Great Scott! We Help Andrew And The Codebreakers

Andrew Sullivan prompts our jaw to drop on (and to) multiple levels with this post, which I excerpt more or less fully:

THAT DRED SCOTT REFERENCE: When the president said he wasn't going to appoint justices who would write a decision like Dred Scott, I was puzzled. I didn't know slavery was still a live issue. But I was reassured, I guess, that Bush wasn't intending to put pro-slavery jurists on the court. But I was missing something. It seems it was a coded reference to repealing Roe vs Wade.

Well. Andrew provides a link to the Daily Kos, from which we expect little more than invective (and they do not disappoint! We will have fun with them shortly.)

From Andrew, I would expect at least a passing familiarity with common conservative arguments. Pro-lifers have made the analogy between themselves and pre-Civl War abolitionists for years; however one feels about that argument, it does not seem unreasonable to expect political commentators such as Andrew Sullivan to be aware of it.

Secondly, the Dred Scott decision is often cited as the Gold Standard for morally obtuse Supreme Court decisions. Consequently, any group that feels aggrieved by a particular Supreme Court precedent is likely, at some point, to cite Dred Scott. This certainly includes the pro-life crowd, as the Daily Kos points out. However, one might note that the Kosmos is guilty of a bit of backwards reasoning - pick a group with legal issues, and I bet you will find they refer to Dred Scott at some point.

Oh, that is not much of a bet - we could find references to Dred Scott amongst the folks unhappy with the Supreme Court's positions on flag-burning, school prayer, or the posting of the Ten Commandments.

And I have good news for Andrew - Bush's "Dred Scott" reference may actually have been a coded attempt to reach out to gay-rights activitists! No, really - perhaps Andrew missed this commentary:

The Village Voice on gay marriage versus civil unions: There's a larger problem: the civil union response compromises the United States constitution, even if gay couples are afforded all the tangible rights and benefits of marriage in all 50 states. The obvious analogy is the "separate but equal" doctrine that once governed civil rights in the racial context. In Plessy v. Ferguson, in 1896, the United States Supreme Court upheld a statute that segregated train passengers by race, claiming that the Fourteenth Amendment was designed to enforce "political equality" but not "social equality." Plessy's doctrine of separate but equal has long since been abandoned, and is considered a stain on America's past. The two-tiered approach to marriage revives this discredited idea.

...Justice Harlan's lonely dissent in Plessy remains the enduring response to the idea of separate but equal—whether for blacks or gays. Harlan rejected distinctions "implying inferiority in civil society" because "there is in this country no superior, dominant, ruling class of citizens. There is no caste here."

...In his Plessy dissent, Justice Harlan prophesied that "the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case." To acquiesce in the caste system entailed by a marriage/civil union distinction is to fall on the Plessy and Dred Scott side of history. A single-tiered marriage regime is the only solution consistent with this nation's commitment to a caste-free society. The time for this solution is now.

Or perhaps this NY Times opinion piece calling for the Supreme Court to overturn Bowers will be a useful illustration:

There can be no real doubt that Bowers will eventually be relegated to the same dustbin of legal history as Plessy v. Ferguson, which upheld separate-but-equal racial classifications, and the Dred Scott case, which required the return of fugitive slaves.

Or here, in an article wacking Scalia's dissent from Lawrence v. Texas as being in the spirit of the Dred Scott decision.

Now, is anyone convinced that Bush was reaching out to Andrew Sullivan? I sense your skepticism. But I also have a constructive suggestion here - if the Daily Kos crowd doesn't even know what Bush is talking about on Day One, let's not take for granted that they are fully capable of cracking his code on Day Two.

Now, a bit of history - Abraham Lincoln re-launched his political career with a detailed "original intent" analysis of the Dred Scott decision. Briefly, one (often overlooked) part of the decision was the finding that the Federal government could not regulate slavery in the Territories. This struck down the Missouri Compromise of 1820.

Lincoln tracked the political histories of the Founding Fathers to demonstrate that a fair reading of their original intent would show the reasoning behind this decision to be false.

How about that? Old Abe himself provided a textbook example of analysis by original intent. Now, I am not going to suggest that Bush's explanation of Dred Scott during the debate will be going into any legal textbooks, but since Bush was talking about the importance of nominating judges who are strict constructionists, his case selection was on point.

My take? For what it's worth, my first reaction upon hearing "Dred Scott" was "The pro-lifers will like that". I think it is fair to say that Bush was giving a shout-out to all his friends on the right who have a grievance with the Supreme Court, with the right-to-lifers foremost among them. However, to extrapolate from that to say that Bush is committed to appointing judges who will overturn Roe v. Wade is a stretch.

