# Bush on Dred Scott, was he actually referring to Roe V Wade?
**URL:** https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863
**Category:** Great Debates
**Created:** [October 12, 2004, 7:56pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863 "2004-10-12T19:56:27Z")
**Posts on this page:** 20
**Page:** 2
### Author:  [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)
#### Post date: [October 13, 2004, 2:17pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/21 "2004-10-13T14:17:55Z")
Without getting into what the President may have been implying, he was generally right about the issues of the Dred Scott decision. It was a case where a Supreme Court justice allowed his personal opinions to overweigh the legal precedents. Taney basically overruled an act of Congress as being unconstitutional. But the logic he used was that the law implied blacks could have legal rights and Taney said this was impossible - no black person, free or slave, could ever have legal rights and any law that said otherwise must be unconstitutional. Obviously he was wrong - there was nothing in the Constitution, then or now, that forbid blacks from being given legal rights.
The President is, however, on shakier ground with his prior statement. The Consitution does have provisions prohibiting the government from establishing or banning religious practices. Having the words “one nation under God” used in public schools could certainly be considered a violation of these prohibitions.
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### Author:  [@amarinth](https://boards.straightdope.com/u/amarinth)
#### Post date: [October 13, 2004, 4:17pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/22 "2004-10-13T16:17:46Z")
> [@pravnik](#):
>
> I think he meant what he said. A lot of modern conservatives believe that the _Dred Scott_ decision was as much of an indefensible use of substantive due process as _Roe v. Wade_ or _Lawrence v. Texas_, and that today’s justices are promoting their own personal agenda through a shady use of the Constitution in much the same way that Justice Taney was twisting the Constituion to strike down Congressional limitations on slavery in _Dred Scott_.
I think he meant what **pravnik** said (or what **Bricker** said during the debate). What Bush, himself, said was some incoherent, weird, stumbling mutter about equality and the Constitution.
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### Author:  [@Mtgman](https://boards.straightdope.com/u/Mtgman)
#### Post date: [October 13, 2004, 4:21pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/23 "2004-10-13T16:21:23Z")
> [@Dewey Cheatem Undhow](#):
>
> As an exercise for the class, read **minty** ’s post carefully. Underneath the thick outer coating of snarkiness you’ll find nothing at its core but hand-waving dismissals. There’s just no getting around the fact that the same logic underlying **Lawrence** also underlies **Dred Scott** and **Lochner**.
Yep, the idea that if the government wishes to make laws which intrude on people’s lives and choices that they must show a justification for it. The more substantial the intrusion the more substantial the justification must be. Quoth the fifth amendment.
> [@](#):
>
> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; 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; nor shall private property be taken for public use, without just compensation.
What the Justices have realized is that “due process of law” is meaningless if the “process” is a rubber stamp. The “due” part implies some sort of proportionality. Proportionate justice is at the heart of the American legal system. Substantitive Due Process is a legal doctrine which says the more intrusive the legislation, the more likely it is to deprive a citizen of “life, liberty, or property”, the more compelling the governmental interest must be. SDP gives life to the “due” part of “due process”. It means the government throwing its weight around in the “life, liberty, or property” of a citizen will be limited to those situations where the government has a compelling interest. It limits micromanagement of private life by legislative authorities.
The problems I see with the decisions where there was an SDP holding, every one I am familiar with at least, are mainly with the definitions of the entities involved and weight given to the situations. In _Dred Scott_ the problem wasn’t that SDP said the gov’t should keep out of private individuals business, the problem was that slaves were not considered people and therefore the interest of the government in protecting them, which would override private interests, was lower than it should have been. The problem with _Roe v. Wade_ is the same problem abortion has always had, how do you define where life begins? _Roe_ defined it as birth and therefore there is no compelling reason(i.e. protection of innocent citizens) to intrude on the liberty of people(all women, thanks to biology) to make their own medical decisions. _Lochner_ held that the right of a businessperson to set their own wages was more important than a worker’s needs to be able to support themselves on that wage. If the assumptions of the government are such that wage payers are more important than wage earners, then this decision was exactly the correct decision. Later realignments of government have brought some reforms which reversed this assumption and now we consider minimum wage laws normal. It is fine and good today to intrude on the right of employers to set whatever wage/working conditions they desire because now the prevailing view in legislation is the governments role in protecting individuals from a “Grapes of Wrath” scenario at the hands of employers is more important than protecting employers from having to pay higher wages or provide more humane working conditions.
SDP is not the problem. SDP was never the problem. SDP flows naturally and easily from the idea of proportionate justice which is at the heart of American law. SDP combined with stupid notions like some humans being less human than others leads to crap like _Dred Scott_.
