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

Thursday, January 24, 2019

Trump the Dictator

Dear Professor ZZZ,

You wrote: “I’m also curious if others agree with me that Speaker Pelosi is acting in the highest tradition of Federalist 51 by standing up for her institution against a mountebank who is indeed using loyal employees of the executive branch as hostages to bend Congress to his dictatorial will?”

Pre-Jackson there was a view that president’s should only veto bills if they believed them unconstitutional. Post-Jackson presidents routinely veto bills on policy grounds. Trump is having a policy dispute with Pelosi about funding a wall. It is simple.

Pelosi and her majority are entitled to control access to their chamber. I don’t see anything high or low about such conduct—as a matter of principle, it is pretty mundane, although historically such restrictions against the President are quite exceptional.

I don’t see any value calling Trump’s veto threats as “using loyal employees ... as hostages.” Either side and both sides are fully entitled to play hard ball to get their spending priorities. This politics has to be allowed (even as a normative matter) to play itself out—otherwise elections are meaningless. Our super-majoritarian Constitution—for better and worse—has multiple veto gates. When an elected arm of the government makes use of a veto gate—particularly in support of an election pledge—we should characterize such conduct as ordinary democracy in action and as good politics, consistent with transparency and accountability norms.

Describing Trump as “bend[ing] Congress to his dictatorial will”—there you’ve entirely lost me with your casual use of “dictatorial.” What does “dictatorial” add? And how do you mean it? Has Trump stopped elections—state or federal? Has he launched unauthorized land wars? Has he ordered his prosecutors to round up his political opponents? Or, has he detained people based on ethnicity? Has he disobeyed any court rulings where he was a party? Or, has he ordered the government to disobey such rulings where the government was a party? Other than that you don’t care for Trump, his policies, and his language—what purpose does it serve to use such hyperbolic language?

In my view, the Copperheads had no good cause to call Lincoln a dictator. But I think they had better cause (then) to call Lincoln a dictator, then you have (today) to call Trump a dictator. I don’t say that because Trump, his policies, and rhetoric should escape scrutiny, but only because I see nothing justifying your characterization of Trump or his will as dictatorial.

That said: I think you are on much firmer ground using the language of “hostage” and “dictatorial” in regard to Trump than your and other (fellow) Americans’ doing so in regard to Brexit. Not because the purported wrongful substantive conduct at issue is so very different, but because it is (in my opinion) natural to think the stakes are higher when we speak about our own country. Likewise, we (in my opinion) tend to believe (and quite rightly I might add) that we are better informed about our own country than that of distant lands under different legal systems with different constitutional and political mores. When Americans (lacking any specific expertise about the UK and EU) use this sort of hyperbolic language about Brexit, I can only wonder:—What is driving this chorus of execration*


Seth Barrett Tillman, Trump the Dictator, New Reform Club (Jan. 24, 2019, 4:37 AM), <https://reformclub.blogspot.com/2019/01/trump-dictator.html>.

*Cf. Arthur Conan Doyle, The Complete Works of Arthur Conan Doyle/illustrated ch. 8 (2017), <https://tinyurl.com/yb4ndx77>. 

Welcome Instapundit readers!

Monday, January 21, 2019

More on Brexit on Conlawprof

Professor ZZZ writes as follows:

The Brexit negotiations have been justly mocked in the following fake dialogue which nonetheless captures the spirit of the process so far:
         UK: We want a unicorn
         EU: We don’t do unicorns. None of us have unicorns, There are no unicorns. 
         UK: But we promised unicorns and the people have spoken. We want unicorns
         EU: That’s not really our problem. There are no unicorns. 
         UK: You’re being unreasonable. We demand unicorns
         EU: There are no unicorns 
         UK: You are bullying us with your outrageous demands! 
         EU: Eh? We just said there are no unicorns because... well... there are no unicorns. 
         UK: OK! We get your game. You’re stalling! We’re prepared to walk away without a 
         unicorn you know! (Thinks: that’ll show’em)
EU: There are no unicorns.
UK: You bastards! Nigel was right. You’re out to destroy us. We’ll go and speak to Donald instead. HE has unicorns!
EU: Errrrrmmm, there ARE no unicorns.
UK: That does it. This is our final position. We want unicorns...right now... gold plated... fluent in [G]reek....ermmm.... or we’re off!
EU: Are you still here? There are no unicorns.
UK: DAMMIT! What about a packet of crisps then?
EU: Sorry we’re busy.

