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Was the Dred Scott reference code for Roe v. Wade?

 
 
Reply Tue 12 Oct, 2004 01:05 pm
http://slate.msn.com/id/2108083/

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Type: Discussion • Score: 2 • Views: 7,929 • Replies: 106
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sozobe
 
  1  
Reply Tue 12 Oct, 2004 01:09 pm
Huh!
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squinney
 
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Reply Tue 12 Oct, 2004 03:14 pm
Glad I did a search and found this before posting a new thread. I was completely stunned by the Dred Scott reference, thinking Bush mispoke and didn't know what he was talking about. Then I find out today he is talking in "code" to the right to lifers during debates.

Here is some more info:

http://fairshot.typepad.com/fairshot/2004/10/dred_scott_roe_.html

http://www.washingtonmonthly.com/archives/individual/2004_10/004887.php


Bush's message to pro-lifers



We were as bewildered as anyone on Friday night when President Bush referenced the Dred Scott decision when asked what kind of Supreme Court justices he would appoint. Was he making a play for the runaway slave voting bloc? Actually, it looks like he was making a play for pro-lifers, assuring the anti-abortion rights crowd that he would appoint justices who would overturn Roe vs. Wade if re-elected. You read that right.

For many who oppose abortion rights, Roe is "Dred Scott II," denying the unborn rights they deserve just as the Court once denied blacks. Here's the logic from the National Right to Life Committee: "In an 1857 court case, known as the Dred Scott decision, the Supreme Court ruled that slaves, even freed slaves, and all their descendants, had no rights protected by the Constitution and that states had no right to abolish slavery. Where would Blacks be today if that reasoning had not been challenged?"

"The reasoning in Dred Scott and Roe v. Wade is nearly identical. In both cases the Court stripped all rights from a class of human beings and reduced them to nothing more than the property of others. Compare the arguments the Court used to justify slavery and abortion. Clearly, in the Court's eyes, unborn children are now the same 'beings of an inferior order' that the justices considered Blacks to be over a century ago."

Pro-life Sen. Rick Santorum made the point in an interview with The New York Times: "[He] likened Roe to the Dred Scott decision of 1857, when the court ruled that blacks born into slavery had no constitutional rights. 'The more people understand how wide open Roe v. Wade is, how unlimited it is,' Mr. Santorum said, the more they turn against it." And as Paperwight pointed out, a simple Google search shows how widespread the Roe = Dred comparison is.

A sidenote: We found this interesting article that shows how Antonin Scalia's angry dissent in the anti-sodomy law case last year, in which he argued against gay rights, echoed the logic used to justify slavery in Dred. Yet Scalia has taken issue with Dred in the abortion context, citing the decision in his dissent in Casey v. Planned Parenthood.

-- Geraldine Sealey

http://www.salon.com/politics/war_room/archive.html?blog=/politics/war_room/2004/10/10/dred_scott/index.html
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panzade
 
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Reply Tue 12 Oct, 2004 03:17 pm
you guys are amazing!
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squinney
 
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Reply Tue 12 Oct, 2004 03:23 pm
Is there another explanation, pan? Or, did the president not know what he was referencing?
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joefromchicago
 
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Reply Tue 12 Oct, 2004 03:24 pm
I didn't watch the debate but I have read the transcript: Bush's reference to the Dred Scott decision certainly is, to put it mildly, rather puzzling. From the transcript, I can't tell if he was genuinely concerned about judicial nominees supporting the 1857 supreme court decision, or whether he was just dazed and confused.

I suppose that anti-abortionists might be using Dred Scott as code for Roe v. Wade, but it seems that the sites linked by Slate and DailyKos and others all use Dred Scott metaphorically, whereas there is no hint in Bush's remarks that it's used in any sense other than literally. So while the anti-abortionists are saying that Roe is the "Dred Scott of our age," it appears that Bush was saying that Dred Scott is still some kind of threat (perhaps not an immediate threat, but a gathering threat to be sure).

Now, it should be noted that the Dred Scott decision has never been formally overturned by the Supreme Court, but it was rendered a nullity by the passage of the Reconstruction amendments, so there's very little danger that some judge will try to resurrect it. In case anyone wants to read it (it's possibly the most confused, incoherent supreme court decision not written by Clarence Thomas) click on this link.
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sozobe
 
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Reply Tue 12 Oct, 2004 03:24 pm
(I think it may have been good-amazing, like wow, look what you turned up!)
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panzade
 
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Reply Tue 12 Oct, 2004 03:30 pm
It's dismaying if it's true but in reality a nomination that opposed roe vs wade would have a difficult time getting seated.
With the relative youth of the Court I imagine Bush might have one shot at a nominee left in his four years. And even so it wouldn't be a tie breaker. IMO. I'm anxious to hear more.
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panzade
 
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Reply Tue 12 Oct, 2004 03:31 pm
And as soz says...my post was a kudos!
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joefromchicago
 
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Reply Tue 12 Oct, 2004 03:44 pm
panzade wrote:
It's dismaying if it's true but in reality a nomination that opposed roe vs wade would have a difficult time getting seated.

