One of TalkLeft's regular readers, a nationally prominent and well-respected D.C. lawyer, suggested we point out another problem with Bush's reference to the Dred Scott decision during Friday's debate. Bush said, when asked what kind of Supreme Court Justice he would appoint:

"Another example [of a judge making decisions based on personal opinion rather than strict construction] would be the Dred Scott case, which is where judges years ago said that the Constitution allowed slavery because of personal property rights. That's personal opinion. That's not what the Constitution said. The Constitution of the United States says we're all - you know, it doesn't say that. It doesn't speak to the equality of America."

Our reader points out:

Let's set aside the fact that this passage is almost entirely incoherent, and assume that what Bush was trying to say was that Justice Taney, in holding that slaves were personal property of which their owners could not be deprived by Act of Congress, was acting in accord with his personal beliefs (he was unquestionably pro-slavery) in opposition to the Constitution. The problem, of course, is that the Constitution clearly recognized the existence of slavery, in the infamous "three-fifths" clause which counted slaves as three-fifths of a person for purposes of apportioning House seats (Art. I, sec. 2, cl. 3); in the prohibition on regulation of the slave trade prior to 1808 - but the authorization of taxes on the importation of slaves (Art. I, sec. 9, cl. 1); and most notably in the requirements that states deliver fugitive slaves to their master (Art. IV, sec. 2, cl. 3).

In fact, if President Bush were correct, the Thirteenth Amendment, which abolished slavery, would have been wholly unnecessary. It's nice that our President at least doesn't want to appoint justices who favor slavery; it's a little distressing that this is the only threshold he seems to set.