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

bashtoreth wrote:

The "personal opinion" which Taney inserted in the court decision was this: that slaves were "property." The Dred Scot decision hinges on the classification of slaves as property, but that classification is not in the constitution. As a matter of fact, a more plausible inference, "technically," from the wording of the constitution is that slaves were afforded all the same rights as nonslaves.

You must be joking. It is correct that slavery is not mentioned by name in the constitution, but there are three places in the constitution where slavery is implicitly referenced: the three-fifths clause (Art. I, sec. 2); the non-importation clause (Art. I, sec. 9); and the fugitive slave clause (Art. IV, sec. 2). Not only did the framers of the constitution understand that these clauses referred to slavery, but subsequent supreme court decisions understood them in the same fashion. Regarding the fugitive slave clause, Justice Story, in Prigg v. Pennsylvania, explained:

Historically, it is well known, that the object of this clause was to secure to the citizens of the slave-holding states the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape from the state where they were held in servitude.In short, everyone understood the constitution as not only allowing slavery, but as protecting slavery. Consequently, no one ever seriously contended that the fifth amendment gave slaves equal rights.

bashtoreth wrote:

Here is the logic: 1. As mentioned in my preceding post, the constitution mentions slaves only as "other persons." 2. The 5th amendment states, "No person shall be held to answer for a ... crime, unless on a presentment or indictment of a grand jury ...; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...." Since "other persons" is a subset of "persons," and since no person "shall be deprived of life, liberty, or property, without due process of law," slavery could have technically been considered repugnant to the constitution.

Utter nonsense. If Taney had followed that line of reasoning, then he would have definitely been inserting his personal opinion into the decision, since that logic would not have been sanctioned by either law or judicial precedent. Indeed, it would have been contrary to a half-century of American constitutional jurisprudence.

You have attempted to explain Bush's mysterious rationale for mentioning the Dred Scott case, bashtoreth, and I can understand how difficult your task must be. After all, this isn't your argument, it's your attempt to ascertain someone else's argument, so I sympathize with your impossible situation. But surely you can do better than this.

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HofT wrote:

Joe - pls see my comment above to Thomas, and note that at the time of the Dred Scott decision slaves were not "legal persons" under the law.

Whether they were "moral persons" is precisely the question Taney didn't address. If they were not, then the decision was right, if they were, the decision was wrong.

I don't know how to express the point more plainly than that, so I hope now you finally see it.

I think so, but I'm not sure if you've adequately addressed the initial point.

Bush said that Dred Scott was a case (or a judge -- he was confused on this point) in which there was an impermissible injection of "personal opinion" into the decision. It is unclear, however, what he meant by "personal opinion" with regard to that case -- unless he was using Dred Scott as a code word for Roe v. Wade, in which case his meaning is somewhat clearer.

But it is beyond question that the supreme court is a court of law, not a court of morals. The status of slaves as "moral persons" was not a subject with which the supreme court was concerned, nor should it have been, since the constitution has never recognized a class of persons as "moral persons." Indeed, had any of the justices considered the status of Dred Scott as a "moral person," they would have been injecting the kind of personal opinion into the decision that Bush decried.

If you want the supreme court to be a Rawlsian court of morality, I encourage you to write to your senators and representative in congress. Perhaps you could spur them to introduce a constitutional amendment to that effect. In the meantime, however, we must be content with the courts that we have today.

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Thank you, Joe.

You know of course I'm only obligated to clarify my own points and not those of President Bush, but I suspect that an actual quote from John Rawls' "A Theory of Justice" will provide a pointer:

"....While I have not maintained that the capacity for a sense of justice is necessary in order to be owed the duties of justice, it does seem that we are not required to give strict justice anyway to creatures lacking this capacity. But it does not follow that there are no requirements at all in regard to them, nor in our relations with the natural order. Certainly it is wrong to be cruel to animals and the destruction of a whole species can be a great evil."

Chapter VIII (The Sense of Justice) section 77 (The Basis of Equality)

As you say, however, our courts can't be expected to be judges of Rawlsian morality, so our only remedy consists in amending existing law.

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As I'll be away from the net due to overseas travel until early November, may I add to the above (primarily for overseas site members, who may be unaware of current court cases here) that President Bush's comments might - for all I know - apply to unborn babies (whence the original Roe vs. Wade reference) or to the brain-dead (as in the case of a woman in Florida, whose feeding tube was removed a couple of days ago) or even (though unfortunately improbably) to intelligent creatures of other species than human.

All these classes share what Rawls terms a lack of capacity for a sense of justice - though I'm not so sure about the marine mammals! Thank you, and see you all in November.

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Take care doll.

