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Dredd Scott=Roe v. Wade


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Why Bush Opposes Dred Scott
It’s code for Roe v. Wade.
By Timothy Noah
Posted Monday, Oct. 11, 2004, at 3:45 PM PT

Bush talks in code

Bush talks in code
In the Oct. 8 debate, President Bush baffled some people by saying he
wouldn’t appoint anyone to the Supreme Court who would condone the
Dred Scott decision. Dred Scott was, of course, the famous 1857
Supreme Court decision that affirmed slaves remained the property of
their owners even when taken to free territories and that prohibited
even free African-Americans from becoming U.S. citizens. Since the
Civil War and the subsequent passage of the 13th and 14th amendments,
Dred Scott v. Sandford has been a dead letter in American
jurisprudence. Yet Bush felt compelled to reassure TV viewers that he
wanted no truck with its legal reasoning:

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.

And so, I would pick people that would be strict constructionists.

We’ve got plenty of lawmakers in Washington, D.C. Legislators make
law; judges interpret the Constitution.

And I suspect one of us will have a pick at the end of next

year?the next four years. And that’s the kind of judge I’m going to
put on there. No litmus test except for how they interpret the

What was the meaning of this borderline-incoherent ramble? Apparently,
it was an invisible high-five to the Christian right. “Google Dred
Scott and Roe v. Wade,” various readers instructed me, and damned if
they weren’t on to something. To the Christian right, “Dred Scott”
turns out to be a code word for “Roe v. Wade.” Even while stating as
plain as day that he would apply “no litmus test,” Bush was
semaphoring to hard-core abortion opponents that he would indeed apply
one crucial litmus test: He would never, ever, appoint a Supreme Court
justice who condoned Roe.

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You’re skeptical. You think your faithful Chatterbox is drifting into
“Abraham Lincoln had a secretary named Kennedy” territory. Perhaps
you’ve even done a little Googling of your own and discovered that
while, yes, it’s true, George Will once called Roe “the most imprudent
act of judicial power since the Dred Scott decision,” he has similarly
compared Dred Scott to Brown v. Board of Education and even to
France’s attempts to slow down the United States’ entry into the Iraq
war. (One imagines Will, looking out the window from his office, could
on any given afternoon identify three or four cloud formations that
remind him of Dred Scott.)

But keep Googling, and you’ll soon discover that Will is hardly the
only conservative commentator who’s compared Roe to Dred Scott.
There’s Paul Greenberg, the Arkansas columnist famous for nicknaming
Bill Clinton “Slick Willie.” There’s Jeff Jacoby, house winger at the
Boston Globe. There’s Michael Novak, the
theologian-turned-think-tank-hack. There’s Peggy Noonan, former
speechwriter to Ronald Reagan (also Reagan himself, in his essay,
“Abortion and the Conscience of a Nation”). Several conservative legal
commentators have made the comparison, too, including Michael
McConnell of the University of Utah, now a federal judge on the 10th
Circuit Court of Appeals.

If, in the mainstream conservative media, the Dred Scott trope is
common, in Christian right propaganda it is, like the Good Lord
Himself, omnipresent.

Sometimes it’s used to decry judicial activism. “Dred Scott shows us
two things,” writes Robert S. Sargent Jr., on EnterStageRight.com.
“The mischief that ‘activist’ judges always do, and the fact that
people are sometimes willing to resort to a Constitutional amendment
to overturn a Supreme Court ruling.”

Sometimes it’s used to put the destruction of fetuses on a moral plane
with slavery. From an unsigned essay on the Web site Unbornperson.com:

In a previous case, the Dred Scott decision, (1857) fully-grown

men and women (because their skin was black?) were declared
“non-persons” by the Court, by denying them the status of free men. In
Roe v. Wade the offspring of human parentage who are waiting to be
born, simply because they are not yet born, are called non-persons
(“not persons in the full sense”) by the Court. In the former instance
the legal consequence was slavery. In this present case, the legal
consequence is death.

Sometimes it’s used to encourage the troops to keep hope alive. “Like
Dred Scott, Roe has the potential to be overturned, given the right
circumstances and the right make-up of the Supreme Court,” says the
Republican National Coalition for Life.

Sometimes it’s used to inspire fear. Here’s an editorial in
Touchstone: A Journal of Mere Christianity:

Some, recalling that the Dred Scott ruling itself set the stage

for the Civil War, may wonder?if it was true in yesteryear that “every
drop of blood drawn with the lash shall be paid by another drawn with
the sword”?whether some yet worse retribution will be exacted of our
country by a righteous God righteously stirred at the murder of unborn
children in their millions. And wonder they should.

The Weblog Daily Kos has a few additional examples, and if you go
looking yourself, I promise you’ll find all the evidence you could
possibly need.

Bush has a history of addressing the Christian right in code. In the
Sept. 17 Washington Post, Alan Cooperman pointed out many phrases Bush
has used to deliver a religious message over the heads of plodding
secular humanists like me. “Culture of life,” Cooperman reported,
means “abortion is murder.” Bush used the phrase in an Aug. 3 speech
to the Knights of Columbus. “Wonder-working power” refers to the power
of Christ, though Bush used it in a seemingly secular context (“Yet
there’s power, wonder-working power, in the goodness and idealism and
faith of the American people”) in his 2003 State of the Union address.

Now, don’t get me wrong. Religious faith can be a very fine thing.
Some of my best friends believe in God, and some of their best
qualities derive, at least in part, from their faith. But let’s not
forget that Bush actually believes that God told him to become
president. In an age less prone to religious hysteria than our own,
this would be judged impious. Even now, it’s pretty frightening to a
significant minority, and Bush is going to need every last vote he can
get. Hence the use of code phrases and jargon.

It’s a basic principle of politics that you dance with the one that
brung ya. The Big Guy has apparently made clear to Bush that he
doesn’t want any Roe-lovers, or even Roe-wafflers, on the Supreme
Court. If Bush is elected, don’t expect any. And if you happen to
believe that abortion should remain legal in the United States, don’t
even think about giving Bush your vote.

Dredd Scott is shorthand against judicial activism and for originalism in Constitutional interpretation, two concepts far broader than Roe v. Wade.

The people who see Dredd Scott as shorthand for Roe v. Wade are generally those obsessed by Roe v. Wade – which, by the way, was a horrible legal decision, irrespective of whether you support the right of abortion.

I thought it was code for “Aliens are controlling my thoughts.”

Actually this code word crap is a tactic to take anything and link it with anything else, thereby proving anything you want to. Why should anyone talk in code? If they want people to know something, they would say it. If they didn’t, they keep their mouth shut.

Code words now? (shaking head and smiling). I thought President Bush was supposed to be stupid? You guys on the left better get together and decide if Bush is stupid, or an evil genius who talks in code.

I actually thought Bush should have hammered on this directly, especially when the whole “divisiveness” question popped up in the 3rd debate – all the filibusters are unprecedented.

BTW, FYI, Dred Scott is shorthand for non-textualist interpretation because Scalia has made the argument in speeches and dissents that Dred Scott was one of the earliest, and worst, examples of judicial activism. Others have picked up on his theme, which works because slavery is generally seen as the worst thing in American history, so this argument implicitly ties judicial activism to the perpetuation of slavery.