Everything you say can and will be used against you.

Sunday, June 23, 2019

Private Eye’s: The Four Brexiteers

The Four BrexiteersPrivate Eye, No. 1498 (14–27 June 2019) at 33.


Brexiteer-1: If t’were up to me, I’d make sure we left on eve ‘Alloween, whether we got a deal or no deal or nowt else. That’s my thinking.
Brexiteer-2: No deal? That’s soft thinking. I’d make sure we left by end June. And I’d make EU pay us for £39 billion whether they like it or not, and I’d ensure we got preferential deal from t’German car industry to boot.
Brexiteer-3: End June?
Brexiteer-2: Aye.
Brexiteer-3: That’s Remain talk. I’d make sure we left last August, I’d get us £300 billion in payments for emotional damage, and I’d ensure Barnier [an EU negotiator] came to Britain to live out his days in Wormwood Scrubs [a London prison].
Brexiteer-4: Thou are all as soft as lilywhite Brussels cotton bedsheets.
Brexiteer-1: What’s tha’ plan.
Brexiteer-4: Easy. End session of t’Parliament, force through law, imprison any MP who objects. It’s the only way to preserve democracy in this country.
Brexiteer-3: Would tha keep t’Queen?
Brexiteer-4: Aye.
Brexiteer-3: Pathetic. I’d execute t’royal family, seize control of t’Army and t’utilities, destroy opposition with t’tactical nuclear strikes, and bomb Paris and Berlin to ensure favourable trading conditions for a thousand years.
Brexiteer-1: And if you don’t do that, you’ll get a [Jeremy] Corbyn government in.
Brexiteer-2: But if you tell the young people that, they won’t believe you.
All: Aye, they won’t.



The above is based on a well-known Monty Python sketch: The Four Yorkshiremen. See <https://www.youtube.com/watch?v=ue7wM0QC5LE>.

Seth Barrett Tillman, Private Eye’s: The Four Brexiteers, New Reform Club (June 23, 2019, 1:38 PM), <https://reformclub.blogspot.com/2019/06/private-eyes-four-brexiteers.html>. 

Friday, June 21, 2019

Seth P. Tillman: A Select Bibliography



Books
[Senator] J. William Fulbright with Seth P. Tillman, The Price of Empire (London, Fourth Estate 1989).

Seth P. Tillman, Anglo-American relations at the Paris Peace Conference of 1919 (Princeton, Princeton University Press 1961), <https://tinyurl.com/y2m4ve4c>

Seth P. Tillman, Diary of a trip to Asia: The Peace Corps and the Fulbright program (DC, Government Printing Office 1969).

Seth P. Tillman, The United States in the Middle East, interests and obstacles (Bloomington, Indiana University Press 1982).

Seth P. Tillman, Georgetown’s School of Foreign Service: the first 75 years (DC, Edmund A. Walsh School of Foreign Service, Georgetown University 1994).

Articles
Seth P. Tillman, Book Review, 19(3) Int’l J. 390 (Summer 1964) (reviewing Harold I. Nelson, Land and Power. British and Allied Policy on Germany’s Frontiers 1916–19 (London, Routledge & Kegan 1963)), available on JSTOR.

Seth P. Tillman, The West Bank Hearings: Israel’s Colonization of Occupied Territory, 7(2) J. Palestine Stud. 71 (Winter 1978), available on JSTOR.

Seth P. Tillman, Israel and Palestinian Nationalism, 9(1) J. Palestine Stud. 71 (Autumn 1979), available on JSTOR. 

[END]

Seth B. Tillman, Seth P. Tillman: A Select Bibliography, New Reform Club (June 21, 2019, 2:07 PM), <https://reformclub.blogspot.com/2019/06/seth-p-tillman-select-bibliography.html>.

Thursday, June 20, 2019

Tillman’s Primary Publications Touching on “Office,” “Emoluments,” and Other Issues in the Emoluments Clauses Cases




Peer-Reviewed Academic Publications
Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5(1) Br. J. Am. Leg. Studies 95–121 (2016) (peer reviewed), <http://tinyurl.com/j6hrlbu>.
Seth Barrett Tillman, Why Professor Lessig’s “Dependence Corruption” Is Not a Founding-Era Concept, 13(2) Election L.J. 336–45 (June 2014) (peer reviewed), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2342945>. 

