New Marquette Lawyer Magazine Sees Past Problems as Shedding Light on Future Challenges (Post 1 of 3)

This cover of the summer issue of the Marquette Lawyer. The Summer 2019 issue of Marquette Lawyer features three pairs of stories with an underlying common theme that can be summed up by one of the headlines: “In Search of Better Outcomes.” This issue of the Marquette Law School semiannual magazine overall has a substantial historical orientation, but it also speaks strongly to current realities and issues—as has become even clearer since the magazine hit the streets a few weeks ago. Simply put, learning about the past helps in understanding the present and considering the future. This post takes up one pair of articles: the cover story and a reaction to it.

The cover story, “Dying Constitutionalism and the Fourteenth Amendment,” is an edited version of the Robert F. Boden Lecture given at Marquette Law School in fall 2018, by Ernest A. Young, the Alston & Bird Professor at Duke Law School. While the Fourteenth Amendment later would be crucial to the growth of constitutional protections and the extension of civil rights—the linchpin of America’s “second founding,” as it is sometimes called—Young focuses on the first 75 years after the amendment was ratified in 1868. It was a period of broad suppression of civil rights, particularly those of African Americans—the Fourteenth Amendment not working much to the contrary.

Young’s purpose is not so much historical as jurisprudential: He presents his essay as a cautionary tale about “living constitutionalism,” demonstrating that, while that mode of constitutional interpretation was not the Court’s stated approach in those 75 years, it could have been: For “every one of [living constitutionalism’s] modalities strongly supported the compromise or even abandonment of the amendment’s core purpose of freedom and equality for black Americans.” Simply stated, the history of the use of the amendment is a reminder that “social progress is not inevitable, that social forces can push constitutional meaning in bad as well as good directions, that living can turn into dying constitutionalism if we are not very, very careful,” Young writes.

In a comment on Young’s lecture, David A. Strauss, Gerald Ratner Distinguished Service Professor of Law at the University of Chicago and author of The Living Constitution (Oxford 2012), says that the early failures under the Fourteenth Amendment need to be reckoned with by those who are proponents of living constitutionalism. He writes that Young’s lecture shows that “in the end, there is only so much that the law can do to save a society from its own moral failings.”

A future post will discuss another pair of articles in the magazine that would support the same reaction. Click here to read both Young’s lecture and Strauss’s comment.

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Justice Scalia at Marquette Law School

Judge Diane Sykes introduces Justice Antonin Scalia at the dedication of Eckstein Hall
Judge Sykes introduces Justice Scalia

It seems to be common ground that it will be hard to imagine the United States Supreme Court without the late Justice Antonin Scalia. He was a force also in legal education more directly. That is, he was a teacher, and he taught his theories of constitutional and statutory interpretation with intellect and energy, even outside of his writings in the U.S. Reports.

 

Justice Scalia visited us at Marquette University Law School on two occasions. The first was in 2001 to deliver our annual Hallows Lecture, where some 500 people were with him in the Weasler Auditorium, while a group of the same size watched a video feed in the Monaghan Ballroom of the Alumni Memorial Union. For me, the more memorable moment in that visit came when the Justice first arrived to campus, where an overflowing group of law students awaited him in Room 307 of Sensenbrenner Hall. The dean at the time, Howard B. Eisenberg, told the students that I would introduce him, because “Without Professor Kearney, there would be no Justice Scalia here.” Even before I could say anything, Justice Scalia brought the house down with this interjection: “I thought that, without Justice Scalia, there would be no Professor Kearney here.”

Justice Scalia returned to deliver the keynote address at the dedication of Eckstein Hall on September 8, 2010. He relaxed his strictures on recording, and the entire ceremony can be seen here, with an account of it appearing in the Marquette Law Review. I especially recall this comment of Judge Diane S. Sykes, L’84, in introducing the Justice:

“So we are fortunate, indeed, that this history-making justice has joined us here today as we make a little history of our own. When Dean Kearney unveiled the plans for this beautiful building two years ago, he famously declared that Eckstein Hall will be ‘noble, bold, harmonious, dramatic, confident, slightly willful, and, in a word, great.’ It certainly is. And with the possible exception of harmonious—Justice Scalia has been known to say that one of his charms is that he likes to tell people what they don’t want to hear—the dean’s description of this distinguished and splendid building might likewise be applied to our distinguished and splendid visitor. So, ladies and gentlemen, please join me in welcoming the noble, bold, dramatic, confident, slightly willful, and, and in a word, great Justice Antonin Scalia.”

