"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Tuesday, May 22, 2018

Mortimer Adler on Plato, Legal Positivism, and Natural Law

Via George Anastaplo’s In Re Antonin Scalia”, wherein we see Scalia as a legal positivist and no natural lawyer, more a “modern” than a Catholic conservative. But first, the great Mortimer Adler on Plato:
[In Plato’s Republic, we] find the sophist, Thrasymachus, arguing against Socrates, saying that “justice is nothing but the interest of the stronger” and Socrates trying to refute Thrasymachus by defining justice without any regard to the edicts or laws of those with the might to enforce them.
According to Thrasymachus, those with the power to ordain and enforce the laws of the land call those who obey their laws just subjects, and those who disobey them unjust. The words “just” and “unjust” have no other meaning, certainly no meaning whereby a despotic tyrant or a tyrannical majority, ruling in self-interest, not for the good of the ruled, can be called unjust.
With the statement that justice is nothing but the interest of the stronger, we have the origin of the doctrine that might is right, for those with the might to govern are the only ones who can determine what is right and wrong.
Mr. Adler goes on to trace the opposition between Socrates and Thrasymachus down to our day in this fashion:
The position taken by Thrasymachus is taken later by the Roman jurisconsult Ulpian for whom “whatever pleases the prince has the force of the law,” and still later by Thomas Hobbes in his Leviathan where he declares that, in any community, what is just and unjust is wholly determined by the positive or man-made laws enacted by those with the power to ordain and enforce them. In the nineteenth century, the positivist view is advanced by Jeremy Bentham in his Principles of Morals and Legislation, and by John Austin in his Province of Jurisprudence Determined, and in the twentieth century it is advanced by professors in American law schools who call themselves legal realists.
On the other side, the naturalist view initiated by Socrates in his dispute with Thrasymachus finds amplification in Aristotle’s distinction between natural and legal justice; in Cicero’s discussion of [the] natural; in Augustine’s statement that “an unjust law is a law in name only” (representing might without right, power without authority); in Aquinas’s philosophy of law wherein principles of justice are antecedent to, independent of, and applicable to positive or man-made laws; and in the doctrine of modern philosophers, such as John Locke and Immanuel Kant, for whom natural rights preexist positive, man-made laws and become the basis for assessing their justice and injustice.
Mr. Adler, in his usual systematic fashion, spells out “the consequences that follow from embracing the positivist or the naturalist side of the issue”:
If the positivist view of the relation between law and justice is correct, it follows:
1. that might is right:
2. that there can be no such thing as the tyranny of the majority;
3. that there are no criteria for judging laws or constitutions as unjust and in need of rectification or amendment;
4. that justice is local and transient, not universal and immutable, but different in different places and at different times;
5. that positive laws have force only, and no authority, eliciting obedience only through the fear of the punishment that accompanies getting caught in disobeying them; and
6. that there is no distinction between mala prohibita and mala in se, namely, between
a. acts that are wrong simply because they are legally prohibited (such as breaches of traffic ordinances) and
b. acts that are wrong in themselves, whether or not they are prohibited by positive law (such as murdering human beings or enslaving them).
Mr. Adler then spells out, in opposition to each of these points, “the naturalist view of the relation between law and politics,” beginning with the observation that “might is not right” and that “majorities can be tyrannical and unjust.”
George Anastaplo (1925-2014) was Professor of Law, Loyola University of Chicago; Lecturer in the Liberal Arts, The University of Chicago; and Professor Emeritus of Political Science and of Philosophy, Dominican University.

Letter to the Editor at The Spectator (UK), Submitted Response to Lionel Shriver's The Irish border is the EU’s problem, not ours, May 12, 2018


Seth Barrett Tillman
New House (#53)
Maynooth University
Maynooth
County Kildare
Ireland


22 May 2018


The Spectator
Letters to the Editor
Letters@spectator.co.uk


RE: Lionel Shriver, The Irish border is the EU’s problem, not ours, The Spectator (UK), May 12, 2018, page 23, https://tinyurl.com/y8fxu6og                            

Your author wrote: The Good Friday Agreement “is not a set of eternal laws to live by dictated to Abraham from the Lord Thy G-d on Mount Sinai.” The standard biblical narrative is that Moses and Aaron led the Jewish people to G-d’s covenant at Mount Sinai. Abraham had departed this world about ten generations before that event—some 325 years prior.

