Monday, October 11, 2004

The Dred Scott decision and judicial activism

The spin on the left now is that Bush mentioned the Dred Scott case in answer to a question on judicial activism as a signal to Pro-Life groups. I am no longer surprised by any fantastic allegation from the left, but this one truly strains the imagination.

Bush was grasping for an example, and Dred Scott popped into his head. There are dozens of better and more recent examples of federal judges inserting their personal beliefs into their decisions, and reading into the Constitution something which is not there.

However, it is a valid example, nonetheless. First of all, in DRED SCOTT V. SANDFORD the SCOTUS ruled that no slave or descendent of slaves could ever be a citizen of the US. To arrive at this conclusion, they went beyond the text and engaged in speculation about the unspecified intentions of the Founders.

Secondly, the Court found that even if a black person were granted the rights of citizenship in their state, those rights would not be recognized by other states, and again, would confer no rights as a citizen of the nation. This is direct contradiction to Article IV, Section 2, Clause 1:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Thirdly, the Court declared that Congress had no right to regulate the importation of any person's "property" into another state or territory, in direct contradiction of Article I, Section 8, Clause 3 {the enumerated powers of Congress}:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

[bold emphasis added]

Fourthly, the Court held that there was a distinction in the Constitution between "people" {most often, in the text, "person(s)"} and citizens, which there clearly is not. While there was, at the time, a differentation of the way slaves were counted {three-fifths of a person}, there was also the specific reference to slaves as "persons" in Article I, Section 9, Clause 1:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

No distinction is made between "person" and "citizen" in the Constitution. It repeatedly refers to "persons" when speaking of citizens. One example of many is "no person shall become a Senator who . . ."

Given the above examples of the egregious judicial activism which led to this horrible decision, I believe it is most appropriate to consider Bush's answer in the context of the question, and how he referred to the decision. Reading too much more into it is speculation at best.

It should come as no surprise that other opponents of judicial activism, be they Right-to-Life groups, Libertarians, etc., also refer to Scott, as it is one of the more outrageous examples of what can happen when judges empower themselves to twist, rewrite, or ignore the Constitution.

The decision itself, for those who are interested, is here:


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