Tradition is not the worship of ashes, but the preservation of fire.—Gustav Mahler

Thursday, December 11, 2025

Did Gary Neville Have A Point?



 

On the holiest day of the Jewish calendar, on Yom Kippur, Jihad al-Shamie—a Syrian immigrant turned British citizen in his teens—allegedly launched a heinous terrorist attack against the Heaton Park Hebrew Congregation in Manchester. His actions—directly and indirectly—would claim the lives of two congregants (Adrian Daulby 53, and Melvin Cravitz 66) and seriously injured others. As is to be expected, this attack was met with the usual bland statements of solidarity, condolence, and condemnation, and the necessary calls to action. All this follows the same typical Je suis Charlie Hebdo pattern, and all totally useless.

However, one particular statement did not conform and invited swift criticism. It was a cri de coeur, posted as a LinkedIn video, by Gary Neville—a former Manchester United footballer, a current media pundit, and, perhaps, a future British Labour politician in the making. In his video giving his thoughts on the attack, Neville had this to say about Slow Horses the Heaton Park Hebrew Congregation attack:

When I was driving to Salford City last night, going down Littleton Road, I seen probably 50 or 60 Union Jack flags. And on the way back I went down the parallel road, Bury New Road, which has got the Jewish community right at its heart and they’re out on the streets, defiant, not hiding or in fear.

     I just kept thinking as I was driving home last night that we’re all being turned on each other. And the division that’s being created is absolutely disgusting. Mainly created by angry, middle-aged white men, who know exactly what they’re doing.

Later on in the video, he continued:

I have been building in this city for 15 to 20 years, and nobody has put a flag up. So why do you need to put one up now? Quite clearly it’s sending a message to everybody that there’s something you do not like. The Union Jack flag’s being used in a negative fashion is not right.

Finally, he stated:

We need to check ourselves . . . because we are being pulled right and left. Brexit has had a devastating impact on this country and the messaging is getting dangerous, extremely dangerous—all these idiots that are out there spreading hate speech or abuse in any form. We must stop promoting them.

Unsurprisingly, this video explaining his thoughts, which managed to draw a link between a terrorist attack and “angry, middle-aged white men,” and between the Union Jack and Brexit, was roundly condemned. Putting aside the partisan and tone-deaf nature of Neville’s comments, one has to ask: Did Gary Neville have a point?

The central thrust of Neville’s screed is that speech which takes pride in one’s cultural identity and national narrative is a threat to public safety. How so? Some migrants, their children, and recently naturalized citizens will feel threatened by such expressive speech and conduct. In other words, speech begets violence, or, to put it more strongly: speech by natives invites violence by non-natives. The natural corollary of this is that abandoning the symbols of national pride and identity will deprive would-be terrorists and other criminals of a key motive for launching future attacks against the natives.

Indeed, Neville’s conception of how the world works goes further; he posits a clear nexus between a specific criminal/terrorist attack and common expressions of national pride, some of which had underpinned the Brexit referendum vote and operation Raise the Colours—Raise the Union Jack. One cannot help but wonder, were the forces, institutions, and people so offended and opposed to traditional expressions of national pride consulted by Neville on this matter, and was this their proffered solution? Or, are these merely the anticipated terms of cultural surrender—suggested by Neville—authored personally by him as the only means to usher in the future multicultural utopia by pacific means. In short, for Neville and his supporters, peace—at home—is worth any price, including giving up some (of your, and not his) expressive free speech rights.

Whatever the evidence supporting Neville’s beliefs is, assuming it exists at all, such evidence does not make a case that any moral and courageous people should countenance. The politics of diminishing national pride, oikophobia, and removing symbols of national identity from public spaces has been tried and tested before, not just here but world-wide, and always to no avail. To quote Churchill, “[a] love for tradition has never weakened a nation, indeed it has strengthened nations in their hour of peril.” At a time when the British nation is, at best, unsettled, it is only natural that its people turn to their traditions and sense of identity for reassurance and inspiration.

Nevertheless, there are many in positions of power and influence who share Mr Neville’s beliefs. This is the same thinking which sees national borders as unnecessary barriers, and who regard integration as, at best, only slightly preferable to separate-but-equal multicultural spaces with communities living in de facto cultural, linguistic, and, in the not-so-distant future, legal ghettos. Indeed, for Neville and those who share his world view, it is those who bitterly cling to their identity and who oppose the unstoppable march of demographic change, who are the source of current unrest. That is the reason, in the mind of Gary Neville, that the intransigent natives are to be blamed for the wrongs of Jihad al-Shamie.

Personal self-abnegation, as well as societal-wide cultural surrender, is not a long-term strategy. It is not even a short-term one. A thoughtful man once said that “you cannot eat a flag.” And that is true, but it is just as true that you cannot overcome all violence and hatred with submission. It is now merely a question of remembering that second truth before it is too late.


Daniel Epstein-O’Dowd, Government Relations Consultant, former Political Advisor within the Irish Parliament

** Seth Barrett Tillman, a U.S. citizen, and Associate Professor, Maynooth University School of Law and Criminology, Ireland / Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad

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Daniel Epstein-O’Dowd, & Seth Barrett Tillman, ‘Did Gary Neville Have A Point?,’ New Reform Club (Dec. 11, 2025, 15:27 PM), <https://reformclub.blogspot.com/2025/12/did-gary-neville-have-point.html>;

Wednesday, December 10, 2025

I Get the Best Rejection Letters

Seth,

Thank you so much for sending us -----------------------------. This was a delight to read—sharp, cheeky, and wonderfully satirical. The humor lands cleanly, and the worldbuilding-through-bureaucracy is pitch-perfect. It’s a concept piece with real bite.