Full-Length Academic (Print) Publications
Seth Barrett Tillman, The Foreign Emoluments Clause—Where the Bodies are Buried: “Idiosyncratic” Legal Positions, 59 S. Tex. L. Rev. 237–79 (2017) (invited symposium contribution), <https://ssrn.com/abstract=3096986>.
Seth Barrett Tillman, Essay, Business Transactions and President Trump’s “Emoluments” Problem, 40(3) Harv. J.L. & Pub. Pol’y 759–771 (2017), <https://ssrn.com/abstract=2957162>.
Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014) (invited contribution), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2484377>. 
Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285356 (2013), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1622441>. 
Seth Barrett Tillman, Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399421 (Dec. 2012); 107 Nw. U. L. Rev. Colloquy 1 (April 20, 2012) (republished from online journal), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182078>. 
On-Line Academic Publications
Seth Barrett Tillman & Josh Blackman, Is Robert Mueller an “Officer of the United States” or an “Employee of the United States”?, Lawfare: Hard National Security Choices (July 23, 2018, 2:50 PM), <http://ssrn.com/abstract=3214158>.
Zephyr Teachout & Seth Barrett Tillman, Common Interpretation—The Foreign Emoluments Clause: Article I, Section 9, Clause 8, in The Interactive Constitution (National Constitution Center 2016), <http://tinyurl.com/jxro4o9>.
Seth Barrett Tillman, Matters of Debate—The Foreign Emoluments Clause Reached Only Appointed Officers, in The Interactive Constitution (National Constitution Center 2016), <http://tinyurl.com/zgbdtso>.
Seth Barrett Tillman, Member of the House of Representatives and Vice President of the US: Can Paul Ryan Hold Both Positions at the Same Time?, Jurist–Forum, Aug. 23, 2012, <http://jurist.org/forum/2012/08/seth-barrett-tillman-vice-presidency.php>; <https://www.jurist.org/commentary/2012/08/seth-barrett-tillman-vice-presidency/>.
Seth Barrett Tillman, Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. Colloquy 122 (April 20, 2012), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2012800>. 
Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. Colloquy 180208 (April 2, 2013), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2012803>. 
Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 10741 (2009)Duke J. Const. L. & Pub. Pol’y Sidebar 134 (2008), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1660547>. 
Seth Barrett Tillman, Opening Statement, Why President-Elect Obama May Keep His Senate Seat After Assuming the Presidency, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 13540 (2008), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292359>. 
Seth Barrett Tillman, Closing Statement, An “Utterly Implausible” Interpretation of the Constitution: A Reply to Professor Steven G. Calabresi, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 14653 (2008), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292334>. 
Lesser Publications: Opinion Editorials, etc
Josh Blackman & Seth Barrett Tillman, Opinion Editorial, The ‘Resistance’ vs. George Washington, Wall Street Journal, Oct. 15, 2017, at A17, <https://www.wsj.com/articles/the-resistance-vs-george-washington-1508105637>, <http://archive.is/QPO2N>. 
Josh Blackman & Seth Barrett Tillman, Opinion Editorial, Yes, Trump Can Accept Gifts, NY Times, July 13, 2017, <http://tinyurl.com/ycqa26bs>, <http://ssrn.com/abstract=2999976>. 
Seth Barrett Tillman, Letter to the Editor, Oath of Officers, 15(3) Claremont Review of Books 11, Summer 2015, <http://ssrn.com/abstract=2623473>. 
Popular Media: Interviews, etc.
Ian J. Drake interviewing Seth Barrett Tillman, Discussion of the Foreign Emoluments Clause and President TrumpNew Books Network: Law (Jan. 10, 2018), <http://newbooksnetwork.com/seth-barrett-tillman-on-the-foreign-emoluments-clause-and-president-trump/>. 
Adam Liptak, ‘Lonely Scholar With Unusual Ideas’ Defends Trump, Igniting Legal Storm, The NY Times, Sept. 25, 2017, <https://www.nytimes.com/2017/09/25/us/politics/trump-emoluments-clause-alexander-hamilton.html?mtrref=undefined>.  
Andrew Torrez & Thomas Smith, OA36: The Emoluments Clause (w/Seth Barrett Tillman), Part 2Opening Arguments (Jan. 20, 2017), <http://tinyurl.com/hxg9ruk(at 7:30ff).
Marc Johnson, Episode 8: Article 1, Section 9, Clause 8Many Things Considered (Jan. 18, 2017), <http://manythingsconsidered.com/podcast> (at 28:15ff). 
Andrew Torrez & Thomas Smith, OA35: The Emoluments Clause (w/Seth Barrett Tillman), Part 1Opening Arguments (Jan. 16, 2017), <http://tinyurl.com/zsvebop> (at 24:40 to 47:00).
Adam Liptak, Trump’s Foreign Business Deals May Test a Constitutional LimitThe NY Times, Nov. 22, 2016, at A22, <http://tinyurl.com/jpryysm>. 
Law Blogging
Josh Blackman & Seth Barrett Tillman, Parts 1 to 9: <http://ssrn.com/abstract=3311758>.

