Dredful

Slavery : Abortion :: Dred Scott : Roe v. Wade

Perplexed or convulsed with laughter over Bush's heroic stance Friday night against the Dred Scott decision, which upheld slavery? Paperwight at Fair Shot explains:

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.

Of course. I should have twigged to it. Some years ago, I saw the theocrat Santorum give the commencement address at Dickinson Law School in which he directly compared the anti-choice movement to the anti-slavery movement.

This exposes exactly what Bush wants to do about reproductive rights. First, he wants to overturn Roe v. Wade so that abortion is no longer constitutionally protected. Then, or at the same time, he wants abortion itself to be declared unconsitutional. How? One of (at least) two possible ways: First, right-wing lawyers have argued that "unborn persons" are being denied equal protection of the laws because they are not given the benefit of the protections of the homicide laws without good reason. That is the point of sustained Republican attempts to create "fetal homicide" and "unborn child benefits" laws - they want a groundwork of such laws to serve as the jumping-off point for a future right-wing Supreme Court decision declaring fetuses persons and, thus, abortion an unconstitutional denial of equal protection.

Alternatively, if overturning Roe requires a constitutional amendment, such an amendment may just as easily go all the way and outlaw abortion entirely, the way the 13th amendment outlaws slavery. By the way, the 13th amendment is one of the few constitutional restrictions which acts directly on all persons in the United States, rather than on just the government. An anti-abortion amendment modeled on it could do exactly the same thing - constitutionalize the crime of abortion, and even prescribe what the punishment is. Want to guess what I think they'll set as the punishment for "intentional abortion"? If you guessed "the death penalty", you win the Hypocrites Prize.

Breaking News: Bush Incoherent

Jack Balkin at Balkinization:

When Bush was asked what kind of Supreme Court Justices he would appoint, he was essentially incoherent. He pointed to the Dred Scott case as a bad example of judging. It was wrongly decided, he explained, because it held that slavery was constitutional. Well, slavery *was* constitutional until the 13th Amendment, and a court that held the opposite would not exactly have been strict constructionist. The problem with Dred Scott is that the Court reached out to decide something completely unnecessary, that blacks couldn't ever be citizens, and it also held that in order to treat southern whites equally with northern whites, they had to have the right under the Due Process Clause to bring their property (slaves) into federal territories, which meant that the federal government couldn't ban slavery there.

Oh, and by the way, Taney defended his view that blacks couldn't be citizens on the ground that it was the original intention of the Framers and that it was wrong to embrace the idea of a living Constitution that changed with the times:

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

Any of this sound familiar?

Now, class, is it clear why Bush must not be permitted to select any future Supreme Court justices?