Enjoy,
Steven
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### Author:  [@presidebt](https://boards.straightdope.com/u/presidebt)
#### Post date: [October 13, 2004, 4:48pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/24 "2004-10-13T16:48:50Z")
> [@CurtC](#):
>
> I just can’t believe this “Dred Scott = code for Roe v Wade” thing. In these appearances, Bush is trying to sway the greatest number of undecided voters. His code-speak would be assuming that there are large numbers of undecided voters for whom ending abortion is a huge priority, and that they are familiar with this code. This just isn’t realistic - most anti-abortion zealots already know who they’re voting for. And how many of the population of undecided voters even know what Dred Scott was about anyway?
You do understand the purpose of having a “code” is to communicate to a small group of people within a larger group, right? That’s why they have spy codes–the targeted spies get the code while baffling anyone else watching.
Bush was speaking in the context of appointments to the Supreme Court. Here’s what he said about it:
> [@](#):
>
> Let me give you a couple of examples, I guess, of the kind of person I wouldn’t pick.
>
> I wouldn’t pick a judge who said that the Pledge of Allegiance couldn’t be said in a school because it had the words “under God” in it. I think that’s an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution.
>
> Another example would be 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.
Bolding mine. He changed course in mid-sentence. I submit that there are two possibilities here, which do not neccessarily preclude each other. He might have been about to say “entitled to personal property rights,” or he might have been about to say, “entitled to life [perhaps liberty and the pursuit of happiness thing too].” He might have intended to say something else, and I invite speculation on that.
As I understand it, the reason the argument itself fails wherever it is prevented is that the premise is that the court erred in 1856 when it said that Scott and his family were not entitled to the personal property that was their body. Roe v Wade says people do have a right to the personal property that is their body. So according to the premise, Roe v Wade is correct–it corrected the error in judgement of the earlier court. The argument is opposed to itself. Of course, IANAL, so I am open someone explaining who has a better grasp of legal matters than I do.
Anyway, I find it hard to believe that so many people find it hard to believe (known unknowns anyone? :D) that this was code. The circumstanial evidence is at the fingertips, going back more than ten years. It’s not as if Bush isn’t coached in the lingo of his party (as is Kerry of course).
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### Author:  [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)
#### Post date: [October 13, 2004, 5:48pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/25 "2004-10-13T17:48:53Z")
> [@Mtgman](#):
>
> SDP is not the problem. SDP was never the problem. SDP flows naturally and easily from the idea of proportionate justice which is at the heart of American law. SDP combined with stupid notions like some humans being less human than others leads to crap like _Dred Scott_.
Au contraire. SDP _is_ the problem, because it is a flimsy justification for the notion that judges can rely on their own moral codes rather than the constitution in striking down legislation. Frankly, I find the moral argument in _Lochner_ to be compelling, even as I note that the decision wasn’t grounded in the text of the constitution. Does that make _Lochner_ OK?
As the late Prof. Llewellyn famously quipped, there’s no getting around the fact that the word following “due” is “process.” The due process clause in both the fifth and fourteenth amendments is properly understood as a guarantee of adequate procedural fairness. That isn’t a “rubber stamp” – indeed, there is a mountain of precedent fleshing out what procedures are and aren’t constitutionally required. Adding a “substantive” component simply forces the phrase to carry more baggage than it was ever intended to bear.
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### Author:  [@minty\_green](https://boards.straightdope.com/u/minty_green)
#### Post date: [October 13, 2004, 8:07pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/26 "2004-10-13T20:07:18Z")
> [@Dewey Cheatem Undhow](#):
>
> And it is a sound argument. As an exercise for the class, read **minty** ’s post carefully. Underneath the thick outer coating of snarkiness you’ll find nothing at its core but hand-waving dismissals. There’s just no getting around the fact that the same logic underlying _Lawrence_ also underlies _Dred Scott_ and _Lochner_.
And Mussolini made the trains run on time, so on-time transportation must be a bad thing, right?
Arguments that compare the right to bear children with legalized slavery _deserve_ to be dismissed out of hand.
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### Author:  [@Mtgman](https://boards.straightdope.com/u/Mtgman)
#### Post date: [October 13, 2004, 8:11pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/27 "2004-10-13T20:11:23Z")
> [@Dewey Cheatem Undhow](#):
>
> Au contraire. SDP **is** the problem, because it is a flimsy justification for the notion that judges can rely on their own moral codes rather than the constitution in striking down legislation. Frankly, I find the moral argument in **Lochner** to be compelling, even as I note that the decision wasn’t grounded in the text of the constitution. Does that make **Lochner** OK?
And here’s where you lost me. Perhaps there is some legalistic angle I’m missing, but I don’t see the personal moral codes of the justices coming through here. I don’t know them, I don’t know what their moral codes are like. In _Lawrence_ I saw citations to popular acceptance of homosexuality in both the law of our fellow soverign nations and in medical/social circles. I didn’t see anything that said “I, Justice Kennedy, think buttsex is fine and dandy, so that’s how I rule.” I saw it as an issue of definitions. The state once was considered a guardian of personal morality, so sin taxes and “deviant sexual behavior” was considered fair game. The feelings of the general population are shifting away from having a nanny state in either their wallets or their zippers, so the consent of the governed which once gave the government the authority to come into a bedroom is being undermined. Just like the viewpoints of the governed which once defined African-Americans as inferior went away. The justices acknowledged this change in the people and the government of the people, by the people, and for the people was made to back off. It would have been better if the representatives had done it themselves, but some governor decided to let HIS own moral code dicatate his official stance and he said he would veto any attempts to repeal the Texas sodomy laws.
