"If all values are equal, then cannibalism is just a matter of taste."--Leo Strauss

Wednesday, August 24, 2016

The Spaniard in the Works

Jon Rauch's ebook and Atlantic article defending political machines are eye-openers. Did it ever occur to you -- and I assume you are not a paid political consultant -- did it ever occur to you that there was other than a post hoc defense for political secrecy and cronyism and back-room deal-making? That "if you like your doctor you can keep your doctor" was not just Lie of the Year but also a mark of high statesmanship? I don't mean mumbling something about "what're ya gonna do, this is just the way it's done" and shaking your head before announcing an excuse to leave the conversation. I mean, would you ever consider -- could you even imagine -- for no cash remuneration, mind you -- offering an enthusiastic case that the low art of politics is not just a lesser evil when compared to razor blades and lemon juice, but a positively desirable state of affairs?

If you answered no, then Rauch may prove an interesting subject for study. Rauch argues that political machines are actually quite sensible and balanced, and that ideas and their advocates -- "purists" -- are the enemy, the spanner in the works. Power and secrecy, in this telling, are the essence of liberty and democracy. Liberty and democracy themselves, when cited in challenge to the machines, only endanger themselves. If you love your ideals, in other words, you'll let them go: the machine will deliver them back to you.

Rauch's argument is not exactly specious. In fact, I'll grant his premises as true: Tammany-esque political machines  yield more or less stable and tolerable political compromises and responsiveness, and conversely -- and more importantly -- weakening the political machines creates a more fractured, ungovernable politics. That is, if the GOP continues to drift apart along its Ryan/Trump/Freedom Caucus lines, and the Democrats fracture along their Clinton/Warren/Venezuela lines, we'll be less likely to pass a budget that will face the national debt, and more likely to disrupt services many Americans depend on. 

So our tools don't coexist well: ideas need transparency, but machines need back rooms; ideas need advocates, but ideologues make poor deals; we elect politicians, but get results from machines; and we seek the good, but machines offer only the expedient. 

The real trouble is that machines only work when you don't notice them. Once fellows like Rauch make them an object of praise, the jig is up. Political machines worked when they acted invisibly -- and you knew they were invisible because when you noticed them, when you flipped the light on in the kitchen at night, they scurried under the refrigerator. They worked because we assumed they just arose organically, unintentionally, accidentally, and if you noticed them they'd apologize and promise to let you forget about them. Political machines made sense kind of the way mainline churches did, as Joseph Bottum puts it in his devastating critique: "They mattered more when they wanted to matter less." 

But if we put political machines under the microscope and start agitating for the machines, that is the end: once the machine is aware that we are aware of it, there can no longer be any pretense of trusting it -- the machine will no longer bother protecting individual politicians; it will simply assert its unmediated will. Not for much longer can we say "people hate Congress but love their Congressman." In an age when we are aware that politics is a machine, and if we come to consciously approve of and support it as a machine, we must love Congress and hate Congressmen.

And that cannot go on -- once that becomes inverted, people will demand to vote for the machine they love rather than the cog they hate. And that will be the end of the republic. Literally. 

Tuesday, August 23, 2016

The Stuarts: Voluntary Compliance with Government Fiat

Those who do not act “voluntarily” in a particular way are made to understand that it will be the worse for them—the old evil system, which we thought we [had] said goodbye to with the Stuarts, of “voluntary” compliance with the wish of government for fear of indirect consequences. Thus the citizen is coerced without either the law being changed, or Parliament even consulted, or the possibility of recourse to the courts of law, or public knowledge of what is happening.

This is essentially an arbitrary and lawless use of power, and neither the small numbers of those directly affected nor the assumed desirability of the object in view, ought to blind or silence us.

            —EP, Speech to Brent Young Conservatives, Wembley, 9 May 1966


Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

Sunday, August 21, 2016

Jacob Rees-Mogg on the Brexit Referendum

It seems to me that the one area where referendums are absolutely right are on constitutional matters. Because the one thing Parliament can never do is give away its own power. That has to be returned entire to the electorate every five years. Within that five years there is discretion to act. But the power must be returned to the voters for each general election. And the problem with the European Union is that power has steadily eroded and been given away to unelected officials in Brussels.