That didn't stop either Scalia or Thomas.

panzade wrote:
With the relative youth of the Court I imagine Bush might have one shot at a nominee left in his four years. And even so it wouldn't be a tie breaker. IMO. I'm anxious to hear more.

There are three justices who have been consistently identified as the most likely to leave the bench in the near future: Rehnquist, O'Connor, and Stevens. Rehnquist has had physical problems that could make it convenient for him to announce his retirement during a second Bush term (pundits predict that, if Rehnquist leaves, Bush would name Scalia to be chief justice). And both Rehnquist and O'Connor are loyal Republicans who would prefer to have their replacements named by a Republican president (Rehnquist is so loyal that I expect he will, like Thurgood Marshall, instruct his clerks to prop him up and continue voting if he dies during the administration of a president from the opposing party).

Stevens is another story altogether. I believe he also considers himself a good Republican, but he believes that the GOP has left him rather than the other way 'round. Even though he's in his 80s, I don't think he plans on retiring -- EVER. So if he leaves the court, it will be feet-first.
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panzade
 
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Reply Tue 12 Oct, 2004 03:48 pm
Correct me if I'm wrong but I don't remember either Scalia or Thomas having their feet held to the fire of Roe. And O'Connor insures Roe will not be overturned in the near future.
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princesspupule
 
  1  
Reply Tue 12 Oct, 2004 05:58 pm
I still have chicken skin from the realization this morning that he wasn't merely trying to reassure black voters that he opposed slavery, therefore was a good candidate for them to choose, which is what I thought he meant on Friday hearing the debate live from my living room. Shocked
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Merry Andrew
 
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Reply Tue 12 Oct, 2004 06:38 pm
Probably a better metaphor would have been Plessy v. Ferguson, which was overturned by Brown v. Board of Education. But, then, most of his listeneres would not have gotten the coded message right away. The Dred Scott case, on the other hand, is one which every American schoolboy knows (or is supposed to know).
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Lemmeoutahere
 
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Reply Tue 12 Oct, 2004 08:23 pm
Just "dazed and confused" works for me. No more complicated explanation is necessary.
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Lemmeoutahere
 
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Reply Tue 12 Oct, 2004 08:24 pm
Wasn't Row v. Wade a case about a boating accident?
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panzade
 
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Reply Tue 12 Oct, 2004 08:27 pm
Welcome Lemme. I believe that was the name of a Burns Brothers CD.
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Thomas
 
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Reply Wed 13 Oct, 2004 03:15 am
Princesspupule wrote:
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.

Slate wrote:
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.

Slate wrote:
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.
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sozobe
 
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Reply Wed 13 Oct, 2004 11:18 am
Quote:
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.


I think there are two kinds of swing voters that Bush is going for. There are the swing voters who would otherwise vote for Kerry. But there are also those who would otherwise stay home, who would never in a million years vote for Kerry but who think Bush is too moderate.

I think it's entirely possible that Bush was trying to court both of them at once; to get the Kerry-swing voters by saying reasonable, general things about how he wants the Supremes to uphold the constitution, while also telegraphing to the stay-home-swing voters that he'd do his utmost to get Roe vs. Wade overturned.
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Thomas
 
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Reply Wed 13 Oct, 2004 01:22 pm
sozobe wrote:
I think there are two kinds of swing voters that Bush is going for. There are the swing voters who would otherwise vote for Kerry. But there are also those who would otherwise stay home, who would never in a million years vote for Kerry but who think Bush is too moderate.

You may well be right. Is turnout expected to be a problem on the Religious Right fringe? If so, I never read about it -- I had always thought they are highly motivated and determined to keep the Republicans in power. But unlike you, I'm not living in America. Have you picked up something in this direction from your neighborhood, relatives, friends etc. ?
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princesspupule
 
  1  
Reply Wed 13 Oct, 2004 09:57 pm
Here's what was said about this during debate #3:
Quote:
SCHIEFFER: Mr. President, I want to go back to something Senator Kerry said earlier tonight and ask a follow-up of my own. He said -- and this will be a new question to you -- he said that you had never said whether you would like to overturn Roe v. Wade. So I'd ask you directly, would you like to?

BUSH: What he's asking me is, will I have a litmus test for my judges? And the answer is, no, I will not have a litmus test. I will pick judges who will interpret the Constitution, but I'll have no litmus test.
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