A recent article by Washington and Lee law professor Sam Calhoun has made the top-ten download list of several SSRN ejournals. The article, titled “Justice Lewis F. Powell’s Baffling Vote in Roe v. Wade,” explores Justice Powell’s vote with the majority in Roe v. Wade. Prof. Calhoun wrote the article for presentation at “Roe at 40 – The Controversy Continues,” a symposium hosted at W&L Law this fall.
The piece builds upon the unissued 1970 abortion opinion of Judge Henry J. Friendly, who, although personally pro-choice, concluded that the Fourteenth Amendment does not require abortion freedom. The article also presents research from the Powell Archives at Washington and Lee University School of Law. Here’s more from the abstract:
On its face, Powell’s Roe vote is perplexing due to its inconsistency with his stated philosophy of judicial restraint. Various explanations have been offered, including arguments that a constitutionally protected abortion right is justified (1) as a logical extension of Griswold v. Connecticut, which accorded privacy protection to contraceptive use within marriage; (2) by its “appeal to the future,” i.e., Roe merely expedited the result the country was already steadily approaching; and (3) by empathy for women facing unwanted pregnancies. None of these justifications satisfactorily aligns with Powell’s view of the judicial role. His vote therefore remains baffling.
Justice Powell’s deviation from his own declared principles of restraint is particularly problematic in the context of abortion, perhaps the most intractable legal, religious, moral, and public policy controversy of the last century. Not only did Roe, through an unjustifiably expansive conception of the judicial function, disarm one side politically in this hotly contested dispute, but in doing so the Court also endorsed the other side’s position in the underlying moral debate. Powell’s vote therefore regrettably, but unavoidably, tarnishes his legacy as a proponent of restraint.
Since being posted to SSRN, the article as appeared on a number of top-ten download lists, including for the following eJournals: LSN: Judges (Courts) (Topic); Law & Society: Family Law, Relations & Dispute Resolution; Women, Gender & the Law; LSN: Reproductive Rights (Topic); and Reproductive Justice, Law & Policy. The full article is available for download from SSRN.
What is the proper role of religion in public discourse? Can explicitly religious values inform public discussion on questions such as health care, abortion, and stem cells, or should these questions be addressed in purely secular terms? What duty does a personally religious scholar owe to his students when discussing such topics? As a believing Christian and a law professor, these questions define Professor Samuel Calhoun’s scholarship.
In Grounding Normative Assertions: Arthur Leff’s Still Irrefutable, but Incomplete, Sez Who Critique, 20 J. L. & Religion 31 (2004-2005)), Calhoun explains his view that belief in God is fundamental to the moral foundations of law. The article is a response to Yale scholar Arthur Leff, who argued in Unspeakable Ethics, Unnatural Law, 1979 Duke L.J. 1229, that attempts to ground secular, universal norms are doomed to fail. Through rigorous logic, Leff demonstrates how even obvious statements such as “babies should not be napalmed,” can be countered by questioning the authority of the asserter; or “the Grand ‘Sez Who?’” Calhoun concurs with Leff that no moral statement can be definitively shown to be true in a universe without a Supreme Being. If God is introduced, however, normative assumptions can be securely grounded, although Calhoun acknowledges that looking to God for moral truth has many challenges.
Prof. Calhoun’s first engagement with the issue of religion in the legal and public spheres came earlier, in an article entitled, Conviction Without Imposition: A Response to Professor Greenawalt (9 J. L. & Religion 289 (1991-1992)). Greenawalt’s article was an attempt to define when good citizens of a democracy can rely on their religious convictions. Calhoun expands on this premise by articulating a strict principle of not imposing religious beliefs on others in society. For both the practical reason that not everyone is religious and the theological reason that Christians should not force their beliefs on non-believers, Calhoun argues that civil discourse is best served by religious people carefully self-monitoring the influence of these values on their arguments and decision-making. While not requiring a Christian to forgo all involvement in politics, this “non-imposition principle” would “disable the Christian from seeking laws which for him have no independently-compelling secular justification.”
By 2003, Calhoun reconsidered the non-imposition principle for Christians. In a book review of Elizabeth Mensch and Alan Freeman, The Politics of Virtue: Is Abortion Debatable? (16 J.L. & Religion 405 (2001)), Calhoun discusses his earlier article and concludes that he no longer believes these strictures are appropriate to impose on religious believers. Instead, he posits that beliefs based on religion have the same right to contend in the political arena as beliefs based on anything else, and that it is “abhorrent” to require believers to check their values at the door as the price of entry to political conversation. Christians, though, should exercise prudent political judgment in deciding when to seek laws that implement Christian values.
