Was the Dred Scott reference code for Roe v. Wade?
I doubt it. I don't know if Slate's
account of the right wing codeword conventions is true. But even if I follow Slate
on this, I presume that everyone who speaks and understands this code is already voting for Bush anyway. So the reference wouldn't make any strategic sense in the context of a TV debate, where candidates are trying to swing undecided voters.
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.
My take on this episode of the debate was that Bush wanted to have it both ways on the issue of judicial nominees. On the one hand, he wanted to take a stand on principle and tell his viewers the position he had always held, and that he had already expressed in the debate of 2000. Like most conservatives and many libertarians, Bush believes that the meaning of the constitution has been badly obscured, in part by judicial activists on the bench, in part court packing threats by presidents Lincoln and Roosevelt, one of wom (Lincoln) carried it through. This school of thought wants the Supreme Court to put back some of the lost content into the constitution by interpreting its provisions in the spirit of their original meaning. Bush agrees with this school of thought and presumably wanted to say so in the debate.
On the other hand, all the recent Supreme Court cases one would normally use to illustrate the difference between "originalists" and the proponents of the "living constitution" are extremely divisive. They range from Roosevelt's farm program to Social Security to affirmative action to Roe v. Wade
to the Violence against Women act. In a close election where you need to reach out to swing voters, you don't want to touch these contemporary cases with a barge pole.
That only leaves ancient decisision for illustrating his point, and I assume that's why Bush chose Drett Scott
as his example. Why he didn't do what he did in 2000 -- just say it without examples -- is a mystery to me.
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.
I wish more people would read up the constitutional facts before publishing stuff like this. Aside from the question whether women have a moral
right to choose an abortion, several people who know more than any of us about constitutional law have concluded that the Roe v. Wade
decision was severely flawed on points of legal reasoning. For an entry point into some of the arguments of those people, you can read William Rehnquist's dissenting opinion
in Roe v. Wade
. It also illustrates that not all opponents of Roe v. Wade
are theocratic monsters who want to keep women in the house, subjected to their husbands, and pregnant.
On the final point of the piece, the one about whether you think abortion should stay legal: If the Supreme Court overturns Roe v. Wade
, this doesn't mean that abortion becomes illegal. It means that the power to regulate abortion, which the "original meaning" school argues has never been delegated to the federal government, goes back to the states. But this is too subtle a point to consider in a passinate debate that's fought out with vitriol more often than with arguments.