Joho the Blog
An Entry from the Archives

From Friday's debate:

MICHAELSON: Mr. President, if there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, who would you choose and why?

BUSH [pleasantries snipped]: I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.

Let me give you a couple of examples, I guess, of the kind of person I wouldn't pick.

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.

That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all — you know, it doesn't say that. It doesn't speak to the equality of America.

And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.

Clearly, Bush considers the Dred Scott case to be a bad decision by an activist judge who is not a strict constructivist. Actually, the case wasn't about whether slavery was legal; that was not only taken for granted, it was written in the Constitution. The case was actually about whether slaves had enough standing to sue in a federal court. Chief Justice Taney said not only didn't they have the standing, but the Missouri Compromise unconstitutionally violated the right of property owners to transport their property — whether it's a chair or a slave — anywhere they wanted. Scott's legal owner could not be denied his rights as a property owner, Taney wrote, basing his opinion on the Fifth Amendment's promise of due process. This is from Taney's decision:

...Thus the rights of property are united with the rights of person and placed on the same ground by the Fifth Amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, without due process of law, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law...

Note that in this passage, the person being deprived of property is not Scott but Scott's owner. That Taney didn't need to explain that shows just how embedded was the Blacks-as-property "frame."

Then we get this mind-twister of a sentence from Bush:

That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all — you know, it doesn't say that. It doesn't speak to the equality of America

Here's what I think happened in Bush's brain:

Dred Scott= slavery ok. Dred Scott decision bad.

US Constitution says "All men created equal."

ALARM! ALARM! ALARM! Is that in the Constitution or the Declaration of Independence? ABORT THE SENTENCE! ABORT!

Go for safety: "It [the Constitution] doesn't say that."

Ditch the entire thing. Go back to "Dred Scott bad": "It [Dred Scott decision] doesn't speak to the equality of America."

Taney was an activist in that he could have ruled narrowly on whether Scott had standing to bring suit. Instead, he ruled on the issue that Scott was raising, in effect saying, "No, you can't sue, but we're ruling against you anyway." That's not a very good example of what it means to be an activist judge. Worse for Bush, Taney's decision was based on a narrow, literal and strict construction of the Constitution's meaning.

Anyway, I, like all Americans, was impressed that this shard of 8th grade American History class had remained lodged in Bush's brain.