If you take the view that sovereignty comes from the British people and is delegated to Parliament for five years, which is I think a pretty traditional view of parliamentary sovereignty, then you would agree, I think, that the one thing where the people must be consulted is when their absolute powers are given away or there is a fundamental change in the Constitution. And leaving the European Union is a fundamental constitutional change.



Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

My prior post: Seth Barrett Tillman, An Opportunity to Comment and Post at New Reform Club, The New Reform Club (Aug. 21, 2016, 5:32 AM)

An Opportunity to Comment and Post at New Reform Club

To Whom It May Concern:

If I have commented on one of your publications (including blog posts) and you'd like an opportunity to respond to what I have written ... comments are allowed (indeed, encouraged) at New Reform Club.

Moreover, if I have used your name, while commenting on one of your publications, and you'd like your own free-standing post at NRC, I am happy to post (wholly unedited) your response of any length (assuming it will fit into a blogger post). You are welcomed to respond here at NRC even if you also respond at your own venue or venues (including your own blog and your own twitter feed).

We all strive towards our common goal of fairness, but perhaps in different ways. I hope that does not sound arrogant.


Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

My prior post: Seth Barrett Tillman, Trump, Academia, and Hyperbole, The New Reform Club (Aug. 19, 2016, 2:30 PM)

Friday, August 19, 2016

Trump, Academia, and Hyperbole

I have written about 30 academic publications, and I guess there are 100s, if not 1000s, of citations to the Constitution in them. It is possible that somewhere amongst them, I miscited the Constitution. Mistakes happen. If someone took the time to point out one such error to me, I guess I would regret it, and I would be a teensy bit embarrassed. I would not blame others, such as my co-authors or editors.* Certainly, I would not think of myself as “ignorant” for such a mistake, as mistakes do happen.

If I saw that someone else made such a mistake, would I be just as considerate of them, as I would be of myself? If I saw that some academic miscited the Constitution, would I think him “ignorant”? I hope not. Although some people are ignorant, it is all too easy to call others names for no more reason than because we disagree with them and to confuse our mere disagreement with their being ignorant. Second, calling other people “ignorant,” as opposed to “wrong,” can be overkill. It looks strikingly ungenerous, if not unfair. So even if the characterization were true, it is unwise to make and likely to backfire with any audience, except those already thinking exactly as we do. Finally, such conduct is peculiarly inappropriate for a legal academic. The whole tenor of legal education is to shift students and future lawyers away from a name-calling discourse into a reasoned** discourse. When law students hear legal academics speak or write about others as “ignorant,” the legal academics undermine the core of what we are supposed to teach.

That is all by way of introduction. Now brass tacks.

Professor Orin Kerr, at The Volokh Conspiracy, wrote:

But here’s the most remarkable passage [from a prior article in The Washington Post]:

The most charitable reading would be that Trump heard the question about “Article I powers” as really asking about “rights protected by the First Amendment.” On that account, we now have insight into Trump’s constitutional views. Trump apparently is a strong defender of the procedures for the selection of the President and Vice-President by the Electoral College, which is what the Twelfth Amendment provides.

On the other hand, the more natural reading is what a lot of us suspected already: Donald Trump doesn’t know what is in the Constitution, and he doesn’t care that he doesn’t know.

Orin Kerr, Trump wants to protect Article XII of the Constitution, The Volokh Conspiracy—The Washington Post (July 7, 2016) (quoting a prior Washington Post article) (emphasis added), http://tinyurl.com/jl9x27h.  

Now there are three good reasons to reject the full scope of Kerr’s conclusion. First, Representative Sanford does not say the event actually happened. Sanford says only “I think [Trump’s] response was ....” (emphasis added). Second, we are talking about Mark Sanford here. Do you really want to rely on this guy? Sheesh. See Wiki entry—Impeachment Proceedings. But the third reason is the most important. Anyone can make the sort of error Trump is alleged to have made here. It is no big deal: at least I do not think it is.

