Baseball Crank
Covering the Front and Back Pages of the Newspaper
October 11, 2004
LAW: The Parallel

The folks over at Daily Kos have only just now figured out the obvious parallels between the Dred Scott decision's reliance on non-textual substantive due process theory to elevate the rights of slaveholders to the status of a protected constitional right and Roe v. Wade's reliance on similar non-textual theories to elevate the rights of the mothers of unborn children to have an abortion to the status of a protected constitional right. (Link via Sullivan). Yes, anyone who pays attention to constitutional law debates understood the parallel Bush was trying to draw, however inartfully.

Posted by Baseball Crank at 7:39 AM | Law 2002-04 | Comments (7) | TrackBack (0)
Comments

I must say, I had to wince when I flipped over and saw Bush trying to explain the Dred Scott decision.

It is one reason I’d really like to see Ashcroft go. Bush needs someone accessible and articulate to act as a surrogate to coherently explain the Administration’s position on some of the more complicated legal issues.

I think Bush’s point was a valid one, but I’d have a hard time explaining why in under, say, five pages.

Posted by: The Mad Hibernian at October 11, 2004 9:02 AM

Then why talk about it such a veiled manner? If Bush means to appoint judges to overturn Roe v Wade (which this clearly illustrates he does) just come right out and say it.

I thought he "doesn't do nuance."

I'm hoping he has to elaborate on this in the next debate, because he is clearly in over his head trying to cite precedent and explain Constitutional law. It won't be pretty.

Posted by: Mr Furious at October 11, 2004 11:57 AM

My interpretation of Bush's comment is that GWB would not appoint judges who could sit in court and find in the Constitution something so nefarious as "separate but equal". In other words, GWB would appoint moral, upstanding constructionists.

Quite frankly, I find the members of SCOTUS who ruled FOR abortion in Roe V. Wade precisely the kind of judges as those who ruled in favor of Dred Scott, when viewed from that perspective.

And, you'll note that I just managed that in a lot less than 5 pages.

On a related note, I made the big mistake of following the Andrew Sullivan link. I've studiously avoided his writings since he came out of the DIMocRAT closet several months ago. Argh. Now, I have to go hurl up my expensive lunch. The guy is the snakiest snake on the internet. No thanks.

Posted by: paul a'barge at October 11, 2004 4:20 PM

You're being too harsh on Sullivan. I, too, read him a lot less than I used to, because he's let one issue (the Federal Marriage Amendment) overwhelm his judgment on all other issues (Kerry is so far from any of the things Sullivan believes in that if Kerry won, Sullivan would have the Mother of All Buyers' Remorse). But I do think his turning away from Bush has been heartfelt, if poorly thought-out.

Posted by: The Crank at October 11, 2004 4:24 PM

I was mainly referring specifically to Dred Scott which, as many unfortunate law students can attest, is one of the most unwieldy and complicated decisions ever rendered (I think it was about 200 pages long). Aside from the part about it being wrong, it’s not an easy decision to describe in a sound bite.

As for Bush’s legal philosophy, it’s not that nuanced. It’s basically that judges should interpret the Constitution according to what it says and, where there’s confusion, what it was originally intended to say. They should not legislate from the bench and circumvent the democratic process by codifying their own personal views as binding judicial precedent.

Posted by: The Mad Hibernian at October 11, 2004 5:06 PM

Funny how those guys always know about some 'code speak' that no one on the right has a clue about.

I really should patent that RW decoder ring.....I'd make a killing off of the lefty bloggers, alone.

Posted by: Ricky at October 11, 2004 7:48 PM

What is especially absurd about the codebreakers is that on Day 1, they have no idea what Bush means, and on Day 2 they are absolutely convinced he could only mean one thing.

FWIW, I knew immediately that there was a Roe v. Wade connection, and that when pro-choicers say "Roe is the law of the land" pro-lifers respond with "it's just a Supreme Court decision, and the SC can be morally obtuse,as in Dred Scott".

With a bit of research, I also learned that Abe Lincoln himself offered a detailed "original intent" argument explaining that Dred Scott was wrong (one of the rulings in Dred Scott was that the Federal Gov't could not regulate slavery in the new states and territories. Lincoln disagreed.

So, as a matter of morally obtuse, results oriented judicial over-reach, Dred Scott isn't a bad choice.

As to whether citing it "proves" that Bush wants Roe to be repealed, well, I have no doubt some of his supporters do. So what?

Posted by: TM at October 12, 2004 6:34 AM
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