October 11, 2004

Dred ing Roe: The Chief Justice's Debate Primer

by Chris Geidner

The moment I heard Dred Scott this past Friday in the presidential debates, I thought: "Genuis, but who will get it?"

It's true. Many -- from Atrios and Wonkette to Kevin Drum and (surprisingly) Law Professor Eric Muller -- were confused (or at least acted as if they were) by this reference.

As was partially -- albeit incompletely -- explained by Paperwight's Fair Shot, Dred Scott rather quickly leads one to Roe v. Wade. Although some have discussed the comparison between abolitionist reaction to Dred Scott and pro-life reaction to Roe, most have skimmed over the part of this equation that matters in terms of the question posed him: Bush's potential Supreme Court appointments.

In his book, "The Supreme Court," Chief Justice William Rehnquist presents the following as one of the "violated . . . canons of sensible constitutional interpretation" in Dred Scott:

The Court undoubtedly has the power to declare an act of Congress unconstitutional because that act conflicts with some provision in the Constitution. Judges will disagree with one another as to how the Constitution should be read in a particular case, and some may find a particular law unconstitutional while others will not. But it seems to me that even given the milieu in which the Court operated in 1857, . . . the Dred Scott opinion falls short of that minimum degree of plausibility that should be required before a court declares any act of Congress unconstitutional. . . . Taney's opinion relies on no provision in the Constitution that would even arguably make the Missouri Compromise fall outside [the Constitution's relevant] grant of power. The opinion is based almost entirely on the sense of the unfairness to southerners of preventing them from bringing with them their peculiar institution when northerners were allowed to carry property of all descriptions. But a sense that a law is unfair, however deeply felt, ought not to be itself a ground for declaring an act of Congress void.

William H. Rehnquist, THE SUPREME COURT 63-64 (2001).

Later, in describing Lochner era "liberty of contract" cases, Rehnquist writes:

Like the Missouri Compromise involved in Dred Scott, and unlike the subsection of the Judiciary Act of 1789 ivolved in Marbury v. Madison, the laws the Court was thus setting aside were the respnse of legislators in countless states to keenly perceived and prominently publicized problems of the day. The Court was in the process of sowing a wind, with the whirlwind to be reaped years later.

Id. at 115.

Like Bush this past Friday, Dred Scott -- through to the economic substantive due process era of Lochner -- is used to strike at the heart of the substantive due process privacy of Roe. Rehnquist's attack on the Court's decisions striking down laws about "keenly perceived and prominently publicized problems of the day" based on ideas allegedly not contained within the text of the Constitution was as much an attack on Roe as it was an attack on Lochner and Dred Scott.

Friday night was not, in other words, simply an imagery of the union of abolitionists and pro-life protesters; it was the explication by Bush of a legal theory advanced by the Chief Justice of the United States -- a legal theory that unequivocally would overturn Roe and Lawrence v. Texas and everything in between.

October 11, 2004 12:14 PM | TrackBack
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