Constitutional Law

By David M. Wagner

Former students have been asking me about my continuing allegiance, vel non, to Prof. Douglas Kmiec's con law casebook (co-edited with Dean Eastman and Profs. Presser and Marcin), given -- Prof. Kmiec's sudden turn toward Obama advocacy, you were thinking? Shoot, man, con law casebook editors as a class think Daily Kos is a news site. No, I'm prepared not to care how the lead editor of an otherwise worthy book votes. What concerns me is his advocacy of the view that a Catholic may knowingly vote for a candidate who credibly promises to promote and extend the right to kill unborn children.

It seems to me, and subject to correction (by the Church, I mean), that there's a difference between respectable error and apostasy, that Doug Kmiec has crossed it, and that a Catholic man's gotta do what a Catholic man's gotta do.

First (always), the Church's position, because that is Christ's. It can be found, as regards the matter under discussion, in Evangelium Vitae (sections 72 and 101, I think, and possibly others). In addition, several U.S. bishops have recently spoken out, e.g. the bishops of Dallas and Fort Worth. (They cite a document from the USCCB called "Faithful Citizenship," but the USCCB as such has no teaching authority, so I prefer to cite individual bishops, whose teaching authority is -- guess what, 1Ls -- binding in their dioceses and persuasive elsewhere!)

Next, Robert George, a scholar of jurisprudence at Princeton, who happens also to be a Catholic and an acknowledged expert in Natural Law theory, has written this, in reply to all who argue that Obama is a valid "pro-life" option in spite of being the most pro-abortion candidate ever to seek the presidency.

Next, the wit and wisdom of Douglas Kmiec: try this, and of course this.

So what's left? Oh, right -- me.

Here's a lightly edited copy of a note I sent to our esteemed Faculty Secretary, Rena Campbell, just yesterday, embodying a request to be sent on to our campus bookstore:

For Wagner Constitutional Law I, Spring 2009, the books will be:

Randy Barnett, CONSTITUTIONAL LAW: CASES IN CONTEXT, Aspen Publishers, 2008, ISBN 978-0-7355-6344-5

Edward Corwin, THE ?HIGHER LAW? BACKGROUND OF AMERICAN CONSTITUTIONAL LAW, Liberty Fund, ISBN 978-0-86597-695-5

These replace AMERICAN CONSTITUTIONAL ORDER by Kmiec, Eastman, Presser & Marcin, which I will no longer be using.

Some will be curious as to why I?m making this change. One reason is that the Barnett book has numerous virtues. But the single biggest reason is that Douglas Kmiec, principal editor of the other book, has been flaunting his formerly well-earned reputation as a pro-life Catholic in order to support Obama AND (much worse) to convince pro-life Catholics that they can licitly do so too. This is not just a wrong position but an apostate one, clearly irreconcilable with authoritative teaching documents of the Church, such as Evangelium Vitae. So I?m sending my own little message to Prof. Kmiec.

David

Full post as published by Ninomania on October 15, 2008 (boomark / email).