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

Monday, February 18, 2019

On Constitutional Methodology


In answering this question, i.e., Does the Foreign Emoluments/Gifts Clause apply to presidents?, my own prior research had examined the Mandan gifts and the Tsar’s gift. I did so because a president’s receiving, accepting, and keeping a diplomatic gift is some evidence that he believes his conduct in this regard is legal, i.e., compliant with the Constitution. Where the president accepts the diplomatic gift in full public view absent complaint by the public (or objections raised by later commentators), then such conduct carries a presumption that he and the contemporaneous public believed the president’s conduct was legal. Finally, where the public is in the know, where it does not complain, and where a significant element of that public is composed of the president’s opponents in Congress, in the press, and in the country at large, then that is some further and significant substantial indication that the public agrees that the president’s conduct is legal. In regard to the Mandan gifts and the Tsar’s gift, Jefferson did not clearly speak to any constitutional provision controlling his conduct; rather, to the extent he spoke at all, he reported a personal rule of conduct—a rule which he was, on occasion, willing to bend, if not waive. All told, that is some evidence, albeit not conclusive evidence, that in Jefferson’s day, the Foreign Emoluments/Gifts Clause was not understood as applying to the president (and, by implication, to other elected federal officials).

Seth

The above is an extract from: Seth Barrett Tillman, Part I, Understanding the Jefferson Diplomatic Gifts: A Response to Dr. Andrew Fagal (Feb. 14, 2019), <https://ssrn.com/abstract=3311186>.


Dr. Fagals excellent article is here: Andrew Fagal, Thomas Jefferson and the Arabian Stallion: A Research Note on the Third President and the Foreign Emoluments Clause, 1(4) Law and Hist. Review: The Docket (Dec. 2018), <https://tinyurl.com/y7ordjep>. 

Seth Barrett Tillman, On Constitutional Methodology, New Reform Club (Feb. 18, 2019, 1:46 AM), <https://reformclub.blogspot.com/2019/02/on-constitutional-methodology.html>. 






Friday, February 15, 2019

Climate Change: What you can do

A earlier, funnier version of this appeared in The American Spectator Online in 2007.



Image result for global warming

Clip and save:
---Plug in your clocks only when you absolutely have to know what time it is. If you need the alarm, get up five minutes early to set it.
---Al Gore says cigarettes are a significant cause of global warming, so quit smoking and sell him the carbon credits.
---Your kids are useless for pushing your car up to highway speeds, but they can increase your mileage considerably around town. Use your headlights only when there's no moon, and remember, your horn uses less energy than your turn signal.
---Stairs make you huff and puff and expel carbon dioxide. Use the elevator. And sports are carbon-intensive too, so do 'em on your X-box.
---Take as long as you want browsing in the fridge. Leaving the door open cools the world off.
---Down more Slurpees, or better yet, nice frosty margaritas. See, this isn't so bad.
---Lower the thermostat in your Gulfstream jet, and make the help wear sweaters.
---We need our corn for ethanol. Switch from Fritos to pork rinds.
---Do not use a television or radio unless it's bicycle powered, like Gilligan's.
---Turn your computer off right now. Turn it off, get up out of your chair, open the window, stick your head out, and yell, and say it: "I'm as mad as hell, and I'm not going to take this anymo'!"

Then sit down quietly. Moving, talking and breathing should be kept to the absolute minimum. Human life is eco-unfriendly, and should be lived as little as possible. It's the moral thing to do.

Friday, February 08, 2019

Remembering Eddie Murphy's 'White Like Me’


As an alternative to black face issues in Richard Pryor & Gene WilderSilver Streak, some of you may remember this: Eddie Murphy, ‘White Like Me,’ Saturday Night Live (‘SNL’(circa Dec. 15, 1984).

This made me laugh as a child, and it still makes me laugh now. It would be awful to live in a world where artists were precluded from making such pure comedy gold. 





