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Dred Scott and a Bush Supreme Court

I have heard African American Citizens express that they don't want judges who would strictly interpret the Constitution because that view is the same view that caused the Supreme court in the Dred Scott case to refer to blacks as property.

I disagree; the dissenting opinions of Justices McLean and Curtis in the Dred Scott case were the justices that didn't bend to the old boy network and voiced the strict interpretation of the constitution.

President Bush's use of the Dred Scott case as an example of what it means to not strictly interpret the Constitution was excellent. This is a case where the Republicans were outraged that the Supreme court could have ruled 7-2 that Dred Scott didn't have standing to sue because he was a slave.

Then as now if the Republicans could have appointed more Judges, the ruling would have been different. Justices John McLean of Ohio and Benjamin R. Curtis of Massachusetts issued dissenting opinions. Curtis attacked Chief Justice Taney's historical arguments, showing that blacks had voted in five states at the founding of the United States. Thus, they were citizens of the nation from the beginning and could not now be denied citizenship.

The dissenting opinion stated above was the strict interpretation of the Constitution.

Read this excerpt from Illusions of Antidiscrimination Law by Nelson Lund:

If Chief Justice Roger B. Taney could come back to defend the decision, he would have to argue that he should not be blamed, for he was merely enforcing the Constitution. If that is what he was doing, we should indeed blame those who adopted the Constitution (rather than Taney and his colleagues) for the decision in Dred Scott.

But this defense of Taney fails. Recall the case. Scott’s master took him from the slave state of Missouri to the Upper Louisiana Territory (where slavery had been outlawed by the Missouri Compromise) and then back to Missouri. When Scott sued for his freedom, the Supreme Court turned him down, first because Congress had no power to forbid slavery in the territories, and second because a black person was in any case ineligible for American citizenship under the Constitution.

Taney’s first conclusion was based on a theory that the right of property in slaves was “distinctly and expressly affirmed in the Constitution” and therefore protected by the Fifth Amendment’s Due Process Clause. This theory has multiple fatal errors. Taney provided no support for his counterintuitive claim that due process protects substantive (as opposed to procedural) rights. Even if it did, no right in slaves was distinctly or expressly affirmed in the Constitution, and even the slave states did not pretend that slavery had any basis outside state law. Taney’s second, and even more outrageous, conclusion was based on the theory that blacks had not been considered eligible for citizenship when the Constitution was adopted. But this was factually incorrect, and Taney knew it: Justice Benjamin R. Curtis presented the evidence in his dissenting opinion, just as he demolished Taney’s due process theory. Taney was not interpreting the Constitution, or even misinterpreting it. He was simply lying.
Despite the liberal interpretation of the constitution in the majority's decision in the case, Dred Scott and the Civil War ultimately helped to usher in the Emancipation Proclamation on January 1, 1863 and what Lincoln called "a new birth of freedom" for African Americans.

In 1865 the nation adopted the 13th Amendment to the Constitution, which ended slavery. In 1868 it adopted the 14th Amendment, which declared that all persons born in the United States are citizens of the nation and of the state in which they live. These two amendments effectively reversed Justice Taney's assertions that the U.S. Constitution protected slavery and that African Americans could never be citizens of the United States.

Update: Over at the left leaning site Paperwight's Fair Shot Their take on the President's reference to the Dred Scott case is simple - Some people seem to be a bit boggled by Bush's Dred Scott remark last night. It wasn't about racism or slavery, or just Bush's natural incoherence. Here's what Bush actually said: If elected to another term, I promise that I will nominate Supreme Court Justices who will overturn Roe v. Wade.

Update: Apparently The Shape of Days would prefer that Bush would never mention "Dred Scott" again.

Update: The code is broke it's not Roe vs Wade, JustOneMinute says "And I have good news for Andrew - Bush's "Dred Scott" reference may actually have been a coded attempt to reach out to gay-rights activitists! No, really - perhaps Andrew missed this commentary:"

Update: La Shawn Barber gives us her take on this issue. She says,

"First of all, I think I may be siding with liberals on this one; either it was code or Bush just grabbed the only example he could think of.

Secondly, he should have said what he meant, whatever it was. No matter. The court in Roe found a non-existent right to privacy in the Constitution, and the court in Dred Scott found a non-existent right to human chattle.

Both decisions stink."

JustOneMinute reports on the NYT breaking the code on Dred Scott