For example, see Orin S Kerr et al., 1 Criminal Procedure State authority–§ 1.2(b) note 29 (4th ed. updated Dec. 2015). Note 29 cites “U.S. Const. Art. 1, § I, cl. 3”. The problem is: there is no Article 1, Section 1, Clause 3. Still anyone can make an error—or two? 

See Orin S Kerr et al., 1 Criminal Procedure Federal legislative authority–§ 1.2(c) note 48 & accompanying text (4th ed. updated Dec. 2015). It cites “U.S. Const. art. 1, § 3” as speaking to “treason.” The problem is: Article 1, Section 3 exists, but it does not speak to treason. 

You can even find other people making the exact same error Trump is alleged to have made: i.e., referring to (purported) Article XII of the Constitution. See, e.g., 2 Children & the Law § 8:9 n.31; 17 Touro L. Rev. 397; 37 S.U. L. Rev. 127. Like I said, anyone can make this sort of error, including Kerr and others. The difference is Kerr is an expert; Trump isn’t. The difference is that Kerr and his co-authors made their mistake in a full-length edited treatise; Trump was speaking extemporaneously. The list price of Kerr’s treatise: $1,110; Trump did not bill his audience—as far as I know.

Contra Kerr, the most charitable explanation for Trump’s error—assuming he made it at all—is that Trump was saying: I respect the whole of our Constitution from Article 1 (where its text begins) to Amendment XXVII (where its text ends). As President, I won’t pick and chose what to adhere to because the whole of the written Constitution is our law. Perhaps I am being overly charitable. Where the real truth of the matter lies, between Kerr’s view and the one I put forward here, is for you to decide. But the larger point is that there are two ways to see the Trump narrative. Two ways.*** That’s what lawyers and legal academics are trained to see, trained to do, and trained to teach (both in our classes, in our writing, and by our example). How is it that so distinguished and senior an academic as Professor Kerr—a leading expert in criminal procedure—could get this simple task so wrong? (For Kerr’s—somewhat disappointing—response see Twitter.)

I wish I could say Kerr was alone here. He’s not. Professor Ilya Somin, also writing at The Volokh Conspiracy, wrote: “Trump is indeed profoundly ignorant about the Constitution. This is a man who thinks judges sign bills (they don’t), and that the Constitution has an Article XII (it doesn’t).” Ilya Somin, Can Trump be trusted on judicial appointments?, The Volokh Conspiracy—The Washington Post (Aug. 17, 2016), http://tinyurl.com/hpe3x6a. I have to say: I wonder why Professor Somin thinks it necessary to tell his readers that judges don’t sign bills and that there is no Article XII. I suppose there are two possibilities: (1) Somin recognizes that this sort of informational lacunae among non-experts is acceptable, it is to be expected, even among otherwise educated people, or (2) Somin believes his audience is ignorant, and they must be informed of the truth. It seems to me Somin’s argument does not work. If Somin takes position (1), then he and his audience cannot fault Trump precisely because this sort of informational lacunae is acceptable and expected. If Somin takes position (2), then he cannot seriously ask his audience to reject Trump for being about as ignorant as they themselves are. Somin isn’t trying to convince his audience that Trump is d-u-m-b, he is trying to convince his audience that he (Somin) is smarter than Trump and his (Somin’s) audience. I expect that if I had made such an argument before an audience, I would feel very unsafe.

As to the Article XII argument... In a peer reviewed journal article, Professor Somin wrote: 

“[T]he Privileges and Immunities Clause requires states to treat migrants from other states on par with their own citizens, thereby facilitating interstate mobility.” Somin cites U.S. Const. Art. IV, § 4. See Ilya Somin, Book Review, 28 Const. Comment. 303, 305 & n.5 (2012) (reviewing Michael Greve, The Upside-Down Constitution (2012)). 