(bold added by Tillman)

The problem with this dialogue is it fails to communicate in what way the UK negotiators (or the pro-Leave side) were asking the EU for unicorns—things that don’t exist—as opposed to things that the EU refuses to negotiate about. It is possible that the author off this dialogue had some particular UK demand or demands in mind. But does Professor ZZZ or any other reader of this passage have the same thing in mind? I really doubt it. I don’t think there is any real meeting of the minds here. The mockery (in my opinion) is rooted in something less wholesome.

This is how I read this passage. The author and the people entertained by this passage know Brexit will be a failure, and they know that membership in the EU is an unqualified good. There is no burden on them to explain how the voters got it so wrong, or why those who knew better were unable to make themselves heard and understood. They know the UK negotiating position is wrong, and not just wrong, but downright crazy. But here too—there is no burden on them to explain why that is so. We are just supposed to laugh at the rubes, and those so silly to desire to live in an independent parliamentary state.

In the end, there is something to laugh at here, but it is (I suspect) not what Professor ZZZ had in mind.


Seth Barrett Tillman, More on Brexit on Conlawprof, New Reform Club (Jan. 21, 2019, 12:43 PM), <https://reformclub.blogspot.com/2019/01/more-on-brexit-on-conlawprof.html>. 

Welcome Instapundit readers!

Friday, January 18, 2019

Who Was On The Remain Side?

Her Majesty's Government was for Remain. 
The leading opposition parties were for Remain. 
The primary regional parties in Scotland (SNP), Wales (
Plaid Cymru), and Northern Ireland (DUP and Sinn Fein**) were all for Remain. 
The Archbishop of CanterburyDo you really need me to tell you this?—was for Remain.
The EU was for Remain.
The diplomatic community was for Remain. 
Cameron, the incumbent Prime Minister, at No. 10 Downing Street, was for Remain, along with all his living predecessors: Brown (Is he still in the country?), Blair (Won't he ever leave the country?), and Major (Does he think anyone in the country is listening?A man's got to know his limitations.)
George Osborne, the incumbent Chancellor of the Exchequer, at No. 11 Downing Street, was for Remain, and he threatened the votersin his next proposed budgetshould they vote Leave. (You cannot so easily threaten voters who have a secret ballot!)
Jeremy Corbyn, the leader of the opposition, was 100% for Remain. (But no one really believed him.) 
The majority of members of Parliament were for Remain. (I am using British-English here.)
President Obama was for Remain. (People did listen to him—then they voted the other way—just ask Frank Field.
The bureaucracy and the Bank of England were for Remain. (Go Team Canada!)
The labour unions were for Remain. 
(What would P.J. O'Rourke say?)
Academia was overwhelmingly for Remain. (What would P.J. O'Rourke say?)
Industry (e.g., the Confederation of British Industry) was for Remain. 
The BBC and the largest part of the media were for Remain. (Where is Bill Buckley when you need him?)
All the magazines were for RemainThe Spectator excepted. (Who says Fraser Nelson cannot do anything right?)
The actors & arts communities were for Remain. (As of yet, no British headliners have emigrated. Tell Mark Steyn.)
The vast majority of student activists were for Remain. (British English again.)
Owen Jones and all the wannabe student activists were for Remain. 
Diana Mosley (had she lived past 2003) was for Remain. (Just ask Mark Steyn.)
The vast majority of people with hyphenated last names were for ... but I repeat myself. (British English again.)

Now ask yourself: precisely, who was on the Leave side? 
Just some votersand what do they know? 

Seth Barrett Tillman, Who Was On The Remain Side?, New Reform Club (Jan. 18, 2019, 7:32 AM), <https://reformclub.blogspot.com/2019/01/who-was-on-remain-side.html>. 

