October 11, 2004
Dred Scott Ain't Got Nuttin Ta Lose
It's astounding how many layers of stupidity can be peeled back from Bush's debate answers. Props to Joho the Blog for plumbing the depths of Dubya's mind-boggling Dred Scott reference, including the moment when Bush realizes that he cannot finish his sentence, because finishing would require some knowledge of what is actually in the constitution:
...Clearly, Bush considers the Dred Scott case to be a bad decision by an activist judge who is not a strict constructivist. Actually, the case wasn't about whether slavery was legal; that was not only taken for granted, it was written in the Constitution. The case was actually about whether slaves had enough standing to sue in a federal court. Chief Justice Taney said not only didn't they have the standing, but the Missouri Compromise unconstitutionally violated the right of property owners to transport their property — whether it's a chair or a slave — anywhere they wanted. Scott's legal owner could not be denied his rights as a property owner, Taney wrote, basing his opinion on the Fifth Amendment's promise of due process. This is from Taney's decision:
...Thus the rights of property are united with the rights of person and placed on the same ground by the Fifth Amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, without due process of law, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law...
Note that in this passage, the person being deprived of property is not Scott but Scott's owner. That Taney didn't need to explain that shows just how embedded was the Blacks-as-property "frame."
Then we get this mind-twister of a sentence from Bush:
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
Here's what I think happened in Bush's brain:
Dred Scott= slavery ok. Dred Scott decision bad.
US Constitution says "All men created equal."
ALARM! ALARM! ALARM! Is that in the Constitution or the Declaration of Independence? ABORT THE SENTENCE! ABORT!
Go for safety: "It [the Constitution] doesn't say that."
Ditch the entire thing. Go back to "Dred Scott bad": "It [Dred Scott decision] doesn't speak to the equality of America."
Taney was an activist in that he could have ruled narrowly on whether Scott had standing to bring suit. Instead, he ruled on the issue that Scott was raising, in effect saying, "No, you can't sue, but we're ruling against you anyway." That's not a very good example of what it means to be an activist judge. Worse for Bush, Taney's decision was based on a narrow, literal and strict construction of the Constitution's meaning...
Posted by jsmooth995 at October 11, 2004 11:05 PM
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actually it's even worse. the talk now is that Bush was alluding to the frequent analogies drawn between Dredd Scott and Roe v. Wade by anti-abortion activists.
more info here.
(if you don't have a salon subscription, yodel and I'll post the text)
Posted by: noixe at October 12, 2004 02:57 AM
Yeah actually Joho's post mentions that, but I didn't get into it cuz this was already so long..
Posted by: Jay Smooth at October 12, 2004 03:10 AM
Just had to give you props on the title for this entry... wonder if Bush is into Breakin' Combs?
Posted by: laze at October 12, 2004 12:30 PM
damn, what a great post. including, maybe especially, the gratuitous reference to breaking combs.
Posted by: Jeff at October 13, 2004 02:41 AM
Just want to let you know you've been killing it lately Jay. It's much appreciated. Nothing like an election year to stir hearts and minds.
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