Full Version: The Dred Scott Case
The Dred Scott Case: Is this really a good criterion for selecting a Supreme Court Justice?
Listening to the Presidential Debate, one of W’s answers stuck out as strange, out of touch, and very out of date.
In elementary school, I had to listen to my teacher’s opinion of American history. Today we have the Internet, and we can take a direct look at the pertinent Supreme Court decision. It appears to be a 6 – 2 decision based not on “personal opinions,” but on "a strict interpretation of the Constitution" as it was written at the time. (It was heard in 1856, with a decision handed down the following year.) The decision stated, in part:
The substance of the decision (as I read it) was that; as Dred Scott was not a citizen, he had no right to sue in the United States court system. The previous court decision was therefore ruled null and void.
The Dred Scott case is probably a better argument as a standard for making a Constitutional amendment, than for picking a Supreme Court judge. It took about eleven years, and the Civil War before the Constitution was amended to allow a person born to slaves in the United States to be allowed the rights and privileges of a native born United States Citizen. The fourteenth amendment was not ratified until July 9, 1868. It states in part:
Questions for debate:
Is the Dred Scott Case really a good criterion, in the 21st century, for selecting a Supreme Court Justice?
Is it asking too much that as President, George W. Bush should be sufficiently familiar with the Constitution to know what it actually says?
Listening to the Presidential Debate, one of W’s answers stuck out as strange, out of touch, and very out of date.
QUOTE(George W. Bush @ Presidential Debates, October 8, 2004)
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.
(source)
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.
(source)
In elementary school, I had to listen to my teacher’s opinion of American history. Today we have the Internet, and we can take a direct look at the pertinent Supreme Court decision. It appears to be a 6 – 2 decision based not on “personal opinions,” but on "a strict interpretation of the Constitution" as it was written at the time. (It was heard in 1856, with a decision handed down the following year.) The decision stated, in part:
QUOTE
4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a 'citizen' within the meaning of the Constitution of the United States.
The substance of the decision (as I read it) was that; as Dred Scott was not a citizen, he had no right to sue in the United States court system. The previous court decision was therefore ruled null and void.
The Dred Scott case is probably a better argument as a standard for making a Constitutional amendment, than for picking a Supreme Court judge. It took about eleven years, and the Civil War before the Constitution was amended to allow a person born to slaves in the United States to be allowed the rights and privileges of a native born United States Citizen. The fourteenth amendment was not ratified until July 9, 1868. It states in part:
QUOTE
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(source)
(source)
Questions for debate:
Is the Dred Scott Case really a good criterion, in the 21st century, for selecting a Supreme Court Justice?
QUOTE(Presidential Oath of Office)
I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.
Is it asking too much that as President, George W. Bush should be sufficiently familiar with the Constitution to know what it actually says?
I think the premise here is a bit of a stretch, but I've never been shy about offering my opinions... 
Is the Dred Scott Case really a good criterion, in the 21st century, for selecting a Supreme Court Justice?
It was clear to me that Bush was attempting to avoid the dreaded "abortion" litmus test question. This kinda strange answer stems from that avoidance.
Dred Scott was at least partially about property rights. Dred Scott sued for his freedom because his master took him out of the Slave State of Missouri and into the "free" Louisiana territory. He was later brought back into Missouri, but sued for his freedom arguing "once free, always free". His argument was that his trip into the free territory of Louisiana made him a free man.
The court ruled that Scott could not sue, because he was a slave. It went on to rule that the Missouri Compromise (of 1820) was also un-Constitutional.
THE DRED SCOTT CASE
I do think that this answer was a bit--odd. Its purpose was to avoid the abortion debate, obviously.
Is it asking too much that as President, George W. Bush should be sufficiently familiar with the Constitution to know what it actually says?
Check yer facts, 'Mudge.
Is the Dred Scott Case really a good criterion, in the 21st century, for selecting a Supreme Court Justice?
It was clear to me that Bush was attempting to avoid the dreaded "abortion" litmus test question. This kinda strange answer stems from that avoidance.
Dred Scott was at least partially about property rights. Dred Scott sued for his freedom because his master took him out of the Slave State of Missouri and into the "free" Louisiana territory. He was later brought back into Missouri, but sued for his freedom arguing "once free, always free". His argument was that his trip into the free territory of Louisiana made him a free man.
The court ruled that Scott could not sue, because he was a slave. It went on to rule that the Missouri Compromise (of 1820) was also un-Constitutional.