See also Steve Ciabattoni et al., 50 Greatest ‘Saturday Night Live’ Sketches of All Time, Rolling Stone (Feb. 3, 2014, 3:40 PM ET), <https://www.rollingstone.com/tv/tv-lists/50-greatest-saturday-night-live-sketches-of-all-time-12735/8-white-like-me-22966/>: “Eddie Murphy’s whiteface sketch was the most provocative SNL moment since Richard Pryor dropped by in Season One. (In fact, it was an explicit homage to Pryor, who played the author of a book called White Like Me during his SNL appearance.) Murphy had recently become a movie star—‘the first black actor to take charge in a white world onscreen,’ as he later told Rolling Stone [sic]—and was struggling to find his place among the Hollywood elite. ‘White Like Me’ satirized his discomfort, showing the hidden opportunities afforded to white people when black guys leave the room. We wouldn’t see such powerful, audacious comedy about American race relations until Chappelle’s Show arrived, 20 years later.

Seth Barrett Tillman, Remembering Eddie MurphyWhite Like Me, New Reform Club (Feb. 8, 2019, 4:00 AM), <https://reformclub.blogspot.com/2019/02/remembering-eddie-murphys-white-like-me.html>. 

Welcome Instapundit Readers!





On John Dingell Jr. and Our Democracy


American aristocracy: The Dingell seat in the United States House of Representatives has been in family hands (father, son, wife) continuously from 1933 to 2019 and through 2020. John Dingell Jr’s House service ran from December 13, 1955 to January 3, 2015: just over 59 years. He was preceded by his father (House service: 1933-1955), and he was recently succeeded by his wife (2015 to current Congress). 

John Dingell Jr’s son: Christopher D. Dingell was a member of the Michigan State Senate (7th District) from 1987 to 2003. Christopher D. Dingell is now a state judge. He is now 61 years old. 

Seth Barrett Tillman, On John Dingell Jr. and Our Democracy, New Reform Club (Feb. 8, 2019, 3:06 AM), <https://reformclub.blogspot.com/2019/02/on-john-dingell-jr-and-our-democracy.html>. 

Welcome Instapundit Readers!


Tuesday, February 05, 2019

Social Science Research Network February 1, 2019 Rankings for Non-US Law Schools

Seth Barrett Tillman, Social Science Research Network February 1, 2019 Rankings for Non-US Law Schools
New Reform Club (Feb. 5, 2019, 5:17 AM), 


Last 12 MonthsAll TimeAuthors
RankInstitutionTotal New Downloads# of New PapersNew Downloads per paperTotal # of Downloads# of PapersTotal Downloads per paper# of AuthorsTotal Downloads per authorNew Downloads per author
68National University of Ireland, Maynooth (NUI Maynooth) - Department of Law :: Ireland
4,592212646,434179259153,096306
85Queen's University Belfast - School of Law :: Ireland
5,542462236,369249146361,010154
87Sutherland School of Law, University College Dublin :: Ireland
5,265102435,19321716237951142
167National University of Ireland, Galway (NUIG) - School of Law :: Ireland
1,65682113,305791681970087
210Trinity College (Dublin) - School of Law :: Ireland
2,52610578,241441879916281
250University College Cork - School of Law :: Ireland
1,27711255,5275110811502116
726Trinity College (Dublin) - School of Law :: Ireland
1263421263421126126

Monday, February 04, 2019

Conlawprof and Other Academic Writing on Northern Ireland and the EU

Professor BBB writes:

“You’re right that the Democratic Unionist Party [‘DUP’] will block virtually any deal that would be good for the rest of the UK. Right now, they are just hostage takers!” (emphasis added)

That comment is neither funny, nor accurate. DUP voters believe they are struggling to maintain the continuity and viability of their country (the UK) against forces that seek Northern Ireland [‘NI’] integration into another country (Ireland). To that end, they want to maintain revenue and regulatory integrity of UK law across the entire UK. Naturally, this will include customs and border controls. To put it another way, they see any agreement which improves life on the big island (i.e., Great Britain) while pushing NI out of the UK as fundamentally unequal and fundamentally flawed. If the only way to improve life in our lower 48 U.S. states were to tell Alaskans that they had to abide by Canadian regulatory law, I would think that Alaskans might have some good grounds to object. Should I choose to characterize Professor BBB’s “hostage takers” language here along the lines I think it deserves, I am sure [the listserv moderator] would once again intervene. I will say that if any readers on this listserv read Professor BBB’s “hostage takers” language and did not do a double take, if you did not cry or fall on the floor laughing hysterically, I suggest it might be time for a little introspection.

