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Washington and Lee Law Review - Online Edition

Roundtable

by Wayne R. Barnes

This symposium has revolved around Professor Calhoun’s article, which posits that it is completely legitimate, in proposing laws and public policies, to argue for them in the public square based on overtly religious principles. In my initial response, I took issue with his argument that no reasons justify barring faith-based arguments from the public square argument. In fact, I do find reasons justifying the prohibition of “faith-based,” or Christian, arguments in the public square—and, in fact, I find such reasons within Christianity itself. This is because what is being publicly communicated in Christian political argumentation is that if citizens comply with certain laws being proposed (i.e., they behave in the legally-argued way), it will cohere with Christian principles, and thereby gain them favor with God. Or, more simply, “if I do these things, it will please God.” This “works-based” favor with God is a completely incorrect view of orthodox Christian doctrine, which subscribes to salvation by faith alone. Christian-based political argumentation runs counter to the Christian gospel, because it gets itself tangled up into law, or works, as something that can be done in order to gain greater favor with God. It is, in fact, at odds with the Gospel. Professor Calhoun, in his reply to my article, has availed himself of this opportunity to demonstrate why his views on overt Christian political advocacy have changed since first holding a position similarly to mine over twenty-five years ago, and that he now believes Christian theology poses no problem to the advocacy he promotes. His first argument is that such advocacy will be seen not as promising eternal favor with God, but merely the staving off of immediate calamity or judgment from God in this life; I question whether this is how such advocacy will be perceived, but caution that this message, too, is quite probably wrong, as well. His second argument is that laws make man conscious of sin and can indeed bring one to faith in God; I point out that the scriptures on consciousness of sin are referencing the Mosaic law handed down directly by God through Moses, not secular laws passed by secular states. His third argument is that God actually decrees good works or behavior by Christians as part of a missional plan to reach unbelievers for the faith; however, I point out that what is sought from the unbelievers is not the replication of the observed works (as is the case with decreed secular law), but rather an encouragement to come to genuine faith in God. I conclude by remaining convinced that overt Christian political argumentation, in Christian terms, is more harmful than beneficial.

Roundtable

by Samuel W. Calhoun

This Essay responds to comments by Wayne Barnes, Ian Huyett, and David Smolin on my prior Article, Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended to Separate Religion from Politics. Part II, although noting a few disagreements with Huyett and Smolin, principally argues that they strengthen the case for the appropriateness of religious arguments in the public square. Part III evaluates Wayne Barnes’s contention that Christian doctrine requires separating religion from politics.

Development

by Kristine L. Bowman

Ongoing education reform litigation arising out of Detroit, Michigan presents an innovative claim: Children have an unenumerated federal constitutional right of access to literacy. On June 29, 2018, the district court granted defendants’ motion to dismiss. The case is now on appeal to the Sixth Circuit and is expected to be argued in the first half of 2019. This litigation has already broken new ground and, regardless of the ultimate outcome, it is valuable because it invites us to revisit fundamental questions about rights, remedies, and the role of courts in education reform.

Development

by Margaret Ryznar

Recently, legislative efforts have taken aim at sexual harassment in the workplace. Among these may be a surprising but effective approach—disallowing tax deductions for sexual harassment settlements subject to non-disclosure agreements. This Essay analyzes such a 2017 tax reform provision.

Roundtable

by Ian Huyett

In his address, Professor Calhoun used American Christian abolitionism to illustrate the beneficial role that religion can play in political debate. Surveying the past two millennia, I argue that Christian political thought has protected liberty in every era of the church’s dramatic history. Along the way, I rebut critics—from the left and right—who urge that Christianity’s political influence has been unhelpful or harmful. I also seek to show that statements like “religion has no place in politics” are best understood as expressions of arbitrary bias.

