Obama & Dred Scott Anniversary

Today marks the anniversary of the Supreme Court’s 1857 Dred Scott decision, which set the nation on the course to civil war. In this infamous example of judicial activism, the Court invented "substantive due process" – the basis for much of modern activism including Roe v. Wade – found in it the constitutional right to own slaves, and wielded that right to invalidate the Missouri Compromise. In reasoning of the kind still used today to discover abortion and other rights in the Fifth and Fourteenth Amendments’ Due Process Clauses, Dred Scott found that

"[A]n act of Congress which deprives a citizen of the United States of his liberty and property, merely because he came himself or brought his [slave] property into a particular Territory of the United States … could hardly be dignified with the name of due process of law."

As Barack Obama prepares to nominate his first batch of federal judges, he should reconsider his criticism of strict construction of the Constitution and his endorsement of judges following their “heart,” in light of Justice Benjamin Curtiss’s dissenting opinion in Dred Scott. Justice Curtiss warned that

“[W]hen a strict interpretation of the Constitution … is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”

President Obama’s pledge to appoint judges with the “empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old” portends the discovery of new constitutional rights for groups such as homosexuals, the disabled and the elderly – rights which will, by definition, trump the will of the voters. Before Obama heads down that road, he ought to think about his promise to promote political civility, while considering the political turmoil wrought when Dred Scott and Roe v. Wade cut off democratic compromise. Writing in dissent in Planned Parenthood v. Casey (1992), Justice Scalia described the strikingly similar consequences of the Court’s discovery of due process rights to own slaves and abort unborn babies:

“[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”