Originally published at Talk Left in October 2006. Warning, will likely put you to sleep.
Scott Lemieux pens a very interesting article on the Dred Scott decision and its merits and meaning in today's law and politics. It is worth reading in its entirety but I want to focus on a few points made by Lemieux:
. . . George W. Bush — demonstrating the forthright advocacy of conservative jurisprudence for which Republicans are famous — went out of his way to assure the public during one of the 2004 presidential debates that he would not, in fact, appoint Supreme Court justices who would interfere with the ability of Congress to ban slavery in Puerto Rico. Bush's strange remarks were widely interpereted as a dog-whistle signal to his anti-abortion-rights base, some of whose intellectuals (most notably Justice Scalia in his dissents in Planned Parenthood v. Casey and Stenberg v, Carhart) have compared Roe v. Wade to Dred Scott. Jeffrey Rosen turned this comparison against Scalia in his merciless evisceration of the justice's support for the Court's egregious Bush v. Gore decision. And on it goes. But should this much weight really be put on Dredd Scott?
. . . The most common attack on Dred Scott, however, does not concern the finer points of interpretive theory. Rather, it's a critique borne out of a romanticized view of legislatures as being better able to resolve difficult social questions than courts. . . .
It may have been the most common attack but it was not the best one. Abraham Lincoln, most notably in his Cooper Union address, presented, to me at least, the most devastating arguments against the legal correctness of the Dred Scott decision. I'll discuss that and a few other things on the other side.