Dredd Scott

Seeing as how Palooka and others think Bush's position on Dredd Scott is central to this election, let's talk about it. If the real issue is substantive due process, then why not say that? Just about as many voters know that concept as are familiar with the Dredd Scott case. But then why not talk about Griswald or Roe? Those are substantive due process cases and voters are more likely to be familiar with them. But then Bush would have to go on record as saying he thinks states can ban access to abortions and contraceptatives. I'm guessing that such a statement would not go over very well with swing voters.

That's the point of these debates--to move voters in your direction. If Bush's remarks were meant to gain some street cred among Federalist Society members, then he wasted time that could have been better spent talking about something else. The better answer would have been to say something like, "I will nominate judges who understand the proper balance between the rights of the individual and the rights of local, state, and national majorities to determine the rules by which they live. When judges issue decisions that create new rights, especially rights that have no textual basis in the Constitution, this balance is disrupted. To quote Justice Black, "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision." That's gets to the heart of the matter. In fact, if he had said something like this and I actually thought he meant it, I'd actually be more inclined to vote for him.

Also, was substantive due process really the worst part of the Dredd Scott case? There was, after all, that little matter about blacks being "an inferior class of beings, who have been subjugated by the dominant race" and thereby having "no rights which the white man was bound to respect."

Finally, if conservatives are so worried about substantive due process, then why do so many of them want to reinvigorate the takings clause in order to protect property rights?