Dred-Ful

The lesson of Friday’s debate seems to be the even something as elemental as slavery can be twisted by the multiple malapropos machine that is President George W. Bush. The confusion came midway through the second presidential debate, held Friday night in St. Louis, in the chatty ‘town hall’ style that allows the candidates to roam around half a room (there is a line in the carpet the candidates can’t cross) answering questions posed by carefully culled ‘ordinary Americans’. “Mr. President,” Jonathan Michaelson intoned, “if there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, who do you choose and why?”

Good question. We haven’t heard much yet about the Supreme Court and what might happen to our basic liberties if the respective candidates are elected. Given the age of the current court, (Only Thomas is under 65. Stevens and Rhenquist are both over 80) at least one and likely several vacancies will occur in the next four years, and given the delicate balance on the court, additional ideologues could potentially radically reshape the jurisprudence of the court for many years to come.

Michaelson’s question was fairly straightforward, but in the twisted rhetoric that passes for political discourse these days, Bush first opted to answer the question in the negative. After a little joke about not naming names, Bush first described who he wouldn’t pick—people who refuse to let school kids say ‘under god’ during the pledge of allegiance, and, in a strange reference to the Dred Scott decision, those who are pro-slavery.

Zeroing in on the principal value of a Supreme Court Justice, Bush explained that he wanted someone who is a “strict constructionist’—someone, that doesn’t allow personal opinion to enter into the decision making process. That, according to the President is what leads to cases like the pledge of allegiance, and the Dred Scott decision-- which Bush described this way: “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.”

Um, actually, no. You don’t have to read far into the constitution of the United States to find the imfamous 3/5th compromise—in fact it’s right there in Article I Section 2. You only have to read the first four sentences or so—a mere 150 words to find it—the embarrassing nod to slavery that defined slaves as three fifths of a person. As it turns out, the constitution spoke quite clearly about the equality of America—just not in words we’re particularly proud of now. It’s important to note that the 13th, 14th and 15th amendments, dealing with the abolition of slavery and equal protection under the law hadn’t been ratified when the court was called upon to decide the Scott case. And so, If anything, Dred Scott was very much a strict-constructionist decision.

As little as we like it, neither the text nor the tradition of the constitution, understood as they were in the 1850’s, support Bush’s “equality of America” rhetoric. In fact, if you were to give an interpretive test to the justices today—handing them a copy of the Constitution as it existed then—sans 13th, 14th and 15th amendments, and asked them to decide Dred Scott all over again, it is Scalia (with Thomas concurring) that would likely re-produce the reviled result Justice Taney came up with back then.

Not only did Bush get his history wrong, not only did he misunderstand the constitution, but in his invocation of the Dred Scott decision, he committed the very sin he would condemn democratic appointee’s for—imposing his own vision of America on the text of a recalcitrant document. And that, is precisely the problem.

For more interesting analysis take a look at Timothy Noah's piece in slate... http://slate.com/id/2108083/