This revised approach was exemplified in a 2008 article, May the President Appropriately Invoke God? Evaluating the Embryonic Stem Cell Vetoes (10 Rutgers J. Of L. & Relig. 1 (Fall 2008). After President Bush invoked his religious values to explain why he was limiting federal funding for stem-cell research, he was severely criticized in many corners of the media and academia for improperly combining religion and government. Professor Calhoun, however, defends President Bush’s reliance on religion as appropriate under both historical precedent and because religious believers have the same right to apply their values in politics as agnostic or atheistic citizens. In fact, he concludes, outraged secularists were merely attempting to privilege their own values over religious values.
In his scholarly writings, Professor Calhoun leaves no doubt about his stance on many controversial issues. For example, he has published several articles strongly defending the pro-life side of the abortion debate. As a teacher, though, he takes very seriously his role of respecting and encouraging student discussion from all points of view. In his abortion seminar, he confronts this conflict head on. Impartiality in the Classroom: A Personal Account of a Struggle to Be Evenhanded in Teaching about Abortion (45 J. Legal Educ. 99 (1995)), is his account of the first time he conducted the seminar and the difficulties he experienced in attempting to present both sides of the issue fairly when his own pro-life beliefs were so well-known by the students. With his practical approach and inner turmoil candidly chronicled, this piece provides a useful model for partisans of any stripe who are called on to provide a balanced presentation.
Questions about religion, society, and the law are not going away; if anything, they are becoming more and more prominent. In his scholarship, Professor Calhoun defends the importance of including religious values in the discussion. And in his teaching on controversial subjects, he works to make sure that all points of view are represented.
Professor Samuel W. Calhoun recently published his article, Abraham Lincoln’s Religion: The Case for His Ultimate Belief in a Personal, Sovereign God, in the Journal of the Abraham Lincoln Association (2012). Prof. Calhoun co-authored the article with Professor Lucas Morel, the Lewis G. John Term Professor of Politics at Washington and Lee University.
While scholars have often debated the specifics of President Abraham Lincoln’s religion, some elements of his religious faith appear “beyond doubt;” that is, specific beliefs have been “verified … at least as far as historical facts can be verified.” Professors Calhoun and Morel assert that another element of Lincoln’s faith should be added to the list: his belief in a personal, sovereign God. They utilize the historical record including Lincoln’s words (both written and spoken), and his actions to come to the conclusion that by the end of his life, he believed in a personal, sovereign God.
Professor Samuel W. Calhoun recently published his article, Stopping Philadelphia Abortion Provider Kermit Gosnell and Preventing Others Like Him: An Outcome that Both Pro-Choicers and Pro-Lifers Should Support, in the Villanova Law Review (2012).
The article focuses on three of the atrocities committed by Philadelphia abortion provider Kermit Gosnell: his shameful, destructive treatment of women; his brutal killing of born-alive infants; and his performance of illegal post-viability abortions. Prof. Calhoun argues that pro-choicers and pro-lifers alike should unite in condemning, stopping, and preventing these abuses. Women seeking abortions need the protection of medically appropriate health and safety regulations; a civilized society should not tolerate the killing of babies, viable or not, once they are born; and viable fetuses deserve meaningful legal protection. While he recognized that the wider abortion controversy is sure to continue, Prof. Calhoun feels that the combatants should join forces to achieve these three significant objectives.
The article can be found on SSRN here.
Professor Samuel Calhoun‘s article, “Partial-Birth Abortion” Is Not Abortion: Carhart II’s Fundamental Misapplication of Roe, 79 Miss. L. J. 775 (2010) was published over the summer in the Mississippi Law Journal.
The piece is a critical assessment of the Supreme Court’s classification of partial-birth abortion as an abortion. Professor Calhoun demonstrates that the partial-birth procedure in fact does kill a baby during its birth, lending credence to the argument that the procedure is not really an abortion at all, but rather infanticide.
Professor Calhoun then goes on to challenge the extent of Roe v Wade‘s jurisprudential value. He argues that Roe, properly understood, is inapplicable to partial-birth bans. Courts, however, including the United States Supreme Court in Carhart II, have routinely used Roe/Casey‘s analytical framework to evaluate partial-birth abortion. The article proposes that courts return to the rational basis test, rather than Roe/Casey, as the proper evaluative tool.
Congratulations to Professor Calhoun for getting this article published.