by David H. Gans, Director of the Human & Civil Rights Program, Constitutional Accountability Center

Commenting on the 152nd year anniversary of the Supreme Court’s ruling in Dred Scott v. Sanford, Curt Levey of the “Committee for Justice” (a group formed to push for confirmation of George W. Bush’s judicial nominees) invokes Dred Scott to support his argument that the Constitution cannot be read to protect unenumerated fundamental rights. From here, Levey not surprisingly suggests that decisions such as Roe v. Wade and Planned Parenthood v. Casey should be overruled, and that President Obama should nominate judges who will toe this line. Levey is of course correct in identifying Dred Scott as a constitutional abomination, but he gets everything else wrong.

Dred Scott was perhaps the worst decision in the Supreme Court’s history. It held that African Americans, whether slave or free, were not citizens under the Constitution. Although this holding disposed of Dred Scott’s plea for freedom, the Court went on to find a fundamental constitutional right to hold slaves which guaranteed to slave owners the right to take slaves into any new territories in the country. These holdings were two sides of the same coin – both were driven by the Court’s belief that African Americans had “no rights which the white man is bound to respect.” Dred Scott led to the Civil War and monumental changes to the Constitution. As Thurgood Marshall put it, the Nation survived the war; the Constitution did not. In the Civil War Amendments, slavery was abolished, birthright citizenship was created, and protection of liberty and equality for all Americans assured.

Levey argues that Dred Scott should prompt us to read the Constitution to confer no protection for unenumerated fundamental rights, but he ignores the constitutional amendments that specifically overruled Dred Scott.Rather than limit protection for substantive fundamental rights as Levey would prefer, our Framers changed the Constitution to make sure it applied to all Americans and then provided a specific textual foundation for the protection of fundamental rights. This was a necessary response to Dred Scott’s denial that African Americans had any rights. In the Privileges or Immunities Clause, the authors of the Fourteenth Amendment intended to protect all substantive fundamental rights, written and unwritten. (For more discussion see here.) The Privileges or Immunities Clause has been rightly called the “natural textual home . . . for unenumerated fundamental rights.” While Americans may disagree as to what those fundamental rights entail, there is strong support in constitutional text and history for rulings, like Roe, that wrestle with this question. (For more discussion see here and here). Unfortunately, that text and history are simply lost on Mr. Levey, who is asking President Obama to nominate judges who will ignore our Constitution’s explicit textual protection of fundamental rights. That is advice we hope and expect the President will ignore.

Adding to these faults, Mr. Levey mischaracterizes Barack Obama’s past statements about what he expects of judges. He ignores President Obama’s inaugural address, which talks about sharing our Framers’ commitment to the rule of law and protection of fundamental rights. He lambastes Obama for valuing judges who can empathize with all the litigants who come before them, distorting Obama’s words. As we have noted before, President Obama has said that he wants judges who have empathy, which means simply that judges should be able to understand the plight of individuals very different from themselves. That often seems required by the judicial role of providing “equal justice under law.” For all his talk of strict construction, it is Levey, not Obama, who gets the Constitution dead wrong.