> [@Dewey Cheatem Undhow](#):
>
> As the late Prof. Llewellyn famously quipped, there’s no getting around the fact that the word following “due” is “process.” The due process clause in both the fifth and fourteenth amendments is properly understood as a guarantee of adequate procedural fairness. That isn’t a “rubber stamp” – indeed, there is a mountain of precedent fleshing out what procedures are and aren’t constitutionally required.
I’m not talking about the paperwork and the court procedures after a law has been violated. I don’t think having to sign two affadavits before locking someone up is more protection than having to sign one. I’m talking about the due process clause being a check on state micromangement of citizens. Due process being a check on the CREATION of those onerous/invasive laws. If this is not the “proper understanding” in a legal sense then I would ask for a defense of this “proper understanding”. Looks like BS to me.
> [@Dewey Cheatem Undhow](#):
>
> Adding a “substantive” component simply forces the phrase to carry more baggage than it was ever intended to bear.
:dubious: Should I call the Amazing Randi? We have no objective evidence, nor are we able to obtain any, of an SDP interpretation being more than the phrase was “intended to bear”. All those who had intentions when that phrase was written and voted on are long dead and never weighed in on if it would have applied, in their opinions, to protecting medical decisions or buttsex.
In any event, I don’t think the intentions of the founding fathers should be considered paramount. They’re dead. They are no longer part of “the people.”
Enjoy,
Steven
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### Author:  [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)
#### Post date: [October 13, 2004, 8:36pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/28 "2004-10-13T20:36:03Z")
> [@minty green](#):
>
> And Mussolini made the trains run on time, so on-time transportation must be a bad thing, right?
Mussolini [did NOT, in fact, make the trains run on time](http://www.snopes.com/history/govern/trains.htm).
But I realize your making a metaphorical point. And the issue isn’t whether the outcome in a particular circumstance is or isn’t a “good” or “bad” thing, but rather the limits of governmental – specifically, judicial – authority. You seem to believe that as long as a dictator is benevolent, a dictatorship is OK. I respectfully disagree. The ends don’t justify the means.
> [@minty green](#):
>
> Arguments that compare the right to bear children with legalized slavery _deserve_ to be dismissed out of hand.
Good thing I didn’t make such a comparison then, right? I never once suggested moral equivelance between a childbearing right and a right to slavery. Spare me your strawmen.
What I DID do was point out that the concept of SDP represents a fairly open-ended seizure of power by the least accountable branch of government, a seizure that can – and has – been used for great evil as well as great good. In a system of government deriving its legitimacy from the consent of the governed, one which seeks to check the freewheeling use of government authority, that sort of thing simply isn’t kosher.
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### Author:  [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)
#### Post date: [October 13, 2004, 9:16pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/29 "2004-10-13T21:16:53Z")
> [@Mtgman](#):
>
> And here’s where you lost me. Perhaps there is some legalistic angle I’m missing, but I don’t see the personal moral codes of the justices coming through here. I don’t know them, I don’t know what their moral codes are like. In _Lawrence_ I saw citations to popular acceptance of homosexuality in both the law of our fellow soverign nations and in medical/social circles.
The Supreme Court is not called upon to apply the law of fellow soveriegn nations or the judgments of medical/social circles; they are called upon to adjudge _constitutionallity_. And while those other sources may inform their views, they are still, at the end of the day, supposedly interpreting a document. And the simple fact of the matter is, the constitution is stone-cold silent on the issue of gay sex.
> [@Mtgman](#):
>
> I didn’t see anything that said “I, Justice Kennedy, think buttsex is fine and dandy, so that’s how I rule.”
I give Kennedy credit for being more eloquent than that.
> [@Mtgman](#):
>
> The justices acknowledged this change in the people and the government of the people, by the people, and for the people was made to back off. It would have been better if the representatives had done it themselves, but some governor decided to let HIS own moral code dicatate his official stance and he said he would veto any attempts to repeal the Texas sodomy laws.
First of all: cite? Has Rick Perry said any such thing?
Second, the governor, along with the legislature, are the representatives of the people. If the people have made such a decision, then they have the means by which to put that decision into play – the ordinary political process.
The simple fact is that “the people” have made no such decision. Sure, opposition to sodomy laws might be the judgment of the great majority of SDMB posters (I certainly know I think they’re stupid and hateful). And it might be the judgment of the great majority of the folks who attend cocktail parties with Justice Kennedy. But it isn’t the judgment of the people writ large, at least not yet.
> [@Mtgman](#):
>
> I’m not talking about the paperwork and the court procedures after a law has been violated. I don’t think having to sign two affadavits before locking someone up is more protection than having to sign one.