As much as we enjoyed it, ------------------ tends to lean more toward character-driven stories—pieces anchored in interiority, emotional pressure, or rupture. This piece works beautifully as satire, but it sits outside the range of what we typically publish.

We genuinely wish you the best of luck placing it. It deserves a good home, and we hope it finds one soon.

Best,

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Seth Barrett Tillman, I Get the Best Rejection Letters,’ New Reform Club (Dec. 10, 2025, 4:31 PM), <https://reformclub.blogspot.com/2025/12/i-get-best-rejection-letters.html>;

Tom Van Dyke – Co-Blogger, Friend, and Mentor

Tom Van Dyke – Co-Blogger, Friend, and Mentor

I just found out from mutual friends that Tom Van Dyke passed away last November. We never met in person, and we only had occasion to talk by telephone a few times. Our friendship was such that we communicated over New Reform Club and by a good many e-mail contacts.

Tom was a patriot. He was also my friend, and a source of encouragement. He encouraged me to write and to blog, and in particular, to do so, at New Reform Club. I have done that, and I hope to continue to do so. In some ways, Tom was a mentor. I will miss him—I am sure others will too.

Seth

Seth Barrett Tillman, Tom Van Dyke – Co-Blogger, Friend, and Mentor,’ New Reform Club (Dec. 10, 2025, 6:39 AM), <https://reformclub.blogspot.com/2025/12/tom-van-dyke-co-blogger-friend-and.html>;

Monday, December 08, 2025

Some 2025 and 2026 Productivity

 

 

2025 is not entirely over. Still: what follows is a list of 2025 and 2026 (that is, accepted papers, etc) productivity in-hand.

1 appellate amicus brief (New York state appellate court)

1 declaration as an expert in a trial court proceeding (Maine federal district court)

1 submission to a commission (Ireland)

1 traditional peer-reviewed article (Romania)

(accepted in 2025, to be published in 2026) (the current link is to the journal, not the article)

1 article in a legal professional journal (published in February 2025) (Ireland)

2 articles in print journals (here and here—both US)

1 article in an online journal (US)

1 electronic article in an online news, law, and politics portal (Ireland)

treatise entries published (US)

treatise entries updated (US)

3 full-length interviews where I was profiled (here, here, and here—all US)

Many interviews where I was a source for television, radio, newspapers, podcasts, etc.

2 reviews in a literary review (US)

3 articles in literary reviews (Australia (here), Canada (here), and Ireland (here))

1 article accepted at a literary review (here, US, forthcoming Jan. 20, 2026)*

4 newspaper publications: opinion editorials, etc. (hereIsrael;* herehere, here—UK)

2 letters to the editor (here and here—both Ireland)

1 faculty colloquium presentation (Maynooth, Ireland). 

This presentation is also under review for 2026 conferences scheduled in Ireland and the UK.

1 audio recording (recorded during 2025, to be published in 2026) (US) 

1 submission under review at a peer-review venue (Ireland)

2 working paper under review (at magazines, newspapers, and similar venues)

2 applications for fellowships for 2026-2027 (both US)

Countries listed above include: Australia, Canada, Ireland, Israel, Romania, UK, and US.

More than a few of the publications above were co-authored. E.g., Josh Blackman (e.g., here), Daniel Adam ODowd (e.g., here), Robert Ray (amicus brief), and J. Andrew Salemme (amicus brief).

Citations

281 citations for 2025: 

including citations from: three federal appellate judges—Katsas/DC Circuit, Oldham/5th Circuit, and Stras/8th Circuit, and one Delaware Court of Chancery Vice Chancellor/Laster); 

including 10 foreign (that is, non-US) citations from: Canada (2), Indonesia, Ireland, Italy (2), Japan, Philippines, Switzerland, and the United Arab Emirates); 

and,

including 2 US Supreme Court letter briefs (both on this docket: Amicus brief (here) and Respondents brief (here)).

19 citations for 2026 (all US). 

Changes of Mind Absent Formal Retractions:

2025: The Test for Determining “Officer” Status Under the Appointments Clause, 49 Opinion Office of Legal Counsel (Christopher C. Fonzone, Assistant Attorney General), slip opinion at 2 n.1 (Jan. 16, 2025) (“[W]e note that, although the Constitution makes several references to the term ‘office’ or ‘officer’ outside the Appointments Clause, this memorandum does not address whether or to what extent any such references should be read consistent with the term ‘Officer[] of the United States’ in the Appointments Clause.”), <https://www.justice.gov/olc/opinion/test-determining-officer-status-under-appointments-clause>. (Fonzone was a Biden appointee.)

----------------------------------------------------

Seth Barrett Tillman, Some 2025 and 2026 Productivity,New Reform Club (Dec. 8, 2025, 4:32 AM), <https://reformclub.blogspot.com/2025/12/some-2025-and-2026-productivity.html>;



Friday, December 05, 2025

Extract from a Recent Application

 

Publication Record. I have published widely and regularly throughout my academic career.

