Reviving the Dred Scott Debate

You thought talking about Kerry's Vietnam record and Bush's National Guard service in the '60s was dwelling on the past? How about going back to the '50s? The 1850s that is.

In response to a question about Supreme Court appointments in the second (10/8) debate, President Bush said that he would appoint strict constructionists who would not write decisions like Dred Scott. This apparently confused people who haven't followed the debate on judicial activism, including Andrew Sullivan (who consistently misses the point on this subject). But just as Brown v Board of Education is an example of judicial activism that is immensely popular (though it wasn't at the time), so Dred Scott v Sanford is one that is rightly held in disgust. And of course Roe v Wade is one that deeply divides the country. Bush's point, though obscure, is that what SCOTUS gives, SCOTUS can take away.

Black leftists have overwhelmingly been opposed to the idea of strict constructionism (most vocally and demagogically during the Bork confirmation hearings) but the rest of us need to keep in mind that activist decisions like Dred Scott and the later Plessy v Ferguson did immeasurable harm to our country by perpetuating discrimination. Both decisions could have been prevented by a strict constructionist interpretation of the Constitution.

La Shawn wants to keep this on the radar and I couldn't agree more. (Check out her comments for more insights from her highly intelligent readership.) Adjoran has more comments.