There are things to learn from the remarks of Justice Scalia and the other speakers that day, including then-Chief Justice Shirley S. Abrahamson, whether in the recording or the law review account linked above. My own recollection of Justice Scalia has appeared in the Milwaukee Journal Sentinel and can be found here.

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Remembering Professor James Ghiardi

Law professor James Ghiardi stands at a podium and lectures to a class, circa 1985.
Law professor James Ghiardi stands at a podium and lectures to a class, circa 1985.

James D. Ghiardi, professor emeritus, passed away yesterday, at the age of 97. Jim was a Marquette lawyer, from our Class of 1942, and after service in World War II served as a member of our faculty, active or retired, for almost 70 years. From his first-year Torts course to his (somewhat) gentler approach with upper-level students, as I understand it, Professor Ghiardi was the legendary member of the Marquette Law School faculty for more than a generation. Professor Ghiardi enjoyed immense respect and esteem from Marquette lawyers—his former students.

Jim had retired by the time I arrived in 1997, but he remained a presence at the Law School until as recently as a few months ago. He was unfailingly gracious and supportive to me even before I became dean—indeed, from my earliest days on the faculty. I have been fortunate to count him among my colleagues and friends. At the same time, it seems appropriate to let speak here one of my predecessors as dean—indeed, one of Professor Ghiardi’s former students. Robert F. Boden wrote the following of Professor Ghiardi in 1971:

I first knew him when I was one of 160 terrified freshmen students entering Law School in the fall of 1949. As a student I came to respect him as a fine teacher. As a fellow member of the bar, a fellow Marquette alumnus, faculty colleague, and finally as his Dean, I have come to respect him as a gentleman and a scholar. Few are more zealous in their loyalty to the University and to the profession. Few also have the industry and capacity for work that manifests itself every day in Professor Ghiardi’s vigorous and devoted attention to the responsibilities which he has assumed in the Law School and in the many other related activities which he has undertaken.

In a quarter century of teaching of tort and insurance law, Professor Ghiardi has come to be recognized nationally as one of the academic leaders in this area of the law. Since 1962 he has served as Research Director of the Defense Research Institute, the national research and educational arm of the defense bar. He is often called upon to address legal organizations throughout the country in the field of his expertise, and his long record of publication in the leading bar journals of the country is a further manifestation of his accomplishments in legal scholarship.

Dean Boden made these remarks in the context of dedicating, on behalf of the student editors, a volume of the Marquette Law Review to Professor Ghiardi. The dedication, which also notes Professor Ghiardi’s unusual service as the president of the Wisconsin bar, may be read here.

It concludes by expressing “certain[ty] in the fact that [Professor Ghiardi] will continue for many more years to reflect the highest ideals of his University and his profession.” Dean Boden was right to be so certain in his remarks nearly forty-five years ago. The loss of Jim Ghiardi now diminishes us, but his work and life magnified us—and as a legacy will continue to do so. Requiescat in pace.

Visitation will be held on Sunday, January 24th at Feerick Funeral Home, from 2:00 to 4:00 PM. A visitation will also be held starting at 9:30 AM on Monday, January 25th, followed by the celebration of the Mass of Christian Burial at the Church of the Gesu, 1145 W. Wisconsin Ave. at 10:30 AM. Committal Services and Military Honors will take place at Holy Cross Cemetery, 7301 W. Nash, after the Mass. A lunch will follow at 1:30 PM at the Italian Community Center, 631 E. Chicago Ave.

 Memorials in Jim’s name may be made to the Marquette University Law School, (James D. Ghiardi and Phyllis A. Ghiardi Scholarship Fund), or to the Milwaukee Catholic Home (Employee Fund).

 

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