I have over 65 articles in peer-reviewed journals, (legal) professional journals, student-edited print journals, and student-edited online journals. (Here too, I am in the process of co-drafting another such article.) Some of my articles have appeared in exclusive journals. E.g., American Journal of Legal History (2021 & 2010) (peer review), Harvard Journal of Law and Public Policy (2017 & 2010), Northwestern University Law Review (2012and an online reply on Colloquy), Texas Law Review (2005 & 2005—an opening article and a reply), and University of Pennsylvania Journal of Constitutional Law (2019).

I have submitted over 40 amicus briefs, motions, and declarations. My amicus filings have been filed in state and federal, trial and appellate, courts, including the United States Supreme Court, as well as an appellate brief before the [UK] Independent Betting Adjudication Service. Additionally, I have authored or co-authored eleven treatise entries. I have co-authored two book chapters.

I frequently write articles on news, politics, and law (for the layperson) for print journals and online magazines, and policy-makers’ venues. E.g., American Spectator (2024 & 2022, and a letter), The Atlantic, Copenhagen Post, Jurist (2024, 2020, 2012), Just Security, Lawfare (2023, 2022, 2020, 2019, 2019, 2018), and Newsweek. My opinion editorials have appeared in domestic newspapers, e.g., New York Times (2022 & 2017), Wall Street Journal, and foreign newspapers, e.g., Belfast News Letter (UK) (2025 & 2025), Irish Independent (and a letter), Irish Times (and six letters), The Times (and a letter) (Irish edn & UK edn), and Sunday Times (Irish edn & UK edn). Likewise, my many letters have appeared in domestic and foreign newspapers of record and other venues, and my letters are cited in other publications.[1] I also blog a good deal—on Balkinization, New Reform Club, Originalism Blog, and Volokh Conspiracy, and my blog posts are discussed and cited.[2] I have published fiction and nonfiction in literary reviews and magazines focused on wider cultural issues. E.g., Claremont Review of Books (and a letter), Dorchester Review (Canada), Eriugena Review (Ireland), Gadfly: Culture That Matters (US), Galway Review (Ireland), New English Review (US), and Quadrant (Australia). Currently, I have several other articles and opinion pieces under review at journals, literary venues, newspapers, etc.

In short, on average, I have published three academic and professional articles per year (that is, since my first academic publication), with additional output in the form of amicus briefs, treatise entries, book chapters, magazine articles, opinion editorials, letters, blogging, and contributions to literary reviews. I have managed to publish at this rate not withstanding that I regularly teach over 300 students, and on some occasions over 400 students, each and every academic semester—without the benefit of teaching assistants, graduate students, and other similar supports.

I speak at academic conferences, and I give guest lectures. I am frequently interviewed by and appear on Irish and US podcasts, radio, and television,[3] as well as in print and on line in Irish,[4] UK,[5] and US[6] news magazines, newspapers, and other similar venues, including undergraduate venues.[7] Usually, I speak to the news and legal news of the day, but sometimes, the interviews are more personal profiles, and I am asked to discuss my own background and publications. See, e.g., Yitzchok Frankfurter, Going Mainstream, 720 Ami Magazine 180–203 (May 28, 2025); Armin Rosen, The Outsider Legal Genius, Tablet Magazine (Mar. 22, 2024).  




[1] See, e.g., Dragoș Șamșudean, Conspiracy Theories and Faith in Romania: What the Orthodox Bloggers Say?, 68(2) Universitatis Babeş-Bolyai Studia Europaea 175, 184 n.55 (2023) (Romania-based journal) (peer review) (citing Tillman’s 2014 letter to the editor in History Today); Kim Pieters, Attitudes ten opzichte van welzijnsaspecten bij slachten / Attitudes Towards Aspects of Well-Being at Slaughter 32, 84 (Bachelor’s thesis in biotechnology, Odisee University of Applied Sciences, Belgium, 2016) (Flemish-language thesis) (citing Tillman’s 2015 letter to the United Kingdom Independence Party (UKIP) on non-stun slaughter).

[2] Compare, e.g., Seth Barrett Tillman, The Two Discourses: How Non-Originalists Popularize Originalism and What that MeansNew Reform Club (Mar. 28, 2016, 9:22 AM), with Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation 270, 304 n.59, 352 n.34 (Yale University Press 2024) (citing Tillman’s The Two Discourses)and Michael Ramsey, Seth Barrett Tillman on Originalism, Nonoriginalism and Senate ConfirmationOriginalism Blog (Mar. 29, 2016, 6:16 AM) (“The whole [Tillman] post [on New Reform Club] is just brutally awesome . . . .”).

[3] See, e.g., Sharon Ní Bheoláin and Bryan Dobson, Segment, Trump Fires Sally Yates, RTÉ News: Six One (Jan. 31, 2017, 6:00 PM) (Irish state-television interview) (at 25:15–30:55).

[4] See, e.g., Seth Barrett Tillman & Daniel Epstein-O’Dowd, A Path Forward from the Dáil Speaking-Rights Controversy, Gript Media (Ireland) (Apr. 13, 2025).

[5] See, e.g., Laura Roddy, Donald Trump has friend in court as Maynooth professor disputes case, Sunday Times (UK) (Mar. 24, 2024, 12:00 AM).