Procedural due process (a phrase straight from the Department of Redundancy Department, and made necessary by the us of SDP) is all about having a full and fair hearing. If you think that’s just a bunch of t-crossing and i-dotting, you’re wrong. Procedural safeguards guarantee that judicial processes are fair to everyone involved. That’s pretty goddammned important. Just ask [Margarita Fuentes](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=407&invol=67).
> [@Mtgman](#):
>
> I’m talking about the due process clause being a check on state micromangement of citizens. Due process being a check on the CREATION of those onerous/invasive laws.
I understand and appreciate that you don’t like “micromanaging” laws, and I understand and appreciate your desire to see them invalidated. But just because you really, really want the constitution to have a clause which so invalidates those laws doesn’t mean you can conveniently redefine phrases to accomplish your goal. That’s what proponents of SDP are doing: redefining a phrase because they can’t find textual support for their position in the constitution itself.
> [@Mtgman](#):
>
> If this is not the “proper understanding” in a legal sense then I would ask for a defense of this “proper understanding”. Looks like BS to me. :dubious: Should I call the Amazing Randi? We have no objective evidence, nor are we able to obtain any, of an SDP interpretation being more than the phrase was “intended to bear”.
We have nearly a hundred years of case law defining it as procedural in nature, and nary a case – with the notable exception of _Dred Scott_ – using it in the substantive sense from the founding to _Lochner_. We have legal commentaries and treatises from the era, which treat the phrase as a term of art with an understood meaning. And we have the writings of the founders themselves. Together, that’s strong evidence that phrase was only meant to mean what it plainly reads as meaning – a gurantee of fair processes.
The use of SDP is (relatively speaking) new and novel. It is incumbent on its proponents to find evidence that the founders meant to include such a free-ranging grant of authority to the judiciary when they wrote the amendment. I have yet to see any such evidence.
> [@Mtgman](#):
>
> In any event, I don’t think the intentions of the founding fathers should be considered paramount. They’re dead. They are no longer part of “the people.”
But what they authored comprises the limitations we, the people, have agreed upon. It isn’t right for a judge to unilaterally change the deal. If we wish to further constrain state and local governments, it is incumbent on us to change that governing document via the amendment process.
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### Author:  [@capacitor](https://boards.straightdope.com/u/capacitor)
#### Post date: [October 13, 2004, 9:43pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/30 "2004-10-13T21:43:05Z")
Bush is saying, in too many words, that
_Roe_:unborn as _Dred Scott_:slaves.
He is trying to re-mobilize the anti-abortion movement to be at least as vigorous in 2004 as the abolition movement was in 1860.
You may disagree, but to many people, this fact is as fundamental to their views as the right to breathe.
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### Author:  [@Mtgman](https://boards.straightdope.com/u/Mtgman)
#### Post date: [October 13, 2004, 10:10pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/31 "2004-10-13T22:10:27Z")
> [@Dewey Cheatem Undhow](#):
>
> First of all: cite? Has Rick Perry said any such thing?
I’ll get back to you on some other points, but the cite is quick and easy. [I’m not talking about Rick Perry](http://www.campaigndesk.org/archives/000727.asp).
> [@](#):
>
> As has been widely reported, when Bush ran for Governor of Texas in 1994, he affirmed his support for the Texas law banning sodomy that the Supreme Court struck down last year. At the time, Bush promised to veto any legislative effort to remove the law, calling it, “a symbolic gesture of traditional values.”
Enjoy,
Steven
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### Author:  [@minty\_green](https://boards.straightdope.com/u/minty_green)
#### Post date: [October 13, 2004, 10:11pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/32 "2004-10-13T22:11:42Z")
> [@Dewey Cheatem Undhow](#):
>
> Mussolini did NOT, in fact, make the trains run on time.
>
> But I realize your making a metaphorical point.
Correct.
> [@](#):
>
> And the issue isn’t whether the outcome in a particular circumstance is or isn’t a “good” or “bad” thing, but rather the limits of governmental – specifically, judicial – authority. You seem to believe that as long as a dictator is benevolent, a dictatorship is OK. I respectfully disagree.
In point of fact, I do not believe that benevolent dictatorship is acceptable. Nor do I believe that a tyrrany of the majority is acceptable. Happily, our choice is not one or the other.
> [@](#):
>
> The ends don’t justify the means.
Nor, in some instances, do the means justify the ends.
> [@](#):
>
> What I DID do was point out that the concept of SDP represents a fairly open-ended seizure of power by the least accountable branch of government, a seizure that can – and has – been used for great evil as well as great good.
Which, if any, of the modern SDP cases would you describe as “great evil” in their result? Any besides _Roe_?
> [@](#):
>
> In a system of government deriving its legitimacy from the consent of the governed, one which seeks to check the freewheeling use of government authority, that sort of thing simply isn’t kosher.