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I think I finally found something that supports my "sop to the fundmantalists" thesis:

Quote:

To understand what strange game is playing out here [re: the whole Mary Cheney flap], you must go back to the equally close 2000 election. In the campaign postmortems, Karl Rove famously attributed his candidate's shortfall in the popular vote to four million "fundamentalists and evangelicals" in the Republican base who didn't turn up on Election Day. A common theory among Bush operatives had it that these no-shows had been alienated by the pre-election revelation of Mr. Bush's arrest for drunk driving years earlier.

http://www.nytimes.com/2004/10/24/arts/24rich.html

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sozobe wrote:

I think I finally found something that supports my "sop to the fundmantalists" thesis:

I see. It wouldn't convince me if I was Karl Rove. After all, there will always be some people who "should" have voted for you but didn't, and there will always be some reason why they didn't. But I am not Karl Rove, and your quote does make plausible why a Republican strategist might think that the Religious Right could use some extra motivation to go vote.

I still don't understand what the Dredd Scott reference contributes to this goal if interpreted as a coded reference to Roe v. Wade. The school prayer example had already provided rhetorical candy for the Jerry Falwell fringe, and had done so in clear text. So why bother? But I realize that wasn't the question you were replying to, and your quote does give a good answer to the one I had asked earlier.

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thomas

A Bush win depends utterly upon a heavy evangelical turnout (and the same holds true for any number of Congressional and Senate seats).

You used the phrase, "the Jerry Falwell fringe", and I think this demonstrates you don't correctly apprehend the importance of this group - the size and voting consistency of it - in modern American politics.

You mention the school prayer example and wonder if this would have been adequate 'rhetorical candy' for Bush to toss out, but it would not be. Any speech Bush gives contains numerous sops to the religious right, and that was true in the debates as well. It's also evident in the larger strategies seen in the proposed (and Bush supported) ammendment on gay marriage, the continuation of various foreign aid programs hung on the removal of any support for abortion, faith-based initiatives, policies towards Israel, etc.

But of all these issues, abortion is the single-most galvanizing hotpoint for the religious right. Moderate republican politicians who argue and vote for women's choice are as rare as hen's teeth these days precisely because of the power and influence the religious right has achieved within the party (they just don't survive the nomination phase in most cases).

Further, it would be a mistake to assume that a reference such as the one Bush made to Dredd arose out of a full and nuanced understanding of the legal issues on the part of either Bush or most of the evangelical base. That's not at all necessary as a precursor to a Bush speech-act, nor necessary to galvanize the base he's speaking too.

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Might I pass on the following from Ronald Dworkin, Sommer Professor of Law and Philosophy at NYU and Quain Professor of Jurisprudence at University College, London. Dworkin's piece is the fourth one down (but each and every piece is invaluable)...
http://www.nybooks.com/articles/17511

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Blatham--

After Sozobe's response, I no longer doubt that the Republican campaign headquarters believe they must mobilize the Religious Right. I remain unconvinced that a message about abortion, coded as a message about slavery, is an effective way of mobilizing them.

As for the article you linked to, it appears to continue a deplorable tradition in American journalism. This tradition combines strong political opinions in juicy wording with a complete lack of effort to actually understand the position which the journalist is rejecting. If you could bring yourself to read a book like "A matter of interpretation" by Antonin Scalia, you may well remain opposed to the "originalist" school of interpreting the constitution. So might Mr. Dworkin. But neither of you would continue to make the mistake of dismissing these people as mere right wing hacks whose intellectual format is comparable to George Bush's. This just isn't what they are.

But maybe we should save this disagreement for another thread.

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Blatham is certainly correct on this point: the abortion issue, at present, is the single most burning issue for the religious right. It tends to overshadow all else and a reversal of Roe v. Wade is, for them, a holy crusade. I know a couple of these zealots who dislike Bush, disagree with both his domestic/economic and foreign policies and yet say they will vote for him because he has taken a firm stand on the right to life. Go figure.

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I agree with what Merry Andrew says about the importance of abortion, Thomas. It makes sense to me that it was a way for Bush to have it both ways -- say sensible things about the constitution to the moderate voters so as not to turn them off, while also throwing a wink wink nudge nudge reference in there that will get the religious right saying, a-ha, see what he said! He couldn't do it the other way around, say that he would overturn Roe vs. Wade while wink wink nudge nudging the moderates.

It's at the far edge of the sort of conspiracy theory I actually give credence to, but it does make sense given Karl Rove's quote. I don't actually know how it would translate -- I think it was designed for the a-ha moment among religious right, a way to get elected. But I don't know if it actually telegraphs his intentions.

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Thomas wrote:

As for the article you linked to, it appears to continue a deplorable tradition in American journalism. This tradition combines strong political opinions in juicy wording with a complete lack of effort to actually understand the position which the journalist is rejecting. If you could bring yourself to read a book like "A matter of interpretation" by Antonin Scalia, you may well remain opposed to the "originalist" school of interpreting the constitution. So might Mr. Dworkin. But neither of you would continue to make the mistake of dismissing these people as mere right wing hacks whose intellectual format is comparable to George Bush's. This just isn't what they are.

