Dred Scott = Roe v. Wade

Some people seem to be a bit boggled by Bush's Dred Scott remark last night. It wasn't about racism or slavery, or just Bush's natural incoherence. Here's what Bush actually said:

If elected to another term, I promise that I will nominate Supreme Court Justices who will overturn Roe v. Wade.

Bush couldn't say that in plain language, because it would freak out every moderate swing voter in the country, but he can say it in code, to make sure that his base will turn out for him. Anti-choice advocates have been comparing Roe v. Wade with Dred Scott v. Sandford for some time now. There is a constant drumbeat on the religious right to compare the contemporary culture war over abortion with the 19th century fight over slavery, with the anti-choicers cast in the role of the abolitionists.

Don't believe me? Here.

Further, Bush has to describe Dred Scott as about wrongheaded personal beliefs, rather than a fairly constricted constitutional interpretation because he needs to paint Roe v. Wade the same way, and he wants "strict constructionists" in the Supreme Court, so he can't really talk about the actual rationale used in Dred Scott.

I can't emphasize enough how important this is, and how much it needs to be publicized.

10/10/04 Update: Wow. This was unexpected. As I read some of the blogs that have been linking to me recently, I notice that some folks are saying that (a) the Dred Scott reference would go over even a lot of anti-choice activists' heads, and (b) that the people who would vote for Bush based on his stand on abortion will turn out anyway. Lawyers, Guns & Money has a particularly well-written version of these arguments (and is a very good, drastically underread blog, in my humble opinion).

As to (a), I think that's a matter of opinion. My personal belief is that Dred Scott::Roe v. Wade is a very common analogy in the anti-choice movement, and it won't go over the heads of people who are truly active in the anti-choice movement. Those people will tell others in their community, probably at church today, even as I write this.

As to (b), George Bush's plain english abortion position has not been that Roe v. Wade should be overturned. It's this:

Bush opposes abortion except in cases of rape, incest or to save the mother’s life. He’ll try to seem non-threatening, respecting others’ views without backing off his long-held “pro-life” position. He previously had said he would not demand that his Supreme Court nominees be anti-abortion. It’s even conceivable he’ll choose a running mate who supports abortion rights, Bush said. “I’m going to talk about the culture of life,” he continued. “I’ve set the goal that every child born and unborn ought to be protected. But I recognize [that many] people don’t necessarily agree with the goal. People appreciate somebody who sets a tone, a tone that values life, but recognizes that people disagree.“

That position has been a disappointment to at least some in the hard-line anti-choice community. By using the Dred Scott reference, I believe that Bush tried to speak directly to them, to get them to the polls for him, instead of sitting the election out or voting for the Constitution Party candidate.

In other words, Karl Rove is worried, worried enough to put the Dred Scott reference on national television, and risk getting caught. And that's good. But what Bush promised with it, that's bad.

10/11/04 Update: Search changed to filter out hits with "Paperwight" in them.

Comments

[Simon]

Wow.

[Coturnix/Liberal Zoo]

Yup, the Dred case was just a code-word for abortion, meant for Bush extremists.

Here are some additional links:

http://abortion.netfirms.com/whoseside.htm

http://www.nrlc.org/news/1999/NRL699/slave.html

http://www.sonomacountyfreepress.com/body/holocaust_now_part_1.html

http://www.jregrassroots.org/jre/viewtopic.php?t=8020&sid=d84fa7d438b1a552cbcdb0df0988c76e

[Kynn Bartlett]

Great minds and all that...

Dred Scott, Explained: It's About Abortion, DailyKos diary entry by me

[Random Reader]

Hi,

This is my first time on your blog (via Washington Monthly) and I'm compelled to comment (which I don't usually do) to let you know that it is awesome! A very high quality blog, packed full of information. I'm not sure it lends itself to comments, but that is not important to me, so, thanks.

[paperwight]

Thank you very much. You're quite kind. And please do feel free to comment as you like (trolling barred, however).