THE DRED SCOTT CASE
QUOTE
The Court ruled that Scott, as a slave, could not exercise the prerogative of a free citizen to sue in federal court. That should have been the end of the case, but Chief Justice Taney and the other southern sympathizers on the Court hoped that a definitive ruling would settle the issue of slavery in the territories once and for all. So they went on to rule that the Missouri Compromise of 1820 was unconstitutional since Congress could not forbid citizens from taking their property, i.e., slaves, into any territory owned by the United States. A slave, Taney ruled, was property, nothing more, and could never be a citizen.
The South, of course, welcomed the ruling, but in the North it raised a storm of protest and scorn. It helped create the Republican Party, and disgust at the decision may have played a role in the election of Abraham Lincoln in 1860.
The South, of course, welcomed the ruling, but in the North it raised a storm of protest and scorn. It helped create the Republican Party, and disgust at the decision may have played a role in the election of Abraham Lincoln in 1860.
I do think that this answer was a bit--odd. Its purpose was to avoid the abortion debate, obviously.
Is it asking too much that as President, George W. Bush should be sufficiently familiar with the Constitution to know what it actually says?
Check yer facts, 'Mudge.
QUOTE(Amlord @ Oct 11 2004, 11:08 AM)
I do think that this answer was a bit--odd. Its purpose was to avoid the abortion debate, obviously.
Is it asking too much that as President, George W. Bush should be sufficiently familiar with the Constitution to know what it actually says?
Check yer fact, 'Mudge.
Is it asking too much that as President, George W. Bush should be sufficiently familiar with the Constitution to know what it actually says?
Check yer fact, 'Mudge.
Having not had reasons to check the Dred Scott case since I last heard of it in 5th or 6th grade, haf a century ago, I was trying to check my facts, and the President's facts. Quoting from your Your link to The Dred Scott Case,:
QUOTE
The question then arises, whether the provisions of the constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endue him with the full rights of citizenship in every other State without their consent? Does the constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State, and in its own courts?
The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the constitution of the United States, and, consequently, was not entitled to sue in its courts.
The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the constitution of the United States, and, consequently, was not entitled to sue in its courts.
QUOTE(Amlord)
It was clear to me that Bush was attempting to avoid the dreaded "abortion" litmus test question. This kinda strange answer stems from that avoidance.
I spent a couple of decades married to a woman who claimed that she could read my mind, and was constantly telling other people what I was thinking, or what I really meant. I was trying to do the President the courtesy of listening to what he said, and trying to understand that. I believe it would be fallacious on my part to insert into my arguments what I felt the President was thinking, what issues he was trying not to address, etc.
Checking my facts though, George W.Bush did in fact address the issue of abortions in the debate, saying in part:
QUOTE(BUSH)
My answer is, we're not going to spend taxpayers' money on abortion.
This is an issue that divides America, but certainly reasonable people can agree on how to reduce abortions in America.
This is an issue that divides America, but certainly reasonable people can agree on how to reduce abortions in America.
Ergo it is not clear to me that he was trying to avoid abortion as a litmus test.
In legal terms the decision seems to be generally founded on logic and the law, with two exceptions. The first isn't actually crucial:
This seems to be nonsense. It's based on the idea that black people couldn't possibly have been meant when they talked of high principles of liberty etc, simply because they were black. However, this is not the basis of the decision, but a way of trying to show that the decision is in line with the intentions of the law-makers. This isn't necessary, as it is the law that ultimately counts rather than the intention behind it, but judges like to do this kind of thing to give more weight to the decision.
More important is the dubious assertion that Congress, although entitled "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," was acting outside its powers in creating the Act prohibiting slavery in the north. If slaves are property then I don't see how this can be. There is nothing in the constitution that confines it to the original 13 states. In fact that would be absurd, yet that is what they tried to say. Furthermore, it is also unclear why this process does not come within 'due process of law' as stated in the 5th Amendment, and therefore a valid way of depriving someone of their property. They are right to say that slaves have no different status under the federal consitution, but they don't need one.
My reasoning would have been this:
1. Congress is empowered to make laws concerning property;
2. The 5th Amendment allows for people to be deprived of property by due process of law;
3. The Act prohibiting slavery in the north is a correct law;
4. Therefore Dred Scott was made free by due process of law, under a valid law.
The Court's reasoning seems to have been this:
1. People cannot be deprived of property except by due process of law;
2. Movement from one territory to another cannot be 'due process of law.' (It must be done through courts?);
3. Therefore a slave cannot be freed simply by entering a territory;
4. Therefore the Act prohibiting slavery in the north is unconstitutional;
5. Therefore Dred Scott was not freed.
The problem with this is point 2 - it ignores the fact that the Act prohibiting slavery in the north itself made the freeing of slaves in free states a valid method of attaining freedom. That was a process of law.
