Dred Scott and Bush (and O'Connor)

[Leslie Goldstein]

on Dred Scott,
to accept Taney's argument on Congressional power over the territories hinges
not only on the nature of that power but also on the force of the fifth amdmt.
Taney's argument implies, for example that the I,8 power of Congress"To
exeercise exclusive legislation IN ALL CASES WHATSOEVER, over such district as
shall become the seat of govt" would not include the power to ban slavery
there.  I wonder is Sandy agrees that Taney's reading of this power as not
includign a power to ban slavery in DC, because the 5th Amdmt would view it as
a taking of property, is also a "defensible" reading of the Constitution.
Although, obviously, sane, legally trained judges DID defend it, I still find
both readings "indefensible" in the colloquial sense of the word.
LFG

Sanford Levinson wrote:

> Part of me thinks the comparison between Dred Scott and Bush is unfair to
> Dred Scott, which I think was, in substantial respects (i.e., the Missouri
> Compromise) either rightly decided or, certainly, easily defensible.
> (Ironically, the attack on the Missouri Compromise depends on a plenary
> power reading of Congress's power similar to the ostensible plenary power
> of the Florida legislature to set aside the election and appoint its own
> electors.  Neither one, I think, will withstand analysis.)  Another part of
> me sees the analogy this way:  Dred Scott was, fundamentally, an attempt to
> decide the election of 1860 by deligitimizing the platform of the new Party
> in town, whose key issue was banning slavery in the territories.  Eliminate
> that as an issue, and there is nothing left to the Republican Party (except
> their attack on Mormon polygamy, but the Democrats agreed with that
> attack).  Here, some of us believe, the Court made an entirely illegitimate
> decision to decide who the new president would be, whether because of their
> partisan commitment to George W. Bush; a sub-conscious desire to have him
> as president that led them to credit his arguments more than Gore's; or a
> megalomaniacal view that the country had "suffered enough" from the anxiety
> of waiting to find out who won and the Court would supply a final answer
> and bring the anguish to an end.
>
> With regard to Casey, I believe that the only defense of that decision is
> if one believes that Roe was rightly decided, in which case one should
> agree with the dissenting opinions of Blackmun or Stevens.  The plurality
> opinion is authoritarian in its argument, as is any purely precedent-based
> argument.
>
> Incidentally, I note that O'Connor, in her incomprehensible concurrence in
> Helms--I am on record as agreeing with the Rehnquist-Thomas opinions in
> that case, so far have I strayed from my original ACLU roots on the
> issue!--was willing to say, first, that the aid represented only a "de
> minimis" addition to the parochial-schools budget and, secondly and even
> more amazingly, that she trusted Lousiana state officials to be good faith
> monitors of the way that aid would be distributed in order to make sure
> that it wouldn't go beyond the de minimis.  This represents one of the
> all-time assertions of faith in the ability of state officials to apply
> "standards" in a constitutionally tenable way.  Would that her
> context-based particularism operated similarly in Florida.  But, of course,
> with O'Connor one can never tell what the Constitution means from day to
> day (except for the inability to comandeer state officials in any
> circumstances) in the cases that actually come before the Court.  Without
> actually wanting to engender a discussion of this topic at the present
> time, I wonder how many people on this list, of whatever jurisprudential or
> political persuasion (assuming that one can tell the difference) will miss
> her when she tenders her resignation to the Republican President she helped
> put in office who will, as per apparently her fondest desire, appoint a
> Republican successor.
>
> sandy