Josh Blackman & Seth Barrett Tillman, [Part 9] Who was right about the Emoluments Clauses? Judge Messitte or President Washington?, ReasonVolokh Conspiracy (Aug. 3, 2018, 3:17 PM), <https://reason.com/volokh/2018/08/03/who-was-right-about-the-emoluments-claus>, <https://ssrn.com/abstract=3225939>. 
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 8: There is no cause of action for a suit against the President in his individual capacity for purported violations of the Emoluments Clauses, ReasonThe Volokh Conspiracy (Feb. 8, 2018, 3: 04 PM), <http://reason.com/volokh/2018/02/08/the-emoluments-clauses-litigation-part-8>, <http://ssrn.com/abstract=3311758>.
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 7: The President’s Acceptance or Receipt of Profits is not “Executive Action, ReasonThe Volokh Conspiracy (Feb. 7, 2018, 11:26 AM), <http://reason.com/volokh/2018/02/07/the-emoluments-clauses-litigation-part-7>.
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 6: Are the Claims Against the President in his Official or Individual Capacity?, ReasonThe Volokh Conspiracy (Feb. 6, 2018, 11:30 AM), <http://reason.com/volokh/2018/02/06/the-emoluments-clauses-litigation-part-6>.
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 5: Problems with the Complaints in CREW v. Trump, The Washington Post—The Volokh Conspiracy (Oct. 1, 2017), <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/01/the-emoluments-clauses-litigation-part-5-problems-with-the-complaints-in-crew-v-trump/?utm_term=.fa9685cda3f6>. 
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 4: An Emolument is the “profit derived from a discharge of the duties of the office, The Washington Post—The Volokh Conspiracy (Sept. 29, 2017), <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/29/the-emoluments-clauses-litigation-part-4-an-emolument-is-the-profit-derived-from-a-discharge-of-the-duties-of-the-office/?utm_term=.1cfd0d5fd6d6>. 
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 3: So what if the president does not hold ‘Office … under the United States,’? Washington Post—The Volokh Conspiracy (Sept. 28, 2017), <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/28/the-emoluments-clauses-litigation-part-3-so-what-if-the-president-does-not-hold-office-under-the-united-states/?utm_term=.847b995fd071>.
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 2: The Practices of the early presidents, the first Congress and Alexander Hamilton, Washington Post—The Volokh Conspiracy (Sept. 26, 2017), <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/26/the-emoluments-clauses-litigation-part-2-the-practices-of-the-early-presidents-the-first-congress-and-alexander-hamilton/?utm_term=.57a8ae2776f6>. 
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 1: The Constitution’s taxonomy of officers and offices, Washington Post—The Volokh Conspiracy (Sept. 25, 2017), <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/25/the-emoluments-clauses-litigation-part-1-the-constitutions-taxonomy-of-officers-and-offices/?utm_term=.7b840bb24101>. 
Seth Barrett Tillman, The Emoluments Clauses Lawsuits’s Weak Link: The Official Capacity Issue, Yale J. on Reg.: Notice & Comment (Aug. 15, 2017), <http://tinyurl.com/y9g2v6xf>. 
Seth Barrett Tillman, Room for Debate, Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents, The NY Times, Nov. 18, 2016, 10:41 AM, <http://tinyurl.com/jpbhom5>. 
Tillman & Ramsey on Originalism Blog, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2197209>. 
Tillman & Mike Stern on Point of Order Blog (2013), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2230244>. 
Tillman & Mike Stern on Point of Order Blog (2012), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2197204>. 
Working Papers and Misc. Documents
Seth Barrett Tillman, Part I, Understanding the Jefferson Diplomatic Gifts: A Response to Dr. Andrew Fagal (Feb. 14, 2019), <https://ssrn.com/abstract=3311186>. 
Seth Barrett Tillman, The Blue Book & the Foreign Emoluments Clause Cases Against the President: Old Questions Answered (Dec. 31, 2017), <https://ssrn.com/abstract=3094848>. 