**Compare E-mail from Rónán McLaughlin, Political Advisor, Sinn Fein, to Seth Barrett Tillman, (Jan. 18, 2019, 4:16 PM) ("Sinn Féin campaigned rigorously for a remain during the June 2016 EU referendum."), with Killian Foley-Walsh <https://twitter.com/Kilfalwol/status/1086236204574691329> ("As a point of order, the DUP campaigned for Leave, and SF didn’t register to campaign one way or the other."), and id. ("They were in favour of remain (or so they said...), but they bizarrely declined to campaign. It was and remains a very odd position."). Tillman: I regret my lack of clarity. 

The Old Whig Theory of the Executive Power

The Old Whig position is that the express powers (including the veto) vested in the presidency by Article II are not part of the “Executive Power” (except in the limited sense that they are powers appended to the presidency for him to execute). Today, we think of those powers as executive merely because we are used to the President doing them.

Those express powers are merely appendages to the presidency—in much the way that the Chief Justice presides over presidential impeachments (outside the context of the Judicial Power vested in the federal courts by Article III) and in much the same way that the Vice President presides over the Senate and has a vote on equal division (although the VP is not a constituent part (or member) of Congress or the Senate (as defined by Article I).

The Executive Power of Article II is wholly an excrescence of Congress’ twin powers under Article I, Section 7, Clause 2 (to make statutes) and Article I, Section 7, Clause 3 (to make subsidiary legislation or statutory instruments: orders, resolutions, and votes). That is why Article II does not have to mimic Article I’s language about “herein granted”. In other words, because Congress’ powers are already limited to the subject matters “herein granted” and because all Executive Power flows from grants from Congress under 1/7/2 and 1/7/3, then the Executive Power is also limited to the same subject matters, viz., where Congress has the power to enact binding law (widely construed). Putting “herein granted” language in Article II would be wholly redundant. Congress can only gift or grant what it has and holds, and the President can only receive or take (as Executive Power) what Congress has the power to grant.

The Old Whig theory stands in opposition to the Hamiltonian theory of a core or residium of undefined executive power which exists absent an express grant of Article I, Section 7 authority from Congress. The Old Whig position is a unitary-executive-type position, like Hamilton’s, but it permits that executive to be a weak one, albeit one which cannot be stripped of the powers expressly granted by Article II.

I suspect that this is what Chief Justice Taney had in mind ... when he wrote:

The only power, therefore, which the president possesses, where the “life, liberty or property” of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires “that he shall take care that the laws shall be faithfully executed.” He is not authorized to execute them himself, or [even] through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the co-ordinate branch of the government to which that duty is assigned by the constitution.

Ex parte Merryman, 17 F. Cas. 144, 149 (C.C.D. Md. 1861) (No. 9487) (Taney, C.J.) (emphasis added).

I know most, including many well informed scholars, will not agree with this post. I can already hear the chorus of execration ....

For a different take on executive power, see Oran Doyle, The Constitution of Ireland: A Contextual Analysis 102 (Hart Publishing 2018) ("[E]xecutive power consists either of textually explicit power, such as the Government's power in relation to foreign affairs, or of implicit State powers that necessarily inhere in Ireland and which fall to be exercised by the Government, such as immigration control power."). 


Seth Barrett Tillman, The Old Whig Theory of the Executive Power, New Reform Club (Jan. 18, 2019, 5:02 AM), <https://reformclub.blogspot.com/2019/01/the-old-whig-theory-of-executive-power.html>. 

Welcome Instapundit Readers!

Wednesday, January 16, 2019

CONLAWPROF: Americans Arguing Over Brexit

Dear Professor,

I did not “prais[e] the process that brought Brexit to the UK.” I will say that the process was not stupid and it was not criminally stupid. Why do you use this hyperbolic language? It was just a referendum. Cameron did not surprise the country (the UK) by putting the decision to the People. It was a long-standing promise of the Tory Party to do just that. That promise was made by the Tory Party in the two party manifestos in the two prior general elections. After the first election, Cameron’s Tory Party did not have an absolute majority on the floor of the Commons, and his Liberal-Democratic coalition partners did not back a referendum. So nothing happened. After the second election, Cameron had a majority—and the referendum was a simple expression of a well known campaign pledge from the most recent general election. I see nothing “stupid” about this; I see nothing “criminally stupid.” Why this hyperbolic language?