[Feddie]

Well, I certainly hope you're right about what President Bush intended, but speaking as a judicial conservative, I don't hold out much hope that Roe is going anywhere. There are only three justices that are currently willing to overrule Roe: Rehnquist, Scalia, and Thomas. Rehnquist will retire in a second Bush term, so that's a wash if we're lucky (if we're unlucky, Alberto Gonzalez gets the nod, and we're down to two). Bush would have to place three ultra conservatives on the Court, and I just do not see that happening given the current composition of the Senate.

[John Isbell]

How odd, my personal info's here.
Anyway, I also came from Kevin and found your post revelatory. Thanks.

[paperwight]

John, you've probably posted a comment to a Typepad blog before, and told it to remember your personal info. Nothing sinister going on.

[Shaula]

Thanks for breaking the code, paperwight. This is excellent.

Someone needs to explain to me how they succeed in conflating the forced reproduction activists (it's all sons for the emperor, all the time!) with abolitionists. How do Democrats, feminists, progressive African Americans (in fact, I'd like to hope that most African Americans find the comparison demeaning and inappropriate), and pro-choice activists let them get away with framing the debate this way?

I know, I know the stock answers because I regurgiate them myself: post-modern politics, a culture shift to aggressively willful ignorance, a monopoly of information channels, the infiltration of the Southern Baptist Convention, the systematic campaign to indoctrinate American young through controlling school boards and choosing school text books...

But this hits too close to home, and I want a more emotionally-satisfying answer. Anyone?

[azure vista]

So many blogs, so litte time! Thanks.

[azure vista]

So many blogs, so litte time! Thanks.

[Simbaud]

Shaula,

Dred Scott: Slaves are not human beings with inalienable rights, but property to be bought and sold as their owners wish.

Roe v. Wade: Feuses are not human beings with inalienable rights, but collections of cells to be aborted if their mothers so wish.

That, I assume, is the connection.

[InsultComicDog]

This was puzzling me much of last night and today... and now it makes perfect sense. Sheesh.

I was thrown a little bit that Dred Scott had a connection to the debate site.

[Richard Cranium]

Action point: this would be an excellent question for Bob Schieffer, moderator of the upcoming debate on Wednesday night, to pose. Media for Democracy is forwarding potential questions to debate moderators. Unable to get a direct email link to Bob Schieffer, I posed this question via Media for Democracy's online question submittal form:

For President Bush - You casually mentioned the Dred Scott decision in a response to a Supreme Court question during last Friday's debate. Many people watching, including myself, were somewhat confused by that reference. The Dred Scott decision is often cited by right-to-life groups as a basis for arguing against Rowe -v- Wade. Can you provide some more detail on how you feel Scott -v- Sanford applies to Roe -v- Wade, and judgements you would make in filling Supreme Court vacancies?

If everyone would take a moment and submit a similar question, it might actually get asked in Wednesday nights debate on domestic issues.

[N]

Wow! Very interesting connection, and I don't doubt it for a second. I was one of the many who was puzzled by the Dred Scott remark, and chalked it up to typical Bush bizarro-speak, but still there seemed something to it. I think you have a veritable scoop on your hands here. Nice job.

[Shaula]

Simbaud, allow me to clarify: I understand what they're doing, I just don't understand how they get away with it/how we let them get away with it. :(

[Hughman]

"Some people seem a bit boggled by Bush's Dred Scott remark last night. It wasn't about racism or slavery, or just Bush's natural incoherence. Here's what Bush actually said:
If elected to another term, I promise that I will nominate Supreme Court Justices who will overturn Roe v. Wade."

Movements are built by addition, not subtraction.

When Presidents speak they always give multiple meanings, even from The Great Imitator. Of course he meant to code his attack on Roe v. Wade, but he showed that racism is an invisible phantom in his world, unseen even when visibly written in the Constitution (Article I, Section 2, Paragraph 3 - the "three-fifths provision" and the exclusion on non-tax paying Indians). Mr. Bush last night both attacked Roe v. Wade and betrayed his callousness to a central issue facing American democracy; and there was more.

Before going on let's get this concept straight. He didn't do one thing, he did both - and more. More what?

