Code Words

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I've seen a number of posts around the blogosphere talking about President Bush's reference to Dred Scott in his response to a question about what kind of judge he would appoint to the Supreme Court. Some people were bewildered about this, thinking he was talking about not appointing pro-slavery judges. That ignores the context, which of course was activist judges. He sees Dred Scott as judicial activism. Some have criticized him, saying that Dred Scott simply interpreted the 3/5 of a person phrase already written into the Constitution and didn't go beyond it, but that's also wrong. The 3/5 of a person phrase in the Constitution refers to how much a slave counts toward representation in Congress, not how much of a person the slave is in terms of rights. At that time the slave was assumed not to have rights, contrary to what the Constitution said, when I gave rights to all men (using its own language, which sounds archaic to my ears but (I have argued elsewhere) was not sexist and wasn't intended to exclude women). In that sense, Dred Scott was judicial activism. It took as a statement about human rights what was really just a compromise between northern and southern lawmakers in how much slaves would count toward representation in Congress given their non-voting status. So I have no problem with Bush using that as an example of judicial activism.

What really stuns me, though, is the claim that this reference was a code word for removing Roe v. Wade. It's true that if Bush thought he had the ability to do so, he'd do what he could to reduce the number of abortions significantly. I'm sure he thinks Roe v. Wade was one of the most horrendous decisions in the history of the Supreme Court, in the same category as Dred Scott. It's also true that there are many similarities between these two cases. The both involve human rights being denied to a whole segment of humanity, one in the case of slaves and the other in the case of those who haven't been born yet. They both involve judicial activism in the sense that the Constitution didn't declare those humans not to have the God-given moral rights assigned to "all men". In both cases it didn't explicitly deny those rights but did so underhandedly. Dred Scott did it by having property rights of the master outweigh the rights to life, liberty, and property of the slave. If mere property rights can outweigh someone else's right to life, that seems to me to be treating it as if the right to life isn't really there. In Roe, the right that outweighs the right to life of the fetus is the privacy rights of the mother, which isn't even a right in the Constitution. In that way, Roe is actually more judicially activist than Dred Scott. So the comparison between the two really is legitimate. What strikes me as odd, though, is the claim that this is a code word.

The claim some bloggers are making is that Karl Rove handed Bush something to say that pro-lifers would pick up on as a sign that Bush would do everything in his power to facilitate the removal of Roe v. Wade but that he did so in a way that no one else would be able to know, thus protecting the moderate vote. This is just plain silly. The context was judicial activism. Bush gave a couple examples of judicial activism. He said he wouldn't appoint someone to the Supreme Court who engaged in judicial activism. The claim is that he secretly mean that being pro-life would be a requirement of any appointee. That's nonsense. It's easy to be pro-choice on the moral issues but oppose judicial activism. Justices Scalia and Thomas have both made statements distinguishing moral and legal issues. Scalia thinks orgies can be beneficial to society, but because of his legal views everyone thinks he's a prude (which also ignores the evidence of the size of his family). Thomas said he thinks anti-sodomy laws are stupid laws, but he didn't think the Supreme Court had any right to tell Texas they couldn't have such laws. There's no way these guys confuse legal and moral issues. The legal positions they have taken are actually consistent with believing abortion is morally ok. Those positions merely state that it's not a right and that the Constitution does give the right to life to all humans regardless of age or biological dependency on another and that a right to privacy doesn't outweigh that. It's consistent with that view of legal rights that abortion is morally ok.

Now Bush also didn't say he would require that he would require that a judge never engage in judicial activism. It's probably rare that you find judges who don't do it much. Every judge slips. There probably aren't any who never do it. He was just describing a tendency that he appreciates in judges. He favors judges who are conservative in that sense, which doesn't require being conservative in any political sense, though it sometimes goes along with that. The gay marriage issue is the most recent example that gets under his skin. The Dred Scott case is the most famous example in the history of the Supreme Court. That he didn't list off every example he could, including one he presumably agrees was judicial activism, is understandable given the time constraints. That he didn't mention that particular one doesn't mean he wants to hide his view on the issue. His view on the issue is clear. He has said numerous times that he doesn't think our country is ready to overturn Roe v. Wade and that it must come when the people are ready for it, but he hopes that will come. Those who think he's hiding his real views are ignoring his many public statements. He made it clear that he opposes killing embryos and that he thinks John Kerry's opposition to the partial-birth abortion ban was horrendous. There's no way this is a code word to hide his own view.

There are code words in public discourse on abortion. The word 'choice' has been hijacked as a euphemism for killing human fetuses. The term 'civil rights' has been used by Jesse Jackson to refer to the right to do such killing. There are dysphemisms on the other side, but dysphemisms aren't code words. It's euphemisms that are code words. Dysphemisms try to draw attention to what's going on but exaggerate it. Euphemisms try to distract and are thus political code words for ignoring the main issues. Bush hasn't done that. He's been relatively straightforward on what his views are. I don't think he has an abortion litmus test for Supreme Court justice appointments, though it's pretty clear that John Kerry does. I do think he wants justices who tend wawy from judicial activism, and that kind of justice would look more like Scalia and Thomas, but the issues are separable, and I think he knows that. Of all the code words in public discussion of abortion, I think 'choice' as an abbreviation for the right to kill a fetus is the slimiest. It makes it sound as if it's just a matter of choosing what color clothes you want to wear today. I know that's not the view those who use the word most hold, but that's how the language works, presenting a practice that many find horrific in terms of something that's fundamental to American identity. John Kerry uses the word as fluidly in this euphemistic way as my own senators from New York do, and every time I hear it I'm reminded of what it is they mean but can't bring themselves to say. How anyone who would use such euphemistic language can complain about what Bush was doing in referring to Dred Scott when talking about judicial activism is beyond me.

Update: For a partisan but nearly 100% correct roundup of the blogosphere on this matter, see JustOneMinute. Thanks to La Shawn for the link.

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