Pax Christi,

The fact that abortion advocates *claim* they are upholding the law doesn’t mean that they are actually doing so.

In your abortion hypo, it still depends. Advocating legalization of abortion is one thing. Stating the law is another. No need to go back to the 70′s. If a client walked into your office and asked “Is aborting my unborn child legal?” would it be immoral for you to answer honestly?

Let’s assume a lawyer in the early 1970s had written a justification for extending the right to privacy to encompass abortion, and Justice Blackmun was awayed by the argument– would you all similarly dismiss this as a mere private opinion, “amoral” even?

Having said all this, I think lawyers need to make a regular practice out of making their moral concerns known. Maybe law schools should teach moral reasoning and encourage including such arguments in memos. Maybe the government should have an “Office of Moral Counsel.”

“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. ……… But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

If the Democratic Party screws up the chance to “throw off such Government …” then it will deserve the unforgiving disgust of history and the American people.

The Congress is well on it was to already deserving such disgust for its effective cooperation with the government whose immoral actions were justified by John Yoo.

I have given this topic a lot of thought and I think Yoo’s moral culpability depends on his belief, at the time, of how likely it was for his memo to be used for immoral purposes.

First, his clients *knew* the position was quite at odds with prior advice (which they were seeking to change) and went to great lengths to obtain a plausible-deniability legal Potemkin village. Such a village deserves all the legal respect of form over substance: none.

Second, Yoo is not obliged to render a morally repugnant legally opinion, and had the ready option of resigning without detriment to his client.

Bottom line: that was beyond vile.

Yoo may be abusing the constitution, but if that is so, the inherently nationalist bias of the document invites such constructions. The state, after all, must be saved, or else the constitution is null and void.

The imperative of national security is quite real, from the perspective of U.S. law. How could it not be?

It is no accident that the U.S. has committed several genocide-level crimes against those outside constitutional protection, against those who — by whatever logic — are deemed a threat to the existence of the state.

Was the conversion of North Vietnam into a defoliated free-fire zone unconstitutional? Was carpet-bombing and killing 2 million Vietnamese unconstitutional?

I’m no legal expert, but I’d bet that is a hard argument to make.

Of course, the fact that it is constitutional does not make it right.

But as we see from Shaw and McClarey, those who want to excuse the barbarism of Yoo can find some resources in the foundations of national law.

It is just not a Catholic logic. It is the logic of literal, positivist nationalism.