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[QUOTE]Originally posted by David Sands: [QB] For TSN and Jay: [URL=http://slate.msn.com/id/2108083/]an article on what Bush meant in the debate when mentioned Dred Scott[/URL]. I've heard most of these arguments hanging around law professors. I would disagree with the article not on target (abortion) but on scope (I think Bush meant a lot of Warren Court precedents). But [i]Roe v. Wade[/i] is viewed by many (not just conservative law professors) as a deeply problematic case, in that it was the logical outcome of the legal realist movement. Some in the legal realist movement argued that all law, including litigation, especially at the the applleate level, is an exercise in policy-making (i.e., politics), and that it was not improper for judges to write their decisions with an eye to what the proper outcome was, not merely what the existing law was. This is a highly disputed area of what exactly are the proper bounds of judge's authority under the doctrine of judicial review (e.g., Ruth Bader Ginsburg and Abner Mikva have both said the issue probably would have been better left to legal reformers in the state legislatures). Consequently, you get opinions like that Blackmun wrote that have an uncomfortably "legislative" feel to them. Bush's mention is a stand against that. That said, I think the article pulls its punches. What Bush really wants is a retrenchment of a lot of precedents that have increasingly come under fire in the past 20 years as unsustainable rulings of the Warren Era (e.g., criminal procedure, religious liberties, the Takings Clause, federalism). So while Dred Scott is a great example of how morality can get lost in positivism, I think Bush might have had deeper constitutional principles in mind than just the law of abortion. [/QB][/QUOTE]
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