MORE: We want to tweak the Daily Kosmos a bit before we finish. "Kynn" concludes his/her post with this:

It's unmistakable, once you know the code words. There's no other reason he said it, that damned fundamentalist fascist.

I guess the fundamentalist fascist is Bush (really, Andrew, this is where you send us for insight these days?). However, because they are nothing if not droll, in the course of their supporting research the Kosmonauts send us to this site. We find an anti-abortion author who prefers to analogize abortion to the Holocaust, advocates advancing the argument on moral and ethical, rather than strictly religious, grounds, and has a section headed "Religious Right-To-Life Totally Wrong". For a fundamentalist fascist, Bush has some unexpected support.

CAN'T STOP NOW: Here a pro-lifer relates Dred Scott to the Supreme Court's Stenberg decision, which struck down Nebraska's ban on partial birth abortion (I apologize for the inflammatory language - I know lefties are marketing the partial birth ban under some other term, but I can't for the life of me remember what it is.)

And Scalia made the same connection in his vigorous dissent from Stenberg. Gee, maybe the coded message is that Bush will look for judges that will uphold the partial birth ban.

LAST BIT OF FUN: It is not fair to smite Andrew exclusively for this - the puzzlement over Bush's Dred Scott reference was widespread. Chris Suellentrop is baffled but wry; you can't spell "LA Times" without "At Sea"; and no clues at the Daily News.

But the Comic Classic was provided by the DNC, which trotted out Congressman John Lewis to mock what he perceived as an odd attempt by Bush to reach out to blacks.

Finally, Tim Noah steps forward as a code-breaker, and he is pretty sure Roe v. Wade is the answer. Of course, he makes the same mistake as Kynn at Kos - if you only look for connections betwen Dred Scott and Roe, that is all you will find.

But they are having fun, and they can later astound their friends with their tales of adventure on the right side of the political spectrum, so no harm done.

But who are you going to believe, these guys, or me - c'mon, I'm your wind-breaker on this.

UPDATE: Ahh, "windtalker".

Comments

[Frank IBC]

Unless I've missed something, Andrew Sullivan, one of the loudest proponents of gay marriage, and part-time resident of the Commonwealth of Massachusetts (which recognizes gay marriages) has yet to marry his longtime boyfriend. What utter hypocrisy.

[martin]

No problem for me since I don't see how the Federal Govts. war on state marijuana initiatives could survive a strict constructionist approach.
Sorry the commerce clause wont do-see the recent "guns near schools" shutdown.

[Mitch H.]

You know, the last time I heard definitively from Mr. Sullivan on the subject, he was pro-life. Has he re-defined his "pro-life" stance along the lines of his new object of obsession, the good Senator from Massachusetts?

I suppose the question is hypocritical - I am, after all, a mostly pro-choice moderate who does not believe that fetuses are people - but one might say, takes one to know one. If he's sliding back into approval of abortion, I rather think that he ought to let on in a more direct fashion. Lord knows, I've been having second, demographic-related, thoughts on the subject recently...

[Paul Zrimsek]

In addition to being universally held up as an example of moral obtuseness, Dred Scott is also cited often by legal conservatives such as Bork and Scalia as an example of legal obtuseness-- this because (if they can be believed) it introduced to our jurisprudence one of their particular bêtes noires: the doctrine of "substantive due process".

Might that be what Bush had in mind? Who knows? But with the example of certain Kerry defenders to guide me, I plan to rant and rave about how, since Bush's remark can be interpreted that way, anyone who tries to interpret it any other way is a mendacious hack who's trying to twist his words for partisan ends.

[Forbes]

Sooooo, Bush was telegraphing that there will be no appointments of jurists of the sort that pen morally, and perhaps legally, obtuse opinions? Due to the historical criticisms of the Dred Scott decision?

And Andrew Sullivan seems to have as many logically tortured policy straddles as Kerry (which makes sense), and therefore, is just as convincing.

Maybe the Daily Kosmos can contribute a compilation of the post-modern list of code words and definitions.

[Cecil Turner]

I stopped visiting Andrew because he's becoming every bit as shrill and unserious as those he used to deride. I decided to give him another shot, and managed to read his current tray down to where he quotes Kevin Drum as a reliable source on debate fact-checking:

It seems to me that Mark Halperin is correct. The distortions coming from Bush are markedly worse than those coming from Kerry. But decide for yourself.

Picking the first significant "lie" detected by Drum (Bush's, of course):

"I remember sitting in the White House looking at those generals, saying, 'Do you have what you need in this war? Do you have what it takes?'.... And they looked me in the eye and said, "Yes, sir, Mr. President.'"

