President Bush would be well advised not to give off-handed opinions based on American history, which is obviously unfamiliar territory for him. In Friday night’s debate he declared that he wouldn’t appoint judges who put their personal opinions ahead of “strict interpretation” of the Constitution. As an example he cited “the Dred Scott case, which is where judges years ago said that the Constitution allowed slavery because of personal property rights. That’s personal opinion. That’s not what the Constitution says. The Constiution of the United States says we’re all—you know, it doesn’t say that. It doesn’t speak to the equality of America.”

Though it isn’t quite clear what that final sentence means, the Constitution did, alas, recognize slaves as property, if declared to be so by states, until the passage of the Thirteenth Amendment in 1865. The states were free to decide for themselves—but the question left hanging as the Union grew, was the status of slavery in territories not yet states—which were the common possessions of both slaveholding and nonslaveholding Americans, and administered by the federal government. The issue mattered because once slavery was established in a territory, it was likely to persist in states carved out of that territory as they gained enough population to enter the Union, but if excluded, eventual free states were almost a certainty. The matter was temporarily settled by a political deal, the Missouri Compromise of 1820, that drew a line through what was essentially the region from the Mississippi to the Rockies dividing it into a northern and southern half---slaveholding allowed below the line, and not above it.

By 1857, the controversy over the future of slavery was tearing the country apart, and it was then that the case of Dred Scott came before the Supreme Court. Scott had been the slave of an army doctor who was stationed for a time in territory north of the Missouri Compromise line and kept Scott with him. The officer died and his widow married an abolitionist, who helped Scott with an arranged suit for his freedom on the grounds that his residence in free territory had ended his slave status. After losing in Missouri, Scott’s lawyers moved the case to the U.S. Supreme Court by arranging that Scott, as a citizen of Missouri, should sue the widow’s brother, a citizen of New York—the Constitution explicitly providing federal jurisdiction in suits between citizens of different states.

The ruling went against Scott, 7-2, with five Southern justices part of the majority and several opinions issued. The basic holding was essentially that Scott could not be a citizen of Missouri if Missouri courts said he was not, so the suit did not belong in federal courts—and that could have let Missouri’s judgment stand and ended the matter. But the majority went on disastrously to argue that the whole Missouri Compromise was unconstitutional because Congress was thereby breaching the Fifth Amendment which held that no person—slaveholders included—could be deprived of life, liberty or property without due process of law. The crusher was the opinion of Chief Justice Roger B. Taney, a Maryland slaveholder, who argued that no black, slave or free, could be a citizen because at the time of the Constitution’s adoption, none were (he was wrong on that) and “a negro had no rights which a white man was bound to respect.” The ruling seemed to open all existing and future territories of the United States to the imposition of slavery. President James Buchanan had hoped that the Court’s pronouncement would settle the question once and for all, and had even improperly written to one Justice urging for the kind of ruling that actually was handed down. Instead, the case caused a gigantic backlash against the Court throughout the North, and helped bring on the Civil War. From then on, the Court tended (perhaps until Bush v. Gore in 2000) to shy away from politically sensitive cases.

President Bush did get one thing partly right—Taney’s racist pronouncement was personal opinion. That spares him a failing grade. But the ruling that slave property was recognized and untouchable, except by court proceedings, no matter what had happened since 1787—well, that was undoubtedly “strict construction,”of which he seems so fond. I’d be inclined to award a C-minus.

Incidentally, Scott himself, along with his wife and children, was freed after the decision, as had been planned and anticipated all along, and died peacably and obscurely—a bit player in a tragic drama that would carry his name into history.

From the October 8, 2004 presidential debate:

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

Mr. Bush: I'm not telling. I really don't have, haven't picked anybody yet. Plus I want them all voting for me. 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.

Uh, 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 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 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, 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. Thank you.

Related Links

President Bush's discussion of the Dred Scott decision during Friday's presidential debate left political pundits and plenty of viewers scratching their heads. But some abortion opponents think they know just what he meant. For years, many conservative groups have drawn comparisons between Dred Scott, which affirmed that slaves were property and could not become citizens, and Roe vs. Wade, which legalized abortion. Since the president mentioned the 1857 Supreme Court decision, the Internet has been abuzz with speculation that he was trying to telegraph a message to his conservative base."The Dred Scott reference is code language for abortion rights," the popular political blog Daily Kos explained.