While I agree, in substance, with what you say, Thomas, I think your anger is better directed elsewhere. Ronald Dworkin is not part of a "deplorable tradition in American journalism:" he's a highly respected and quite influential legal scholar and philosopher. If anyone understands the jurisprudential views of Scalia and Co., I'm confident it is Ronald Dworkin, and nothing in the linked article makes me think otherwise.

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You beat me to it, joe.

thomas

I don't think you'll find anywhere that I've suggested Scalia is a right wing hack (a dogmatist and reactionary, maybe). A couple of decades past, there was a wonderful series of round-table debates on PBS (if I recall correctly) which included a variety of scholars from various disciplines wherein some social/ethical question would be addressed and worked over. Scalia was one of the regulars, and he demonstrated himself to be a very smart man indeed, not to mention, extremely witty. In fact, I was attending to Scalia before I bumped into Dworkin.

But Scalia is not properly understood as merely an isolated and fine legal mind. He has significant social and philosophical ties to this administration (hunting with Cheney, his son works for Ted Olson's law firm, he has given speeches to anti-gay advocacy groups, etc). That doesn't make him a poop-head, but it is not irrelevant information.

To some shallow level, I understand the constitutional position Scalia argues. I simply do not agree with it.

Dworkin, by the way, is regarded as joe describes, but further than that, he's one of the best writers (clear and careful) kicking about.

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sozobe wrote:

I agree with what Merry Andrew says about the importance of abortion, Thomas. It makes sense to me that it was a way for Bush to have it both ways -- say sensible things about the constitution to the moderate voters so as not to turn them off, while also throwing a wink wink nudge nudge reference in there that will get the religious right saying, a-ha, see what he said! He couldn't do it the other way around, say that he would overturn Roe vs. Wade while wink wink nudge nudging the moderates.

It's at the far edge of the sort of conspiracy theory I actually give credence to, but it does make sense given Karl Rove's quote. I don't actually know how it would translate -- I think it was designed for the a-ha moment among religious right, a way to get elected. But I don't know if it actually telegraphs his intentions.

soz

Hardly the far edge of conspiracy theory. I can, as I have earlier, find you quotes from Ralph Reed (who took over leadership of the christian coalition from Robertson before moving to consult for Bush's team, and who has been working with Grover Norquist for nearly three decades since their time in the college republicans) where he advises evangelical activists to disguise their real believes and agendas, so as not to frighten moderates. It is explicit.

As to Dredd and its significance to the evangelical community, all one has to do is type the relevant terms into google and survey the results.

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Note "give credence to" -- there are more extreme conspiracy theories I don't buy, but this one I DO buy is what I was saying.

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hug

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joefromchicago wrote:

While I agree, in substance, with what you say, Thomas, I think your anger is better directed elsewhere. Ronald Dworkin is not part of a "deplorable tradition in American journalism:"

You may well be right -- I haven't read anything else by Dworkin yet, so don't know one way or the other. Please note two things however. (1) Just because I didn't like the article, that doesn't mean I'm angry. It simply means I didn't like the article. (2) When I said "deplorable tradition in American journalism", I wasn't referring to Dworkin the person. I was referring to one specific article he wrote -- "the article you [Blatham] linked to" -- and I stand by that opinion. If Dworkin is aware of the substantial arguments for interpreting the constitution more literally, and if he's aware that Roe vs. Wade deserves to die if the constitution is interpreted more literally, he doesn't mention this at all in this article.

Blatham wrote:

But Scalia is not properly understood as merely an isolated and fine legal mind. He has significant social and philosophical ties to this administration (hunting with Cheney, his son works for Ted Olson's law firm, he has given speeches to anti-gay advocacy groups, etc).

Fine. So for the sake of the argument, let's suppose Scalia is anti-gay, anti-black, anti-women and corrupt. How does this change whether his constitutional views are correct or not -- which happens to be the question I'm interested in?

Sozobe wrote:

It's at the far edge of the sort of conspiracy theory I actually give credence to, but it does make sense given Karl Rove's quote. I don't actually know how it would translate -- I think it was designed for the a-ha moment among religious right, a way to get elected. But I don't know if it actually telegraphs his intentions.

Neither do I -- the only piece of evidence I have on this is from the first New York Times article you linked to, which seemed to say that the telegraphing, which the author believes did happen, didn't actually come across to its intended audience. If he's right about the telegraphing part, let's hope he's right about the coming-across part too.