Response

by Christopher W. Schmidt

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial deference to congressional constitutional interpretive authority. Second, even if one accepts originalism as the best way for courts to interpret the Constitution, this assumption does not necessarily apply to nonjudicial actors when they are fulfilling their own constitutional responsibilities—such as members of Congress acting to enforce the provisions of the Fourteenth Amendment. Placing judicial originalism into the foreground of our discussion of Section 5 jurisprudence thus offers additional support for a broader reading of the congressional enforcement power than exists today under Boerne.

Roundtable

by David M. Smolin

Political and philosophical theorists have often advocated for the exclusion of some or all religious perspectives from full participation in politics. Such approaches create criteria—such as public accessibility, public reason, or secular rationale—to legitimate such exclusion. During the 1990s I argued, as an evangelical Christian, against such exclusionary theories, defending the rights to full and equal political participation by evangelical Christians, traditionalist Roman Catholics, and any others who would be restricted by such criteria.

 

Roundtable

by Wayne R. Barnes

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that this is a difficult and complicated issue. It intersects with issues of constitutional law, theology, political theory, jurisprudence, philosophy, law and morality—and that’s just off the top of my head. As soon as one issue is addressed, twelve others raise their head and confound. I am also mindful that Professor Calhoun has been grappling with this issue for far longer than I have. I respect him and his thoughtful treatment of this issue immensely. Part of my trepidation in addressing this subject is that, as will be seen in this response, Professor Calhoun once held a very similar opinion on this issue as me. However, he has evolved beyond it, whereas I (to date) have not. The structure of this online symposium is that Professor Calhoun will have a chance to respond in writing to the points I make in this Article, and I will then have the opportunity to reflect and respond to his reply. I look forward to the exchange, and I know that I will be enriched for having participated in the dialogue.

Development

by Julian Redmond Murphy

In recent years body-worn cameras have been championed by community groups, scholars, and the courts as a potential check on police misconduct. Such has been the enthusiasm for body-worn cameras that, in a relatively short time, they have been rolled out to police departments across the country. Perhaps because of the optimism surrounding these devices there has been little consideration of the Fourth Amendment issues they pose, especially when they are coupled with facial recognition technology (FRT). There is one particular context in which police use of FRT equipped body-worn cameras is especially concerning: public protests. This Comment constitutes the first scholarly treatment of this issue. Far from a purely academic exercise, the police use of FRT equipped body-worn cameras at public protests is sure to confront the courts soon. Many police departments have, or will soon have, body-worn cameras equipped with real time FRT and a number of police departments do not prohibit their members from recording public protests. Although primarily descriptive—exploring the state of current Fourth Amendment doctrine by predicting its application to a hypothetical scenario—this Comment has a normative subtext; namely, suggesting that First Amendment values can strengthen the Fourth Amendment’s protections against the tide of technologically enhanced mass surveillance.

Development

by Rene Reyes

The Massachusetts Supreme Judicial Court (“SJC”) recently declared that the Commonwealth’s statutory ban on stun guns violates the Second Amendment to the U.S. Constitution. The SJC had previously upheld the statute against constitutional challenge in Commonwealth v. Caetano, but the reasoning behind this holding was rejected in a brief per curium opinion by the U.S. Supreme Court in 2016. However, the guidance given by the Supreme Court in the Caetano litigation was far from unambiguous: it faulted the SJC’s reasoning without opining on the ultimate question of the ban’s constitutionality, thus leaving open the possibility that the statute could pass constitutional muster under an alternative analytic approach. This essay discusses what such an alternative approach might have looked like. Specifically, I suggest that the SJC could have upheld the statutory ban by emphasizing the relative rarity of stun guns as a preferred means of self-defense not only as a matter of founding era history, but also as a matter of contemporary reality. This sort of analysis would have allowed the SJC to distinguish stun guns from other weapons that have received constitutional protection in other cases, and would have been fully consistent with both the scope and limitations of the right to bear arms under the Supreme Court’s Second Amendment jurisprudence.

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