When The Speccie emulates The Grauniad, we all lose.

Sincerely,

/s/

Seth Barrett Tillman

Seth Barrett Tillman, Letter to the Editor at The Spectator (UK), Submitted Response to Lionel Shriver's The Irish border is the EU’s problem, not ours, May 12, 2018, New Reform Club (May 22, 2018, 2:36 AM), https://reformclub.blogspot.com/2018/05/letter-to-editor-at-spectator-submitted.html


Monday, May 21, 2018

I Leave It To You—The Reader—To Decide

Amici discussed presents that President Jefferson received from Indian tribes that Lewis & Clark brought home from their great trek. Modern historians have described such gifts as “diplomatic gifts,”[62] that is, presents from foreign nations. Indeed, Jefferson personally described gifts from a Mandan tribal chief as coming from “his [that is, the Indian Chief’s] country,” not our country.[63] The Mandan tribe, which resided in and around present-day North Dakota, was—at that time—in every relevant sense a foreign nation.[64] The Mandan were not born in U.S. territory (i.e., it was not United States territory at the time they were born). There was no peace treaty between the Mandan and the United States. The Mandan had not sold or ceded any of their lands to the United States government. They were not made subject to any federal removal policy or placed onto any reservation. They were not subject to the supervision of any federal officer or administrator with express responsibility over their tribe. And, obviously, they had no voting rights. At this juncture, in American history, they were not (yet) integrated into the American polis in any meaningful way—they were not yet part of the American nation. 

Plaintiffs attempt to counter this evidence with another letter that President Jefferson wrote on another occasion to five other Indian tribes.[65] However, the Wiandots, Ottowas, Chippeways, Poutewatamies, and Shawanese tribes, who Jefferson referred to as “my red children . . . forming one family with the whites,” were situated in significantly different ways—both geographically and legally—than the Mandan were vis-à-vis the United States.[66] It is no surprise that Jefferson addressed these five tribes using familial language: these five tribes primarily resided East of the Mississippi in territory that was within the settled pre-Louisiana Cession borders of the United States, as well as in the area around the Great Lakes.[67] 

Plaintiffs’ rebuttal does nothing to discount Jefferson’s own description of the gifts from the Mandan tribe, which was located about a thousand miles away from the five tribes that were connected to the Ohio Valley. By contrast, many of these tribesmen in the Louisiana Cession and further West had never met Westerners, and Lewis and Clark’s Corps of Discovery explorers were certainly the first Americans that many had met.[68] Tribes such as the Mandan were in every relevant sense foreign, as Jefferson’s correspondence with Lewis plainly shows. Contrary to Plaintiffs’ contra-historical blanket assertion, not all Indian tribes are the same: they had, and still have, distinct cultures, languages, and histories. Plaintiffs’ treatment of all such groups and their gifts as indistinguishable amounts to—at best—gross historical oversimplification. Again: Jefferson kept the Mandan diplomatic gifts. He did not ask for congressional consent. That is some substantial reason to think that Jefferson (like President Washington and others) did not think the Foreign Emoluments Clause applies to presidents. DOJ could have, but did not address any of this evidence that bears directly on the meaning of the Foreign Emoluments Clause.  

Because there is no adversity in regard to this probative evidence .  . . Amici , Tillman and the Judicial Education Project, ask to participate at the scheduled oral argument. 


Seth Barrett Tillman, I Leave It To You—The Reader—To DecideNew Reform Club (May 21, 2018, 7:17 PM), https://reformclub.blogspot.com/2018/05/i-leave-it-to-youthe-readerto-decide.html

An extract from: Motion for Leave of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project to be Heard at Oral Argument, Senator Richard Blumenthal v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-01154-EGS (D.D.C. May 21, 2018) (Sullivan, J.), Dkt. No. 52, https://ssrn.com/abstract=3177824.