Irish and Northern Irish politics are complex and (at times) somewhat tribal and sectarian. Putting all the blame on the DUP is simply to pick a side in a complex ongoing conflict—where both sides have legitimate historically grounded claims, gripes, and aspirations. There are two political communities in Northern Ireland.

[1] To use somewhat charged language, one side sees themselves as essentially British—they aspire to retain their extant political union with the UK against (what they view as) terrorism which would drive them out of their own hearth, home, and country.

[2] Again, using somewhat charged language, the other side sees themselves as essentially Irish—they aspire to integrate the 6 counties of NI into a future all-island 32-county Ireland, united and free, against (what they view as) a culturally alien, historically gerrymandered,* unlawful British occupation and politically imposed settler-founded sectarian (or, formerly sectarian) statelet.

Of course, the overwhelming majority of people in NI do not hold such charged views, and they abhor violence along political or sectarian lines, notwithstanding their own personal views about—(extant) NI continuity within the UK; (future) NI integration into Ireland; and, NI membership, or more accurately, the loss of membership in the EU, i.e., Brexit. Professor BBB’s willingness to castigate and, in effect, put all the blame on one side is (in my view) exactly what academics ought not do—except based on the most conclusive history and evidence. NI, as far as I can tell, is not such a straightforward case.

A story for you: To calm sectarian tensions, there are neighbourhoods in NI where local regulations preclude residents from flying the Irish Tricolour flag and the UK Union Jack flag. (I don’t suggest that this is a good policy or that it has worked—only that it was motivated by the legitimate aspiration of calming tensions.) So, what is the practical upshot of this policy? The Irish nationalists put up their Palestinian flags, and the pro-UK/British put up their Israeli flags.

Likewise, Professor BBB twice references the “Catholic minority” in NI. Decades ago one might have said that the divide in NI was entirely or largely along sectarian lines. There still is a sectarian divide in NI, but it is much attenuated compared to times past. NI, like Ireland and most of Europe, is post-Christian or rapidly approaching that point. The divide now is more political and ideological than about religion per se.

Professor BBB states:

“Theresa May cannot govern without satisfying the DUP.”

This is a vast over simplification. UK Prime Minister  (‘PM’) May’s reliance, such as it is, on the DUP relates to the fact that she has to deal with Tory rebels. PM May has circa 318 Tories to 314 opposition members. There are a further set of 18 members from Northern Ireland. The 18 NI members include seven (Irish nationalist) Sinn Fein (‘SF’) members who will not take their Westminster seats—and so do not vote in the UK Parliament—and ten DUP members and one Independent/Ulster Unionist Party** (‘UUP’) member. [650 MPs = 318 Tory + 314 Labour and other party opposition (e.g., Scottish National Party (‘SNP’) and Plaid Cymru in Wales) and opposition independents + 7 SF + 10 DUP + 1 Independent/UUP.] These 11 DUP and UUP members will never vote with Corbyn. Thus, PM May depends (and need only depend) on her own members. [318 (Tory) to 314 (Labour/All Opposition)] PM May is supposed to depend on her own members. If she looks to the DUP for extra support, they will naturally have their own Brexit-related red lines. I might point out that in a recent Brexit vote in Parliament, some Labour MPs crossed the floor to vote with PM May. This strongly suggests that the potential loss of DUP support might be offset in other ways.

