Much could be said about Virginia’s historic decision to repeal the death penalty, and Professor Klein’s essay provides a wonderful starting point for any number of important discussions. We could talk about how the decision came to be. Or why the move is so momentous. Or what considerations were particularly important in the decision‑making process. Or where we should go from here. But in this brief comment, I’ll be focusing not on the how, or the why, or the what, or the where, but rather on the who. Who are condemned inmates, both generally and Virginia‑style?
Washington and Lee Law Review - Roundtables
by Alexandra L. Klein
When thinking about the history of capital punishment in the United States, I suspect that the average person is likely to identify Texas as the state that has played the most significant role in the death penalty. The state of Texas has killed more than five hundred people in executions since the Supreme Court approved of states’ modified capital punishment schemes in 1976. By contrast, Virginia has executed 113 people since 1976.
But Virginia has played a significant role in the history of capital punishment. After all, the first recorded execution in Colonial America took place in 1608 at Jamestown, when Captain George Kendall was shot to death by a firing squad. Virginia has officially executed 1,390 people, more than any other state.6 I write officially, because Virginia, like many other states also has a history of extrajudicial executions through lynching. The Equal Justice Initiative has calculated that between 1877 and 1950, eighty-four people were lynched in Virginia. Lynchings were arguably a form of “extrajudicial execution” because they frequently involved either the deliberate ignorance or enthusiastic cooperation of local officials and were tools of social control, just like legislatively enacted capital punishment.
Over four hundred years since Captain Kendall died at Jamestown, Virginia has decided to end its brutal regime of capital punishment. This is a truly historic moment. Virginia will be the first southern state, as well as the first state of the group of eleven states that seceded and formed the Confederate States of America during the Civil War to do so.
by Leah D. Williams
Since the broadcast killing of George Floyd by four Minneapolis police officers on May 25, all levels of government, and institutions of every kind, have scrambled with breakneck speed to confront their own ties to America’s most deeply entrenched demons: White supremacy and systematic racism. Washington and Lee has certainly not been exempt from this reckoning. A majority of its faculty and student body have already passed resolutions calling for the removal of Robert E. Lee’s name from the university. As a direct descendent of those enslaved by the school, I commend these resolutions; yet, I strongly offer that a name change may be a start, but it is not enough to reconcile the sins of the past.
by Carliss N. Chatman
Alabama has joined the growing number of states determined to overturn Roe v. Wade by banning abortion from conception forward. The Alabama Human Life Protection Act subjects a doctor who performs an abortion to as many as ninety-nine years in prison. The law has no exceptions for rape or incest. It redefines an “unborn child, child or person” as “[a] human being, specifically including an unborn child in utero at any stage of development, regardless of viability.”
When states define natural personhood with the goal of overturning Roe v. Wade, they are inadvertently creating a system with two-tiered fetal citizenship. This is because Roe and Planned Parenthood v. Casey create a federal floor for access to the right to choose—a rule that some ability to abort a fetus exists in the United States. If these cases are overturned, that eliminates only the federal right to abortion access. Overturning Roe would not prohibit a state from continuing to allow access. In a post-Roe world, in states like New York that ensure the right to choose through their constitutions and statutes, citizenship will begin at birth. In states that move the line to define life as beginning as early as conception, personhood and citizenship will begin as soon as a woman knows she is pregnant.
Trying to define citizenship and personhood based on the laws of each state creates some far-fetched and even ridiculous scenarios. If we follow that logic, we will tie our Constitution into a knot no court can untangle.
This Article was originally published in The Washington Post on May 19, 2019. It has been edited and updated prior to its publication in the Washington and Lee Law Review.
by Shaakirrah R. Sanders
I join Carliss Chatman’s call to fully consider the equal protection implications of the conception theory and raise an additional right to which a fetus may be entitled as a matter of equal protection: health care, which implicates state laws that provide civil and criminal exemptions to parents who choose religious healing instead of medical care for their children and minor dependents. The evidence of harm to children from religious healing is well documented. Yet, currently, approximately forty-three U.S. states and the District of Columbia have some type of exemption to protect religious healing parents in civil and criminal cases.