-------- 
[62] See, e.g., Elizabeth Chew, Unpacking Jefferson’s Indian Hall, Discovering Lewis & Clark, https://perma.cc/6UUKTC5X.
[63] Letter from President Thomas Jefferson to Meriwether Lewis (Oct. 20, 1806), in 8 The Writings of Thomas Jefferson 1801–1806, at 476, 477 (Paul Leicester Ford ed., N.Y. The Knickerbocker Press 1897) (emphasis added), http://bit.ly/2KX7lxb.
[64] Mandan People, Encyclopaedia Brittanica (“Mandan, self-name Numakiki, North American Plains Indians who traditionally lived in semipermanent villages along the Missouri River in what is now North Dakota.”), http://bit.ly/2Ge0Q5k.
[65] Letter from Thomas Jefferson to Indian Nations (Jan. 10, 1809), National Archives: Founders Onlinehttps://perma.cc/Y2DF-CT97 (“I take you and your people by the hand and salute you as my Children; I consider all my red children as forming one family with the whites[.]”).
[66] Id. (using Jefferson’s spelling in the main text).
[67] See, e.g., History, Wyandotte Nation, https://perma.cc/FX4H-2HHX; Ottowa Indians, Ohio History Connectionhttps://perma.cc/DS8J-M8KZ; Chippewa Indians, Ohio History Connection, https://perma.cc/TRY7-TX8JPotawatomi History, Wheeling Historical Society & Museum, https://perma.cc/9HJX-5794; History, The Shawnee Tribe, https://perma.cc/9XWF-2UMV.
[68] See The Native Americans, PBS, https://perma.cc/522D-76DY.

Sunday, May 13, 2018

Letter to the Editor, Response to Ann Marie Hourihane, Eighth Amendment Debate is a Case of History Repeating, The Times (Irish edn.) (May 15, 2018)



Submitted: May 13, 2018

Re: Ann Marie Hourihane’s Eighth [Amendment] Debate is a Case of History Repeating, The Times (Irish edn.) (May 11, 2018, 12:01 AM)           

Ms Hourihane writes: “There is a large section of our population who are not going to discuss how they are going to vote [in regard to repealing the 8th Amendment of the Irish Constitution] with anybody, because they know that in any logical argument they would lose.” That is interesting: I always thought it was the job of the media to hold elected officials, the government, and its ministers to account. I guess I was wrong: in our post 1984 world, it is the job of the media to hold the people and the voters to account. Perhaps she thinks it is time to (also) repeal the Irish Constitution’s secret ballot provision?

Perhaps your editorial writer could tell us how she knows, that this “section” of the population is “large,” and also how “large” she thinks this purportedly illogical segment of the population is, and more importantly, given that it is “large” and illogical, how long does she think it worthwhile to retain democratic institutions?

Where the elites deride their own citizens and their own voters, the “deplorables” will eventually take the hint. Just think—Brexit & Trump.

Seth Barrett Tillman, Lecturer

Seth Barrett Tillman, Letter to the Editor, Eighth Debate, The Times (Irish edn), May 15 2018, at 16, https://tinyurl.com/y88l9ok9 (with Lexis access) (published). 

Seth Barrett Tillman, Letter to the Editor, Response to Ann Marie Hourihane, Eighth Amendment Debate is a Case of History Repeating, New Reform Club (May 13, 2018, 7:08 AM), https://reformclub.blogspot.com/2018/05/letter-to-editor-response-ann-marie.html

A response to: Ann Marie Hourihane, Eighth [Amendment] Debate is a Case of History Repeating, The Times (Irish edn.) (May 11, 2018, 12:01 AM)https://www.thetimes.co.uk/article/eighth-debate-is-a-case-of-history-repeating-lf6790swj


Sunday, April 29, 2018

Jonathan Hennessey on the Foreign Emoluments Clause: A Response

Jonathan Hennessey makes educational videos and writes educational comic books.[1] There is nothing wrong with that; albeit, there is something wrong with presenting one’s intellectual opponents as comic book villains. You can watch Hennessey’s video on the Foreign Emoluments Clause, where my scholarship is discussed in considerable depth. You can decide for yourself if the tone is right, and if it is fair and balanced.[2] Some legal historians like his work.[3] It certainly has some mistakes. For example, in discussing the failed Titles of Nobility Amendment, which was passed by Congress in 1810 and submitted to the states that same year, Hennessey reports that the proposed constitutional amendment “was ratified by every single state but one.”[4] That is simply wrong—and quite obviously so. Of course, we all do make mistakes. Today, I do not want to focus on Hennessey’s tone and mistakes. Rather, Hennessey does something I want to praise.