Six Puzzles for Professor Akhil Amar 1–29 (2013), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2173899>. 
Seth Barrett Tillman, Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar—Contradictions and Reconciliation 1110 (2012) (unpublished manuscript, on file with author), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1970909>. 
Seth Barrett Tillman, Hamilton, the Secretary of the Senate, and Jefferson: Three (or Four) Views of the Cathedral and the Mysterious Identity of the ‘Officers under the United States’ 130 (2011) (unpublished manuscript, on file with author), <https://works.bepress.com/seth_barrett_tillman/203/> (reproducing primary documents--now at bottom of page). 
Seth Barrett Tillman, The Annals of Congress, the Original Public Meaning of the Succession Clause, and the Problem of Constitutional Memory 126 (Dec. 18, 2009) (unpublished manuscript, on file with author), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1524008
Seth Barrett Tillman, Legislative Officer Succession to the Presidency 1–28 (April 6, 2007) (unpublished manuscript, on file with author), <http://tinyurl.com/pcqdp3> (parts I & II), <http://tinyurl.com/qmzu26> (part III). 

Seth Barrett Tillman, Tillmans Primary Publications Touching on Office, Emoluments, and Other Issues in the Emoluments Clauses Cases, New Reform Club (June 20, 2019, 8:17 AM), <https://reformclub.blogspot.com/2019/06/tillmans-primary-publications-touching.html>. 




Wednesday, June 19, 2019

Conlawprof, Dachau, and Auschwitz: The New “Learning”

Professor AAA wrote:
AOC is being condemned by the GOP for demeaning the Holocaust by referring to American “concentration camps” along the border. I note for the record that [Associate] Justice Roberts in his Korematsu dissent referred to the detention camps as “concentration camps.” Was he wrong to do so? Or what about the “original” concentration camps, those set up by the ever-civil British to confine their opponents in the Boer War?

Dachau was a “concentration camp.” Auschwitz was a “death camp.” Can the GOP really not tell the difference or, more to the point, is this confusion simply another desperate play for those regarded as “Jewish voters” who are the object of Jared’s affections?

What does this have to do with constitutional law? Not much, save for deciding, if one teaches Korematsu, exactly how to describe the camps and to explain why a Justice of the US Supreme Court believed that it was appropriate to refer to them as “concentration camps.” And to come to terms with the fact that the U.S. Constitution, as construed by the present majority, may in fact give the President basically unrestricted power to make life a living hell for the approximately eleven million undocumented aliens viewed by Stephen Miller, an unconfirmed presidential “advisor” who is far more powerful than perhaps any given member of the confirmed Cabinet on such matters, as little better than vermin.

Tillman Responds
I do not know what Associate Justice Roberts meant in 1944 when he penned his dissent in Korematsu. Certainly, some in Europe and among the Allies understood in 1944 that the Nazi regime was killing civilians using industrial means on a mass scale in its camps and elsewhere. I do not know if Roberts clearly understood all that when he drafted his dissent, or even if he suspected it, and I have real doubts that the largest part of his American audience in 1944 understood his words the way we understand these words today. Given what I believe to be linguistic slippage, I see no reason to criticize Roberts for using “concentration camp” to apply to US internment camps for US citizens of Japanese descent, enemy civilian nationals (some of Japanese descent), and others.