Religious healing is the belief that “prayer” or “spiritual means” rather than modern medicine can cure individuals. Criminal exemptions apply to prosecutions for murder and homicides, child abuse, child endangerment, child neglect, contributing to neglect or deprivation, criminal injury, cruelty, delinquency, failure to provide medical and surgical attention, failure to report suspected child neglect or abuse, manslaughter, nonsupport, and omission to provide for a child. Civil exemptions apply to claims for child abuse, child neglect, contributing to neglect, dependency proceedings, failure to provide medical care or adequate treatment, failure to report, maltreatment, negligence, nonsupport, and temporary or permanent termination proceedings.
by Helen M. Alvaré
It is pointless to approach Professor Chatman’s argument on its own terms (to wit, “tak[ing] our laws seriously,” or equal application across myriad legal categories of “full personhood” rights) because these terms are neither seriously intended nor legally comprehensible. Instead, her essay is intended to create the impression that legally protecting unborn human lives against abortion opens up a Pandora’s box of legal complications so “ridiculous” and “far-fetched” that we should rather just leave things where they are under the federal Constitution post-Roe v. Wade and Planned Parenthood v. Casey. This impression, in turn, is a tool to forward Professor Chatman’s personal preference for legal abortion—which she gives away by calling legal abortion by its political name: “the right to choose.”
But her arguments, sounding in law, about the alleged chaos to flow from a law protecting unborn human lives from abortion are false on the grounds of basic legal principles concerning federal constitutional and immigration law, as well as the legal principles underlying state legislation and statutory interpretation. I will set these legal principles out below before turning to the more interesting and legally plausible matter of whether or not lawmakers should choose to take into account both the needs of pregnant women and the humanity of unborn life when crafting laws affecting both, whether the situation involves immigration, incarceration, or women’s need for financial support.
by Anthony Michael Kreis
Carliss Chatman’s If a Fetus Is a Person, It Should Get Child Support, Due Process and Citizenship brilliantly captures the moment America is in, where abortion rights hang in the balance as state legislators, like those in Alabama, Georgia, Ohio, and elsewhere clamor to embrace fetal personhood. But, as Professor Chatman illustrates, legislators have expressed no interest in the full logical extent of this policy or the rights that should attach to a fetus if their measures ultimately become effective. The article incisively demonstrates how fetal personhood is singularly focused on ending abortion in the United States and is gaining traction notwithstanding the fact that its advocates have not reasoned through the “unintended and potentially absurd consequences” of their policy positions.
The forces laboring to suppress reproductive rights are wielding axes against Roe v. Wade and its progeny, rather than scalpels to eat away at the fringe of abortion rights as states have attempted to do for decades. And all of this comes just years after similar attempts failed with some of the most conservative statewide electorates in the United States. The recent anti-reproductive justice sledgehammers lack nuance and are not fully reasoned through, as Professor Chatman illustrates, because these initiatives are about much more than abortion—they are about the fervor to consolidate counter-majoritarian power before a rapidly closing window of opportunity ends. Legislators and activists are engaged in social engineering unmoored from any popularly embraced social movement in a contentious moment in constitutional time.
by Samuel W. Calhoun
This Essay argues that it’s perfectly fine for religious citizens to openly bring their faith-based values to public policy disputes. Part II demonstrates that the Founders, exemplified by Thomas Jefferson, never intended to separate religion from politics. Part III, focusing upon Abraham Lincoln’s opposition to slavery, shows that religion and politics have been continuously intermixed ever since the Founding. Part IV, emphasizing the Reverend Martin Luther King, Jr., argues that no other reasons justify barring faith-based arguments from the public square.
by Ian Huyett
This Essay responds to comments by Samuel Calhoun, Wayne Barnes, and David Smolin, made as part of a roundtable discussion on Calhoun’s symposium address Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended to Separate Religion from Politics. In Part I, I discuss current events, especially as they pertain to Smolin’s comments. In Part II, I answer Calhoun’s challenges to my own response. In Part III, I criticize Barnes’s response, which was diametrically different from my own. In Part IV, I draw on Smolin’s observations to discuss the path forward for Christians in the current climate.