[6] Seth Barrett Tillman, On Geoffrey Stone, National Review Online: The Corner (Aug. 30, 2013, 1:36 PM).

[7] See, e.g., Maclain Conlin, Due Process and New York v. Trump: A Conversation with Professor Seth Barrett Tillman, Clemson Law Review Interview (Oct. 29, 2025); cf., .e.g., Seth Barrett Tillman, Letter to the Editor, “Occupy the Syllabus” fails to note complexity of adding diversity to syllabi, The Daily Californian, Feb. 10, 2015, at 5 (Berkeley student newspaper). 


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Seth Barrett Tillman, Extract from a Recent Application,’ New Reform Club (Dec. 5, 2025, 5:56 AM), <https://reformclub.blogspot.com/2025/12/extract-from-recent-application.html>; 


Thursday, December 04, 2025

Harry Potter and the Constitution’s Text

 


 

Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113, 114–15 (1995) (“As a textual matter, each of these five formulations [in the Constitution] seemingly describes the same stations . . . the modifying terms ‘of,’ ‘under,’ and ‘under the Authority of’ [used in regard to the terms ‘offices’ and ‘officers’] are essentially synonymous.”); Steven G. Calabresi, Response, The Political Question of Presidential Succession, 48 Stan. L. Rev. 155, 160 (1995) (“The Constitution does not contemplate a weird [!] distinction between ‘Officers of the United States’ [as used in the Appointments Clause] and ‘Officers of the Government of the United States [as used in the Necessary and Proper Clause].’”); Michael B. Rappaport, The President’s Veto and the Constitution, 87 Nw. U. L. Rev. 735, 754 n.73 (1993) (“The term ‘votes’ [in the Orders, Resolutions, and Votes Clause] apparently did not even have a specific historical meaning . . . .”); cf., e.g., Richard D. Friedman, Some Modest Proposals on the Vice-Presidency, 86 Mich. L. Rev. 1703, 1720 n.72 (1988) (“Probably not much weight should be put on the term ‘appointment’ . . . .”). 

Compare Akhil Reed Amar, America’s Constitution: A Biography 172 (“Madison buttressed this argument [against legislative officer succession] by stressing Article II’s slightly stilted syntax, which authorized Congress to declare ‘what officer,’ as opposed to ‘which officer’ . . . .” (quoting Letter from James Madison to Edmund Pendleton (Feb. 21, 1792), in 14 The Papers of James Madison 235, 236 (Robert A. Rutland et al. eds., 1983))), with Bowaman v. Reeve, (1721) 24 English Reports 259, 261 (Chancery) (Harcourt, L.C.) (“[T]hey must take what part they think fit in satisfaction of their debts . . . .” (emphasis added)), 1 Robert Burns, The Works of Robert Burns 112 (Liverpool, M’Creery 1800) (“[A]nd who can chuse what book he shall read . . . .” (emphasis added)), John Dickinson, An Essay on the Constitutional Power of Great-Britain over the Colonies in America 391 n. (Philadelphia 1774) (“Every man’s children being by nature as free as himself . . . may . . . choose what society they will join themselves to . . . [and] what commonwealth they will put themselves under . . . .” (emphases added) (quoting John Locke)), and 6 J.K. Rowling, Harry Potter and the Half-Blood Prince 271 (2005) (“ ‘Magic?’ [Tom Riddle] repeated in a whisper. ‘That’s right,’ said [Albus] Dumbledore. ‘It’s . . . it’s magic, what I can do?’ [said Riddle] ‘What is it that you can do?’ [said Dumbledore]” (emphasis added)). 

Whether the Constitution’s language was “stilted,” as suggested by Professor Amar, depends on whether its original audience was more like Rowling’s (and Dickinson’s and the eighteenth century English Court of Chancery’s) or more like Amar’s Stanford Law Review audience. Cf. Mary Sarah Bilder, James Madison, Law Student and Demi-Lawyer, 28 Law & Hist. Rev. 389 (2010) (taking a more linguistically exacting approach as suggested here).


Seth Barrett Tillman, ‘Harry Potter and the Constitutions Text,’ New Reform Club (Dec. 4, 2025, 1:00 PM), <https://reformclub.blogspot.com/2025/12/harry-potter-and-constitutions-text.html>; 


CHAT GPT versus GROK


CHAT GPT:

Tillman asking:

Was ex parte merryman a federal circuit court decision?

ChatGPT said:

Short answer: Yes — technically.

Explanation:

Ex parte Merryman (1861) was not a U.S. Supreme Court decision. It was issued by Chief Justice Roger B. Taney acting in his capacity as a circuit judge for the U.S. Circuit Court for the District of Maryland. At that time, Supreme Court justices “rode circuit” and presided over the federal circuit courts.

So, while it is often discussed as a Supreme Court–level constitutional confrontation, Ex parte Merryman was formally a federal circuit court opinion, not a ruling of the Supreme Court itself.

GROK:

Tillman asking:

Was ex parte merryman a federal circuit court decision?

No, Ex parte Merryman (1861) was not a federal circuit court decision in the modern sense.

It was a ruling issued by Chief Justice Roger B. Taney sitting as a single circuit judge in the U.S. Circuit Court for the District of Maryland, not a decision of a multi-judge appellate circuit court.