Well, anyone born since the Civil War who has read the Constitution has come away from its reading with the archaic "three-fifths" provision indelibly etched into memory. I don't care if they read it when they were 8, 18 or 58, they walked away mumbling "so that's why they fought the Civil War," or "I didn't know" and much more. This provision has seared into the consciousness of those who have read the Constitution this shared memory, regardless of race, creed or color.

What the President of the United States of America also did last night was to show that he has never read - or had it read to him - that very document he has sworn before God and us to uphold; the President does not understand the oath he swore.

The President of the United States of America has not read its Constitution. Why is this not today's headline? Better, why are most of us not even talking about this?

Yet we "fight" for the singular truth, that "one" meaning of last night (and all the nights before), trying to rally the troops, but demanding that they join us only under "our" banner. We wonder why we are alone on the battlefield.

But not the Far Right; no, not them. They know how to build single-issue campaigns, each based on a depth of commitment to the beliefs of its members in that cause. And they have been able to unify themselves through its broad front, the much-maligned "Cultural Wars", the so-called wedge issues. On this core ability they have become the most powerful political force in the USA.

We ridicule them for their regimented "talking points;" we respond with a leaf storm of ideas, each vying as "the one." Time's almost up, people; we will not have many more opportunities like last night before "this grip" is closed.

If we want an open society then must "fight this fight together".

[Abby]

The more I think about this the more insidious it gets. For years Bill Buckley has said that overturning Roe v. Wade's privacy-based guaranteed right to abortion wouldn't outlaw all abortion rights. Speaking to a Boston radio audience he said that States like Massachusetts and Connecticut would be free to allow abortion if they wanted to; it would just be left up to the states.

Now I'm not so sure. If you take the Dred Scott logic to its absurd conclusion, then the fetus can't be "property". (In right wing speak personal property=privacy.) The fetus is then a person subject to equal protection of the law under the 14th amendment. That's why Bush blathered on about equality. (My 2nd semester Con Law is really shaky.) Under this reasoning any state that wanted to keep abortion legal would also have to legalize murder.

It seems like there would be some serious contortions to get around suspect class issues if you didn't also want to extend rights to gays. My head is spinning right now, and I can't think through all of the implications, because it would go against at least one Rehnquist decision that I can think of. I can't remember the name of the case, but the kid was abused, and it was repeatedly brought to the attention of the State. Eventually the kid was completely paralyzed and sued the State for money to provide for his care. He lost, because he had no affirmative rights. The State didn't have a constitutional duty to keep him safe.

[Adam Stanhope]

Clever all around.

[bill]

This is a worthwhile scoop and does deserve as much publicity as possible outside the anti-choice community. It seemed so strangel and beneath the considerable political skills of the President to have gone 150 years back to find a judicial reference, but clearly it's about the Roe=Dred Scott pander to his far right base... sneaky.

I'll pass it on. Great blog, by the way!

[Professor Peter von Nostrand]

Cool blog! Consider yourself blogrolled (sorry if that doesn't mean tons of traffic from my little out-of-the-way site, but it's the best I can do).

[Mithras]

Let me second and expand on Abby's point: "The fetus is then a person subject to equal protection of the law under the 14th amendment."

Right-wing lawyers have made the argument for some time that, if a fetus is a person, then to deny such a person the protection of the homicide laws without a good reason is an unconstitutional denial of equal protection. In other words, Bush doesn't want to simply take away the constitutional right to abortion, he wants to make abortion unconstitutional, an even more horrendous result. (See here for more.)

See why Bush cannot be allowed to appoint any Supreme Court justices?

[JD]

Feddie, it's all about the right-wing MOVEMENT. So, even if you are right about there being no chance of Roe v. Wade being overturned in the next four years, the right wing is patient enough to keep making incremental gains, e.g., one or two more justices like Scalia and Thomas.

[AngieA]

Simbaud, you summarized the antichoice position well. I for one have always been outraged they never notice that under slavery black women had no freedom to make decisions about their own body. If wingnuts have their way, black (and all) women will once again not be allowed to make decisions about their bodies. Personhood does not matter

[W. Carver]

Good reporting, needs to be widely publicized