Monday, October 11, 2004

Bush on Dred Scott

Okay, so I bet you're all relieved to hear that our President not only heard of at least one Supreme Court decision, but correctly identified the decision of which he had heard, Dred Scott, as invidious. What about his reasoning? (Yes, I'll indulge the assumption that it was Bush himself, rather than that of his handlers, who came up w/ this line of attack). Well, give him credit for knowing that the case was decided on due process property rather than due process liberty grounds. But the credit ends there. The right frequently invokes Dred Scott as an example of all that is wrong with modern substantive due process. See, e.g., Justice Scalia's dissent in PP v Casey. Dred Scott, the argument goes, was about substantive due process, and it served to uphold slavery. So therefore substantive due process is bad. This is both a factually incorrect and silly argument. Factually incorrect because the substantive due process piece of Dred Scott plays a small role in the actual decision. The real culprit is originalism. Blacks can't be citizens, Taney says, because the framers of the Constitution were racists, and we have to honor their views. But the argument is silly anyway. Nobody who defends any version of substantive due process says that the Court should recognize ALL rights that could be imagined to exist under it. The problem with Dred Scott thus is not that it sounds in substantive due process, nor even that it sounds in originalism, but that it's morally repugnant. For the full version of this argument, see Chris Eisgruber's chapter in my book, Constitutional Law Stories, or check out his law review article, "Dred Again," on which the chapter is based.


At 8:59 PM, Blogger MikeN said...

According to Tim Noah on Slate (, Bush was also using rightspeak to say that he was against Roe v. Wade. It is used to a) speak out against judicial activism and b) show the evils when humans are categorized as non-persons (slavery for Dred, so-called-murder for Roe). See for this type of thinking, brought to you by the man who coined the phrase "Slick Willie."


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