It is a well-conceded fact by the right that President Bush is a fairly ineffective public speaker, who is prone to rambling about odd subjects that don't seem to have any contextual meaning to the subject at hand. So it wasn't pause for concern when during the October 8th debate, the President pointedly assured the television audience that he wouldn't nominate any justice to the Supreme Court who condoned the legal rationale of the Dred Scott decision.

Why did this odd statement not get picked up on by the mainstream media? One reason might be that the general public hasn't impressed the facts and court holdings of a 1857 Supreme Court case into their heads, especially since this seems to be a dead issue considering the case was completely overruled by the Fourteenth Amendment. Those who do know a bit about the case probably didn't think about any Amendments, but instead merely the subject of slavery, which of course no longer persists in our great nation. Those who do have a grip on the facts and holding of the case, which really should include the media, perhaps should have questioned the mention during a Presidential debate. Yet, with the reputation of Bush being fairly inarticulate and not prone to a logical train of thought during speeches, my suspicions were that the statement was dismissed as such.

And of course, I too, blew this off initially, but it nagged at me with each passing day. So I reread the court's decision in Dred Scott, 60 U.S. 393 (1857), and this is what I came up with:

The basic facts are as follows: A black slave brought a cause of action to sue for his freedom. Dred Scott was granted freedom by a MIssouri federal court, and this was appealed by owner, whereupon the intermediate appellate court reversed, finding Scott to be the "lawful property" of his owner. He then appealed to the Supreme Court.

The issue before the court was whether a member of the negro race was entitled to all the rights, and privileges, and immunities, guaranteed by the U.S. Constitution to its citizen. "One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution." The court acknowledged that while individual states had the right to declare blacks citizens and grant him rights equal to all citizens withint he state, but it questioned whether it was appropriate "to put it in the power of a single State to make him a citizen of the United States, and endue him with the full rights of citizenship in every other State without their consent?"

So the court passed the proverbial buck. It ignored the real issue and decided to ascertain the intent of our founding fathers. In doing so, it stated:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

As such, the court utilized the language of the Constitution and Declaration of Independence, and it concluded that the drafters' intent was that anyone imported as a slave, and their descendents, "whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument."

So in conclusion, the court held that Dred Scott remained the property of his owner, and as such, was not a citizen of Missouri as construed by the U.S. Constitution, and therefore, he could not avail himself to sue in federal courts. Now of course this was overturned by the Thirteenth and Fourteenth Amendments. So what's up with the reference, Prez?

Actually, it turns out to be codespeak aimed towards the religious right against judicial activism. According to Robert S. Sarrgeant, Jr. of EnterStageRight.com, "Dred Scott shows us two things: [1] The mischief that 'activist' judges always do, and [2] The fact that people are sometimes willing to resort to a Constitutional amendment to overturn a Supreme Court ruling."

Right. So I did some more poking around. Gotta love Google, because when you plug in "Dred Scott," dozens of conservative Christian websites appear in the search results. Upon which the connection is made to Roe v. Wade. The analogy is as follows: Dred Scott was declared a "non-person" because of the color of his skin. Roe declared fetuses to be "non-persons" because they had not yet been born. Both were denied the rights allowed to "persons." Only that in the former case, the "non-person" was relegated to slavery, while in the latter case, the "non-person" was relegated to death.

The Supreme Court reached the decisions in both Dred Scott and Roe by ascertaining the intent of the Constitutional drafters in the language of the Constitution. Both cases were close calls, with the strict constructionalists losing out and the judicial activists rising to a narrow victory.

So Bush was telling the Christain conservative members of the Republican party that he will only appoint justices that are strict constructionalists. As such, nothing but narrow and plain language analysis of what the stuffy old men in powdered wigs drafted hundreds of years ago. Any nominee of Bush to the Supreme Court will have to subscribe only to this train of legal thought. So much for not having a litmus test.

This indeed should worry anyone who believes in a woman's right to an abortion. Currently the conservative judges outnumber the liberal ones at a five-to-four margin. That is pretty damn close, and with Sandra Day O'Connor acting as a swing vote, the individual liberties cases of late have met with favorable results. Still, the balance is tenuous, and retirement of any one justice could affect the balance drastically. One more strict constructionalist could mean the end of legal abortions again in the United States.