The Need for Transparency

When there is a culture of secrecy within a closed group, information generated in and by those individuals can be kept within the confines of the group. This behavior may lead to public harm if a closed group keeps secret information that negatively affects other individuals who are not group members. When a public harm is a possibility, the group must install transparency so as to prevent that harm. While complete transparency might be extremely difficult, there does need to be some concession to candor and accountability. Lawyers, like many other professional groups, are commonly thought of as a closed group. We, like those in other groups, must be vigilant to maintain some transparency. In doing so, we protect and uphold the integrity of our profession while preventing harm to our clients and other citizens. This need for transparency is best illustrated through examples.

An undeniably important example is the recent conviction of Jerry Sandusky on 45 of 48 sexual abuse charges.

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Millard Farmer on Capital Punishment

As I stated in a prior post on this Blog, I consider the continued use of capital punishment in the contemporary United States to be not only immoral but also surprising.  Is there something in the country’s history that helps explain why Americans still use capital punishment?

Millard Farmer, the legendary anti-poverty lawyer and opponent of capital punishment, argued that a reaction to the civil rights movement and the power struggle between the federal government and states’ rights are important factors.  When the national government required the southern states to end their discriminatory practices and dismantle their Jim Crow legal systems, according to Farmer, the southern states dug in regarding their right to use capital punishment.

Then, when the Supreme Court’s decision in Gregg v. Georgia (1976) blew away the constitutional clouds floating above capital punishment, the southern states saw it as a huge victory.  At least in this area, the feds had to stop pushing us around!

In the present, of course, the South remains the true home of capital punishment.  The so-called “Death Belt” – Florida, Georgia, Louisiana, and Texas – has been responsible for three quarters of all capital punishment in the United States over the past two decades.  If Farmer is right (and he is himself a southerner), this pattern results from both the South’s strong law-and-order attitudes and the region’s belief in states’ rights.

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Sticking It To The Constitution

Yesterday, I spoke on a panel on the occasion of Constitution Day here at Marquette University.  What follows is a copy of my remarks: 

Today’s panel asks, “What does it mean to stick to the Constitution?”  This is another way of asking how we – you, me judges, lawmakers – should go about interpreting the meaning of the constitutional text.

Today, this interpretative question is often presented as a binary debate between either originalism or a “living Constitution.”

My argument today is that this clear dichotomy is nothing more than an illusion.  There is not a choice between two stark extremes.  This is because, in practice, most originalists and advocates of a living Constitution tend to meet in the middle.

So this debate between originalism and the living Constitution is often very loud and very energetic, but it tends to distract us from the real question.   Both sides of the debate behave as if the original intent of the Framers of the Constitution is important.  They argue very heatedly over how much weight to give to this original intent, in comparison to other factors such as changing circumstances or contrary precedent.

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