But that’s not right: Article IV, Section 4 is the Guarantee Clause, not the Privileges and Immunities Clause. Now just to be clear: my point isn’t that both Trump and Somin are equally dopes. Rather my point is that anyone can miscite the Constitution, and we should be loathe to call someone “profoundly ignorant” just because they cite to the wrong article or the wrong clause. Anyone can make a mistake.

As to Trump’s stating that judges sign bills, he was clearly wrong about that. But in context, the context in which he made that statement, he made a good point and probably helped his campaign overall. The circumstances were these:

Senator Ted Cruz had just attacked Trump’s sister, Judge Maryanne Trump Barry (United States Court of Appeals for the Third Circuit), for being a pro-abortion zealot. Trump’s response, in effect, was: (1) to defend his sister, rather than to throw her under the bus; (2) to say she was not pro-abortion per se, but upheld established law; and (3) to point out that Judge Alito**** voted the same way, illustrating that candidate Trump understood the zeitgeist of his Republican audience and voters better than Cruz did. What Trump should have said was: My sister, Judge Barry, signed the same judicial order that Alito signed. Instead, he said My sister signed that bill. Trump’s words were not artful, but—on substance—he was entirely correct. And of course, all this was said in extemporaneous public debate. If I were grading Trump’s debate performance, I could not give him an A, but an F for “profound ignorance” would be equally inappropriate. I would give him a C+, and then tell him that he has a lot of potential, and if he works harder, he will go far.

Trump is not my ideal candidate. I did not back him in the primaries—indeed, there were others who I would have preferred. I am not telling you to vote for him or not to do so. You don’t need to hear what I think on this question because in a democracy the operating theory is that adult non-felon not-institutionally-committed citizens can make up their own minds and vote (or not) how they like. That said: I do not see much good flowing from calling candidates or their voters (politically) ignorant, and it seems to me that promoting the contrary view can do a lot more long-term damage to our polity and to Western democracy than anything Trump has said to date.


Over 10,000 impressions; over 100 engagements

Over 3,000 pageviews here at NRC.


* There is one exception. If an editor willfully injected a change in my article after we had agreed the article was finalized and published the modified article without consulting me, then I would blame the editor for any error relating to the unauthorized change. Unfortunately, such things have been known to happen. That is one good reason why journals—particularly print journals—should have an errata section.

** I am not excluding the possibility of an impassioned discourse that is within the family of reasoned discourse. I do maintain that unreasoned discourse is not saved merely by being impassioned.

*** Unless, of course, we are aiming for the Jackie Chiles standard: “It is a clear violation of your rights as a consumer. It is an infringement on your constitutional rights. It is outrageous, egregious, preposterous.” Seinfeld.

**** Judge Alito was a Third Circuit judge prior to his elevation to the U.S. Supreme Court. 

PS: Welcome Hugh HewittChicago Boyz, Instapundit, and most especially Volokh Conspiracy readers.

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

Thursday, August 18, 2016

Nature, virtue and why we never learn

The following headline in the UK’s Guardian newspaper tells a many layered story.

Syphilis cases increase by 163% in London in five years[1]

As we know from history, sexual relationships are the cornerstone of any society. Without children, a society disappears. If children are not raised appropriately, then the society suffers. At the heart of this process is the family. The family is usually defined by the sexual relationship that produces children. However, all of this changed dramatically with the advent of modern natural science.

In the past, nature was the guide for our behaviour. Nature modified by reason usually sufficed, within certain constraints, to ensure the survival of a family, community, and state. The community reinforced what nature and reason had identified. What modern natural science did was to sever those links so that reason could conquer nature and remove the apparent constraints that appeared to inhibit freedom. Man could determine his destiny and move beyond what nature and nature’s God suggested. Man was free because God was dead and man’s reason, as expressed in modern natural science controlled nature. For a time, the utopia, especially the sexual utopia, seemed within grasp. Men and women could be free to indulge whatever sexual fantasy or behaviour that they chose.

