On Public Executions

 

 

I am speaking only about my personal moral intuition. If a U.S. state or if the federal government is going to execute a person, at the conclusion of the judicial process, as a punishment for a crime, I believe the execution should be held in public. A town square. The largest city park. The place of the crime if the crime happened on public property.

A society that supports the death penalty should not hide from it when it is to be imposed. Moreover, the key figures involved in imposing the death penalty—e.g., the trial court judge and chief prosecutor—should be in attendance. If the judge and prosecutor from the trial are no longer in office at the time of the execution, then their successors should be in attendance.

Subject to pragmatic constraints, justice, including punishment, is traditionally in public and open to the public. Court rooms, for example, are open to the public. If executions are not part of the justice system, then ….

Seth Barrett Tillman, ‘On Public Executions,’ New Reform Club (Oct. 9, 2026, 12:57 PM), <https://reformclub.blogspot.com/2026/10/on-public-executions.html>; 

My Favourite Footnote

My favourite footnote:

n.*: I thank Dean Eric Enlow, Handong International Law School, South Korea, and the late George W. Carey, James McClellan, and Forrest McDonald for their words of encouragement. Analects 7.1.

Seth Barrett Tillman, ‘My Favourite Footnote,’ New Reform Club (Oct. 9, 2026, 12:36 PM), <https://reformclub.blogspot.com/2026/10/my-favourite-footnote.html>;

Extract from: Seth Barrett Tillman, ‘Understanding Nativist Elements Relating to Immigration Policies and to the American Constitution’s Natural Born Citizen Clause,’ 32(2) Study on the American Constitution 1–55 (Aug. 2021) (peer review) (South Korea: [미국헌법연구]), <https://tinyurl.com/dhkxfzby>.

An Interview on Current Litigation Involving the Domestic (Presidential) Emoluments Clause

An extract from: Maclin Conlin, Interview, ‘An Exploration of the Original Public Meaning of the Domestic (Presidential) Emoluments Clause: A Conversation with Professor Seth Barrett Tillman,’ The Lemur: Duke’s Big Ideas Magazine (Oct. 6, 2026), <https://thelemur.org/2026/10/06/an-exploration-of-the-original-public-meaning-of-the-domestic-presidential-emoluments-clause/>, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=7568858>.

MC: Does Florida’s transfer of land fall within the original public meaning of an “emolument”?

SBT: The final argument in my brief is that the land transfer at issue is not an emolument anyway. This issue, that is, What is an “emolument”?, was litigated in the three Emoluments Clauses cases that were brought during the first Trump administration, and at least two of the courts were friendly to the position that just about any benefit a President might receive is an emolument. I think those courts were wrong, and they did not provide much reasoning on this point; furthermore, these cases were not decided in the Eleventh Circuit, and they were not decided by the Southern District of Florida, much less by the Supreme Court, so I do not really think it matters all that  much what these particular district courts and intermediate courts of appeals had to say. Moreover, they are somewhat less than persuasive precedents, because each of these decisions, where a court adopted an expansive meaning for “emoluments,” was subsequently vacated (or reversed). For all these reasons, I do not think a judge in the Southern District of Florida is going to be greatly influenced by these prior cases particularly because the courts did not explain their rationales in any detail. As a matter of fact, the D.C. trial court simply said that it was persuaded by the position taken by the Maryland District Court. The D.C. trial court never really explained anything, except by saying that it had been persuaded by another court, so the only court of record that really decided this issue was the Maryland trial court. And although the en banc Fourth Circuit rejected President Trump’s petition for a writ of mandamus in that case, the Fourth Circuit never really reached this particular substantive issue. And, of course, as I explained, all these decisions were subsequently vacated (or reversed).

And that is where we are now. The reply brief is due to be filed in Florida on October 1, 2026.[1] There may be an oral argument. But there may be no oral argument—as the court may decide the motion to dismiss based on the briefs. That can happen. I do not think the questions in this case are particularly close, but sometimes a court will still grant oral argument to provide a party with the opportunity to clarify the points that they made in their written brief. One of the most surprising parts of this case for me has been the lack of amici on the plaintiffs’ side. This contrasts sharply with the first Trump administration, when there were about 24 amici across the three cases, and some of those briefs were joined by large groups of law professors. To date, only a single amicus brief, filed on behalf of a single individual, supports plaintiffs’ position.

Another somewhat surprising aspect of Plaintiffs’ case is that they have not asked either for a preliminary injunction or for an expedited briefing schedule in addition to the remedies that they have sought. The leisurely pace of federal litigation and judicial decision-making leads one to conclude that Sistrunk Seeds v. Trump, like the three Emoluments Clauses cases filed in 2017, will time out—as moot—with the expiration of the (second) Trump administration. And, perhaps, that is what plaintiffs wanted then (under Trump-45) and what they want now (under Trump-47)? A cynic might suggest that what plaintiffs actually wanted then and what Plaintiffs actually want now are photo and fundraising opportunities, discovery, and news stories illustrating to their donor base that they continue to fight the man, even if their cases are doomed to lose on standing, or in regard to other threshold issues, or on the merits. I certainly do not know if such a cynic would be correct in regard to Sistrunk Seeds v. Trump. Only the Plaintiffs and their lawyers would know the answer to that.

MC: Professor Tillman, thank you for your time.

SBT: Thank you for having me.