The country is now up to its ears in Foreign Emoluments Clause litigation. See Seth Barrett Tillman, A Work in Progress: Select Bibliography of Court filings and Other Sources Regarding the Foreign and Domestic Emoluments Clauses CasesNew Reform Club (Feb. 28, 2018, 8:59 AM), https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.htmlLitigation has been going on for more than a year. There are three such cases in three different federal courts—one of the three cases is now on appeal. Dozens of briefs have been filed. Yet plaintiffs in all three actions (along with supporting amici—including dozens of academics in law and other fields) have failed to put forward any theory explaining the scope of the Foreign Emoluments Clause’s office…under the United States language. Plaintiffs’ position—such as it is—is that whatever the clause’s operative office-language means, that language includes (or ought to include) the President. Their position is entirely a litigation-driven tactical argument. It is not a fully fleshed-out intellectual position.

In contrast to the plaintiffs in the Foreign Emoluments Clause cases, Hennessey has real guts. In other words, he has a fully fleshed-out legal theory. And his position is different from my own.

My position is that Office…under the United States, as used in the Constitution and in other documents from the Federalist Era, refers to statutory or appointed offices in any of the three branches of the federal government. I support my position by turning to a variety of evidence: the pre-Independence legal meaning of Office…under the Crown, the Constitution’s drafting history, early Executive Branch practice in the Federalist era in regard to diplomatic gifts received by presidents from foreign governments, congressional drafting practice of the First Congress, nineteenth century scholarship, including, e.g., Justice Story and David McKnight, etc. See, e.g., David A. McKnight, The Electoral System of the United States 346 (Philadelphia, J.B. Lippincott & Co. 1878) (It is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.” (emphases added)), 
https://archive.org/stream/electoralsystem00mckngoog#page/n350/mode/2up. See generally Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014). I also turn to Alexander Hamilton’s 1793 roll: a list of those holding “civil offices or employments under the United States.” My view accounts for the Hamilton roll. The President and other elected officials do not appear on the list because they are elected officials, not appointed officers.

Where such documents speak to civil Offices…under the United States, the use of “civil” simply refers to civilian positions, as opposed to military positions. I did not make this position up. Justice Story, in his celebrated Commentaries, stated that “civil office” as used in the Constitution referred to civilian positions as opposed to military (i.e., army and navy) positions. See 2 Joseph Story, Commentaries on the Constitution, Sections 789–790, at 257–259 (Boston, Hilliard, Gray, and Co. 1833), https://archive.org/stream/bub_gb_VZQPBIhVPsMC#page/n259/mode/2up.

Hennessey has his own interesting theory.
A civil office is one created by congress AFTER the ratification of the constitution.
That’s why Hamilton’s list does not include Senators, members of the House, or the President or Vice President. They are not “civil offices under the united states,” because they are created by the Constitution.
So Hamilton’s list does not provide evidence that the foreign emoluments clause doesn’t apply to elected positions in the federal government.[5]
Hennessey puts forward no explanation why “civil office” means statutory office, i.e., offices created by Congress. Nor does Hennessey explain why his theory is better than Joseph Story’s. (Actually, Hennessey does not even cite to Story.) Still Hennessey, at least, has a theory. I propose to give Hennessey’s theory a fair hearing. If Hennessey is correct, if “civil office” means statutory or appointed office, then that would explain why the President and other elected officials do not appear on Hamilton’s roll of officers. So Hennessey’s theory and my position have something in common: they both explain why Hamilton’s roll of officers included no elected federal positions.

