Would Strict Constructionism Have Freed Dred Scott?
by Charles Rothfeld and Thomas Colby
October 26, 2004
When he condemned the Supreme Court's decision in Scott v. Sanford - the notorious Dred Scott case - during his second debate with John Kerry, President Bush offered that case as an example of the dangers of appointing judges who are not "strict constructionists." But in fact, it is just the opposite. It is history's most infamous example of the shortcomings of the very judicial philosophy that President Bush endorses.
Of course, the president's repudiation of slavery was gratifying. And he was right in suggesting that the Dred Scott decision, although nearly 150 years old, still holds useful lessons on what presidents should look for in their judicial appointments. Those lessons, however, are not the ones identified by President Bush.
First, a bit of history. As most of us remember from high school civics, Dred Scott was a slave who was taken by his master to the free state of Illinois and the free territory of Wisconsin. After returning to the slave state of Missouri, Scott sued for his freedom, arguing that he became a free man when he entered territory where slavery was outlawed. The Supreme Court disagreed. In what has become perhaps its most universally reviled decision, the Court held that members of "the negro race" were not citizens of the United States and therefore lacked standing to sue in federal court. But the Court did not stop there, going on to hold that the Missouri Compromise of 1820, which had prohibited slavery in the northern portion of the territory acquired in the Louisiana Purchase, was unconstitutional. The Court reasoned that Congress could not prohibit citizens from taking their property - including their slaves - into any territory of the United States.
Against this background, the president invoked Dred Scott when asked at the second debate who he would appoint if there were a vacancy on the Supreme Court. The president began his answer by condemning judges who allow their
"personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution."
He then offered an example:
"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."
Of all the Supreme Court decisions he could have chosen as the exemplar of poor legal analysis, why would President Bush pick a case that predates the Civil War? It has been widely remarked that the president meant his reference as a signal to right-to-life voters, who often equate Scott v. Sanford with Roe v. Wade. But let's take the president at his word. The Dred Scott decision, he said, was based on the justices' "personal opinion" "that the Constitution allowed slavery." And the decision was wrong because judges should be "strict constructionists" who will base their rulings on a "strict interpretation of the Constitution." They should not allow "personal opinion to enter into the decision-making process"; instead, they should go by "what the Constitution says."
But the Dred Scott case was expressly based on the plain language of the Constitution.
In fact, the decision may be history's foremost example of "strict constructionism" run amok. When the case was decided in 1857, the Constitution said nothing about "the equality of America," as the president seemed to suggest. To the contrary, it contained two provisions expressly codifying the institution of slavery: one permitted the importation of slaves by any state until 1808, while the other required that escaped slaves be returned to their servitude.
According to Chief Justice Roger Taney's opinion for the Court, these clauses "point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed." Indeed, the Constitution provided that a slave was to be counted, for purposes of determining each state's proportionate representation in the House of Representatives, as three-fifths of a human being.
This plain constitutional text, Taney declared repeatedly throughout his opinion, tied the Court's hands and dictated the outcome in Scott v. Sanford:
No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.
Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.
This is the very judicial philosophy that the president endorsed - even as he vehemently rejected the holding produced by that philosophy in Scott v. Sanford.
That is the real lesson the case holds today. Facile invocation of the "strict constructionist" label tells us very little about how judges will decide particular cases; the values and experience that judges bring to the court inevitably do much to determine the meaning that they ascribe to what Chief Justice Taney himself called "the plain words" of the Constitution. It thus comes as no surprise that seven of the nine justices on the Supreme Court that decided Dred Scott's case had been appointed by pro-slavery presidents, and that five came from slave-holding families. "Strict constructionism" allows judges to reach their preferred (and sometimes morally abhorrent) results while claiming that the outcome was dictated by history and constitutional text.
The Dred Scott case shows that no formula can ever wholly squeeze "personal opinion" out of judging - and that is why voters concerned about the future of the Supreme Court should care about the values and experience that a president will bring to the selection of justices.
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Charles Rothfeld was a law clerk to Justice Harry A. Blackmun and worked in the Office of the Solicitor General at the U.S. Justice Department before joining the law firm of Mayer, Brown, Rowe & Maw LLP. He has argued 20 cases in the Supreme Court. Thomas Colby is an associate professor at the George Washington University Law School and was a law clerk to Justice David H. Souter of the Supreme Court.
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