Random commentary and senseless acts of blogging.
The first Republican president once said, "While the people retain their virtue and their vigilance, no administration by any extreme of wickedness or folly can seriously injure the government in the short space of four years." If Mr. Lincoln could see what's happened in these last three-and-a-half years, he might hedge a little on that statement.
Prisoners of Azkaban
Monday, October 11, 2004
I'm sure all of us are relieved to learn that George Bush wants the judges he appoints to be anti-slavery - I guess that's what compassionate conservatism is all about - but Bush managed to reach his normal levels of incoherence even in criticizing slavery.
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.
Atrios was only half right in asserting that the Dred Scott case was based on racism rather than property rights. There were two major findings in the decision: the first was that Scott, or any other black man, could not be a citizen or have any rights that the federal government recognized:
4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a 'citizen' within the meaning of the Constitution of the United States.
5. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its 'people or citizens.' Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being 'citizens' within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.
6. The only two clauses in the Constitution which point to this race, treat them as persons whom it was morally lawful to deal in as articles of property and to hold as slaves.
7. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.
The second ruling, which was squarely based on property rights, was that Congress had no power to ban slavery from any territory it administered.
3. The United States, under the present Constitution, cannot acquire territory to be held as a colony, to be governed at its will and pleasure. But it may acquire territory which, at the time, has not a population that fits it to become a State, and may govern it as a Territory until it has a population which, in the judgment of Congress, entitles it to be admitted as a State of the Union.
4. During the time it remains a Territory, Congress may legislate over it within the scope of its constitutional powers in relation to citizens of the United Statesand may establish a Territorial Governmentand the form of this local Government must be regulated by the discretion of Congressbut with powers not exceeding those which Congress itself, by the Constitution, is authorized to exercise over citizens of the United States, in respect to their rights of persons or rights of property....
3. Every citizen has a right to take with him into the Territory any article of property which the Constitution of the United States recognises as property.
4. The Constitution of the United States recognises slaves as property, and pledges the Federal Government to protect it. And Congress cannot exercise any more authority over property of that description than it may constitutionally exercise over property of any other kind.
5. The act of Congress, therefore, prohibiting a citizen of the United States from taking with him his slaves when he removes to the Territory in question to reside, is an exercise of authority over private property which is not warranted by the Constitutionand the removal of the plaintiff, by his owner, to that Territory, gave him no title to freedom.
But Bush was quite wrong in asserting that this was some fantastic or indefensible activist interpretation of the Constitution. There was a reason why the great abolitionist Garrison shocked a Fourth of July rally in 1850 by publicly burning a copy of the Constitution. The Constitution, as it stood before the adoption of the Reconstruction Amendments, was indisputably a pro-slavery document. In fact, the Dred Scott majority was quite explicit in making the defensible claim that they were defending the original intent of the document against the liberal interpretations of abolitionists.
It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken....
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.
Bush is equally on thin ice in asserting that the Pledge of Allegiance decision is an instance of activism. On the strict reading of the language of the First Amendment, the Pledge is almost certainly unconstitutional. But Bush is making it pretty clear that when he says 'strict constructionism' he actually means 'any decision I like'.