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.
Wayne R. Barnes, Citation: Wayne R. Barnes, Reconsidering Christianity as a Support for Secular Law: A Final Reply to Professor Calhoun, 74 Wash. & Lee L. Rev. Online 599 (2018).
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 […]
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 […]
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 […]
Darrell A. H. Miller
William Araiza’s insightful article, Arming the Second Amendment, has one essential, hidden component: dignity. Dignity helps explain the peculiar hydraulics of Congress’s power to enforce section five of the Fourteenth Amendment—a jurisprudence in which the less scrutiny the Court itself applies to a given class or right, the more scrutiny it applies to congressional efforts […]
Stories abound of public defenders who, overwhelmed with high caseloads, allow defendants to languish in pre-trial detention and guilty pleas to be entered without examining the merits of the case. Most defendants cannot afford to hire an attorney, and, thus, have no choice other than to accept the public counsel appointed by the court. In […]
President Donald Trump constantly reminds United States citizens about the myriad circuit and district court appointments that his White House is making to the federal judiciary. Last September, Trump proposed the seventh “wave,” which included three people of color among sixteen judicial nominees. This wave permitted the administration to triple the number of ethnic minority […]
This Response considers Evan Zoldan’s argument, set forth in his recently-published Article, that one can find a coherent principle underlying the vexing case of United States v. Klein in the idea that government is prohibited from what Zoldan calls “self-dealing.” The promise is a seductive one: Klein, and in particular its language prohibiting Congress from […]
A fundamental principle of criminal law is that to hold a defendant accountable, the prosecution must prove that he culpably participated in the criminal activity. To prove culpable participation, the government can prove a defendant’s direct knowledge of and active participation in the criminal conduct. However, because of the nature of financial crimes and corporate […]
The constitutional-doubt canon instructs that statutes should be interpreted in a way that avoids placing their constitutionality in doubt. This canon is often said to rest on the presumption that Congress does not intend to exceed its constitutional authority. That presumption, however, is inconsistent with the notion that government actors tend to exceed their lawful […]
In Securities Regulation in Virtual Space, Eric. C. Chaffee explores the potential applicability of the securities laws to virtual transactions based on virtual activity and argues that, although many of these transactions likely qualify as “investment contracts” under S.E.C. v. W.J. Howey Co., they should be excluded under the context clause because, among other reasons, […]
Last year, the United States Supreme Court decided a Hobbs Act conspiracy case that could significantly expand the bounds of the general federal conspiracy statute. In Ocasio v. United States, 136 S. Ct. 1423 (2016), the Court held that, under “age-old principles of conspiracy law,” a police officer could conspire with shop owners to extort […]
In Matters of Strata: Race, Gender, and Class Structures in Capital Cases, Professor Phyllis Goldfarb examines the ways in which race, class, and gender affect the American criminal justice system generally, and its death penalty system in particular. This Response focuses on one of Goldfarb’s observations: The relationship between slavery and the death penalty. This […]
Next term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will consider whether a baker’s religious objection to same-sex marriage justifies his violation of Colorado’s public accommodation law in refusing to bake a cake for a same-sex wedding. At the centerpiece of Masterpiece Cakeshop is a clash between the First Amendment’s Free […]
The Online Journal requested that I evaluate Professor Strong’s empirical research, “Realizing Rationality: An Empirical Assessment of International Commercial Mediation,” reported in 23 Wash. & Lee. L. Rev. 1973 (2016). The purpose of Professor Strong’s research is to help “fill the informational gap” about international commercial mediation for the United Nations Commission on International Trade […]
Now that President Donald Trump has commenced the fifth month of his administration, federal courts experience 121 circuit and district court vacancies. These statistics indicate that Mr. Trump has a valuable opportunity to approve more judges than any new President. The protracted open judgeships detrimentally affect people and businesses engaged in federal court litigation, because […]
The Supreme Court recently heard the case of an Alabama death row inmate, James McWilliams. A thus far overlooked argument could save his life and help level the playing field in other capital cases. The Court in 1985 promised independent expertise. Now is its chance to make good on that promise.