Key context:

At that time (1861), U.S. Supreme Court justices “rode circuit” and held circuit court sessions individually in their assigned districts, in addition to their Supreme Court duties.

Taney was the circuit justice assigned to the Fourth Circuit, which included Maryland.

John Merryman had been arrested and detained at Fort McHenry by Union military authorities for alleged pro-Confederate activities.

Merryman’s lawyers filed a petition for a writ of habeas corpus directly with Taney in his capacity as the circuit judge for Maryland.

On May 28, 1861, Taney issued the opinion Ex parte Merryman, ruling that President Lincoln’s suspension of habeas corpus was unconstitutional and that only Congress (not the President) had the power to suspend the writ.

Important points about its status:

It was a single-judge circuit court ruling, not a decision of the full U.S. Court of Appeals (the modern circuit courts did not exist in their current form until the Evarts Act of 1891).

The military commander at Fort McHenry (General Cadwalader) simply ignored Taney’s order, and the Lincoln administration refused to comply.

Because it was issued by a single circuit judge and never reviewed or enforced, it has no binding precedential value as circuit court or Supreme Court precedent.

It is historically significant as one of the most dramatic confrontations between the judiciary and the executive during the Civil War, but legally it is essentially Taney’s opinion from the circuit court bench, not an appellate decision.

In short: Ex parte Merryman was a federal circuit court ruling in the narrow historical sense (issued by a Supreme Court justice sitting as a circuit judge), but it was not a decision of a federal court of appeals or a multi-judge panel, and it carries no formal precedential weight today.


Seth Barrett Tillman, CHAT GPT versus GROK,’ New Reform Club (Dec. 4 ,2025, 9:19 AM), <https://reformclub.blogspot.com/2025/12/chat-gpt-versus-grok.html>; 

Today’s Footnote

In connection with my amicus filings, I found myself on an enemies list. See, e.g., NARAL, The Insidious Power of the Anti-Choice Movement 7 (2018) (citing Tillman’s publications, and amicus briefs filed jointly with the Judicial Education Project and Carrie Severino, Esq.); see also, e.g., James Hohmann, Supreme Court hears oral arguments in Trump ballot access case—2/8, Washington Post (Feb. 8, 2024) (“Hilariously, this is an argument that was actually pushed by this obscure assistant [Tillman adding: associate] professor in Ireland at a law school. His name is Seth Tillman. And he has been writing these law review articles for decades. He was dismissed as a crackpot. People made fun of him.”) (1:04:20ff); id. at 3:29:35 (“pretty obscure Irish legal academic”). For what it is worth, I am a US citizen living abroad, and I am also a legal academic affiliated with an Irish university. Even the foreign media has made efforts to get their digs in. See, e.g., Alastair Campbell and Rory Stewart, Episode 221: The Rest Is Politics (Feb. 21, 2024) (at 36:00–39:00) (citing Tillman’s scholarship’s role in Trump’s election and Section-3 litigation, and characterizing Tillman as a “constitutional fundamentalist”); see also, e.g., Sun Chenghao, 最高法院与特朗普参选资格:争议、走向与影响 / The Supreme Court and Trump’s candidacy: controversy, trends and impact, 美国观察 / American Observer #89, Jan. 19, 2024 (characterizing my co-authored scholarship as the work of “hardline conservatives”). Social media, although not quite an enemies list, was a place for playground level name-calling by domestic and foreign academics. See, e.g., Professor Laurence H. Tribe (Harvard Law School) (@tribelaw), X (formerly Twitter) (Sept. 1, 2017, 7:20 PM), https://twitter.com/tribelaw/status/903804726717841409 [https://perma.cc/GS65-VAYA] (“Another devastating critique of Tillmania by @jedshug.” (emphasis added)); Shane Glackin, Senior Lecturer (University of Exeter, Philosophy) (@eltorosolo.bsky.social) Bluesky (Jan. 28, 2025, 2:06 PM) (reproducing Glackin’s tweet at bottom of Tillman’s post). And sometimes, the glass is half-full. Compare Professor Akhil Amar (Yale Law School) in Charlie Savage, Offbeat Interpretation From Legal Outsider Could Shape Election, New York Times, Feb. 8, 2024, A21 (Amar opining that Tillman’s position is a “gimmick”), with id. (Amar further opining that Tillman is “brilliant” and “one of the genuinely interesting people in the world”).

Seth Barrett Tillman, Todays Footnote, New Reform Club (Dec. 4, 2025, 3:05 AM), <https://reformclub.blogspot.com/2025/12/todays-footnote.html>;



Thursday, November 13, 2025

Who Should Play God?

 

 

Law professors spend a lot of time worrying about the structure of the courts and who should be a judge or Justice. I worry more about who should be a prosecutor.

Here I suggest an institutional reform at the federal level. The position of U.S. attorney in the several federal districts should be chosen from within the pool of federal judges—preferably by those who have already vested in their pension, and if not vested, they should be allowed to return to their judicial post (with senior status) should they be removed from (or otherwise leave) their U.S. attorney post. If they fill out the entire term for which they were appointed (that is, the remainder of the appointing President’s four-year term), then they should go into a well-deserved post-judicial, post-prosecutor retirement. If the appointing President is re-elected to a second term, one immediately following a first term, then the prosecutor should be allowed to continue in his position during that second term. Either way, after the conclusion of the appointing President’s first or second term, retirement should be automatic. 