He knows that's a lie because:

Eric Shinseki and several other generals expressed doubts about troop levels

The little fact that Eric Shinseki wasn't in the chain of command for OIF, and that those in the chain (e.g., Tommy Franks) are on record saying the same thing as the President, appears to elude him. There's more of the same, but nausea terminated my browsing.

To be fair, I think Kevin's main problem on defense issues is cluelessness . . . and Andrew is no smarter. But they're both fairly sharp as journalists, and the only way to support Halperin's biased position (that fact-checkers should be harder on Bush) is pure partisanship.

[Gus M]

To defend Sullivan on one point, it is not hypocritical to remain single. I bet there are a lot of single heterosexuals who support straight marriage. Does the fact that they aren't married make them hypocrites?

I do agree that, to a conservative like me, Sullivan has become nearly unreadable. I don't even think he realizes it, but his hatred of Bush because of the Constitutional amendment makes him not think clearly at all. His criticisms of Bush's handling of the war are from the right. How can he possibly think that Kerry would do a better job? (by adding 40,000 troops AND withdrawing within 6 months?) Add to that the fact that Kerry is on record as saying marriage is between a man and a woman, Sullivan's support for Kerry is strange.

[anon]

If you're still wondering what lefties are calling partial birth abortion these days, it's: "a procedure opponents refer to as 'partial-birth' abortion."

Hope this helps.

[JB]

Eqaul rights aren't the only issue with regard to gay marriage. A marriage between a man and a woman is a fundamental tenet of Judeo-Christian civilization. Allowing gay marriage (as opposed to civil unions) is a direct attack on the basis of our society. It is moving the goal posts from the original intent of the founders further down the road to complete secularism, and consequently ruin.

[Dave]

Late in the 2000 campaign, Al Gore said the following in a speech to a black church in Pittsburg, referring to Bush's answer to a very similar question about judges during a debate:

"When my opponent, Gov. Bush, says he'll appoint strict constructionists to the Supreme Court, I often think of the strictly constructionist meaning that was applied when the Constitution was written -- how some people were considered three-fifths of a human being."

The moment Bush started to talk about Dred Scott, I was sure it was because this shameful, ignorant remark by Gore stung him.

Of course the 3/5's clause had nothing to do with strict constructionism, and was added by the northern anti-slave states to reduce the legislative representation of the slaveholders. The alternative was to count slave's fully in handing out congressional seats, even though they couldn't vote. And that would have significantly increased the slave states' power in Washington.

A report on Gore's speech from November 2000 is here:

http://www.washingtonpost.com/wp-srv/aponline/20001104/aponline203906_000.htm

[Terry]

I'm another one that deleted my bookmark to Sullivan's site earlier this year. As he became an almost single- issue writer, an issue that appears to inform and shape his views on all manner of other unrelated subjects, he grew tiresome and not worth the time to read.

[jason]

lol. well done sir.

[Gus M]

Gus M: a "family values" activist who has been divorced, certainly meets my personal definition of hypocrisy. Likewise, someone with a political enthusiasm for the institution of marriage really ought to get married if said person has been living with their long-term significant other. I mean, I suppose there's an out if you're so personally loathsome that you can't attract a mate, but Sullivan doesn't have that out - it's pretty well-known that he has a long-term SO.

[jake]

Oh if only President Bush could be so nuanced as to inject such elaborate deepth into this nations political discourse. Are you freaking kidding me? You just posted the most elaborate spin on a very simple statement. If you think the same guy who loves to remind us that politics is "hard work" has the mental dexterity to court the gay vote by citing dred scott right after roe v. wade you have definitely been drinking way too much GOP Kool Aid.

[Redman]

Something happened to Andrew while he was on vacation in August. Since he came back, and especially since he reported on the RNC convention, his spleen has burst and he has reduced himself to a shallow minded hypocrite.

[Blind Hen]

Al Gore: "When my opponent, Gov. Bush, says he'll appoint strict constructionists to the Supreme Court, I often think of the strictly constructionist meaning that was applied when the Constitution was written -- how some people were considered three-fifths of a human being."

First, Al, that was and is the actual text of the Constitution as adopted. Has nothing to do with a strict constructionist view of the constitution.

Second, Al, the effect of the section you quote was to REDUCE the number of representatives in Congress from the slave holding states. If each slave had been counted as a whole person for the purpose of determining population, the slave states would have been more influential in Congress than they were. Those states might have controlled Congressional thought on the issues which led to the secession, there might not have been a war, and the institution of slavery might have lasted much longer.

You, Al, are an idiot. You always were.

[Blind Hen]

Sorry, Dave, I didn't read your Comment before I posted.

I was redundant.

