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

Wednesday, June 13, 2018

My Contribution to the Conlawprof Listserv

Re: Leader Uber Alles: Responding to Professor ABC & Professor XYZ

Professor ABC: “El Caudillo del Mar-a-Lago has systematically destroyed the western alliance that has prevailed since the end of WWII ….”

The original rationale and the traditional rationales for U.S. participation in NATO included: [1] Europe was broke after WWII (including the European nations among the allies which won the war); [2] Europe was fractious and disorganized; and, [3] a disunited Europe faced a unified (atheist and communist) Soviet Union (and later Warsaw Pact bloc) with designs on dominating (at least) Western Europe. That world is gone, and with it, the original and traditional rationales for continued U.S. participation in NATO. 

Today, Europe is not broke. Today, Europe is not disorganized (e.g., Council of Europe, EU, etc.) And today, the Soviet Union, Warsaw Pact, and expansionistic atheistic world communism are no more. It is true that Russia is a great regional power, and it is a real threat to its neighbors. But Russia is a threat which Germany and France, in cooperation with one another and with other European countries, can defend themselves from. Russia is only an American problem is you adopt the near messianic mission that the U.S. defense perimeter must include each and every nation of Western, Central, and Eastern Europe—including nations spun out of the former Soviet Union. If, in Professor ABC’s words, “El Caudillo” shifts the burden of defending Europe from the U.S. onto Europe—i.e., onto Europe’s soldiers and taxpayers—that might be a yuuge win for the United States—and the U.S.’s soldiers and taxpayers. It strikes me as the sort of policy difference that is part-and-parcel of “normal” democratic politics (as opposed to “El Caudillo” politics). Nor should Trump’s position come to us as a total surprise. This issue was contested during the presidential election. See https://www.factcheck.org/2016/05/whats-trumps-position-on-nato/. Again: all normal politics. Given the all too recent destruction of the Libyan state, under NATO auspices, by a joint adventure of the U.K. and France (with a green light from the U.S.’s State Department under Secretary Clinton), a serious unwinding of America’s defense commitments to NATO (and, perhaps, elsewhere) might put a needed damper on other such misadventures.

Professor XYZ: “Our Allies are being alienated while Putin gloats about the destruction of the European Union.” The United States has no tools to control Putin’s gloating, or the future of the EU. The dissolution of the EU, its continuation in its current form, or in some different future form—is not anything the U.S. can meaningfully control. (Unless, of course, one has a near messianic vision of America’s role in the world ... but I repeat myself.) 

The future of the EU is in the hands of EU institutions, its member states, and the people(s) of Europe. When President Obama visited the U.K. and urged its people to vote against BREXIT, he did so at the request of the elected Prime Minister, but a majority of U.K. voters voted otherwise, and Cameron resigned. Surely some U.K. voters and some U.K. government officials were alienated by the President’s intervention. Was our ally, the U.K., alienated by President Obama’s intervention? It is a tricky question. The same is true with regard to Trump’s policies which impact our allies. Maybe some officials in the governments of our allies are alienated by Trump’s policies: that is quite possible. But neither Trump nor those foreign officials will be in office forever. Asserting that our allies are alienated seems a bit premature.

Perhaps, one reason that some of our allies’ governments are “alienated” is that Trump appeared quite serious in telling our allies to meet their 2%-of-GDP defense commitment—a NATO policy. It is a policy which is only being met by about 5 of NATO’s 28 members. See http://time.com/4680885/nato-defense-spending-budget-trump/. It might surprise some on this listserv that some Americans are alienated by our forever footing the defense bill (including the all too real human costs) on behalf of the free riders of Europe. 


Seth Barrett Tillman, My Contribution to the Conlawprof Listserv, New Reform Club (June 13, 2018, 10:04 AM), https://reformclub.blogspot.com/2018/06/my-contribution-to-conlawprof-listserv.html 

Monday, June 11, 2018

What Is Going On At Student Law Reviews?

