to interpret the Constituion as requiring free states to return escaped slaves to slavery. That was absolutely explicit in the text of the constitution. Sad to say it's still written there on the original in the national archives, eliminated by the 13th amdendment but still contaminated the constitutional parchment.
Dred Scott had a case because Sanford took him to a free state so he didn't escape. IIRC Taney argued that Scott had no rights (as noted by Atrios). Other justices wrote concurring opinions that Dr Sanford could not be deprived of his property (Mr Scott) automatically and instantly when he crossed a state border and, hence, without due process (as noted by Bush). Bush's error is that he seems to think that the constitution guaranteed equality in 1857, that is, before ratification of the 14th amendment. Shamefully, it didn't.
Posted by: Robert Waldmann at October 9, 2004 04:17 PMPaperwight & Roger Bigod:
Just to clarify: [apparently having nothing else to do today] - I surfed a number of "political" blogs, and lo and behold, there WERE a number of references (most with links) - to various sites and blogs - and YES, "Dred Scott" DOES appear to be a favorite reference of anti-abortion extremists (on the "grounds" that fetuses are given the same considerations now as slaves were in 1857).
However, it is doubtful, IMO, whether President Bush was REALLY giving that "coded" reference to the "base" in the 10/8 debate: if he was, it would make sense that he would do so in a more coherent manner that he did: as it was, it just came across as more bizarre gibberish from Preznit Chimpy- as usual, George W. trips and falls on his own talking points - so what else is new?
Jay C is totally correct. Dred Scott is anti-abortion code. Google "dred scott abortion" and remove all doubts. Silly me I intially thought it was racist code. Whenever rightwing politicians come up with a nutty line, you can bet it is code.
Posted by: bakho at October 9, 2004 05:36 PMBringing up Dred Scott was bizarre. And W is a mendacious moron. However, his comment on the Dred Scott case, other than being completely out in left field and possibly code for anti abortion folks, was not that stupid.
Taney claimed in the decision to be interpreting the Constitution regarding slavery as the framers of the Constitution would have. This case did not fall under the escaped slave language of the Constitution so Taney said he was trying to dope out what the original writers of the document would have done.
Perhaps the most eloquent rebuttal of Taney's reasoning was made by Lincoln in his very famous Cooper Union speech in 1860. If you look carefully at all of the statements and votes and acts of the framers, it is reasonably clear that they did not intend to abolish slavery but they also did not intend to extend it.
If you buy Lincoln's argument, Taney was engaging in results-oriented activist judging. Bush says enough stupid things that we need not pick on him for this one. Maybe in the next debate he will say something clever about the impact on jury trials of the Fourth Lateran Council.
Posted by: ursus at October 9, 2004 06:15 PMUrsus, I don't think so. Besides, "activist judge" is code for judges that rule against the racists. Bush is not a lawyer. Has he ever opened a law book? Much more likely he has been talking to the anti-abortion crowd. BTW- GW Bush was his fathers liason to the religious right in the 92 election.
Posted by: bakho at October 9, 2004 08:41 PMShorter A. Zarkov: modern court conservatives are, ipso facto, not judicial activists.
A. Zarkov wrote,"This is exactly what ... modern courts have done in cases like Roe, and more recently in Lawrence. Only they try and dress it up with oxymoronic phrases like 'substantive due process' or highly elastic notions like 'liberty interest.' "
So do you think
(i) Brown v. Board of Education, and
(ii) Griswold v. Connecticutt
were wrongly decided?
Notice something odd about the 13th Amendment? It appears to license slavery as a punishment. If the conviction exception was only meant to apply to "involuntary servitude", then the drafting was atrocious.
Posted by: JamesW at October 11, 2004 07:00 AMAs a certified, ring-bearing Evil Republican, I am fascinated by this thread.
If it is any help - my immediate thought upon hearing Bush mention Dred Scott was "the right-to lifers will love that".
As to whether the Party of Lincoln thinks that Dred Scott case was wrongly decided, well, Ursus (6:15 PM) suggests that that is the party line. For skeptics, here are a few links confirming his point.
Lincoln's Cooper Address:
http://www.nps.gov/liho/cooper/cooper.htm#_Ref516392123
Commentary by Robert George:
http://www.firstthings.com/ftissues/ft0302/articles/george.html
And a soundbite on the Dred Scott decision:
"The decision of the court was read in March of 1857. Chief Justice Roger B. Taney -- a staunch supporter of slavery -- wrote the "majority opinion" for the court. It stated that because Scott was black, he was not a citizen and therefore had no right to sue. The decision also declared the Missouri Compromise of 1820, legislation which restricted slavery in certain territories, unconstitutional. "
Lincoln was especially focussed on the Missouri Compromise angle in his Cooper Address, and delivered a detailed "original intent" argument suggesting that the regulation of slavery by the Federal Gov't was intended by the founding fathers. Go figure.
http://www.pbs.org/wgbh/aia/part4/4p2932.html
What I can add is that for years, when I have been in the mood to goad my pro-choice friends, I point out that Roe v. Wade is "only" a Supreme Court decision, and remind them that the Supreme Court is entirely capable of extreme moral obtuseness, with the Dred Scott case as Exhibit A.
I sometimes point out, for completeness, that the mechanism for overturning Dred Scot involved amending the constitution.
Both of those points are in response to pro-choicers who insist that, with respect to Roe, we must "respect the Constitution" and "uphold the law of the land".
Now, for people who did not know the code yesterday to explain what it means today strikes me as lacking in credibility. I have no doubt that some pro-lifers are hoping for a repeal of Roe v. Wade; however, the Repub strategy in this sems to be quite clear. And that strategy is to nibble at the fringes of Roe with laws like the Partial Birth Abortion ban and the Unborn Child Protection act.
Or, as George Bush said in 2000 when asked about a repeal, you have to change people's hearts before you change the law.
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