Professor BBB wrote:

“On my proposal for a differentiated Brexit (Semi-Brexit): this is what Scotland and Wales want,” and “Scotland and Wales have been pushing for this result for some time, but the DUP blocks that avenue of exploration.”

Wales voted for “Leave.” I suppose what Professor BBB means is that the Welsh nationalist government in its devolved assembly supported Remain and that government would like a differentiated Brexit (where Wales, with or without England, remains in the EU). But then that is what the vote was about—who speaks for the country and who speaks for Wales: the elected government (including the devolved assembly) or the actual (Welsh) voters. The idea that the DUP with 10 MPs blocked or could block anything is (in my opinion) flat-out wrong. The UK-EU negotiations (as far as I know) were not conducted with DUP members on hand. PM May could have negotiated anything and then presented it to Parliament and the public as a fait accompli—indeed, that is precisely what she has done. (And that is precisely why it failed!) If PM May’s proposal had gone down to defeat by 10 or fewer votes and the DUP had voted against the proposal, then Professor BBB would have a point. The simple fact is PM May’s proposal lost by over 200 votes! Indeed, well over 100 Tory MPs voted against PM Mays proposal. (See Brexit: How did my MP vote on Theresa Mays deal?, The Guardian (Jan. 15, 2019), <https://www.bbc.com/news/uk-politics-46885027>.) In other words, her proposed Brexit deal failed because the PM and her whips were unable to corral Tory Brexiteer-oriented rebels; her proposalfailure had nothing to do with the DUP in any meaningful sense. This is basic arithmetic. 

Finally, Professor BBB states:

“On top of all that—and that is a lot—the DUP is refusing to form a government in Northern Ireland, which means that the Catholic minority in the North has no say whatsoever in the Brexit process. The government fell in Northern Ireland a few months before the Brexit vote, and for years now there have not been any talks to restore a government along the lines of the power-sharing agreement required under the Good Friday Accord.” (emphasis added)

Professor BBB’s use of the passive voice (i.e., “the [NI] government fell”) here is telling. First, the government fell in the Northern Ireland devolved assembly precisely because the leader of SF (the Irish nationalist party seeking NI integration into Ireland) walked out of the government. (I don’t suggest that SF was without cause—but they are the ones who broke the government.) Professor BBB seems to blame the failure to form a new government exclusively on the DUP. Professor BBB says that there have not been any talks to restore a power sharing DUP-SF government. That is simply false. See this article in The Irish Times—an Irish paper which has (in my opinion) a general editorial point of view not unsympathetic to a pro-Irish nationalist position <https://www.irishtimes.com/news/politics/how-did-northern-ireland-end-up-with-no-government-for-13-months-1.3389318> (reporting four attempts in the last year to form a new government at Stormont—where the devolved NI assembly sits).

Second, Professor BBB’s blaming the DUP for the Catholic minority’s lack of representation in Westminster and in Brexit negotiations is really a bridge too far. When NI voters choose to vote for Sinn Fein (‘SF’)—those voters know they are electing persons who will not take their seats and vote in the United Kingdom (national) parliament which sits in Westminster. That has been SF policy all along. I do not suggest that SF policy is wrong. Nor do I suggest that the voters are wrong for giving their votes to such a party. That is a judgement call, and it is not for me to second guess their judgement. (Perhaps, Irish, British, and NI nationals and subjects can do so—but not me—I am an American.) That said, when NI voters do this, and actively vote for a party that will not sit with other elected members, it simply makes no sense (as far as I can see) to put the blame for their lack of representation on the DUP. You can be sure the DUP would be happy to take their votes if they were willingly given. These voters can have the reality of representation at Westminster any time they choose to vote for it, and you can be sure that those who they elect would be seated along with any other elected members. So why does Professor BBB blame the DUP for this unfortunate status quo?

The best thing we academics can do is to put forward accurate information—rather than choosing favoured historical pasts, blaming others, and over-simplifying the troubles of a house divided.

