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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, October 27, 2008 ::
    Here is a guest column that ran in The Philadelphia Inquirer.

    Here is a story on the even-faster-than-expected circulation decline of American newspapers. Here is a list where you can find the Philly Inq's place within the sinkhole.

    I link, you correlate.

    :: David M. Wagner 11:43 PM [+] ::
    This Obama interview from 2001 is rattling around the Web today, because it presumably shows the radical nature of his commitment to economic redistribution. Drudge hedder: "Tragedy the 'redistribution of wealth' not pursued by Supreme Court."

    Kind of, sort of, but maybe not quite. The interview certainly shows that Obama thinks government-directed redistribution of wealth is a good thing. That shouldn't be news: anyone who listened to his convention speech heard the same thing. Clearly, for him, the "age of big government being over" is over. In case anyone missed this, the circulation of this interview is a late wake-up call.

    Does it show anything about his views on the Constitution? Yes -- that he would have been delighted if the push into constitutionalized "welfare rights," so much part of the Supreme Court landscape from the mid-60s into the mid-70s, had taken more territory. He notes with great regret that the Warren Court was less radical than its reputation, that it confined the Constitution to its traditional role of protecting people from government, and declined opportunities to use the Constitution to extend governmental protection, via a "right to welfare," a "right to education," a "right to health care," etc., thus extending judicial supervision to all these political issues.

    But in the end, the Obama of 2001 does not -- NOT -- come out and say the effort to constitutionalize these issues must now be picked up and continued. He affirms that these issues are political. Of course, that could just be because he was speaking in 2001, in Year One of the W Administration.

    As president, he would certainly pursue welfarist goals through legislation and executive action. Would he also make the declaration of new constitutional "welfare right" a litmus for his judicial nominees? The interview raises this question but gives no answers.

    :: David M. Wagner 10:48 PM [+] ::
    :: Wednesday, October 15, 2008 ::
    Prof. Kmiec: a parting of the ways

    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.

    EDITED TO ADD: Archbishop Chaput blasts Kmiec, other pro-Obama Catholics

    :: David M. Wagner 9:36 PM [+] ::
    :: Tuesday, October 14, 2008 ::
    Oh, just remembered -- I promised I'd report about the McCain-Palin rally down here in Virginia Beach, and whether anything went on there, from either side, that portended an impending police state or rule by political militias (left or right: there are political militias of the left as well as of the right, and they can get pretty frisky too, as people found out in Madrid in the early- to mid-1930s.)

    Anywhere, here's what I wrote to a bunch of colleagues about yesterday's rally:

    I was just at a McCain-Palin rally, here in Virginia Beach, not two hours ago. There were no solicitation-to-murder chants at all. The only anti-Obama chant was "Nobama," twice, once during Palin's remarks, once during McCain's, both times in response to Obama policies mentioned by the speaker, both times shut down by "quiet now" gestures from the speaker.

    Outside the hall there were numerous Obama supporters demonstrating "in the face" of the crowd filing in -- yet all exchanges were civil, on BOTH sides. Not enlightening or deep, but definitely civil.

    Either media hype is going on, or I have a knack for never being where the drama is.
    Colleagues have remarked that things are rougher in other parts of the country. If so, I'm just glad that here in Virginia we still do gentility.

    :: David M. Wagner 3:04 PM [+] ::
    Another data-point for Barone's file: be nice to Obama's campaign callers, or they'll set the Secret Service on you.

    :: David M. Wagner 3:00 PM [+] ::
    :: Saturday, October 11, 2008 ::
    "Coming Obama Thugocracy?" Michael Barone pulls together a number of data points about initiatives from the Obama campaign and elsewhere that are, to say the least, First-Amendment-insensitive.

    EDITED TO ADD: Is there a new sort of "angry Right" that supplies some sort of counterpoise? Perhaps I'll be in more of a position to tell you after I attend the McCain-Palin rally in Virginia Beach on Monday.

    :: David M. Wagner 12:48 PM [+] ::
    :: Friday, October 10, 2008 ::
    Connecticut joins the same-sex marriage bandwagon, in what is fast emerging as the time-honored way: by a 1-vote margin of on a state supreme court.

    In that bizarre state where most Republicans are liberal and most conservatives are Democrats, Republican Governor Jodi Rell says, well, that's it -- but Democratic House Speaker Jim Amann says the legislature will act....

    :: David M. Wagner 3:30 PM [+] ::
    :: Wednesday, October 08, 2008 ::
    The Court's refusal to reconsider Kennedy v. Louisiana in light of the overlooked death penalty for rape in the UCMJ could be seen as part of the Court's overall "the military is different" jurisprudence; cf. Rostker v. Goldberg, Goldman v. Weinberger.

    Apart from that, however, it's just more of "The Constitution evolves the way we feel it should." According to Scotusblog, Louisiana's final filing in the request for rehearing "cautioned the Justices not to make the issue depend solely upon the Court’s own constitutional perceptions, arguing that Congress and the state legislatures are entitled to their say, too." Not a chance, natch:
    The laws of the separate States, which have responsibility for the administration of the criminal law for their civilian populations, are entitled to considerable weight over and above the punishments Congress and the President consider appropriate in the military context.
    But not, apparently, the laws of the actual state whose statute is before the Court: that must yield to a Court-determined consensus of other states' laws.

    Justice Scalia:
    I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. [T]he proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.
    For myself, I am by no means sure I would support the death penalty in any circumstances as a state or national legislator. But I am very sure that the Supreme Court was not meant to be either a state or a national legislator, though it has appointed itself both.

    :: David M. Wagner 10:58 AM [+] ::

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