What the US civilian population and the wider world came to understand as Allied armies captured these camps in occupied Europe and elsewhere is not coextensive with what is known today. Indeed, the scope of the mass murder was not understood until some years after WWII ended. How different (if at all) the Holocaust was from prior mass death regimes is a matter of opinion about which many have well informed, but divergent views. I would be loath to tell (even if I believed it true) an Armenian that the Holocaust against the Jews was worse (in some meaningful way) than the Ottoman genocide against the Armenian civilian population.

My comments above go to how Roberts used “concentration camp” language circa 1944. How such language has been used in most of my lifetime in the US is another matter. I can only wonder what the reaction on CONLAWPROF and in the press would be if Trump or his supporters stated in public: “Dachau and Auschwitz—world of difference—concentration versus death camp.” No one would inquire if there was some legitimate, historically rooted technical difference—the immediate reaction would be that Trump was making an appeal to white nationalist sentiment and trying to obliterate the memory of the Holocaust. I suspect that if, today, some public figure voiced this claim—“Dachau and Auschwitz—world of difference—concentration versus death camp”—in Germany or in Poland, he would be arrested for Holocaust denial.

Professor AAA wrote: “Dachau was a ‘concentration camp.’ Auschwitz was a ‘death camp.’” The best I can say about Professor AAA’s comment is that it appears to me that it is not well crafted. Auschwitz is properly described as a death camp and a concentration camp. I will not bother with citations: they are easy to find. Dachau was a concentration camp. Whether it is properly described as a death camp is a matter of definition: What is a death camp? 

If people are going to make charged comparisons between Dachau (and what was intended to happen there by its creators) and what is going on at America’s borders (and what was or is intended to happen there by its creators), then the better course would be to proceed carefully and to clarify in what way (if any) those two events are meaningfully similar.

People are crossing America’s southern frontier—they are coming from Mexico, south of Mexico, and (it is reported) from other continents. They are doing so knowing full well that there is a good chance the US authorities will detain them in border facilities of the sort that are now being compared to Dachau. They are coming in large numbers—some (perhaps many) in good health with money and education. There is an element (for some of them) that can be fairly described as voluntary action seeking a better life in the US. I have never heard that such conduct was a proper characterization of those who inhabited Dachau or Auschwitz. If that is so, then the comparison is misplaced and odious.

Seth

Seth Barrett Tillman, Conlawprof, Dachau, and Auschwitz: The New Learning, New Reform Club (June 19, 2019, 3:55 AM), <https://reformclub.blogspot.com/2019/06/conlawprof-dachau-and-auschwitz-new.html>. 

See generally Korematsu v United States 323 US 214 (1944) (Black, J), 
<https://www.law.cornell.edu/supremecourt/text/323/214#writing-USSC_CR_0323_0214_ZO>; id. at 242 (Jackson, J, dissenting), 
<https://www.law.cornell.edu/supremecourt/text/323/214#writing-USSC_CR_0323_0214_ZD2>; 

Wednesday, June 12, 2019

To Jim the Christian Fundamentalist, re Eric Seidel, "Freedom From Religion" Dot Org

Mr. Seidel's [of the Freedom From Religion Foundation] original post, outlining his book, The Founding Myth: Why Christian Nationalism is Un-American is here.

Yeah, whatever. Heard it all before. Wiki-deep.




The discussion with a relatively well-read fundamentalist Protestant was more interesting:


Our Founding Truth said...
I think they just spaced it.



Oh, I don't think you believe that, Jim. It's certainly at odds with everything you just wrote in this thread. You condemned them for not making America explicitly Christian enough. A lack of will, a lack of guts. Not forgetfulness.

I think the explanation is more practical: There was no way you could get it done. Under Protestantism, with its huge disparities in doctrine, there was no way to put together a consensus of what Christianity even is. 

Add in Virginia with its Baptists and secularists, and it held a veto on religion in the federal government even while the other 12 states were pretty Christian [yes, even New York].

_____________________

Mostly what I'm establishing here is that you are just the sort of Protestant Christian off whom Mr. Seidel and his ilk make their money, by convincing secularists and liberal Jews and Christians that you fundies are poised to impose some sort of theocracy on America. 


I don't think you are, either as a practical matter or even as a theo-political matter. YOU are the ones to say that the Founding era blew it, by not making America Christian enough. [The Gary North thing.]


