Bush won't appoint pro-slavery judges
By Jim Dallas
Aside from the timber flap, the weirdest moment of the debate for me was definitely when Bush cited the Dred Scott decision while simulaneously praising strict constructionism.
No doubt, the Scott holding was bad (Atrios explains), but arguably it was also the "strict constructionist," or at the very least, the conservative holding. I remember studying the case in high school and college, and no doubt it is a stinker, but it was not one that was premised on radical activism but simply very bad logic in defense of the status quo.
Look, the Founding Fathers wouldn't have given Dredd Scott the time of day. And lest we forget, the holding in regards to the Missouri Compromise was premised largely on a strict (mis)reading of the Constitution.
Consider these West Headnotes to the case:
92 Constitutional Law
92II Construction, Operation, and Enforcement of Constitutional Provisions
92k11 General Rules of Construction
92k16 k. Matters Extrinsic to Instrument in General. Most Cited Cases
No change in public opinion or feeling in relation to Negroes should induce court to give to words of Constitution a more liberal construction in favor of Negroes than such words were intended to bear when instrument was framed and adopted.
92 Constitutional Law
92II Construction, Operation, and Enforcement of Constitutional Provisions
92k44 Determination of Constitutional Questions
92k45 k. Judicial Authority and Duty in General. Most Cited Cases
Duty of court is to interpret Constitution as framed with best light court can obtain on the subject and administer Constitution as it finds it according to its true intent and meaning when adopted.
Incidentally, this last headnote seems to just about sum up George W. Bush's favorite justice, Antonin Scalia's "original intent" theory. The legacy of the Scott case lives on today.
Frankly, I can't help but believe that the sort of judges Bush would appoint are precisely the ones who are likely to give us "the next" Dred Scott decision.
Posted by Jim Dallas at October 8, 2004 10:51 PM
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