The sexual revolution gained full speed with the advent of the web. The web, applications, and algorithms allowed men, women, and even children to find sexual partners. Moreover, they allowed them to pursue them in ways that they appeared to avoid any natural constraints. When the HIV/AIDS crisis hit many people changed their sexual behaviour. Nature had a way of reminding man of what they owed it even if man thought he could ignore nature.

The Guardian story has the following comment almost as an aside without considering the deeper story it contains.

The recent rise in cases of syphilis comes after a historical decline in the late 1980s and early 90s, when the spectre of the HIV pandemic encouraged many people to change their sexual habits.

For a time, man listened to nature. He realized that nature had not been conquered, tamed, or even fought to a draw. Nature told him that he needed to change and he listened for a time. What is curious is that no amount of rhetoric moral, ethical, or medical could change the pattern of behaviour. Yet, the spectre of nature’s intransigence suddenly spoke in words, or in a language, that could not be ignored nor could it be negotiated or even tricked.
There is a saying in Latin that gives us a glimpse of nature’s language. The phrase is:

Naturam expellas furca, tamen usque recurret

This can be translated as:  “You can drive out nature with a pitchfork, but she always comes back.”[2] Nature will not be denied. What is curious is that the lesson was learned and yet man in his pride thought that the lesson could be forgotten. With technology, computer applications, and algorithms nature could be outsmarted. Yet, it is nature that returns. As we apply more and more anti-biotics, we fail to learn the basic lesson or listen to what nature has to tell us. There is logic, a rhythm, to nature that we ignore at our peril.

Sexual licentiousness is only one small way in which we ignore nature. The way that we treat the environment is the best example. Even though we may debate the science or even the consequences of climate change, one thing that is not debatable is that we no longer live in balance with nature. We live within the age of pride. We believe that if we can think it we can achieve it. If we can achieve it, then we must achieve it. For to deny what we can achieve, we deny our freedom. For modern man and even post-modern man, there is no greater sin than that which denies freedom or knowledge. It is as if we have forgotten Mary Wollstonecraft Shelley’s Frankenstein: the Modern Prometheus was a horror story and we take it as an instruction manual to satisfy our deepest appetite for freedom. Yet, our hubris has reached a reckoning. Nature will not allow us the digital domain that will provide us a utopia where all our dreams, fantasies,  ambitions can be set free. Even as we agree to live according to an algorithmic master that is harsher than nature or nature’s God for it promises us “freedom”, we cannot escape nature.

We might reverse all of this and see the error of our ways. We might try to live with nature or even live in balance with nature as guided by our digital masters. However, the damage is done. Man’s appetites cannot be satisfied for if HIV/AIDS was not enough to restrain us, then neither will the coming plague that we will have created in our prideful belief that we are masters of our destiny and command nature.

Tuesday, August 16, 2016

An Intellectual Property Story: New Grange Horror and Newgrange Horror

My 13 year-old son visited Newgrange with our family. Newgrange is Ireland’s Stonehenge. See http://www.newgrange.com/. Afterwards, he co-developed 3 (under 2 minute) videos and 2 simple online games, and each was titled “New Grange Horror.” The videos are on Youtube and on Gamejolt. So far, my son has been “paid” $0.23, which can only be used to purchase games from Gamejolt. The cheapest such game is $.50.

My son’s 15 year-old co-developer received a two-page letter from counsel for the U.S. owner of the “Grange” mark. In response to counsel’s letter, my son changed the title of the videos and games from “New Grange Horror” to “Newgrange Horror,” thus more closely following the Irish naming convention. Even if the owner of the “Grange” mark could exclude others from using titles with the word “Grange” in it, I suppose there is little chance that the mark owner could lawfully exclude others from using “Newgrange,” which is the name of a historic site in Ireland.

I sort of think this was the wrong approach. I think the two co-developers should have estimated the present value of the future income stream from “New Grange Horror.” Probably about $1.12 (assuming present value calculations at 4%). Then the two co-developers should have offered $1.12 to buy out the “Grange” mark from its current owners. A win-win.


Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

Friday, August 12, 2016

Global Elites

Peggy Noonan: “Nothing in [the elite's] lives will get worse. The challenge of integrating different cultures, negotiating daily tensions, dealing with crime and extremism and fearfulness on the street—that was put on those with comparatively little, whom I’ve called the unprotected. They were left to struggle, not gradually and over the years but suddenly and in an air of ongoing crisis that shows no signs of ending—because nobody cares about them enough to stop it.” (2016)

Enoch Powell: “They found their wives unable to obtain hospital beds in childbirth, their children unable to obtain school places, their homes and neighbourhoods changed beyond recognition, their plans and prospects for the future defeated; at work they found that employers hesitated to apply to the immigrant worker the standards of discipline and competence required of the native-born worker; they began to hear, as time went by, more and more voices which told them that they were now the unwanted.” (1968)


Welcome Instapundit and Chicago Boyz readers.

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

Habeas--A New Riddle

Can you identify what case this is from?

Justice.—Mr. Sheriff, proceed to the ... barracks, and acquaint the provost-marshal that a writ is preparing to suspend [the prisoner’s punishment]; and see that he be not [punished].

[The Court awaited, in a state of the utmost agitation, the return of the Sheriff.]

Mr. Sheriff.—.... I have been at the barracks, in pursuance of your order.  The provost-marshal says he must obey [the Major] ... [the] Major says he must obey [the commander in chief]
    . . . .
Justice.—Mr. Sheriff; take the body of [prisoner] into your custody. Take the provost-martial and [the] [M]ajor into custody . . . .

--- or ---

Can you identify what case this is from?

The writ [of habeas corpus] was made returnable for Friday .... When the Court sat on that day, [counsel] on behalf of the defendants, stated that ... the defendants did not propose to produce the bodies of the prisoners or to release them, but would undertake that [the status quo should be maintained] pending the hearing .... 

Judge: I will not listen to any such answer to the writ. It must be returned in the proper course. It has not been obeyed, and such disobedience to the writ of habeas corpus is deliberate contempt of Court—unprecedented in the history of this Court and in the whole history of [our case] law. Let a writ of attachment be issued against the several parties to whom the writ is addressed. I do not know if it is intended to resist the writ of this Court by force of arms. If that is the case we have come to the days of red ruin and the breaking up of laws.

On the following day, [counsel] stated that the Government had decided to release the prisoners pending the [hearing], and [the Judge] accordingly, with the consent of counsel for the plaintiff, put a stay on the issue of the writs of attachment, and dispensed with any return to the writ of habeas corpus


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Thursday, August 11, 2016

A Play on the Suspension Clause

Act 1, Scene 1. On the Heath.

The Dreamer: <wearing a long multi-coloured robe, with his back to the audience and to the three professors> Everything you know, and everything you think you know about the Suspension Clause is wrong. <He turns around slowly, no face is visible, and he has a withered hand>

The First Professor: Here we go again. What tall tale have you invented for us today Dreamer.

The Second Professor: Do you mean Taney was right, and Lincoln, wrong, or the other way around?

The Third Professor: He’s an originalist. Don’t let him even start. He’ll convince the weak-minded public. <looking heavenward> Burn the witch.

The Dreamer: <addressing Second Professor> That’s a common mistake. It comes from misunderstanding the Lincoln-Taney conflict. Merryman sought to determine whether the President or Congress or both could suspend habeas corpus. But that issue has nothing to do with the text of the Constitution.

First Professor: Come on: What have you been drinking. The text of the Suspension Clause speaks to this precise issue.  It says: “The Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” It might not expressly explain who can suspend habeas, but it does address the issue of suspending habeas corpus. It tells us that somebody can suspend habeas, and that it can be done under (at least) some conditions.

