Saturday, October 09, 2004

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?


Anonymous said...

Anti-Abortion hardliners often view themselves as the new abolitionists: fighting for the rights of the unborn just like the abolitionists fought for the slaves. They view Roe v. Wade as their Dred Scott case, proving that the Supreme Court can be wrong and its rulings overturned. So Bush was speaking in code to his crackpot followers without tipping his hand to normal people. He said that the Scott decision was based on "opinion", just like Roe, wink wink. So his choice of the case was despicably logical. These people are not human

Palooka said...

I didn't say it was a smart choice of a topic politically, but I think it's pretty fun that in this rarified air, none of you knew what he was talking about.

Dred Scott is very analagous to Roe. Each decision created (out of thin air) a new right at the expense of others. Each snatched the decision about who is part of the community from the public because of subjective moral opinion of the few. In the Dred Scott case it was blacks, in Roe it was the unborn. Whether or not you believe a fetus is a "person" is irrelevant, that is the decision that society, and not the Supreme Court, should make.

A comprehensive history of substantive due process would include the Lochner Era as well. The role in introducing decisisions like Lochner and Scott v. Sanford is to find common ground. Now, Lochner and Scott v. Sanford are believed to be erroroneous by both conservatives and liberals. Yet they are the parentage of modern liberal jurisprudence. The question is simple--why do liberals invoke a failed judicial philosophy? It may seem expedient today, but tomorrow there is no telling what that free-wheeling judiciary might do under the pretense that they know best.

Griswold is very flawed, but is eminently more defensible than Roe. It is the methodology of Griswold (and not necessarily the outcome) which are deeply flawed. But Bush could talk about Griswold and Roe without offending many people. It's not like he is against contraception. Griswold, despite its unorthodox methodology, was not controversial. Only a few states had laws proscribing contraception (ironically Massachusetts was one of them), and those laws were only sporadically enforced. Roe voided abortion laws in EVERY state. It just shows that results-based jurisprudence is a dangerous, uncertain road. If properly articulated, I doubt if that would offend or scare many voters.