To give you a better impression of what I don't get about the alleged "coded message" business, here's what I would do if I was George Bush, and if I wanted to appeal to the Religious Right. I would start with the usual blurb about creating a culture of life, then continue:"And to get started, we will start by outlawing all third-trimester abortions except for life-threatening conditions for the mother -- an option that even Roe vs. Wade explicitly leaves open. We'll see what happens after we're done, but that's the first step". As I see it, the appeal to the Religious Right would be stronger because it's in clear text, and it promises a specific improvement from their point of view. From the moderates' point of view, it demonstrates respect for the Supreme Court's decisions and feels reasonably reassuring. The message could be rhetorically fine-tuned to accomodate either side as needed. It strikes me as effective and straightforward.

Given this alternative, why bother with the code thing? I'm not trying to be pigheaded here, I'm genuinely not getting it.

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Hmm, the way I see it is that the evangelicals stayed home in 2000 -- Bush is trying to ensure that they don't stay home in 2004.

If Bush followed your suggestion and said the above, he would turn off a lot of moderates/ swing voters. "Oh, 'to get started', huh? We all know where that ENDS."

I see the need for code because he is damned if he does, damned if he doesn't when it comes to the abortion issue -- he's not going to get the support of both moderates and evangelicals by speaking plainly on this issue. There is too little room for shades of gray.

By the way, remember that I had the impression that Bush was trying to appease evangelicals before I read that article -- that was written after I said something, and when I saw it I remembered this discussion. I think the parts here are:

1.) Does Bush worry about losing the evangelical vote? (I think so.)

2.) Does the Dred Scott reference make sense in context? (I don't think so.)

3.) Is this just because Bush is an idiot? (Could be, but I don't think so. This was not a surprise question, his response would have been highly choreographed and rehearsed.)

These three elements together suggest strongly to me that it was a purposeful message to the evangelicals that "y'all know I can't say anything directly, but I'm on your side."

Again, though, I think this is more a debate/ election ploy than necessarily telegraphing his true intentions. Part of why he is in trouble with evangelicals is because he keeps actually acting more moderately than he threatens too.

Oh just remembered a screen I've had open since this morning, link probably doesn't work anymore, "Conflicted Evangelicals Could Cost Bush Votes":

http://story.news.yahoo.com/news?tmpl=story&cid=2026&ncid=2026&e=3&u=/latimests/20041027/ts_latimes/conflictedevangelicalscouldcostbushvotes

From the L.A. Times, written by By Peter Wallsten.

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sozobe wrote:

By the way, remember that I had the impression that Bush was trying to appease evangelicals before I read that article -- that was written after I said something, and when I saw it I remembered this discussion.

That's right. I may not have made this clear enough, but you have convinced me on that point.

Sozobe wrote:

If Bush followed your suggestion and said the above, he would turn off a lot of moderates/ swing voters. "Oh, 'to get started', huh? We all know where that ENDS."

[... snip your three elements, T. ... ]

These three elements together suggest strongly to me that it was a purposeful message to the evangelicals that "y'all know I can't say anything directly, but I'm on your side."

I agree with your elements 1 and 2. #3 makes sense to me, but it doesn't seem to work out that way. All the moderates and liberals are far from reassured -- they all seem to be abuzz about "Bush's coded message" -- while the Religious Right is far from certain about Bush's devotion. I am genuinely puzzled about why Karl Rove ever thought this would work in the first place. (And needless to say, I am happy that it apparently didn't.)

Sozobe wrote:

Oh just remembered a screen I've had open since this morning, link probably doesn't work anymore, "Conflicted Evangelicals Could Cost Bush Votes":

http://story.news.yahoo.com/news?tmpl=story&cid=2026&ncid=2026&e=3&u=/latimests/20041027/ts_latimes/conflictedevangelicalscouldcostbushvotes

From the L.A. Times, written by By Peter Wallsten.

Thanks! I read something similar in a Wall Street Journal article today. As the parties try to discourage each other's voters from voting, the Democrats seem to have discovered the Republicans' conservative base as their weak spot.

Quote:

WASHINGTON -- Democratic politicians normally have little use for Pat Robertson. But when the conservative televangelist got into a rare public spat with the White House last week, John Kerry's campaign quickly spoke up for him.

Mr. Robertson had quoted from a private conversation with George W. Bush in which he said the president predicted there would be no casualties from an Iraq war. As the White House disputed that, Kerry strategists jumped in asking for clarification. "Was Pat Robertson telling the truth?" asked spokesman Mike McCurry, "or is Pat Robertson lying?"

With Mr. Bush more dependent than ever on his political base, fellow Democrats hoped that amplifying conflict between the White House and a religious right leader might produce a salutary result: diminished zeal among conservative Christians to turn out on Nov. 2.

(Full article -- for subscribers only --here.)

So again: you were right about the motivation of conservative voters, and I was wrong in my skepticism.

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

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