Except, of course, that the courts have been constitutionally charged with enforcing the constitution as the supreme law of the nation. The fact that reasonable people and reasonable judges disagree over what “due process” means hardly establishes that reaching a conclusion contrary to your own amounts to “freewheeling use of government authority.”
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### Author:  [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)
#### Post date: [October 14, 2004, 12:27am UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/33 "2004-10-14T00:27:26Z")
First, I can’t imagine that in the middle of a joint appearance y’clept debate the President just pulled the _Dred Scott_ case out of the air. There had to be some reason the President settled on that case as opposed to any number of other controversial or discredited UCSupCt cases. It seems to me that it is much more likely that the reference was a signal to the anti-abortion block that the President had not forgotten them and was about to change the Court to get the result they so desperately wanted than it was a muddled deceleration of the President’s opposition to the the doctrine of substantive due process.
Second, it is some times hard to tell just what the _Dred Scott_ does stand for, what with all the concurring and dissenting opinions. It has to be read, however, with a view to the politics of the time and the make up of the Court. The case was decided in 1857 but had been working its way through the Missouri state and the federal courts since 1856. The dominant political issue of the day was the slavery-abolition fight. The Democrats, including Stephen Douglas’s Northern Democrats, had adopted the position that Congress lacked the power to establish or exclude slavery from a territory and that the decision had to be made by the citizens of the territory when they applied for admission to the Union. Under the Democratic doctrine every territory was a slave territory no matter where it was in relation to the Southern boundary of Missouri which the Missouri Compromise established as the northern limit for slavery after the admission of Missouri. The argument ignored the Northwest Ordinance which excluded slavery from the territory north of the Ohio River and was enacted by the very same Congress that approved the Constitution and was signed by George Washington and other territorial ordinances and the acceptance of Missouri.
The Supreme Court of 1856-57 was made up of nine Justices, as it is now. Five were southern Democrats, one of whom, Justice Daniel of Virginia, was a pro-slavery zealot, two were northern Democrats, one was a northern Whig, and one Ohio Republican. The Chief Justice, Roger Taney, had been appointed by Andrew Jackson to replace John Marshall and was a pro-slavery partisan.
In the decision there were several radical innovations including the first judicial invalidation of significant Congressional legislation – the Missouri Compromise. On the main point of the case, and by what appears to be a 7-2 decision from which the Whig Justice and the Republican Justice dissented, Taney’s decision held that Dred Scott lacked standing to sue because he was not a citizen of Missouri, or of any other state of territory – in short hand that a Black man could not ever become a citizen of any of the United States. By less clear majorities Justice Taney, with an even more extreme concurrence by the fire breather Justice Daniels, held that Scott’s removal to Minnesota did not free him, that the territories had no power to prohibit slavery and that it was only in the State Constitution adopted at the time of admission as a State that the issue could be addressed, and finally that the Congress had no power to regulate slavery in federal territories that were acquired and organized after the enactment of the Constitution in 1787 – by this bit of sophistry Justice Taney managed to preserve the Northwest Ordinance which at that point applied only to the Minnesota Territory where slavery was no issue but invalidate the Missouri Compromise that had kept sectional conflict under control since 1820.
Interestingly enough the Due Process argument Justice Taney seems to have used on the slave as personal property issue looks to me like procedural due process – that the presence of Dred Scott in the Minnesota Territory (where Taney conceded the Congress had the power to prohibit slavery under the Northwest Ordinance) did not emancipate Scott because that would amount to depriving the slave owner of his property without hearing. Rather, it looks to me as if Taney was using some sort of original intent argument to conclude that Black people were not regarded as citizens in 1787 and so were not and could not ever be citizens even if accepted as citizens by any of the States (another little dishonesty since Art IV, sec 2 explicitly says otherwise). He used the same sort of convoluted logic on the Missouri Compromise concluding that the explicit power to regulate the territories in Art IV sec 4, to make all needful rules and regulations for the territories, applied only to territories existing when the Constitution was adopted.
In short, _Dred Scott v. Stanford_ was by any modern analysis a partisan and dishonest decision. It has precious little to do with any modern jurisprudence and especially any modern substantive due process jurisprudence. That is not to say that concepts of substantive due process cannot been abused and have not been abused. But that is true of any legal doctrine when confronted with a court that has predetermined and out come and is searching for a rational – from my own experience I can verify the abuse of equitable estoppel doctrines. _Dred Scott_ or no _Dred Scott_ substantive due process is a viable principle and is a living doctrine no matter how it may be decried in some quarters. _Dred Scott_ is not the poster child for the evils of substantive due process – it is the horrible example of what happens when a result goes looking for a rational and when the high court becomes an active participant, albeit covert, in political controversy.
Anyone looking for a comprehendible analysis of the _Dred Scott_ case, its life and times, would do well to take a look at Don E Fehrenbacher, _The Dred Scott Case_ New York, 1978, and chapter four of Kenneth M. Stamp’s _America in 1857_, New York, 1990.