But the two theories—Hennessey’s and my own—are not exactly the same.

My position is that “civil” means civilian. So, in regard to the Hamilton roll of officers (which uses "civil offices or employments under the United States"-language), my theory would predict that military officers (which are statutory officers and appointed positions) should not appear in Hamilton's list. Hennessey’s theory (as I understand it) is that “civil office” does not refer to civilian positions, but refers to all statutory positions—civil and military. So under Hennessey’s theory (as I understand it), Hamilton’s roll of officers should include all the officers in the regular United States military: [i] all army officers, i.e., the uniformed officers in the United States Army, and [ii] all naval officers, i.e., the uniformed officers in the United States Navy. (Whether the words “office” and “officer” should extend to non-commissioned officers and/or to enlisted personnel is a question for another day.) 

I have reviewed the Hamilton roll of officers many times over the course of many years. There is no list of United States Army officers in Hamilton’s roll—there is no list of (U.S. Army) lieutenants, captains, majors, colonels, and/or generals. There is no list of United States Navy officers in Hamilton’s roll—there is no list of (U.S. Navy) lieutenants, commanders, captains, and/or admirals. Not only is there no complete list of such officers in the regular U.S. military, there is not even a skeletal list or outline identifying the major commanders at each army post, at each naval port (or on board each U.S. Navy ship), or in reference to major regional commands or in each state of the Union. [The original Hamilton-signed document and its subsequent reproductions and reprints are all online.[6] See, e.g.,  


In short, Hennessey’s theory does not account for the Hamilton document. My position does. “Civil” means “civilian,” and Office…under the United States means statutory office. Or, at least, that is what these terms meant circa 1793 when Hamilton (and his staff) drafted (and compiled) his roll of officers. I point out that Hamilton’s roll was 90 pages long, that Hamilton used manuscript size pages, and that Hamilton took about 9 months to draft this document in response to a request from the United States Senate. See Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399, 414–15 (2012). If Hamilton intended to include elected officials and/or military officers in his roll, he certainly had the time and opportunity to do so. 

Is it really likely (as plaintiffs in the Foreign Emoluments Clause cases would have us believe) that Hamilton just forgot to list the President and all the other elected federal officials in his roll of officers?

Is it really likely (as Hennessey would have us believe) that Hamilton (a former U.S. Army officer!) just forgot to include the entire military establishment in his roll of officers?

To me, at least, plaintiffs’ position in the Foreign Emoluments Clause cases and Hennessey’s theory amount to this—they both know better than Alexander Hamilton.

Seth Barrett Tillman, Jonathan Hennessey on the Foreign Emoluments Clause: A Response, New Reform Club (April 29, 2018, 8:18 AM), 
https://reformclub.blogspot.com/2018/04/jonathan-hennessey-on-foreign.html





[1] Jonathan Hennessey, ReConstituting: The U.S. Constitution’s Emoluments Clause and Donald Trump—Full Documentary, Jonathan Hennessey (July 24, 2017), http://www.jonathanhennessey.com/documentary-donald-trump-emoluments/ (30:04–48:00 on Tillman, and postscript at 51:50–54:16 again on Tillman); Jonathan Hennessey, Reconstituting: The Emoluments Clause(s) and Donald Trump, YOUTUBE, https://www.youtube.com/watch?v=zkL6x18cJsU; Jonathan Hennessey, The U.S. Constitution’s Emoluments Clause & Donald Trump: Reconstitutinghttps://vimeo.com/226189281.  

[2] Id.

[3] See Jonathan Hennessey (@iamaraindogtoo) on Twitter, Definitive argument refuting Seth Barrett Tillman (Sept. 25, 2017, 9:20 AM), https://twitter.com/iamaraindogtoo/status/912351039730327552 (reporting “likes” from Professors Jed Shugerman and Gautham Rao); see also Comment from Rockinghorsewithnoname on Shugerblog (Sept. 25, 2017, 4:24 PM) (same substantive discussion, and linking to Hennessey’s website) (apparently rockinghorsewithnoname is Hennessey’s nom de plume on Twitter, blogs, and elsewhere), https://shugerblog.com/2017/08/31/questions-about-the-emoluments-amicus-brief-on-behalf-of-trump-and-its-use-and-misuse-of-historical-sources/.