And you are NOT calling for a re-Founding of America, or at least I don't think you are. You surely realize that if they didn't do it back then, the American people are surely not going to vote in a more Christian America here in the 21st century.



So I just want to sort all this out and stay on track, since the topic is Mr. Seidel, his "freedom from religion" advocacy, and the actual historical record which I think is at odds with it.

YOU are his bogeyman. His cash cow. The Christianist fundamentalist Republican theocrat. I find it offensive.


And even if he believes all this sincerely, I don't think you think what he thinks you think. 

You are not insisting that the Founders created a theocracy that we need to return to. You quite plainly say they didn't create a theocratic state at all--and that was the big mistake.

It's not that radical an idea, Jim, unless Calvin and Hobbes [the REAL John Calvin and Thomas Hobbes] were radicals!

Wednesday, May 29, 2019

DOJ Response to Office of Inspector General Report (and, by implication, to Jonathan Hennessey)

Plaintiffs also dispute the significance of the historical precedent of President George Washington purchasing several lots of public land from the federal government. Def.’s Suppl. Br. at 15. The President had urged that this precedent demonstrated that the Framers did not intend the term “Emolument” as used in the Constitution to extend to all benefits regardless of context. Plaintiffs now argue that this historical precedent is undermined by the fact that the Inspector General of the General Services Administration (“GSA”) found evidence indicating that the lots of land purchased by Washington—which were “ceded to the United States for the District of Columbia,” GSA Inspector General Report (“GSA Report”), ECF No. 63-1, App. A at 15—were “owned privately,” Pls.’ Opp’n at 21 (quoting GSA Report at 15); see also GSA Report, App. A, at 4. The GSA report itself, however, describes the lots purchased by Washington as “public lots,” stating that “[t]he six public lots that Washington purchased during his presidency appear to be among the lots that the proprietors donated for sale, in order to raise funds for the President’s House (White House), the Capitol and other government buildings (and return a share of the proceeds to the proprietors).” GSA Report, App. A at 4 (emphasis added). The Inspector General’s view—which expressly did “not reach a definitive judgment,” id. at 6—that the sales were private transactions apparently was based on her finding that “Maryland’s cession of land for the new district ceded sovereignty to the United States . . . but not title to the land,” and that the cession was not intended to “vest in the United States any right of property in the soil, as to affect the rights of individuals therein . . . .” Id. at 4 (citation omitted). 
   Even assuming ambiguity about the title and ownership of the land donated to the United States by the landowners, there is no doubt that Washington benefited personally from the federal government through his purchase of the land donated to the United States. The Commissioners were federally appointed and authorized by President Washington to conduct the public sale of the donated land, and they described the land as public property. [See Certificate for Lots Purchased in the District of Columbia (Sept. 18, 1793); see also 1 Stat. 130; Letter from Commissioners for the District of Columbia to George Washington (Sept. 16, 1793) (seeking Washington’s “permission to make sales of the publick property in the City of Washington”).] They did not conduct the sale on behalf of the private landowners, and in fact, the landowners received no proceeds from the sale.
As President Washington explained to Thomas Jefferson about the agreement he reached in his capacity as President with the individual landowners, the land was “ceded to the public” except that “[t]he landholders [were] to have the use and profits of all their ground until the city is laid off into lots, and sale is made of those lots which, by this agreement, become public property.” [See Letter from George Washington to Thomas Jefferson (March 31, 1791).]
That is, the land sold by the D.C. Commissioners was land donated to the United States and was public property when purchased by Washington. In addition, Washington stated that “the present Proprietors shall retain every other lot” beyond those ceded and would “be allowed at the rate of Twenty five pounds per acre” as payment “for such part of the land as may be taken for public use, for square, walks, &ca.” [Id.] Consistent with this understanding, one amicus has explained that although the Commissioners “did make certain payments to the landowners . . . , those payments were not [to pay] for auctioned land, such as the lots Washington bid on,” but were for land appropriated for public use at £25 per acre, and “[n]o payments were made to the proprietors for the land that was sold at auction. The proprietors gifted such land to the government in the expectation that their other properties in the new federal capital would become more valuable.” [quoting Brief of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project at 14–16, DC & MD v. Trump, No. 18-2488 (4th Cir. Jan. 31, 2019), Doc. No. 31-1, 2019 WL 411728.]
In any event, the Court need not decide this disagreement as to the historical record. Again, for purposes of interlocutory appeal, it is enough that reasonable jurists could conclude that Washington received benefit from the federal government through the land sale transactions; that if Plaintiffs’ interpretation of “Emolument” were correct, then Washington likely violated the Domestic Emoluments Clause; and that this historical precedent therefore casts doubt on Plaintiffs’ interpretation.

