hecklongtree

I read an interesting article that was written in response to Bush's comments on the Dred Scott case made during one of the Bush-Kerry debates. Strict Constructionism and Dred Scott

When asked what kind of candidates he would appoint to the federal bench, Bush said he was looking for strict constructionists. He was against judicial activism as exemplified by 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."

I agree with President Bush that the Court was activist in the Dred Scott case, but not for the reasons cited by the President, reasons which demonstrate a misunderstanding, not only of the case, but of the Constitution and its history.

First, the Constitution, before the 13th Amendment, did allow slavery. The Constitution contains several provisions referring to slavery, including Art.I, Sec. 2 [3] (slaves counted as three fifths of a person for Congressional apportionment purposes and Art. I, Sec. 9 [1] (Congress shall not prohibit importation of "persons" before 1808). For a complete list, see Derrick Bell's "And We Are Not Saved."

Second, whether the Constitution allowed slavery was not at issue in the Dred Scott case. Dred Scott, for those not familiar with the facts, was a slave brought by his master into a portion of the Louisiana Territory made free by the Missouri Compromise. Scott, claiming to be free by virtue of having moved to a free territory, brought a suit for his freedom which made its way to the Supreme Court. The Court ruled against Scott, in part, because, under the "vested rights" theory of substantive due process, the Missouri Compromise was unconstitutional since Scott's master, simply by moving to another territory, was divested of his property rights in Scott.

Invalidating the Missouri Compromise was judicial activism. In this respect, the Scott court was activist. On that, I agree with President Bush. The Court did not have to rule on the Missouri Compromise' constitutionality to decide the case, since it had already held that Scott, as a slave, was not a citizen and, therefore, had no right to sue in federal court. (Note that the 14th Amendment reversed this holding, stating that persons born in a state are citizens of the United States and of the state in which they are born)

However, as to the matter of whether the pre-Civil War Constitution allowed slavery, the President is factually wrong. Had President Bush bothered to educate himself, he would have found that, before the Civil War, slavery was allowed, not because of some feat of activist judging, but because it says so in in the text of the Constitution. And isn't that what strict constructionists are supposed to be interpreting?