Under this reform, the position of U.S. attorney could also be chosen from within the pool of state (or territorial) judges who have vested in their state (or territorial) pension, but here, were such an appointee removed prior to the end of the appointing President’s four-year term, state law would control if they could return to their former judicial post.

Additionally, and more importantly, the position of U.S. attorney (but not an acting or temporary U.S. attorney, and not a recess appointee to the post) should be a terminal position. Once held, the person should be permanently ineligible to run for and to hold all other appointed and elected federal positions, including: President, Vice President, Senator, Representative, and presidential elector. A former U.S. attorney could take up the role of U.S. attorney in another federal district or return to his initial district in which he was first appointed should he have left that position.

The goal here is to appoint people to the federal prosecutor’s office who have already left the battlefield of politics. And likewise, the goal is to bar candidates who would use the position of federal prosecutor to seek greater office.

In a time when old norms, if not the rule of law itself, are seen to be dissolving, we would all do well to think about how to shelter what can be protected and what should be saved.

Seth Barrett Tillman, Who Should Play God?,’ New Reform Club (Oct. 13, 2025, 7:15 AM), <https://reformclub.blogspot.com/2025/11/who-should-play-god.html>; 


 

Wednesday, November 12, 2025

Retractions Responding To My Publications


2024: Michael Stern, The One Where They Mix Up the BayardsPoint of Order Blog (Jan. 21, 2024);

2023: Steven Calabresi, Letter, President Trump Can Not Be Disqualified—Prof. Steven Calabresi changes his mindWall Street Journal (Sept. 12, 2023, 4:30 pm ET);

2019: Editor’s Note, Presidential Revisionism, Bunk (Aug. 20, 2019 update);

2019: Glenda Gilmore (@GilmoreGlenda), X (formerly Twitter) (Feb. 9, 2019, 11:50 AM), [https://perma.cc/J6Q5-93VR]; 

2017Letter from Counsel for the Legal Historians to Judge George B. Daniels, Citizens for Responsibility and Ethics in Washington v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y., letter brief filed Oct. 3, 2017) (Civ. A. No. 1:17-cv-00458-GBD ), ECF No. 96, <https://tinyurl.com/ybd783uf>.

2017: John Mikhail, Our correction and apology to Professor Tillman, Balkinization (Oct. 3, 2017, 8:30 PM) (signed, on-line, by Jed Shugerman, John Mikhail, Jack Rakove, Gautham Rao, and Simon Stern).

2017: Jed Shugerman, An Apology to Tillman and BlackmanShugerblog: Law, History, Emoluments, Quo Warranto… plus some family fun (Sept. 23, 2017);  

2015: Attorney General Michael Mukasey reported on Eugene Volokh & Seth Barrett Tillman, No, Hillary Clinton wouldn’t be legally ineligible for the Presidency even if she had violated government records laws, Washington Post—Volokh Conspiracy (Aug. 26, 2015, 12:54 PM); 

Changes of Mind Absent Formal Retractions:

2025: John C. Yoo, Essay No. 115, The Take Care Clause, in The Heritage Guide to the Constitution 421, 423 & n.40, 424 & n.58 (3d ed. 2025) (citing Tillman on Ex parte Merryman in Military Law Review). It appears that Professor Yoo has modified his position, but I am not entirely sure.

2025The Test for Determining “Officer” Status Under the Appointments Clause, 49 Opinion Office of Legal Counsel (Christopher C. Fonzone, Assistant Attorney General), slip opinion at 2 n.1 (Jan. 16, 2025) (“[W]e note that, although the Constitution makes several references to the term ‘office’ or ‘officer’ outside the Appointments Clause, this memorandum does not address whether or to what extent any such references should be read consistent with the term ‘Officer[] of the United States’ in the Appointments Clause.”), <https://www.justice.gov/olc/opinion/test-determining-officer-status-under-appointments-clause>. (Fonzone was a Biden appointee.)

2021: Seth Barrett Tillman, Part II, How Scholars Change Their Minds: 2006, 2009, and 2017, New Reform Club (Aug. 8, 2021, 5:00 AM) (noting Professor Amanda Tyler’s evolving position on Ex parte Merryman);

2021: Seth Barrett Tillman, Part I, How Scholars Change Their Minds: 2005 and 2020, New Reform Club (Aug. 8, 2021, 3:15 AM) (noting Professor Saikrishna Prakash’s evolving position on Ex parte Merryman);

2017Letter Brief from United States Department of Justice to Judge Daniels (Brett A. Shumate, Deputy Assistant Attorney General), Citizens for Responsibility and Ethics in Washington v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y., brief filed Oct. 25, 2017) (Civ. A. No. 1:17-cv-00458-GBD), ECF No. 98 (“[T]he government has not conceded that the President is subject to the Foreign Emoluments Clause.”), <https://perma.cc/ML45-KJBF>;