After hardcopy publication of Professor Victoria Nourse’s article in California Law Review (CLR”), and in response to my critique, 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 in 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 her approval, and I have received not one word of explanation from Professor Nourse in regard to all these strange goings-on.

Seth Barrett Tillman, What Is Going On At Student Law Reviews, New Reform Club (June 11, 2018, 5:57 AM), https://reformclub.blogspot.com/2018/06/what-is-going-on-at-student-law-reviews.html

The passage above will appear in my next publication: Seth Barrett Tillman, The Foreign Emoluments Clause—Where the Bodies are Buried: “Idiosyncratic” Legal Positions, 59 S. Tex. L. Rev. 237 (forth. circa July 2018) (invited symposium contribution), https://ssrn.com/abstract=3096986

The passage is speaking to a recent publication by Professor Victoria Nourse. See Victoria Nourse, Reclaiming the Constitutional Text from Originalism: The Case of Executive Power, 106 Calif. L. Rev. 1 (2018), http://www.californialawreview.org/wp-content/uploads/2018/04/1Nourse-33.pdf.

Wednesday, June 06, 2018

Tillman on the Conventions of the Constitution

Some years ago ... then Prime Minister Harper was strongly criticized in Parliament and in the press for giving advice to the Governor General to prorogue the national parliament. He did this to delay a vote of confidence. Most academics took strong exception to Harpers conduct. I did not. This is why. 

January 4, 2010

Dear Professor,

.... That said, let me tell you my key criticism of your article. I am doing this from memory; so don’t hold me to anything or show this e-mail to third parties. It is quite possible that in writing on the fly I might misstate the position you took in your article.

It seems to me that you need some normative model or guidance or test from which you could determine when a Prime Minister [here Prime Minister Harper] is acting in his own self-interest or that of his party as opposed to his best determination of the public good. There has to be some give here. A Prime Minister is not supposed to be a neutral bystander and he should be able to see the continuance of his Government in office as part (not the whole) of the public good. The next test ought to be—as you indicate—was Parliament granted a full, [fair,] timely, meaningful, and free vote to determine whether a Prime Minister and his cabinet should continue in office, but a full, fair, timely, meaningful, and free vote requires a normative basis to make that judgment. It is not the Westminster tradition that a timely vote means whenever the opposition can muster sufficient votes to bring down the Government. Just as the Government can set the election date, it can, consistent with practice, set the time for confidence votes. Such votes should not be delayed indefinitely, i.e., until the next election. But they need not be tomorrow or on one day’s notice either. As I understand it, what Harper did was delay that vote. There was no allegation of offering opposition members personal benefits to get their votes. If the delay was used to go out to the people to explain the Government’s position (i.e., meaning that the Government put forward its view of what an all-opposition cabinet would mean for the country), then that seems consistent with democratic norms. Indeed, that is consistent with what I believe to be the highest aspirational norms of the Anglo-American tradition. In doing so, a Prime Minister isn’t bringing Parliament to “heel”—I think that was your expression. Rather, such a Prime Minister is making Parliament, including the opposition, accountable. It is true that a delay gives a Prime Minister [and his Government] some benefits—a lack of accountability during the time Parliament is prorogued. But it comes with substantial costs too. During that time, the Government loses the opportunity to move its legislation forward and the delay is seen as weakness on the floor of the House [and across the country at large].

For Harper to have violated a convention of the Constitution or to have given illegal advice to the Governor General [in regard to prorogation], you need to show (or so I believe) some sort of overreach beyond the norms of the [Canadian] Constitution. Such overreach might involve intentional actions by Harper out of self-interest, beyond merely seeking to extend the life of his Government. Such overreach would also include indefinite delay of a confidence vote. Finally, overreach would include seeking to check parliament through grants of lucrative office** to opposition members (or bribes paid by third-parties). [On the other hand], where the time of the delay is used to actively engage in politics, i.e. talking to constituents and the press, that isn’t abuse, that is virtue. You arrive at the opposite conclusion (as I understand your position) because your vision of Parliament is one of its having unchecked supremacy between elections—in that situation, the floor members are entitled to a free vote without notice [to the Government] and they should not be made to explain their positions to constituents outside of an [active] election contest. But if that is your position (and I could be wrong on that), then what is wrong (or so I believe) is your normative vision, not Harper’s conduct.