[4] Jonathan Hennessey, ReConstituting: The U.S. Constitution’s Emoluments Clause and Donald Trump—Full Documentary, Jonathan Hennessey (July 24, 2017), http://www.jonathanhennessey.com/documentary-donald-trump-emoluments/ (at 6:40–6:55). It is possible that what Hennessey meant to say was that ratification failed by a single state. 

[5] See Jonathan Hennessey (@iamaraindogtoo) on Twitter, Definitive argument refuting Seth Barrett Tillman (Sept. 25, 2017, 9:20 AM), https://twitter.com/iamaraindogtoo/status/912351039730327552 (reporting “likes” from Professors Jed Shugerman and Gautham Rao); see also Comment from Rockinghorsewithnoname on Shugerblog (Sept. 25, 2017, 4:24 PM) (same substantive discussion, and linking to Hennessey’s website) (apparently rockinghorsewithnoname is Hennessey’s nom de plume on Twitter and elsewhere), https://shugerblog.com/2017/08/31/questions-about-the-emoluments-amicus-brief-on-behalf-of-trump-and-its-use-and-misuse-of-historical-sources/. For a good history of the (failed) Titles of Nobility Amendment, see Gideon M. Hart, The "Original" Thirteenth Amendment: The Misunderstood Titles of Nobility Amendment, 94 Marq. L. Rev. 311 (2010); Jol. L. Silversmith, The "Missing Thirteenth Amendment": Constitutional Nonsense and Titles of Nobility, 8 S. Cal. Interdisc. L.J. 577 (1999). See generally Congressional Research Service / Library of Congress, The Constitution of the United States of America: Analysis and Interpretation, S. Doc. No. 112-9, 112th Cong., 2d Sess. 49 (Michael J. Garcia et al. eds., Centennial ed., interim edition with cases decided by the Supreme Court of the United States to Aug. 26, 2017), https://www.congress.gov/content/conan/pdf/GPO-CONAN-2017.pdf


[6] You can find good links to all the documents here: Seth Barrett Tillman, A Work in Progress: Select Bibliography of Court filings and Other Sources Regarding the Foreign and Domestic Emoluments Clauses Cases, New Reform Club (Feb. 28, 2018, 8:59 AM), https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.html. See especially exhibit K through exhibit R. Hamilton's roll in American State Papers is also available here: See, e.g.,  

Sunday, April 08, 2018

The Great Convention of 2018






Seth Barrett Tillman, The Great Convention of 2018, New Reform Club (April 8, 2018, 6:22 PM), 
https://reformclub.blogspot.com/2018/04/the-great-convention-of-2018.html



Monday, April 02, 2018

Professor Nourse on the Three Emoluments Clauses Cases Against the President


Notice that Professor Nourse ends her analysis with “even President Trump’s lawyers now admit that the Foreign Emoluments Clause does in fact cover the President.” Victoria Nourse, Reclaiming the Constitutional Text from Originalism: The Case of Executive Power, 106 Calif. L. Rev. 1, 28 (Feb. 2018) (emphasis added). Why does Nourse use the word “now”? Why does she use the word “admit”? The President’s personal lawyers took the position that the Foreign Emoluments Clause applies to the President. See Sheri Dillon et al., Morgan Lewis LLP White Paper, Conflicts of Interest and the President (Jan. 11, 2017), [https://assets.documentcloud.org/documents/3280261/MLB-White-Paper-1-10-Pm.pdf] [https://perma.cc/B8BU-X4U3]. This document was made public more than a full calendar year before Nourse published her paper in California law Review. So why does Nourse write “now admit”? And why write “admit”? Is there any evidence that the President’s Morgan Lewis attorneys had first taken or considered taking a different position, but were pressed or consented to making the “admission” that the Foreign Emoluments Clause applies to the President? I have no good reason to believe that Morgan Lewis counsel considered the alternative: i.e., that the clause does not apply to the President.