2017: Seth Barrett Tillman, The Foreign Emoluments Clause—Where the Bodies are Buried: “Idiosyncratic” Legal Positions, 59 S. Tex. L. Rev. 237, 274 n.91 (2017) (invited symposium contribution) (“After hardcopy publication of Professor Nourse’s [2018] article in California Law Review [hereinafter CLR], and in response to my critique and complaints, the student editors at CLR removed these quotation marks from extant electronic reproductions of Nourse’s article. Nonetheless, the student editors refused to publish any response by me in CLR or on CLR Online. Furthermore, I have received no assurances that an errata sheet will be published in any subsequent issue of CLR. Finally, I have no idea if these post-publication changes to Professor Nourse’s article were made with Professor Nourse’s approval, and I have received not one word of explanation from Professor Nourse in regard to all these strange goings-on.”);


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Seth Barrett Tillman, Retractions Responding To My Publications,’ New Reform Club (Nov. 12, 2025, 11:48 AM), <https://reformclub.blogspot.com/2025/11/retractions-responding-to-my.html>; 

See also Seth Barrett Tillman, Responses And Approbations To My Publications,’ New Reform Club (Nov. 12, 2025, 7:52 AM), <https://reformclub.blogspot.com/2025/11/collected-publications-responding-in.html>; 

Responses And Approbations To My Publications

2005: Gary Lawson, Comment, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 Tex. L. Rev. 1373 (2005).

2006: Sanford Levinson, Comment, Assuring Continuity of Government, 4 Pierce L. Rev. 201 (2006); 4 U.N.H. L. Rev. 201 (2006).

2007: Brian C. Kalt, Response, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy 88–93 (2007), republished in 103 Nw. U. L. Rev. Colloquy 292 (2009).

2007: Brian C. Kalt, Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman, 101 Nw. U. L. Rev. Colloquy 108 (2007), republished in 103 Nw. U. L. Rev. Colloquy 305 (2009).

2007: Aaron-Andrew P. Bruhl, Against Mix-and-Match Lawmaking, 16 Cornell J.L. & Pub. Pol’y 349 (2007).

2008: Steven G. Calabresi, Rebuttal, Does the Incompatibility Clause Apply to the President?, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNUmbra 134, 141–45 (2008).

2008: Steven G. Calabresi, Closing Statement, A Term of Art or the Artful Reading of Terms?, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNUmbra 134, 154–59 (2008).

2008 & 2009: Saikrishna Bangalore Prakash, Response, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol’y 143 (2009) (available on Westlaw and LexisNexis); 4 Duke J. Const. L. & Pub. Pol’y Sidebar 35 (2008).

2009: Robert F. Blomquist, Response, Beyond Historical Blushing: A Plea for Constitutional Intelligence, 2009 Cardozo L. Rev. de novo 244.

2009: Steve Sheppard, Response, What Oaths Meant to the Framers’ Generation: A Preliminary Sketch, 2009 Cardozo L. Rev. de novo 273.

2009: Bruce G. Peabody, Response, Analogize This: Partial Constitutional Text, Religion, and Maintaining Our Political Order, 2010 Cardozo L. Rev. de novo 204.

2010: Jeremy D. Bailey, The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman, 33 Harvard J.L. & Pub. Pol’y 169 (2010).

2012: Zephyr Teachout, Rebuttal, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. Colloquy 30 (2012).

2014: Zephyr Teachout, Closing Statement, Constitutional Purpose and the Anti-Corruption Principle, 108 Nw. U. L. Rev. Online 200 (2014) (formerly known as Colloquy).

2016: Zephyr Teachout, Matters of Debate—The Foreign Emoluments Clause, in The Interactive Constitution (National Constitution Center 2016).

2016: Zephyr Teachout, Room for Debate, Trump’s Foreign Business Ties May Violate the Constitution, New York Times, Nov. 17, 2016, 5:06 PM.

2016: William Baude, Constitutional Officers: A Very Close Reading, Jotwell (July 28, 2016).

2017: Gautham Rao & Jed Handelsman Shugerman, Presidential Revisionism, Slate (July 17, 2017, 5:42 PM).

2017: Declaration of Professor Kenneth R. Bowling, Ph.D. (Exhibit H), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae JEP’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y., declaration filed Sept. 19, 2017) (Civ. A. No. 1:17-cv-00458-GBD), ECF No. 85-9, 2017 WL 7964211, [https://perma.cc/BK2LEBJQ]<https://www.courtlistener.com/docket/4571964/citizens-for-responsibility-and-ethics-in-washington-v-trump/>.

2017: Declaration of John P. Kaminski (Exhibit G), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae JEP’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y., declaration filed Sept. 19, 2017) (Civ. A. No. 1:17-cv-00458-GBD), ECF No. 85-8, 2017 WL 7964226, [https://perma.cc/BK2LEBJQ], <https://www.courtlistener.com/docket/4571964/citizens-for-responsibility-and-ethics-in-washington-v-trump/>.

2017: Declaration of Professor Stephen F. Knott (Exhibit I), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae JEP’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y., declaration filed Sept. 19, 2017) (Civ. A. No. 1:17-cv-00458-GBD), ECF No. 85-10, 2017 WL 7964225, [https://perma.cc/BK2LEBJQ], <https://www.courtlistener.com/docket/4571964/citizens-for-responsibility-and-ethics-in-washington-v-trump/> (absent any formal citation to Tillman).