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### Author:  [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)
#### Post date: [October 14, 2004, 2:54am UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/34 "2004-10-14T02:54:56Z")
> [@minty green](#):
>
> In point of fact, I do not believe that benevolent dictatorship is acceptable. Nor do I believe that a tyrrany of the majority is acceptable. Happily, our choice is not one or the other.
Point of fact, you do believe in the benevolent dictatorship, because you willingly cede power to an unaccountable branch of government because you favor the policy outcomes they produce.
Point of fact, my position cannot be labeled the “tyranny of the majority” because I favor vigorous enforcement of the limitations on government found in the text of the constitution. I fully agree that certain areas can, and should, be placed off-limits from government interference. I just think that the people, and not a remote and insular judiciary, should be the arbiter of what those areas are.
> [@minty green](#):
>
> Nor, in some instances, do the means justify the ends.
Nor did I say they did. Texas’ sodomy law is an awful, immoral imposition on its citizens. My belief that that law should be changed by the ordinary political process does not prevent me from passing moral judgment on that law.
> [@minty green](#):
>
> Which, if any, of the modern SDP cases would you describe as “great evil” in their result? Any besides _Roe_?
Define “great evil;” I’d think usurping a power rightfully held by the citizenry is in and of itself a pretty great evil.
But more to the point: the fact that modern jurisprudence has been (mostly) benevolent does not alone justify the aggregation of power permitted by SDP.
> [@minty green](#):
>
> Except, of course, that the courts have been constitutionally charged with enforcing the constitution as the supreme law of the nation. The fact that reasonable people and reasonable judges disagree over what “due process” means hardly establishes that reaching a conclusion contrary to your own amounts to “freewheeling use of government authority.”
I disagree that such a broad reading of those two slender words is reasonable. The notion that it can conceivably encompass everything from economic policy to family relations to reproductive rights to sexual freedom to bilingual education does damage to the English language. Really, if it means all that, is there anything it _cannot_ mean?
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### Author:  [@minty\_green](https://boards.straightdope.com/u/minty_green)
#### Post date: [October 14, 2004, 3:24am UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/35 "2004-10-14T03:24:14Z")
> [@Dewey Cheatem Undhow](#):
>
> Point of fact, you do believe in the benevolent dictatorship, because you willingly cede power to an unaccountable branch of government because you favor the policy outcomes they produce.
While I quite obviously favor the policy outcomes that I support–don’t we all?–I certainly do not “willingly cede power to an unaccountable branch of government” because the judiciary _is_ accountable. In many states, such as our own, judges are directly elected by the voters, just as the legislators you profess to value above all else. At the federal level, every single judge must be approved by the elected representatives of the public, and every single one of them may be removed from office by the House and Senate for any reason or no reason at all. No accountability? Hardly.
> [@](#):
>
> Point of fact, my position cannot be labeled the “tyranny of the majority” because I favor vigorous enforcement of the limitations on government found in the text of the constitution.
Certainly, so long as the text of the constitution is interpreted as you construe it. Nevertheless, other people, such as myself, construe it differently. What, the rest of us are supposed to bow to the infallibility of your interpretive skills?
> [@](#):
>
> Define “great evil;” I’d think usurping a power rightfully held by the citizenry is in and of itself a pretty great evil.
And I think the citizenry’s exercise of its power in service of evil is itself a pretty great evil. You prefer that exercise of evil to remain unchecked, so long as your personal interpretation of the constitution allows the evil. Me too–but my constitution places checks on evil that your constitution allows.
> [@](#):
>
> I disagree that such a broad reading of those two slender words is reasonable.
And I disagree with your unnaturally cramped reading of such broad language. Again, we are at an impasse.
> [@](#):
>
> The notion that it can conceivably encompass everything from economic policy to family relations to reproductive rights to sexual freedom to bilingual education does damage to the English language. Really, if it means all that, is there anything it _cannot_ mean?
Ah, the infinite interprability of indefinite terms. I suppose one could argue that “due process” includes rocketships to the moon, but I rather doubt that notion will gain much traction with the public or the judiciary. Wouldn’t it be a better question to ask what I, or a judicial candidate or nominee, believes “due process” to encompass?
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### Author:  [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)
#### Post date: [October 14, 2004, 4:49am UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/36 "2004-10-14T04:49:39Z")
> [@minty green](#):
>
> At the federal level, every single judge must be approved by the elected representatives of the public, and every single one of them may be removed from office by the House and Senate for any reason or no reason at all. No accountability? Hardly.
Well, the federal level is what we’re talking about, and if you consider impeachment to be a meaningful check on judicial power I think you’re kidding yourself.
Tell you what: find me one example – just one – of a federal judge being impeached for the substance of his jurisprudence and I’ll possibly cede the point. Fact is, historically the constitutional standard for judges – “good behavior” – has been understood to mean Congress can only impeach when a judge is incapable of carrying out his duties, either due to corruption or disability (e.g, drunkenness). And while technically Congress can decide what “good behavior” means, it’s a bit silly to suggest they’re meant to use the impeachment power in the manner you suggest.