Seth

Seth Barrett Tillman, Conlawprof and Other Academic Writing on Northern Ireland and the EU, New Reform Club (Feb. 4, 2019, 12:10 AM EST), <https://reformclub.blogspot.com/2019/02/conlawprof-and-other-academic-writing.html>.

If you liked my post above, you may also like my immediately prior post: Seth Barrett Tillman, Meta-Writing about Irish Nationalists and about Unionists, New Reform Club (Feb. 1, 2019, 6:05 AM), <https://reformclub.blogspot.com/2019/02/meta-writing.html>.

Welcome Instapundit Readers!

*Gerrymandered in the sense that modern 26-county Ireland, as a political entity, ought to be (as conceived by proponents of the Irish nationalist view) the entire 32-county island. In other words, anything less than the whole 32-county island in a united Ireland is a relic of English/British colonial conquest, rule, settlement, and occupation. Perhaps, the most forceful expression of this position was put forward by the Irish head of government, Eamon de Valera, the Taoiseach or prime minister, in response to Churchills Victory in Europe Day speech. See Taoiseach Outlines Irelands Right to Remain Neutral 1945, RTE Archives, <https://www.rte.ie/archives/exhibitions/eamon-de-valera/719137-de-valera-response-to-churchill/>. But see generally Seth Barrett Tillman, Advice to the Allies—1945, 15(2) Claremont Review of Books 13, Spring 2015, <http://ssrn.com/abstract=2478600>, <http://tinyurl.com/pbhmrox/> (go to the bottom of the PDF).

**UUP once had a much stronger presence in NI. For example, Enoch Powell, UUP, had the South Down seat from 1974 to 1987. See, e.g. <https://www.youtube.com/watch?v=yTbW1SN9JO4>, <https://www.youtube.com/watch?v=xS9-_CKhGSE>. 




Friday, February 01, 2019

Meta-Writing about Irish Nationalists and about Unionists


Dear [Irish Friend/Unionist Friend],

Thanks again for all your careful usage and stylistic comments—which I hope to review soon.

What I really wrote you aboutWhat I really wanted know is if you think this part (quoted below) is mean spirited or an attack on Irish or Unionist sensibilities—even if fundamentally accurate. Or, do you think my writing below is fair and acceptable political discourse even if slightly charged.

I want to avoid people saying:
Tillman gets away saying that because he is foreigner;
or
Tillman thinks he can say that because he does not think we have feelings—He does not think we and this little country count—He’d never talk that way about his country or about conflicts & people he genuinely cares about.
Thank you,

Seth

Seth Barrett Tillman, Meta-Writing about Irish Nationalists and about Unionists, New Reform Club (Feb. 1, 2019, 6:05 AM), <https://reformclub.blogspot.com/2019/02/meta-writing.html>. 

Tuesday, January 29, 2019

About Brianne Gorod


Jan. 29, 2019: 

Dear Friend, 

I am surprised how many, many good people continue to take an active interest in all this. The Hamilton Documents ImbroglioIt is all water under the bridge .... 

You ask if: “I ever heard from Brianne Gorod?”—No, not a word. And I don’t fault her for not doing so. She represents a client, and anything she says—even in private—could potentially injure that client or limit her scope later in litigation. She owes her client all her loyalty, and me—none. And that means she has to take it on the chin a bit. But you’ll notice that I was not part of any pile on against her or anyone else. Once my defense (Reports of My Death) went live, I urged third parties on Twitter (and other social media) to give all of my interlocutors time.** I did not stick any sword in anyone or ask anyone to get them. And I still have not. I have—by and large—let it go. (Though there was a recent flare-up at a peer reviewed journal ….) 

Amici, Slate, and third parties on Twitter and other social media—they are situated differently from Brianne. Amici etc—they don’t have clients.


Thanks for asking.

Seth 






Seth Barrett Tillman, About Brianne Gorod, New Reform Club (Jan. 29, 2019, 8:45 AM), <https://reformclub.blogspot.com/2019/01/about-brianne-gorod.html>.