Extract from: Defendant’s [Supplemental] Reply in Support of his Motion Pursuant to 28 U.S.C. § 1292(b) and of its Motion to Stay Proceedings at 14–16, Blumenthal v. Trump, Case 1:17-cv-01154-EGS (D.D.C. May 28, 2019) (Sullivan, J.), ECF No. 77 (citations omitted) (emphasis added). See generally Docket in Blumenthal v. TrumpSeth 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)




Seth

Seth Barrett Tillman, DOJ Response to Office of Inspector General Report (and, by implication, to Jonathan Hennessey)New Reform Club (May 29, 2019, 9:21 AM), <https://reformclub.blogspot.com/2019/05/doj-response-to-office-of-inspector.html>.


See also Jonathan Hennessey, The Foreign Emoluments Clause Applies to the President, Vice President, and All Other Positions in the Federal Government: A Response to Prof. Seth Barrett Tillman (May 14, 2019); Jonathan Hennessey, News & Commentary, ‘Obfuscation’ on emoluments issue, The Baltimore Sun, Mar. 19, 2019, at 13; Jonathan Hennessey, “BROTHER FARMER”: GEORGE WASHINGTON, ARTHUR YOUNG, AND DISMISSING ANOTHER FOREIGN EMOLUMENTS CLAUSE INTRIGUE, Medium (Feb. 22, 2019); Jonathan Hennessey, A PROSPECT OF AMPLE FUNDS: THE WASHINGTON “EMOLUMENT,” Medium (Sept. 20, 2018); Jonathan Hennessey, Article: The Washington “Emolument, Jonathan Hennessey (Sept. 20, 2018); Jonathan Hennessey, ReConstituting: The U.S.Constitution’s Emoluments Clause and Donald Trump—Full Documentary, Jonathan Hennessey (July 24, 2017)

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The Media Is Complaining That Their Tired Old Tricks No Longer Work!—So Much Winning!





Here is Ian Dunt (@IanDunt) over at Politics.Co.UK:

[Brexit Party] rallies were treated like some kind of spontaneous spasm of British Leave desire. Farage was handled like a political savant. If you interviewed him, it gave him what he wanted. If you asked him tough questions, it allowed him to play the victim. If you threw milkshake at him, you turned him into a martyr. No matter what you did, he won. Even the party’s logo, an ugly sideways house that doubled for an arrow on the ballot paper, was treated like a stroke of unrivalled genius.

Let’s analyse this one step at a time.

[Brexit Party] rallies were treated like some kind of spontaneous spasm of British Leave desire.

The desire to leave among a substantial part of the citizenry is long-standing. But the rallies were treated as spontaneous because they were spontaneous—in the sense that Brexit Party had only been created a few weeks prior.

Farage was handled like a political savant.

Dunt means Farage’s success could not be denied, although the Remain-media wanted to do just that and they would have done just that had Farage’s party not had a first place showing by a wide margin. Farage was handled like a political savant because he is a political savant—by any fair measure.

If you interviewed him, it gave him what he wanted.

All politicians want to be interviewed, especially after a success. Dunt means only that the media could not have avoided interviewing Farage, although that is precisely what they had wished to do.

If you asked him tough questions, it allowed him to play the victim.

Dunt means only that the old, tired dirty tricks and deflection no longer work.

If you threw milkshake at him, you turned him into a martyr.

Here, Dunt means only that the new dirty tricks did not work. And notice how he fails to suggest that it is wrong to assault politicians (including, if not especially, those you disagree with). He only rues that such assaults fail to work as intended by the assailants involved. Is not he on the side of the assailants? If you dont believe me, see <https://twitter.com/IanDunt/status/1130466736178958341> (Ian Dunt: “This should not need saying but apparently it does. Throwing a milkshake at someone is a non-violent act.”). Pure Orwelling newspeakno introspection and no shame. 