Moreover, Department of Justice counsel representing the President, in his official capacity, i.e., counsel who have submitted actual court filings, and who have written on this issue more recently than the President’s Morgan Lewis counsel, have made no such “admission.” Department of Justice Counsel have announced this more nuanced view both before and after Nourse published her article. Compare President of the United States’ Statement of Interest at 4 n.2, DC & MD v. Trump, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Mar. 26, 2018) (Messitte, J.), Dkt. No. 100, 2018 WL 1511801, https://ssrn.com/abstract=3150220 (“We assume for purposes of this Statement that the President is subject to the Foreign Emoluments Clause.”) (filed after Nourse published her article in February 2018), with Letter from Department of Justice Counsel to Judge Daniels at 1, CREW v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Oct. 25, 2017) (Daniels, J.), Dkt. No. 98 (“[T]he government has not conceded that the President is subject to the Foreign Emoluments Clause.”) (filed before Nourse published her article in February 2018, but long after Morgan Lewis counsel had made public their legal advice for the President). It appears that Professor Nourse does not understand the prior filings, current posture, and the chronology of events in the three Emoluments Clauses cases.

Seth Barrett Tillman, Professor Nourse on the Three Emoluments Clauses Cases Against the President, New Reform Club (April 2, 2018, 12:37 PM), 



Tillman's Primary Briefs, Publications, etc on the "Office" Question


Briefs
Letter Brief filing Supplemental Authority, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Mar. 19, 2018) (Messitte, J.), Dkt. No. 97, https://www.scribd.com/document/374271648/D-C-and-Maryland-v-Trump-Notice-of-Supplemental-Authority-3-19-18https://ssrn.com/abstract=3141732;


Letter Brief, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, Seeking an Order in regard to Plaintiffs’ Motion to Amend the Complaint, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Jan. 29, 2018) (Messitte, J.), Dkt. No. 88, 2018 WL 1128948, https://www.scribd.com/document/370301834/Maryland-v-Trump-Correspondence-1-29-18, https://ssrn.com/abstract=3112896;

 

Corrected Response [Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 31, 2017) (Messitte, J.), Dkt. No. 77, 2017 WL 6880026, 2017 U.S. Dist. Ct. Motions LEXIS 466, https://ssrn.com/abstract=3089868;

 

Motion and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Oct. 6, 2017) (Messitte, J.), Dkt. No. 27-1, 2017 WL 4685826, 2017 U.S. Dist. Ct. Briefs LEXIS 410, https://ssrn.com/abstract=2996355;


Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, Senator Richard Blumenthal v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-01154-EGS (D.D.C. Sept. 19, 2017) (Sullivan, J.), Dkt. No. 16-1, 2017 WL 4230605, 2017 U.S. Dist. Ct. Briefs LEXIS 30, https://ssrn.com/abstract=2996384;

Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae Judicial Education Project’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017) (Daniels, J.), Dkt. No. 85-1, 2017 WL 4685886, 2017 U.S. Dist. Ct. Briefs LEXIS 408, https://ssrn.com/abstract=3002345;

Motion and Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. June 16, 2017) (Abrams, J.), Dkt. No. 37, 2017 WL 2692500, 2017 U.S. Dist. Ct. Briefs LEXIS 402, https://ssrn.com/abstract=2985843;

Declaration: A Court Filing:
Declaration of Seth Barrett Tillman, Lecturer (Exhibit D), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae Judicial Education Project’s Response to Amici Curiae by Certain Legal Historians, CREW v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017) (Daniels, J.), Dkt. No. 85-5, 2017 WL 7795997, https://ssrn.com/abstract=3037107;

Peer Reviewed Puublications:
Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Brit. J. Amer. Leg. Studies 95 (2016) (peer reviewed);

Seth Barrett Tillman, Why Professor Lessig’s “Dependence Corruption” Is Not a Founding-Era Concept, 13 Election L.J. 336 (2014) (peer reviewed);

