Obama’s “lost” law review note revealed

While serving as vice president in 1978, Walter Mondale contributed an autographed copy of his unsigned 1956 law review note criticizing Minnesota’s campaign finance law for auction by the student council at the University of Minnesota Law School. In his law review note, Mondale made the kind of argument that conservatives make against campaign finance law today. Mondale’s contribution of an autographed copy of his law review note was an act of good-humored generosity, and I became its proud owner for a relative pittance.

In his law review note Mondale criticized the Minnesota Corrupt Practices Act as arbitrary, ineffectual and counterproductive if not destructive. Mondale urged that removal of expenditure limits be considered and that primary emphasis be given to public disclosure of campaign financing. As a precocious law student, Mondale persuasively rejected the rationale of what became liberal orthodoxy and one of the signature issues of his public life. John Hinderaker and I wrote about Mondale’s law review note when was appointed by President Clinton to co-chair Clinton’s campaign finance reform commission here.

It turns out that, reports to the contrary notwithstanding, Barack Obama also wrote an unsigned 1990 law review note as a student member of the Harvard Law Review. Ben Smith and Jeffrey Ressner report on Obama’s lost law review article. Obama’s note approves of an Illinois Supreme Court decision holding that the unborn cannot sue their parents for negligence. Smith and Ressner’s article suggests that the Obama campaign was not reluctant to disclose Obama’s authorship of the note:

The Obama campaign swiftly confirmed Obama’s authorship of the fetal rights article Thursday after a source told Politico he’d written it. The campaign also provided a statement on Harvard Law Review letterhead confirming that the unsigned piece was Obama’s – the only record of the anonymous authors is kept in the office of the Review president – and that records showed it was the only piece he’d written for the Review.

Smith and Ressner mention the note’s possible connection to the abortion debate. So far as one can determine from Smith and Ressner’s account, Obama did not observe the inconsistency of a contrary outcome in the Illinois Supreme Court case with the abortion right in the first place. The purported constitutional right to abortion provides the mother a right to kill her fetus intentionally. A contrary outcome in the Illinois Supreme Court case would have provided the unborn a right to sue the mother for injuries caused by the mother’s negligence. It wouldn’t make much sense, though Obama offered that “the state may…have a more compelling interest in ensuring that fetuses carried to term do not suffer from debilitating injuries than it does in ensuring that any particular fetus is born.” Obama also opined that imposing “civil liability on mothers may be as likely to deter the carrying of pregnancies to term as to deter maternal negligence during pregnancy.”

In any event, Obama found the Illinois Supreme Court case an apt vehicle to promote the welfare state: “Expanded access to prenatal education and heath care facilities will far more likely serve the very real state interest in preventing increasing numbers of children from being born in to lives of pain and despair.” Unlike Mondale in his student law review note, Obama already had the liberal lingo and the line line down pat.

Obama’s law review note also tends to belie Obama’s statement to Rick Warren this past Saturday that the question of when the unborn acquire rights is “above [his] pay grade.” His law review note suggests that he’s been thinking about the issue for a long time and that he’s not usually so reticent, as Andrew McCarthy explains in “Why Obama really voted for infanticide.”

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