So I actually suspect that Bush was right to use this as an example, though I admit it isn't totally black and white.
QUOTE
'In the opinion of the court, the legislation and histories of the times, and the language used in the declaration of independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument...for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the declaration of independence would have been utterly and flagrantly inconsistent with the principles they asserted.' (my emphasis)
This seems to be nonsense. It's based on the idea that black people couldn't possibly have been meant when they talked of high principles of liberty etc, simply because they were black. However, this is not the basis of the decision, but a way of trying to show that the decision is in line with the intentions of the law-makers. This isn't necessary, as it is the law that ultimately counts rather than the intention behind it, but judges like to do this kind of thing to give more weight to the decision.
More important is the dubious assertion that Congress, although entitled "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," was acting outside its powers in creating the Act prohibiting slavery in the north. If slaves are property then I don't see how this can be. There is nothing in the constitution that confines it to the original 13 states. In fact that would be absurd, yet that is what they tried to say. Furthermore, it is also unclear why this process does not come within 'due process of law' as stated in the 5th Amendment, and therefore a valid way of depriving someone of their property. They are right to say that slaves have no different status under the federal consitution, but they don't need one.
My reasoning would have been this:
1. Congress is empowered to make laws concerning property;
2. The 5th Amendment allows for people to be deprived of property by due process of law;
3. The Act prohibiting slavery in the north is a correct law;
4. Therefore Dred Scott was made free by due process of law, under a valid law.
The Court's reasoning seems to have been this:
1. People cannot be deprived of property except by due process of law;
2. Movement from one territory to another cannot be 'due process of law.' (It must be done through courts?);
3. Therefore a slave cannot be freed simply by entering a territory;
4. Therefore the Act prohibiting slavery in the north is unconstitutional;
5. Therefore Dred Scott was not freed.
The problem with this is point 2 - it ignores the fact that the Act prohibiting slavery in the north itself made the freeing of slaves in free states a valid method of attaining freedom. That was a process of law.
So I actually suspect that Bush was right to use this as an example, though I admit it isn't totally black and white.
I don't think it's out of the realm of reality to figure that President Bush was floundering when he answered one audience member's question in this manner.
There were any number of Supreme Court cases he could have cited as an example--it appeared that this was the first one that came to mind for him. And yes, Amlord, I am sure it had something to do with avoiding the abortion issue.
But it was still a pretty irrelevant example, and it did not convey a positive example of strict interpretation of the Constitution in light of our current attitudes toward the institution of slavery. It was like bringing up that weird uncle on your father's side as an example of your kinfolk, if you will.
It certainly isn't asking too much for a President to have more than a high school-level familiarity with the Constitution.
There were any number of Supreme Court cases he could have cited as an example--it appeared that this was the first one that came to mind for him. And yes, Amlord, I am sure it had something to do with avoiding the abortion issue.
But it was still a pretty irrelevant example, and it did not convey a positive example of strict interpretation of the Constitution in light of our current attitudes toward the institution of slavery. It was like bringing up that weird uncle on your father's side as an example of your kinfolk, if you will.
QUOTE
Is it asking too much that as President, George W. Bush should be sufficiently familiar with the Constitution to know what it actually says?
It certainly isn't asking too much for a President to have more than a high school-level familiarity with the Constitution.
QUOTE
QUOTE(Presidential Oath of Office)
I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.
Is it asking too much that as President, George W. Bush should be sufficiently familiar with the Constitution to know what it actually says?
Although I do think the consitution is an important thing for a president to be aware of. I also, think that fully understanding how the judical branch of government works and should be working according to said Constitution. I think this adminstration's flare for labeling any major court decision they disagree with as the work of "Activist Judges" is a pretty good sign that there is little to no understanding of how 1/3 of our government is supposed to be working. Certainly labeling the Dredd Scott judges in the same manor you would judges declaring bans on Gay marriage unconsitutional shows a complete lack of ethics or understanding of how these decisions are arrived.
Is the Dred Scott Case really a good criterion, in the 21st century, for selecting a Supreme Court Justice?
I certainly don't think it is, and I think that in this case the answer was one of Bush's famous attempts at quick thinking to actually avoid answering the question with his real intentions.
Bush's first answer which he fired off jokingly is probably the most correct:
Kerry also called him on this:
I can certainly take another 4 years of Bush and his agenda, but the thing that scares me more than anything else is the exact question asked by this audience member - who would you appoint to the supreme court? I think that we as a country can recover from whatever Bush throws at us if he wins another 4 years (the amount of time it takes to recover and how many lives, jobs and how much money will be lost is up for debate), but I think that if he were to appoint a supreme court judge a lot of the progress we have made over the last 50 years would be at stake and that is something that really keeps me up at night.