Finally, don’t the two recent Canadian by-elections, particularly BQ losing a seat to the Tories, indicate that Harper had sound prudential reasons for believing that the voters did not want an all opposition government?


Seth Barrett Tillman, Tillman on the Conventions of the ConstitutionNew Reform Club (June 6, 2018, 9:28 AM), https://reformclub.blogspot.com/2018/06/tillman-on-conventions-of-constitution.html

**I overstated the normative force of the convention in this particular sentence. 

Welcome Instapundit readers!

Monday, June 04, 2018

Professor Mark DeForrest, RIP

It is with great sorrow that we note the passing of our blogbrother, Mark DeForrest, who passed away at age 48 on June 2 after a brief illness. Since webpages come and go at institutions, it seems right to inter his CV, bio, and links to his most important legal scholarship here permanently at the New Reform Club, his home on the internet.

You are already missed, my friend. Already missed.

Mark DeForrest

Professor Emeritus

  • J.D. Gonzaga University School of Law, magna cum laude, 1997
  • B.A. History, Western Washington University, cum laude, 1992
  • Associate of the Arts Skagit Valley College, 1990


Mark DeForrest grew up on a small farm outside of Anacortes, Washington, about 90 miles north of Seattle, Washington. After high school, he attended first Skagit Valley College and then Western Washington University, graduating from the latter institution with a Bachelor of Arts degree in history. After living and working in the Bay Area of California and Ketchikan, Alaska, he attended Gonzaga University School of Law as a Thomas More Scholar. While in law school he was a member of the Moot Court Council and an associate editor of the Gonzaga Law Review. He was also awarded a George Washington Fellowship from the Discovery Institute, a public policy foundation located in Seattle, Washington.
After graduation from law school, Mr. DeForrest was accepted into the Washington State Bar. He then clerked for the judges of the Superior Court of the State of Washington for Chelan County. In the course of his clerkship he worked on a variety of cases across the full range of both the civil and criminal dockets. He began his academic career in 1999 when he was appointed as a full-time lecturer in the Department of Law; Justice at Central Washington University in Ellensburg, Washington. He taught criminal procedure, family law, correctional law, and legal research to undergraduate students for two years.
In the fall of 2001 Professor DeForrest returned to Gonzaga Law School and began work as a legal research; writing instructor. After a year as a visitor, he was appointed as a regular member of the legal research; writing faculty. In 2003 he was promoted from instructor to assistant professor of law in the legal research; writing program. In 2010 he was promoted from assistant professor to associate professor. He has also taught First Amendment law, professional responsibility, sentencing; corrections, and jurisprudence at the law school.
Professor DeForrest is a member of the Washington Bar.


  • In the Groove or in a Rut? Resolving Conflicts Between the Divisions of the Washington State Court of Appeals at the Trial Court Level, cited in 2017 by Washington State Court of Appeals, in In re Pers. Restraint of Arnold

  • Locke v. Davey: The Connection Between the Blaine Amendment and Article I, Section 11 of the Washington State Constitution, 40 U. Tulsa L. Rev. 295 (2004)
  • An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harvard Journal of Law and Public Policy 551 (2003)
  • Teaching the Origins Controversy: Science or Religion or Speech? 2000 Utah Law Review 39 (2000) Third listed author after David K. DeWolf and Stephen C. Meyer.
  • Truth or Consequences, Part Two: More Jurisprudential Errors of the Militant Far-Right 35 Gonzaga Law Review 319 (1999-2000). First listed author before James M. Vache.
  • Civil Disobedience: Its Nature and Role in the American Legal Landscape Comment), 33 Gonzaga Law Review 653 (1997/1998).
  • Truth or Consequences: The Jurisprudential Errors of the Militant Far-Right, 32 Gonzaga Law Review 593 (1997). Second listed author after James M. Vache.
  • Just War Theory and Recent U.S. Air-strikes Against Iraq 1 Gonz. Int’l L.J. 8 (1997).