No matter what you did, he won.

Which just proves that Farage is a savant, and notice that Dunt does not say that Farage cheated or lied. Dunt just rues that Farage had a comprehensible political goal shared by a substantial part of the electorate. IE: Leave. For Dunt, the problem is little things: voters, democracy, reality, etc. In other words, as hard as the media tried to put forward road blocks, and doing so is their real job, Farage continued to succeed. 

Even the party’s logo, an ugly sideways house that doubled for an arrow on the ballot paper, was treated like a stroke of unrivalled genius.

It is like Dunt ran out of complaints, but just had to go on doing so anyway, and wont he or somebody else please tell I’m-With-Her Hillary!

Seth

Seth Barrett Tillman, The Media Is Complaining That Their Tired Old Tricks No Longer Work!—So Much Winning!, New Reform Club (May 29, 2019, 4:55 AM), <https://reformclub.blogspot.com/2019/05/the-media-is-complaining-that-their.html>. 


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Monday, May 27, 2019

FINAL RESULTS: What They Are Not Telling You About The UK Election Results




UK-wide results are now in. In 2016, there was a binary referendum: Remain or Leave. Leave prevailed. But the professional chattering classes told us that the British public did not mean it, did not understand it, and it cannot be brought about in any event. It did not seem to matter that Leave had more votes. Evidently democracy did not count for much.

Now in 2019, in the European Union election for UK members of the European Parliament, the new wisdom is that the Remain parties beat the Leave parties in terms of the popular vote. The problem is that the 2019 election was not a binary choice. It was not a referendum on Leave or Remain, and many parties do not have a clear vision for Remain or Leave: including the long dominant Labour and Tory parties. Again: the UK election was not a referendum, it was an election for seats in the European Parliament.

In terms of seats: Nigel Farage’s Brexit Party (29 seats) + Democratic Unionist (1 seat) > Liberal Democrats (16 seats) + Greens (7 seats) + Scottish National Party (3 seats) + Plaid Cymru (1 seat) + Alliance (1 seat) + Sinn Fein (1 seat). In other words, 30 seats (Leave) > 29 seats (Remain). With the 2016 referendum, the referendum was about votes, and Leave prevailed over Remain: 52 to 48. By contrast, the 2019 election was about seats, and here too, Leave prevailed over Remain: 30 to 29. See how they changed the goal posts—yet again?

The second, and more important, thing you will not see reported … is about votes. The Remain parties are saying they won the popular vote: Brexit Party (30.5%) + Democratic Unionist (0.7%) + UKIP (3.2%) < Liberal Democrats (19.6%) + Greens (11.8%) + Scottish National Party (3.5%) + Plaid Cymru (1.0%) + Sinn Fein (0.7%) + Alliance (0.6%) + Change UK (3.3%). In other words, 34.4% (Leave) < 40.5% (Remain).

Those numbers are not telling—at least, not as predictors for the next general election for the (national) Westminster (or UK) Parliament. EU citizens (who are not UK citizens) who are resident in the UK are allowed to vote in the UK in EU elections, but as a general matter, such EU citizens (who are not UK citizens) do not have voting rights in a general election for the (national) Westminster (or UK) Parliament. That will cost Remain 100,000s, if not millions of votes in the next general election. That’s what they are not telling you, and they never will.

Seth

For results, see: <https://www.theguardian.com/politics/ng-interactive/2019/may/26/european-election-latest-results-2019-uk-england-scotland-wales-ni-eu-parliament>. The totals at the top of the page only include Great Britain (and Gibraltar), absent Northern Ireland results. NI results are further down the page. 

Seth Barrett Tillman, FINAL RESULTS: What They Are Not Telling You About The UK Election Results, New Reform Club (May 27, 2019, 2:26 PM), <https://reformclub.blogspot.com/2019/05/final-results-what-they-are-not-telling.html>. 

ORIGINAL POST: Seth Barrett Tillman, What They Are Not Telling You About The UK Election ResultsNew Reform Club (May 27, 2019, 3:59 AM), <https://reformclub.blogspot.com/2019/05/what-they-are-not-telling-you-about-uk.html>. 



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