Based on Bush's past actions and the positions he has taken, I have no idea he'd seek to install judges that make people like Scalia look liberal. The man wants to write discrimination into the constitution by banning gay marriage, he is against abortion and caters to religion at every turn, hates "activist" (meaning liberal) judges - guess what kind of judge he is going to install?
But, clearly he couldn't say that so he was searching for something, anything to say to this audience member. He racked his "C average" brain for a response and Dred Scott was the only thing that he could remember, so he used it. I think that is really the explanation. Rather than trying to read something complicated into it, I am afraid I have to go with the most plausible answer.
I also disagree with the answer that it was to avoid the abortion debate. Bush has absolutely no reason to avoid that debate because his position is strong with his supporters and indeed many people who are "undecided" right now. In fact he did take a strong position on this in another question that night.
As an aside, I think that Kerry's answer to this question was perfect and exactly the right one.
Is it asking too much that as President, George W. Bush should be sufficiently familiar with the Constitution to know what it actually says?
I for one think that the President should be intimately familiar with the Constitution as a job requirement.
However, it does not at all surprise me that Bush isn't. Back in this post part of the discussion was on Bush's grades in college.
Not having an understanding of the Constitution or major cases does not at all surprise me with grades like this:
- Political Science 13B: 71 (C-)
- Introduction to the American Political System: 73 (C-)
- Overall GPA: 77 (C/C+)
I certainly don't think it is, and I think that in this case the answer was one of Bush's famous attempts at quick thinking to actually avoid answering the question with his real intentions.
Bush's first answer which he fired off jokingly is probably the most correct:
QUOTE
BUSH: I'm not telling.
Kerry also called him on this:
QUOTE
A few years ago when he came to office, the president said -- these are his words -- "What we need are some good conservative judges on the courts."
I can certainly take another 4 years of Bush and his agenda, but the thing that scares me more than anything else is the exact question asked by this audience member - who would you appoint to the supreme court? I think that we as a country can recover from whatever Bush throws at us if he wins another 4 years (the amount of time it takes to recover and how many lives, jobs and how much money will be lost is up for debate), but I think that if he were to appoint a supreme court judge a lot of the progress we have made over the last 50 years would be at stake and that is something that really keeps me up at night.
Based on Bush's past actions and the positions he has taken, I have no idea he'd seek to install judges that make people like Scalia look liberal. The man wants to write discrimination into the constitution by banning gay marriage, he is against abortion and caters to religion at every turn, hates "activist" (meaning liberal) judges - guess what kind of judge he is going to install?
But, clearly he couldn't say that so he was searching for something, anything to say to this audience member. He racked his "C average" brain for a response and Dred Scott was the only thing that he could remember, so he used it. I think that is really the explanation. Rather than trying to read something complicated into it, I am afraid I have to go with the most plausible answer.
I also disagree with the answer that it was to avoid the abortion debate. Bush has absolutely no reason to avoid that debate because his position is strong with his supporters and indeed many people who are "undecided" right now. In fact he did take a strong position on this in another question that night.
As an aside, I think that Kerry's answer to this question was perfect and exactly the right one.
QUOTE
I don't believe we need a good conservative judge, and I don't believe we need a good liberal judge. I don't believe we need a good judge of that kind of definition on either side.
I subscribe to the Justice Potter Stewart standard. He was a justice on the Supreme Court of the United States. And he said the mark of a good judge, good justice, is that when you're reading their decision, their opinion, you can't tell if it's written by a man or woman, a liberal or a conservative, a Muslim, a Jew or a Christian. You just know you're reading a good judicial decision.
I subscribe to the Justice Potter Stewart standard. He was a justice on the Supreme Court of the United States. And he said the mark of a good judge, good justice, is that when you're reading their decision, their opinion, you can't tell if it's written by a man or woman, a liberal or a conservative, a Muslim, a Jew or a Christian. You just know you're reading a good judicial decision.
Is it asking too much that as President, George W. Bush should be sufficiently familiar with the Constitution to know what it actually says?
I for one think that the President should be intimately familiar with the Constitution as a job requirement.
However, it does not at all surprise me that Bush isn't. Back in this post part of the discussion was on Bush's grades in college.
Not having an understanding of the Constitution or major cases does not at all surprise me with grades like this:
- Political Science 13B: 71 (C-)
- Introduction to the American Political System: 73 (C-)
- Overall GPA: 77 (C/C+)
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