Balkinization  

Saturday, October 09, 2004

The Second Presidential Debate

JB

This one was more interesting, but ultimately a wash. Bush did not hurt himself very much, and Kerry did not help himself that much. He was good, but not great. The only issue is whether this will slow down Kerry's momentum.

Kerry stumbled on the abortion and stem cell questions. He did fine in most other places. Bush yelled a lot in the first hour, and then calmed down. I wonder if this went over well with the audience. On the very last question of the evening, Bush was asked to identify three mistakes he had made and what he had done to correct them. He became visibly emotional and began hectoring the audience. He refused to identify a mistake he had made during his presidency, other than appointing people who didn't live up to his expectations. Essentially, he dodged the question and seemed quite belligerent. But Kerry didn't follow up by pointing to this as an example of Bush's intransigence and Bush's lack of touch with reality. I thought this was a missed opportunity, but perhaps the audience understood that Bush had amply demonstrated both of these qualities (intransigence and lack of touch with reality) so that Kerry didn't need to do anything at all.

There were several points in the evening in which one or the other candidate simply didn't answer the questions posed, and the other candidate didn't call him on it.

Perhaps most annoying, Bush repeatedly lied by saying that the Deulfer report justified his policy in invading Iraq when it actually showed that sanctions were doing a pretty good job. Kerry didn't hit back hard enough on this point, and Bush kept saying it over and over. I wonder whether the members of the audience understood which report he was referring to and whether they understood that he was simply making things up.

Kerry didn't push Bush hard on the fact that Bush has lost credibility with foreign leaders and that is why Kerry would be a better president. In response to Bush's repeated argument that Kerry won't be able to pay for his programs Kerry didn't turn the accusation around and remind the audience that Bush has been unable to balance the budget even though his party controls both houses of Congress, or that Bush's budget estimates have continually been cooked and proven to be wrong. There were many times that Bush made accusations that could have been turned back on him, but Kerry didn't pounce on those opportunities.

When Bush was asked what kind of Supreme Court Justices he would appoint, he was essentially incoherent. He pointed to the Dred Scott case as a bad example of judging. It was wrongly decided, he explained, because it held that slavery was constitutional. Well, slavery *was* constitutional until the 13th Amendment, and a court that held the opposite would not exactly have been strict constructionist. The problem with Dred Scott is that the Court reached out to decide something completely unnecessary, that blacks couldn't ever be citizens, and it also held that in order to treat southern whites equally with northern whites, they had to have the right under the Due Process Clause to bring their property (slaves) into federal territories, which meant that the federal government couldn't ban slavery there.

Oh, and by the way, Chief Justice Taney defended his view that blacks couldn't be citizens on the ground that it was the original intention of the Framers and that it was wrong to embrace the idea of a living Constitution that changed with the times:

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

Any of this sound familiar?


Comments:

Surely you're not suggesting that Dred Scott was decided correctly on originalist grounds?

I mean, this is about Taney's misuse of rhetoric, right?
 

The Dred Scott reference has nothing to do with Dred Scott. It has everything to do with abortion. Dred Scott is code for Roe v. Wade. Seriously. Google this: +abortion +"Dred Scott"

Bush promised the anti-choice people, in code on national television, that he would appoint Justices who would overturn Roe v. Wade.

He promised in code, because he can't say that on national television -- it would freak out every moderate voter in the country.
 

Paperwight-
You're right, but you don't go far enough. The right's goal is not simply to overturn Roe and remove constitutional protection for reproductive rights, the goal is to make abortion unconstitutional, the way slavery is unconstitutional. This can be done in one of two ways. Judicially, they can argue that unborn persons are being denied the equal protection of the homicide laws, using the groundwork of "fetus rights" laws that Republicans have put into place as a jumping-off point. Alternatively, and with much more difficulty, they can pass a constitutional amendment that outlaws abortion directly the way the 13th amendment outlaws slavery, acting directly to bind every person in the United States.
 

The Taney quote suggests the limitations of simplistic appeals to originalism. Given the level of rhetoric from some parts, it is a worthy reminder.

Dred Scott is a typical stand-in for Roe, as shown by Scalia's dissent in Casey. Some also argue just as Dred Scott deprived slaves of constitutional personhood, Roe deprived fetuses. The comparison is at best inexact though works on some level.

The best result in Dred wouldn't have ended slavery; it might not have even freed Dred Scott. A careful reading of precedent, history, and constitutional analysis very well might have "re-attached" his slavery status, especially if Missouri law clearly allowed it and his marriage didn't complicate things (two factors that influenced the dissents).

I think a similar analysis in Roe would result in an opinion that wouldn't please the pro-life side that much either. The limited holding I imagine above also would look a bit like the limited holdings often the norm these days.
 

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I'm neither pro-choice nor pro-life. But I'm pro-free-life! Check out www.ProFreeLife.com.
 

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