---

[1] This interview was conducted on September 24, 2026. The reply brief in this case was filed on October 1, 2026. See generally Seth Barrett Tillman, Sistrunk Seeds v. Trump: The Docket, New Reform Club (Aug. 17, 2026, 4:33 AM), https://reformclub.blogspot.com/2026/08/sistrunk-seeds-v-trump-docket.html; Seth Barrett Tillman, Trump-47’s Presidential (Domestic) Emoluments Clause case: Sistrunk Seeds v. Trump, New Reform Club (Sept. 25, 2026, 5:48 AM), https://reformclub.blogspot.com/2026/09/trump-47s-presidential-domestic.html.

Seth Barrett Tillman, ‘An Interview on Current Litigation Involving the Domestic (Presidential) Emoluments Clause,’ New Reform Club (Oct. 6, 2026, 2:15 AM), <https://reformclub.blogspot.com/2026/10/an-interview-on-current-litigation.html>; 

A Woman’s Diary of the Siege of Vicksburg under Fire from the Gunboats

 

Entry for July 4, 1863: 

About eleven o’clock a man in blue came sauntering along, looking about curiously. Then two followed him, then another.

“H-------, do you think these can be the Federal soldiers?”

“Why, yes; here come more up the street.”

Soon a group appeared on the court-house hill, and the flag began slowly to rise to the top of the staff. As the breeze caught it, and it sprang out like a live thing exultant, H------- drew a long breath of contentment.

“Now I feel once more at home in mine own country.”

Extract from ‘A Woman’s Diary of the Siege of Vicksburg under Fire from the Gunboats,’ 8 (new series) The Century Magazine (1885), 767, 774.

Seth Barrett Tillman, ‘A Woman’s Diary of the Siege of Vicksburg under Fire from the Gunboats,’ New Reform Club (Oct. 2, 2026, 1:26 PM), <https://reformclub.blogspot.com/2026/10/a-womans-diary-of-siege-of-vicksburg.html>; 

If a man had killed his children, would this be the discourse?

 “Lindsay Clancy is an obviously sympathetic defendant. She lost all three of her children.” from Joe Serpa, ‘The Lindsay Clancy Trial,’ Serpa Law Office (Sept. 9, 2026), <https://www.serpalaw.com/boston-criminal-law-updates/lindsay-clancy-prosecution-tactical-error/>. 

“Lost”: If a man had killed his children, would this be the discourse?

Seth Barrett Tillman, ‘If a man had killed his children, would this be the discourse?,’ New Reform Club (Oct. 2, 2026, 12:16 PM), <https://reformclub.blogspot.com/2026/10/if-man-had-killed-his-children-would.html>; 

Retroactivity and Ex post facto Principles: Canada, Ireland, and the United States

 

Dear Professor:

I think you have framed the question wrong. Your question is not really about the application of the Canadian Constitution’s Notwithstanding Clause—rather, it is about retroactivity and changes in the “law” (as made by courts, legislatures, and Canadian-ministers’-orders & Presidents’/Governors’-executive-orders) during the course of civil and criminal litigation. 

In the United States and (as I understand it) and in Canada, if a defendant is sued civilly or prosecuted criminally, while his case has not reached final judgment and while all appeals and all ability to seek reconsideration is not yet passed, if the law changes, the defendant can take advantage of such changes in the law if they are to his advantage/benefit. If the case is not final, and the law changes to his disadvantage, if the matter is criminal, ex post facto and retroactivity protections preclude the government from expanding liability/punishment or reducing the evidentiary burden on the state to secure conviction. But if the matter is civil, then the plaintiff might secure the benefit of a change in the law to the defendant’s disadvantage.

It is altogether different if a matter has reached final judgment and all appeals and all opportunities to seek reconsideration have been exhausted (or the time to seek such reconsideration/appeal has passed). If the matter is criminal, then a favourable change in the law, that is, “new” law, by whatever means—legislation, or court judgments, etc, leaves the prior conviction intact or unaffected. If the defendant seeks to re-open the case or seeks habeas review, he is unlikely to secure the benefit of “new” law. In the United States, see FIORE v. WHITE (US 1999 and 2001), in Canada, see R v SARSON (Canadian Supreme Court 1996). Similar principles apply here (in Ireland) too. See A v GOVERNOR OF ARBOUR HILL PRISON [2006] IESC 45 (Irish Supreme Court).

As to the application of the Canadian Constitution’s Notwithstanding Clause—that (in my opinion) may amount to changed or “new” law. If a Canadian defendant were convicted during the tail end of a 5-year period under a criminal statute insulated against Charter-related judicial review (via application of the Notwithstanding Clause), and while that case was under appeal, and the 5-year period ran out, then an appellate court could apply the Charter, strike down the law under which the defendant had been found guilty, and then proceed to overturn the conviction (and any sentence).

If the defendant were convicted and then his appeals and opportunities to seek reconsideration ran out, and then after his conviction was finalized, and then the 5-year period ran out, here the law under which he was convicted would no longer be enforceable going forward (as the courts would not be barred by application of the Notwithstanding Clause), … in these circumstances, it would seem that his conviction would be insulated against any collateral attack or habeas review. The defendant’s conviction would not be overturned.

All this might strike one as unfair...but equal treatment under the law will always have quirky results if the legal system changes the law ... such temporal changes will naturally produce unequal results.

Does that help?

Seth

Seth Barrett Tillman, ‘Retroactivity and Ex post facto Principles: Canada, Ireland, and the United States,’ New Reform Club (Oct. 2, 2026, 6:40 AM), <https://reformclub.blogspot.com/2026/10/retroactivity-and-ex-post-facto.html>; 

See also: Seth Barrett Tillman, Tillman on the Conventions of the Canadian Constitution, New Reform Club (June 6, 2018, 9:28 AM), <https://reformclub.blogspot.com/2018/06/tillman-on-conventions-of-constitution.html>.