Other Major Publications:
Seth Barrett Tillman, The Foreign Emoluments Clause—Where the Bodies are Buried: “Idiosyncratic” Legal Positions, 59 S. Tex. L. Rev. ____ (forth. circa April 2018) (invited symposium contribution), https://ssrn.com/abstract=3096986;

Seth Barrett Tillman, Business Transactions and President Trump’s “Emoluments” Problem, 40 Harv. J.L. & Pub. Pol’y 759 (2017);

Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014);

Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285 (2013);


Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. Colloquy 180 (2013;



Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107 (2009); 4 Duke J. Const. L. & Pub. Pol’y Sidebar 1 (2008);



Seth Barrett Tillman, Opening Statement, Why President-Elect Obama May Keep His Senate Seat After Assuming the Presidency, 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. Pennsylvania L. Rev. PENNumbra 134, 135–40 (2008);

Seth Barrett Tillman, Closing Statement, An “Utterly Implausible” Interpretation of the Constitution: A Reply to Professor Steven G. Calabresi, 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. Pennsylvania L. Rev. PENNumbra 134, 146–53 (2008);

Lesser Publications:
Zephyr Teachout & Seth Barrett Tillman, Common Interpretation, The Foreign Emoluments Clause: Article I, Section 9, Clause 8, in The Interactive Constitution (National Constitution Center 2016), http://tinyurl.com/jxro4o9;

Seth Barrett Tillman, Matters of Debate, The Foreign Emoluments Clause Reached Only Appointed Officers, in The Interactive Constitution (National Constitution Center 2016), https://tinyurl.com/ybgeu3cd;

Opinion Editorials & Letters to the Editor
Josh Blackman & Seth Barrett Tillman, Opinion Editorial, The ‘Resistance’ vs. George Washington, Wall Street Journal, Oct. 15, 2017, at A17, https://www.wsj.com/articles/the-resistance-vs-george-washington-1508105637;

Josh Blackman & Seth Barrett Tillman, Opinion Editorial, Yes, Trump Can Accept Gifts, NY Times, July 13, 2017, http://ssrn.com/abstract=2999976, http://tinyurl.com/ycqa26bs;

Seth Barrett Tillman, Letter to the Editor, Oath of Officers, 15(3) Claremont Review of Books 11, Summer 2015, http://ssrn.com/abstract=2623473;

Seth Barrett Tillman, Member of the House of Representatives and Vice President of the US: Can Paul Ryan Hold Both Positions at the Same Time?, Jurist–Forum, Aug. 23, 2012, http://jurist.org/forum/2012/08/seth-barrett-tillman-vice-presidency.php;

Conference Paper:
Seth Barrett Tillman, Loyola University of Chicago Law School, Fourth Annual Constitutional Law Colloquium Conference Paper, Six Puzzles for Professor Akhil Amar (2013), https://ssrn.com/abstract=2173899 (citing to the Hamilton documents);





Unpublished Manuscripts

Seth Barrett Tillman, Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar—Contradictions and Reconciliation (2012) (unpublished manuscript), https://ssrn.com/abstract=1970909;

Seth Barrett Tillman, Hamilton, the Secretary of the Senate, and Jefferson: Three (or Four) Views of the Cathedral and the Mysterious Identity of the ‘Officers under the United States’ (2011) (unpublished manuscript), https://works.bepress.com/seth_barrett_tillman/203/ (click under “Related Files” for images of the various Hamilton documents);

Seth Barrett Tillman, Legislative Officer Succession to the Presidency (April 6, 2007) (unpublished manuscript), http://tinyurl.com/pcqdp3 (parts I & II), http://tinyurl.com/qmzu26 (part III) (click under “Citation Information” for charts);


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Seth Barrett Tillman, Tillman's Primary Briefs, Publications, etc on the "Office" Question
New Reform Club (April 2, 2018, 9:12 AM), 
https://reformclub.blogspot.com/2018/04/tillmans-primary-briefs-publications.html




My publications can be found on Westlaw, LexisNexis, HeinOnline, and on the Social Science Research Network. See Scholarly Papers [of Seth Barrett Tillman], Social Science Research Network (last visited Jan. 7, 2018), https://ssrn.com/author=345891