The Dreamer: If the Constitution said that, then you’d be correct, and I’d be wrong, and Merryman would be about the Suspension Clause. The problem is that the Constitution does not say that. It says: “The Privilege <emphasis> of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

First Professor: That’sthat’s insane. You cannot mean that. No one has ever even thought <emphasis> that the clause’s use of the word “privilege” changes its obviously intended meaning. The clause is about under what conditions habeas can be suspended, even if it leaves unclear who can do so. 

Second Professor: OK, even if I accepted what you say (and I don’t)—who wins? Taney or Lincoln? Neither or both?

Third Professor: It’s worse than I thought. He’s an originalist and a textualist. Hang the witch, then burn him, and then scatter the ashes to the winds.

The Dreamer: Let me try to explain, <while raising his healthy hand> you think the clause is about habeas, and who can or cannot suspend and when. <lowers his healthy hand, and raises the withered hand> The clause is about who can suspend the privilege of habeas corpus and under what conditions the privilege can be suspended, not habeas itself.

First Professor: There is no day light between the common understanding of the clause and what you are saying. There is no conceivable distinction. You are just playing with words.

Second Professor: OK, if “privilege” is meaningful (and I don’t think it is)—who wins?

Third Professor: Stop encouraging him. You know he cannot be correct. He cannot possibly know the original public meaning—he cannot know it because it does not exist, and it never has existed. And even if it had existed at one time, he cannot possible lay claim to knowing it now. Just look at him—he’s just a dreamer.

The Dreamer: Every word in the Constitution is presumptively meaningful—that presumption carries even greater weight when the Constitution uses the language of the law and lawyers, as it does here. The Constitution is not prolix. This language would not have been added casually, and if added casually, if meaningless, it would have been removed by the Committees of Detail and Style. <The Dreamer turns his back to the audience> The hard part of our task is not recovering original public meaning, but convincing others that we have done so. Let us start with first principles.

[end of Scene 1] 


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Wednesday, August 10, 2016

My Next Paper: Counting Framers & Counting Originalists

The modern succession statute, the Presidential Succession Act of 1947, like its 1792 predecessor, provides for legislative officer succession** in the event that the presidency and vice presidency go vacant. Notwithstanding that majorities in both houses of the Second Congress voted for legislative officer succession, some modern scholars have suggested that the members erred, that is, the Presidential Succession Act of 1792 was unconstitutional.

These scholars have “appealed” from the “verdict” of the members of the Second Congress to the Framers sitting in the Second Congress. For example, Paul Taylor asserts that the 1792 Act “was opposed as unconstitutional by James Madison and a majority of other former Delegates to the Constitutional Convention.” (emphases added) Similar claims are made by Professors Akhil Amar, Vikram Amar, Feerick, Goldstein, Kalt, and Silva. But this position is not correct. Hugh Williamson—convention delegate from North Carolina and subsequently a Representative—was the only Framer holding an elected federal position at the time Congress enacted the 1792 statute who we know opposed legislative officer succession on constitutional grounds. In other words, we cannot credibly say that several, many, a plurality, much less a “majority” of the Framers opposed legislative officer succession on constitutional grounds. Indeed, to argue that even as few as two Framers, who were also members of the Second Congress, opposed legislative officer succession on constitutional grounds would be error.

In 1995, the Amars (as have others before and since) argued that James Madison opposed legislative officer succession on constitutional grounds. This is a legal and historical meme or myth. Madison never stated that he thought that legislative officer succession was unconstitutional, at least as far as our historical records show. The original source involved indicates only that Congressman Madison was relaying news from the capital to Pendleton in Virginia—in private correspondence. Madison merely transmitted to Pendleton several arguments touching upon the constitutionality of the 1792 Act which had been made by others on the House floor during debate on the 1792 Act. There is no reason to believe that Madison agreed with any one or more of the particular arguments he transmitted to Pendleton. 