[phierce]

rofl! "windbreaker" i love it. i guess i just have a base humor, but finishing off a longwinded and semi-serious piece with a reference to bodily functions makes me laugh everytime.

[leaddog2]

Why not just say that Judges should always be against the murder of babies? The Demoncrats love murder though, so they will always howl and scream for monstrous selfishness.

[Mick]

I agree with anon's terminology, above, but here are some other options they might try:

selective partial birth reduction
partial interference with a woman's right to choose
partial fundamentialist fascism
an unlegislatable article of faith

[Richard Weddle]

The actual name of the Marines was codetalkers.

[Cecil Turner]

Yes. Usually the "Navajo code talkers" (to distinguish them from the hastily improvised WWI version, who were Choctaw).

"You just posted the most elaborate spin on a very simple statement."

That's the point. It's precisely as valid as Andrew/Kos's "repeal abortion" spin, which is: not.

[Mikey]

Why doesn't someone just ask him what he meant? Or is that too easy?

[Al Maviva]

Gus, that's just silly. I like pro football - yet I don't play it. Am I a hypocrite? I support the Administration on the Iraq war, yet I'm not in the military any more, so is my support somehow more easily discounted? Your argument has the same validity as the Dems' argument that if you haven't been to war, you can't be commander in chief. (An argument that I will note was mothballed between 1972 and 2000, and only recommissioned for the current war.)

[ArrMatey]

My personal take is that it is not code at all. Bush just isn't a codetalker normally, right? I think it meant nothing more nor less than, essentially, "Judges can make enormously bad decisions that hurt people when they disregard the Constitution."

The President simply cited perhaps the worst example of judicial activism in our history to illustrate what he wants to avoid. That's not code.

For fun, try a look at www.courtzero.org/past.html

[Stephen]

I know that there's been a little Andrew bashing here, but just wanted you folks to know. I too have limited my reading of Andrew Sullivan. Every time I think that it may be safe to re-enter his site, I get ultimately disappointed, angered, and frustrated. For the record, I am a pro-life, conservative gay man, who happens to be an attorney. Despite my disagreements with President Bush on the gay marriage issue, I support his re-election enthusiastically. In fact, for the first time in my life, I gave money to his re-elect. I didn't really understand the Dred Scott reference by the President, but I'm glad that I read the analysis here today. It makes sense now.

[Deoxy]

"partial birth abortion (I apologize for the inflammatory language - I know lefties are marketing the partial birth ban under some other term, but I can't for the life of me remember what it is.)"

anon is right on:

"a procedure opponents refer to as 'partial-birth' abortion."

Of course, they neglect to mention that EVERYONE ELSE calls it that, too - that's its NAME.

(Actually, what they retreat to is: "intact dialtion and extraction", which is the clinical name. Of course, that's like saying "shots" are actually "subcutaneous injections". Morons.)

[Finrod Felagund]

Heh. I've known Kynn (aka Kynn Bartlett) for a decade now, and he just turns into more of a psycho liberal loonball with each passing year. If Andrew Sullivan had any self-respect at all, he'd take down his journal before linking to a crackpot like Kynn.

As a mutual acquaintance once said about him (Kynn): "It's so much fun to see someone wake up from a comic book and twinkie induced stupor for several seconds, get a tiny glimpse of the workings of the real world, and utterly freak out."

The only honest thing that Kynn has ever written was his report on going to a Michael Moore meeting and reporting what he saw happen, instead of Moore's relentless self-serving spin. (For the record, it was the one where Moore was at a school and it ran late and the janitors wanted to lock up and go home.) Kynn's version of the story is here: http://kynn.com/politics/moore/

[corrie]

For code words, how about Kerry's usage during his convention speech? There was the kissy-kiss to Michael Moore: "I want an America that relies on its own ingenuity and innovation – not the Saudi royal family. "

And the wink-and-a-nudge to gay-marriage supporters: "let's never misuse for political purposes the most precious document in American history, the Constitution of the United States."

[Barney Krebs]

A minor historical note regarding Dredd Scott v. Sandford.

Here is the money quote out of Justice Taney's opinion on the case, to make a Sullivan turn of phrase.

They [African Americans] had for more than a
century before been regarded as beings of an
inferior order, and altogether unfit to associate
with the white race, either in social or political
relations; and so far inferior, that they had no
rights which the white man was bound to respect;
and that the negro might justly and lawfully be
reduced to slavery for his benefit.

The pro-life take on Dredd Scott v. Sandford is that Justice Blackmun in Roe v. Wade takes the same view of the unborn child as Justice Taney does of the African American in Dredd Scott v. Sandford.

[whitney]

you should have animals in abc's order