Strictly speaking

[mamculuna]

Bush, from the debate last night:

"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."

Chief Justice Roger B. Taney (strict constructionist), from the majority opinion in Dred Scott v. Sandford:

"The change in public opinion and feeling in relation to the African
race, which has taken place since the adoption of the Constitution,
cannot change its construction and meaning, and it must be construed
and administered now according to its true meaning and intention when
it was formed and adopted....

....Upon the whole, therefore, it is the judgment of this court, that
it appears by the record before us that the plaintiff in error is not
a citizen of Missouri, in the sense in which that word is used in the
Constitution; and that the Circuit Court of the United States, for
that reason, had no jurisdiction in the case, and could give no
judgment in it. Its judgment for the defendant must, consequently, be
reversed, and a mandate issued, directing the suit to be dismissed for
want of jurisdiction."

The Constitution of the United States, article IV, section IV:

No person held to service or labor 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 labor, but
shall be delivered up on claim of the party to whom such service or
labor may be due.

Comments

[rahael.livejournal.com]

Have you seen this explanation for George Bush's remarks?

What do you think?

http://www.dailykos.com/story/2004/10/9/16460/5820

[mamculuna.livejournal.com]

That is amazing. It's so obvious, once you know. I was amazed when Bush brought up Dred Scott (I've just been reading about that case, or actually my husband was writing about it), because it seemed so unrelated to anything he is usually concerned about. But seeing that explanation made it all clear.

Code words. It's like having two different conversations going on at the same time. Soon we'll need simultaneous translators just to know what's being discussed.

Re the merits of the argument she cites: equating Dred Scott to Roe v. Wade is weird, because Roe v. Wade does not argue that the fetus is the property of the mother. It argues that the fetus is a part of the mother.

[bhagwan.livejournal.com]

My thought was that it was about Gay Marriage, but then I remembered who was talking.

Ah ha! Now I understand

[rebekahroxanna.livejournal.com]

It takes a British subject to help me understand. I was listening in the airport (when I could between all the announcements about yet another delay). What I thought I heard was Bush upholding Dred Scot as a strict constructionist opinion (which it is). I went back and read the transcript and saw that he was citing it as an example of personal opinion. So I finally attributed it to his not being a lawyer. But I couldn't understand why I couldn't find any analysis in main line media.

Re: Ah ha! Now I understand

[mamculuna.livejournal.com]

My reaction was the same as yours, and that's what my original post referred to as well--that Dred Scott was the opposite of what Bush wanted it to exemplify.

However, my husband, who's written a bit on constitutional law, said he thought Bush was right, that Taney in Dred Scott had gone beyond strict construction to actually distorting the original intent. He says that the evidence is there that the framers intended to phase out slavery (ending importation in 1808, etc.) and that Taney was going against that evidence.

In any case, I was amazed that Bush knew even enough history to get it wrong. I'm pretty sure he wasn't following my husband's reasoning, above, but more likely the "code" that Rah cites.

Re: Ah ha! Now I understand

[rahael.livejournal.com]

Even Andrew Sullivan has now mentioned it. He points out this quote from National Review online:


"[A]bortion is in our day what slavery was in Lincoln's. To vote for John Kerry in 2004 would be far worse, however, than to have voted against Lincoln and for his Democratic opponent in 1860. Stephen Douglas at least supported allowing states that opposed slavery to ban it. And he did not favor federal funding or subsidies for slavery. John Kerry takes the opposite view on both points when it comes to abortion. On the great evil of his own day, Senator Douglas was merely John Kerry-lite." - Robert George and Gerald Bradley, co-authors of the FMA, in NRO.

and he adds: Now I get the Dred Scott reference.

Re: Ah ha! Now I understand

[mamculuna.livejournal.com]

Bill, my husband, points out that my earlier statement, that Roe v. Wade argues that the fetus is a part of the mother, is inaccurate. What Roe v. Wade argues is that there are so many different ideas of when life begins that the government has no way of choosing which is correct and therefore cannot legislate among them. Interesting only from a legal scholar point of view, but wanted to set my own record straight.

Still, most of us on the left were clueless when George came up with that, and people all over SC thank you for letting us know (seriously, I forwarded your link to the local Greens who sent it out statewide).

[bhadrasvapna.livejournal.com]

I about fell off the couch when he said that laughing. The absurdity of referring to Dred Scott was bad enough, but to get it wrong. That was too priceless. I'm guessing that the 13-15th Amendments were completely unnecessary. I know that the Neocons don't particularly like the 14th Amendment, but this was too much.

All this in the name of appointing someone who is a "strict constructionist." I would hope a strict constructionist would know what he is strictly constructing. To quote a case that shows exactly what is wrong with strict constructionism....HAHAHAHAHAHAHAHAHA

I also think he needs to remember that the Executive branch implements the laws, which has been Kerry's point when it comes to things like the problems with The Patriot Act. It isn't the laws that are necessarily the problems, but how they are being implemented, like with No Child Left Behind and countless others.

I have a basic US history book here. Think hitting Bush upside the head with it will help?

[mamculuna.livejournal.com]

Sounds good to me! Also see Rah's link above--that's really an interesting thought.

[bhadrasvapna.livejournal.com]

I wonder if eventually, the Republicans will all speak in a series of clicks and beeps so only their followers know what they are really saying. Will the CIA code breakers have to go to work on this?

They should be more careful that their code book doesn't fall into the wrong hands. McCain's communications director defected and he knows these games. He's not going to be the only defector. They took the pendulum way too far in the other direction.

[bhagwan.livejournal.com]

This is really off the topic, but you made me think of it. I think that a lot of conservatives would argue that its the "librals" who speak in code. Using big words and obscure references like "Orwellian." Seriously, that's the core of President Bush's popular support: folks who consider intellectuals to be sinister figures. That's why Bush doesn't lose support when he babbles and drools and can't put together two words to make a sentence. He's just a regular guy. The view is that maybe he makes a mistake, but you know what he stands for. Its not that Kerry operates on such a high plane, but the average American reads at an 8th grade level. And remember, that means half of us are below that.

[mamculuna.livejournal.com]

I know what you mean, but I was thinking Kerry had been better about speaking on the common level in the last two debates--but maybe I misjudged.

[bhagwan.livejournal.com]

no, he definitely did do a pretty good job at that, with just a couple of slips. Still, that is who he is. He is a lawyer and an intellectual. Its one of the things that divides America.

[mamculuna.livejournal.com]

Yeah, but so was Clinton. It's also the whole background for Kerry.