2017: Declaration of Professor Robert W.T. Martin (Exhibit J), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae JEP’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y., declaration filed Sept. 19, 2017) (Civ. A. No. 1:17-cv-00458-GBD), ECF No. 85-11, 2017 WL 7964229, [https://perma.cc/BK2LEBJQ], <https://www.courtlistener.com/docket/4571964/citizens-for-responsibility-and-ethics-in-washington-v-trump/>.

2017: Declaration of Michael E. Newton (Exhibit E), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae JEP’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y., declaration filed Sept. 19, 2017) (Civ. A. No. 1:17-cv-00458-GBD), ECF No. 85-6, 2017 WL 7964201, [https://perma.cc/BK2LEBJQ], <https://www.courtlistener.com/docket/4571964/citizens-for-responsibility-and-ethics-in-washington-v-trump/>.

2017: Supplemental Declaration of Michael E. Newton (Exhibit F), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae JEP’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, 276 F. Supp. 3d 174 (S.D.N.Y., declaration filed Sept. 19, 2017) (Civ. A. No. 1:17-cv-00458-GBD), ECF No. 85-7, 2017 WL 7964223, [https://perma.cc/BK2LEBJQ], <https://www.courtlistener.com/docket/4571964/citizens-for-responsibility-and-ethics-in-washington-v-trump/> (absent any formal citation to Tillman). 

2018: Plaintiffs’ Supplemental Memorandum (Brief for Members of Congress), Senator Richard Blumenthal v. Donald J Trump, in his official capacity as President of the United States of America, 335 F. Supp. 3d 45 (D.D.C., brief filed April 30, 2018) (Civ. A. No. 1:17-cv-01154-EGS), ECF No. 50, 2018 WL 2042238, <https://www.theusconstitution.org/wp-content/uploads/2018/01/Plaintiffs-Supplemental-Memorandum-AS-FILED-1.pdf>.

2018: Erik Jensen, The Foreign Emoluments Clause, 10 Elon L. .Rev. 73 (2018).

2018: Andrew Fagal, Thomas Jefferson and the Arabian Stallion: A Research Note on the Third President and the Foreign Emoluments Clause, 1(4) Law & Hist. Review: The Docket (Dec. 2018).

2019: [Chief Judge] Peter J. Eckerstrom, Yes, the Senate Elevated Partisan Political Goals Over Constitutional Text When It Refused to Consider President Obama’s Nominee to Replace Justice Scalia, 21 U. Pa. J. Const. L. 891 (2019), 21(4) U. Pa. J. Const. L. Online 1 (2019).

2019: Jonathan Hennessey, The Foreign Emoluments Clause Applies to the President, Vice President, and All Other Positions in the Federal Government: A Response to Prof. Seth Barrett Tillman (May 14, 2019) (posted on the Social Science Research Network). 

2020: Gerard Hogan (Advocate-General Court of Justice of the European Union) & Hilary Hogan, Legal and Constitutional Issues arising from the 2020 General Election, 63 Irish Jurist 113 (2020) (about 1/2 its pages respond to Tillman).

2020: A Government Lawyer, Yes, Trump’s Shakedown of Ukraine Was Impeachable “Bribery, Harv. Nat’l Sec. J. Online 1–9 (Mar. 27, 2020).

2023Ron Fein & Gerard Magliocca, Free Speech For People Issue Report 2023-01, States can Enforce Section Three of the Fourteenth Amendment without any New Federal Legislation, Mar. 2023.

2024: Government’s Response to Professor Seth Barrett Tillman, et al., Amici Curiae Brief in Support of Donald J. Trump’s Motion to Dismiss Based on the Appointment of the Special Counsel, United States of America v. Donald J. Trump, 740 F. Supp. 3d 1245 (S.D. Fla., brief filed Apr. 4, 2024) (Case No. 23-80101-CR-CANNON(s)), ECF No. 432, 2024 WL 1490604, <https://tinyurl.com/ycx5j5z2>.

2024: James A. Heilpern & Michael T. Worley, Evidence that the President is an “Officer of the United States” for Purposes of Section 3 of the Fourteenth Amendment, 98(1) S. Calif. L. Rev. 65 (2024) (posted on journal’s website: Mar. 17, 2025).


Approbations:

Letter from Professor Forrest McDonald to Seth Barrett Tillman (2004) (expressing the opinion that my (Tillman’s) position regarding the Order, Resolution, or Vote Clause is “historically absolutely convincing”);

Letter from Professor Forrest McDonald to Seth Barrett Tillman (2009) (“Your argument [that is, the “new” view of Federalist No. 77] is, in my opinion, irrefutable.”); 

Letter from Justice Antonin Scalia to Seth BarrettTillman (2010) (discussing N. Tillman and S. Tillman’s Fragment);

Letter from Justice Antonin Scalia to Seth Barrett Tillman (2012) (discussing Teachout-Tillman exchange on Northwestern University Law Review); 

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Seth Barrett Tillman, Responses And Approbations To My Publications,’ New Reform Club (Nov. 12, 2025, 7:52 AM), <https://reformclub.blogspot.com/2025/11/collected-publications-responding-in.html>; 

See also Seth Barrett Tillman, Retractions Responding To My Publications,’ New Reform Club (Nov. 12, 2025, 11:48 AM), <https://reformclub.blogspot.com/2025/11/retractions-responding-to-my.html>;