The Relevance of Dred Scott

I didn't get a chance to comment on it at the time, but while I was listening to the second Presidential debate, I was puzzled by the President's reference to the Dred Scott decision in the 1850s, although I was relieved that he doesn't support that decision. [Dred Scott, for those who don't know, was a slave who went with his master to a free state; when his master died, Scott sued to claim his freedom, but was told that he did not have standing to sue in federal court, and that he was not free simply because he was then residing in a free state. To the contrary, his status (slave or free) was determined by the state in which his master had lived.]

Anyway, here's what the President said:

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.

And I suspect one of us will have a pick at the end of next year—the next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution.

First, there's the question of why he's mentioning Dred Scott at all. The answer, as Tim Noah at Slate.com points out, is that Dred Scott is code for Roe vs. Wade among conservatives. [link] The notion is, I guess, that the Supreme Court ruled that slaves didn't have rights and that decision was overturned, so there's hope that history will be similarly unkind to Roe's holding that fetuses aren't entitled to rights. Tim Noah has explored this in clear and readable detail, so I will defer to his analysis on this point.

So if Dred Scott is code for Roe v. Wade, I think it's a crude comparison that doesn't stand up even to casual scrutiny (a topic for another time). Srike one.

Now, leaving aside the mangled syntax (Bush appears to be saying that the Constitution doesn't speak to the equality of America, which it actually does, in the 14th Amendment), Bush claims Justice Taney, the author of the majority opinion in Dred Scott, was being an activist judge, and that the Constitution doesn't say that "slavery is allowed because of personal property rights." But is that true? Well, I'll report, and you decide:

The Constitution explicitly refers to slavery in two places. In one, it says that states may continue importing persons as they see fit until 1808. We're not so concerned with that clause here. But here's what the other clause says:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. (Art. IV, Sec. 2, Clause 3)

So it seems that the Constitution was pretty clearly enshrining the notion that one to whom service or labor is due has a right to have the escaping slave "delivered up" to him. How exactly is that different from personal property rights? The answer is, it's not. By way of explanation, consider this analogy: my wallet doesn't become yours simply because I leave it at your house; you have to return it to me if I ask for it. The result would be the same even if you had decreed that in your house, the rule was "finders, keepers." Taney was simply saying that slaves were no different under the Constitution -- free states couldn't decree that slaves who found their way to the free state were automatically free. If the owner demanded the return of the slave, the slave had to go.

Strike two.

But now let's turn our attention to the President's distinction between supposedly activist judges like Justice Taney (bad) on the one-hand, and "strict constructionists" (good) on the other. Is the President right that Taney was an activist, and not a strict constructionist?

Sadly, no. [If he had been an activist, American history might have taken a very different turn.] The fact is that, at least in this case, Taney was engaging in strict construction. Among other things, Taney wrote thusly in his opinion:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

That, in a nutshell, is the mantra of the strict constructionist. And indeed, that is how Taney proceeds: as he points out, the plain language of the Constitution required a free state to "deliver up" an escaped slave, and prohibited that state from conferring free status on the slave by operation of the free state's law. Since Dred Scott was a slave, he was not entitled, under the plain language of the Constitution, to receive the rights of a citizen (i.e., his freedom) when he moved to a free territory.

And lest there be any mistake that Taney was engaging in strict construction, he tells the world as much:

Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every state that might desire it, for twenty years. And the government in express terms is pledged to protect it in all future time if the slave escapes from his owner. That is done in plain words -- too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.

From the actual language of the opinion, it's hard to see where Taney isn't engaging in strict construction. This makes the President's attempt to differentiate between the kind of judges he would appoint from the justices who decided Dred Scott all the more puzzling.

Strike three. Please sit down.

[For the record, please be aware that I am defending neither slavery nor Justice Taney's decision in Dred Scott. My purpose here is to point out that even if you take the President's comments at face value, he's gotten the history, the analysis and ultimately, the lesson to be learned completely wrong. As a citizen and a lawyer, I find that disturbing.]