Other Publications

  • Beckett Fund for Religious Liberty in 1 Praegar Handbook of Religion and Education in the United States 86-88 (James C. Carper and Thomas C. Hunt, eds., 2009).
  • Thomas More Law Center in 2 Praegar Handbook of Religion and Education in the United States 441-42 (James C. Carper and Thomas C. Hunt, eds., 2009).
  • Religion’s Place in the Public Square, The Seattle Times, B-5 (Oct. 23, 1996).


  • There’s More Than One Way to Bake a Cake: Using Legislative and Regulatory History to Improve Rule Synthesis and Proofs in Legal Writing. Presentation at the Value of Variety Conference sponsored by the Institute for Law School Teaching, Spokane, Washington. June 25, 2012.
  • Adopting the Rombauer Research Method to Small-Firm Practice. Presentation to the Western Legal Writing Conference, San Francisco, California. August 27, 2011.
  • Using the Letter from a Birmingham City Jail to Teach Specific Strategies for
    Persuasive Legal Writing
    , Northwest Regional Legal Writing Conference, Portland, Oregon, August 29, 2009.
  • The Use of Legislative History in an Internet-Driven Research Environment. Northwest Regional Legal Writing Conference, Spokane, Washington, August 10, 2007.
  • Teaching Legal Analysis: the Early Years—From Deconstruction to Construction. Northwest Regional Conference of Teachers of Legal Methods, Writing, and Research, Seattle, Washington, September 9, 2005 (co-presented with Professor Cheryl Beckett, Director of Legal Research; Writing, Gonzaga University School of Law).

Law School and University Workshops

  • Writing a Law Review Comment. Annual workshop for the Gonzaga Law Review held each May, 2004-2006, 2008-present. Spokane, Washington.
  • Supras and Infras and Ids, Oh My! Resolving Short Form Citation Confusion Using the Bluebook. Presentation to the Gonzaga International Law Journal Associate Editors. Spokane, Washington, September 11, 2008.
  • Gender, Social Norms and the Culture of the Legal Profession. Central Washington University Women’s Studies Program. Ellensburg, Washington, May 15, 2001.
  • Domestic Partnership Rights of Same-Sex Couples Under Washington State Law. Panel discussion sponsored by the Central Washington University Gay and Lesbian Alliance. Ellensburg, Washington, March 8, 2001.
  • The Intersection of Law and Morality in the Works of Thomas Aquinas. Whitworth College Department of Philosophy. Spokane, Washington, February 15, 2000.

Teaching Areas

  • Legal Research and Writing
  • First Amendment
  • Professional Responsibility
  • Sentencing; Corrections
  • Jurisprudence

Sunday, June 03, 2018

CREW v. Trump (2d Cir. May 31, 2018): Plaintiffs second request for an extension--this time for a reply brief

Seth Barrett Tillman, CREW v. Trump (2d Cir. May 31, 2018): Plaintiffs second request for an extension--this time for a reply brief, New Reform Club (June 3, 2018, 12:00 PM), https://reformclub.blogspot.com/2018/06/crew-v-trump-2d-cir-may-31-2018.html.

Plaintiffs' document is here: Appellant's [sic] Unopposed Motion for an Extension of Time to File Reply Brief, CREW v. Donald J. Trump, in his official capacity as President of the United States of America, No. 18-474 (2d Cir. May 31, 2018), ECF No. 129-2. 

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
County Kildare

22 May 2018

The Spectator
Letters to the Editor

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.



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), 

[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.,