> [@minty green](#):
>
> Certainly, so long as the text of the constitution is interpreted as you construe it. Nevertheless, other people, such as myself, construe it differently. What, the rest of us are supposed to bow to the infallibility of your interpretive skills?
Shame on you. You know full well that this isn’t true – that I will quibble with others over the meaning of, say, free speech, but that I understand and respect alternative interpretations as valid exercises of judicial power because they are grounded in the text of the constitution. That isn’t so with SDP. SDP doesn’t involve “interpretation” in any meaningful way. It involves inserting new text via convenient redefinition.
> [@minty green](#):
>
> And I disagree with your unnaturally cramped reading of such broad language. Again, we are at an impasse.
I hardly think my view of the phrase is “unnaturally cramped.” Indeed, I think it fairly clear that the history of the phrase and a facial reading of its words both make my reading both sensible and natural. In fact, if you took the average person who was unaware of the constitutional jurisprudence behind the phrase would read it as relating to process and process alone – like supposed back-masked rock lyrics, you don’t hear all that other stuff in the phrase until someone suggests to you that it’s in there.
> [@minty green](#):
>
> Ah, the infinite interprability of indefinite terms. I suppose one could argue that “due process” includes rocketships to the moon, but I rather doubt that notion will gain much traction with the public or the judiciary. Wouldn’t it be a better question to ask what I, or a judicial candidate or nominee, believes “due process” to encompass?
It would be nice if proponents of SDP would come up with some kind of meaningful limit on their theory. As it stands, it appears to be endlessly expansive, filling whatever voids a socially conscious judge wishes it to fill.
Shall we continue with this little kabuki dance like we always do?
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### Author:  [@minty\_green](https://boards.straightdope.com/u/minty_green)
#### Post date: [October 14, 2004, 1:20pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/37 "2004-10-14T13:20:04Z")
If you don’t like Kabuki, don’t bring your facepaint to the theater. 😛
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### Author:  [@Polycarp](https://boards.straightdope.com/u/Polycarp)
#### Post date: [October 14, 2004, 3:34pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/38 "2004-10-14T15:34:19Z")
**Dewey** , I have to differ with you on your post two above this one (I neglected to get the number).
I respect your idea that SDP is or can be a Frankenstein’s monster. But I believe strongly that your position that it is not “founded in the Constitution” and “constitutes judicial lawmaking” is merely **your take** on how it operates.
In other words, it’s a question of one’s philosophy of Constitutional jurisprudence, not a flat-out I’m-right-and-you’re-wrong question of the infamous Income-tax-is-illegal-because-of-Ohio-statehood-issues ilk.
Let’s start with the idea that the Fourteenth Amendment does in fact incorporate many of the provisions of the Bill of Rights by virtue of the “privileges and immunities” clause. I’ve never seen you disagree with this – the idea that the First Amendment prohibits Federal interference with free speech and the free exercise of religion, and the Fourteenth Amendment extends this prohibition to State interference, seems to be fairly valid jurisprudence all the way around.
Now, typically an American believes that he has a complexus of ill-defined “rights” to disparage which “the government” may not act. He does not get into the issues of explicit jurisprudence; he believes that a policeman has no inherent power to enter his home without his consent and without a judge’s authority. He believes he has the right to marry as he pleases (presuming it’s within the marriage laws of his state). He believes he has the right to travel and to relocate within the U.S. without getting governmental permission to do so. He believes he has the right to decide whether to attend a church or not, and to pick the church of his choice if he desires to do so. He may not extend these rights to others in some of the touchy cases that get argued – does that religious freedom extend to Muslims, for example, is one he may have a problem with, or, as has been argued at length, to gay marriages. But he thinks that he in general is a free man, entitled to do as he lists within the bounds of “what’s legal” and that there are limits on what can be declared illegal.
But notice that many of these rights are not explicitly spelled out. The cop is barred from illegal searches and seizures, from warrantless entry for such searches and seizures except in specified circumstances, but he is not explicitly barred by the Constitution from a non-search-and-seizure entry. No explicit clause gives him the right to marry, to travel, or to relocate; those are “rights” recognized by courts engaged in what many term “judicial activism.”
What **Mtgman** said above is what this ‘reasonable man’ thinks is the purpose of Constitutional rights – the right of the free man to do what he chooses, provided that he does not harm another or interfere with the rights of another. And that the courts are enabled to protect those rights.
The fact that he hasn’t spelled out his understanding of the limits of those rights is in his mind no limitation on them. He knows they’re there; he’s not necessarily prepared to grant their analogs to people who don’t think and behave as he does, but they’re valid rights to which **he** is entitled.
And right there is where the distinction springs up to slap us both in the face.
He doesn’t care a rodentiform rectum about “substantive due process” – he just knows that the courts are there to protect his rights, and he’s prepared, with ill grace, to allow them to protect the rights of others even when he doesn’t quite agree with them, so long as they don’t cross over his ideas of what’s right and wrong. This is why the issues regarding _Roe_ are as hot as they are – while he’d object to regulation of what he can do with his body, he cannot see that that same rule applies to a pregnant woman, because of the presumed rights of the fetus.