There are those today who wish to impugn the constitutional bona fid├ęs of the modern 1947 Act, which like its 1792 predecessor, provides for legislative officer succession. There are some policy grounds for objecting to the 1947 Act—I do not suggest that all the policy arguments go in one direction. But I do state that rooting a modern constitutional objection in Madison’s voice or that of the Framers as a group is entirely ahistorical. In these circumstances, one cannot appeal the judgement of the Second Congress (as a whole) to the Framers (as a group), and if that appeal—for whatever reason—has, in the past, convinced some unwary authors and consumers of prior legal scholarship, it is only because some originalists cannot count.

Our analysis will proceed in a plain and orderly fashion, starting with John Francis Mercer, Maryland delegate to the Constitutional Convention and member of the Second Congress....


**Legislative officer succession is a term of art. Generally, it refers to putting the presiding officers of the House and/or Senatethe Speaker of the House and Senate President Pro Temporein the line of statutory succession should the presidency and vice presidency go vacant. 

Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

Tuesday, August 09, 2016

Letter from President Lincoln to Erastus Corning and others (June 12, 1863)

Letter from President Lincoln to Erastus Corning and others (June 12, 1863), in 8 Complete Works of Abraham Lincoln, 1862–1863, at 313 (John G. Nicolay & John Hay eds., N.Y., The Tandy-Thomas Co. new ed. 1894):

And yet, let me say that, in my own discretion, I do not know whether I would have ordered the arrest of Mr. Vallandingham. While I cannot shift the responsibility from myself, I hold that, as a general rule, the commander in the field is the better judge of the necessity in any particular case.  Of course I must practise a general directory and revisory power in the matter.

The error in spelling—“Vallandingham” should be “Vallandigham”—appears to be made by Nicolay & Hay, the Complete Works editors, not by Lincoln. The same might also be said for the editors’ use of “practise” rather than “practice.” See Abraham Lincoln to Erastus Corning and Others, [June] 1863, American Memory:  The Abraham Lincoln Papers at the Library of Congress (last visited July 30, 2015) (displaying Lincoln’s original letter), http://tinyurl.com/nrs4ho6 (copy #1), and http://tinyurl.com/p7oa57j (copy #2).  

Good editors are difficult to find. See generally Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224(2) Mil. L. Rev. (forthcoming Summer 2016) (peer reviewed) (discussing Corning-Lincoln correspondence, and also the Corning-Merryman relationship). 


Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

Riddle: In The Letters of J.R.R. Tolkien, Tolkien misspells ...

In The Letters of J.R.R. Tolkien, Tolkien misspells (assuming it was not an editor's error) another author's name. 



Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

Monday, August 08, 2016

Is "You're Fired" unChristian?

Over at dotCommonweal, Catholic leftist Anthony Arnett takes a predictable elitist swipe at Donald Trump, businessman via the Vatican’s Vocation of the Business Leader.

Let us tread carefully in weaponizing the social guidance of the Catholic Church. Certainly if Trump deals unjustly, there’s a case against him.

However, it’s not ex cathedra Church teaching that Adam Smith is bunk, that running a business as efficiently as possible is somehow anti-human, anti-Christian or anti-God. It is not immoral to fire an incompetent employee.

If Adam Smith is correct, the “invisible hand” is part of the natural law

“It is not from the benevolence of the butcher, the brewer or the baker, that we expect our dinner, but from their regard to their own self interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages.”

and we are not commanded to ignore our God-given reason in creating prosperity. If an employee can't cut a good steak, make a potable brew, or get the bread to rise, he's gotta go.

Indeed, here’s an interesting piece on a little-known piece by Pope Pius VI instructing the thinkers in the Church to study Smith carefully.
Our predecessors of happy memory never hesitated to hold fast to what is true and good, and it is in that spirit that we write concerning the publication of an erudite volume entitled An Inquiry into the Nature and Causes of the Wealth of Nations.
Within its pages, we find a charted design for the liberation of the masses of peoples from the causalities of tyranny, oligarchy and Gallicanism. The preservation of liberty and the free exchange of goods highlight the many useful elements of this volume. That the human race is marked indelibly by image of our Creator, which reckons freedom and reason as its components, has been advocated therein.