But what he will not stand for is the idea that the state **gives** him rights – they’re **his** , and guaranteed by the Constitution against “big government” trying to deprive him of them. It’s why many conservatives object so strenuously to zoning laws – except when they benefit them; it interferes with their rights to deal with their property as they see fit.
And it’s in that idea that the common consent of Americans that we each have specified rights that may not be taken from us that the whole rule of law idea rests. That’s why one sees the sort of outrage from the left about Ashcroft that has been regularly posted here. To reduce that to a matter of proceduralism goes against the grain of our ‘reasonable man’ – he knows that there are substantive guarantees there that he can marry and travel as he chooses, and no matter that nobody saw fit to spell them out. He may not be prepared to grant gay people the right to marry, or suspected terrorists the right to travel, but he knows that he and other good people do have those rights, just with limitations of some sort – which he won’t spell out until he’s backed into a corner to do so.
So my argument here is not that SDP **is** valid constitutionally, but that it’s reasonable to argue that it can be – that it’s a school of thought that folks like myself and **Minty** can reasonably hold.
And the justification for that is in what “we the people” agreed would be our guide – the freedoms that we all take for granted, until the rubber hits the road and a definition of where they are limited and where they have free run needs to be made.
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### Author:  [@Mtgman](https://boards.straightdope.com/u/Mtgman)
#### Post date: [October 14, 2004, 4:20pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/39 "2004-10-14T16:20:53Z")
> [@Dewey Cheatem Undhow](#):
>
> Texas’ sodomy law is an awful, immoral imposition on its citizens. My belief that that law should be changed by the ordinary political process does not prevent me from passing moral judgment on that law.
I have a lot of empathy for this position. But the system was broken, **D**. (Do you mind if I call you **D**? Cause it’s a lot shorter than your handle and it lines up with your RL name as well.) There was popular pressure to repeal the law and some guy decided he would veto it because he figured his moral standards were more important than the ones embodied in the legislators. The popular pressure didn’t rise to the level of overriding a veto, but it would likely have been sufficient to repeal the law.
I’m a rubber-meets-the-road kind of guy and when the rubber meets the road the system sucks. Voter turnout is crap. This gives stupidly small minority interest groups undue swing power. Incumbents are not held accountable for their assholery because the voters tend to remain rationally ignorant of their actions and all they see is the campaigns. The incumbent re-election rate is something like 60-80%. Presidents are being elected by less than 25% of the eligible voters in the country. A minority block which represents a SINGLE-DIGIT population percentage can swing a Presidential election. WTF? How in hell is one supposed to have faith in this system?
The result of this increasing friction and issues with the system is that ALL branches of government are accumulating power and losing accountability. Look at the special sessions called to redistrict Texas. Can you honestly tell me you think that was not an abuse of power? As the electorate increasingly turns a blind eye to the actions of their “representatives” we’re seeing the legislative and executive branch experience an explosion of power. Why are you all upset that the judicial branch is keeping pace?
Democracy has one great virtue. It is damn near impossible to get everyone to agree on anything. This naturally produces mild governments which take only conservative steps because they have no clear mandates. When only subsets of the voters participate, especially the highly charged/focused groups like the religious right, these vocal minorities distort the normally mild nature of the democratic government.
In all I think the system is, if not already broken, then breaking. Voter apathy is the biggest problem, but one of the symptoms which compounds the problem is this aggregation of power in the hands of increasingly unaccountable legislators and executives. The judiciary has done some really stupid things too, but since they are much smaller and easier to examine(a couple dozen pages in a decision versus thousands of pages of legislative debate transcripts) they are getting more flack.
The whole thing needs a kick in the pants, but when/if it all settles down I still don’t have a problem with saying that a process which can end in forefiture of life, liberty, or property must have some substantitve reason for existing. I really don’t have a problem with it when those processes are being increasingly crafted by interest groups and rubber stamped by legislators who can’t afford to piss off this tiny(compared to the population) interest group because the very real result would be losing the next election.
Enjoy,
Steven
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### Author:  [@Lilairen](https://boards.straightdope.com/u/Lilairen)
#### Post date: [October 14, 2004, 9:05pm UTC](https://boards.straightdope.com/t/bush-on-dred-scott-was-he-actually-referring-to-roe-v-wade/268863/40 "2004-10-14T21:05:10Z")
> [@stpauler](#):
>
> So, was Bush talking about Roe V Wade? Was he speaking towards judicial fiats? Or is a cigar just a cigar and he was talking about Dred Scott? (Did Bush forget about 3/5ths?)
A friend wrote to one of her evangelical-Christian relatives after hearing rumours of the question and asked, “Why do you think the President mentioned Dred Scott in the debate?”
The response she got was, “Well, it’s exactly like Roe vs. Wade.”
The concept _exists_ as a possible referent; whether it was the actual referent, I don’t know.
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