The bill to implement the referendum (i.e, to put the question to the People) had overwhelming majority support of the Tories, the Labour Party, and even the Liberal-Democrats. These two latter parties chose to vote for the referendum. They did so for reasons they thought good, not because of internal squabbles in the Tory Party. The only major party to vote against the referendum was the Scottish National Party (SNP). 

Was it wrong for the referendum not to have a floor in regard to a minimum percentage of voter participation? Eg 2/3 of all eligible voters? Was it wrong for the referendum not to require a supermajority of those voting? I would think that such privileging (or, possibly, gerrymandering?) of the status quo is the sort of thing reasonable minds could disagree about. I don’t remember any major voices calling for such requirements ex ante. (Except the SNP: calling for a majority vote in Scotland and in each of the 4 “provinces” before the UK were to leave the EU as a whole. Yet, as I remember, when voting on Scottish independence: SNP wanted simple majority rule.) I don’t hear about such American-style supermajority requirements now from the voices in the UK calling for a second referendum. I don’t say the referendum process was perfect, but I don’t see it as unreasonable either. I see no reason for you to use hyperbolic language like “stupid” or “criminally stupid.”

Why would you call Cameron “inept”? The continued participation of the UK in the EEC/EU is a long standing divisive issue in the UK. It divides the People, and it divides Parliament. It has brought down several ministries—not just Cameron’s. (In the end, it was this issue which brought down Thatcher.) It divides the Tory Party, and it divides Labour. There is a long history of left-of-center and left-wing parliamentarians who opposed the UK entering and staying in the EEC/EU. Yesterday’s Michael Foot & Tony Benn, and today’s Kate Hoey & Frank Field come to mind. 

Why would you call this process “thoughtless”? There was endless debate in every type of media. Both sides had funding from the Exchequer to conduct campaigns.

Whether there should be a second referendum or not is an entirely different question from whether the process already engaged in so far was “stupid.” I am sure there are arguments for both sides. Why would you say: a “second referendum is almost self-evidently the best option save for idiots.” Moreover, why this strong language? How is it “self-evident”? The people who prevailed in the referendum want the referendum vote implemented—how is that “idiotic”—they want the UK to “Leave” the EU. That is in line with the vote which was already held. That does not mean that there can’t be a second vote—either before “Leave” goes into effect, or during a delay if a delay can be negotiated with the EU to extend the deadline, or after the UK leaves—which would, in effect, be a vote to apply for re-entry. Whether implementing “Leave” is a good thing or a bad one is exactly what the referendum was about—so it is not stupid that those who prevailed (i.e., those who believe that result a good thing for the UK) should want to see it implemented without delay. This is particularly true where (as here) none of the major parties prior to the referendum said: if my side loses, then we get another bite at the apple.

I think your first point was strongest. You asked: “Does Seth deny that the leading leavers simply fabricated arguments that have been shown to be demonstrably untrue?” The answer is that nothing was sprung on the voters last minute. The process played itself out in a normal way. If bad arguments were made by one side, the other side had a full, free, and fair opportunity to make frank and meaningful counterarguments. The Remain side did not lack time and resources to make those arguments. 

For example, HMG was for Remain. 
The leading opposition parties were for Remain. 
The regional parties in Scotland, Wales, and Northern Ireland were all for Remain. 
The bureaucracy and the Bank of England were for Remain. 
The labour unions were for Remain. 
Academia was for Remain. 
Industry (e.g., the CBI) was for Remain. 
The BBC and the largest part of the media was pro-Remain. 

Given all that, it seems to me that holding a referendum to a perfectionist standard seems misplaced. But if the standard is perfectionism, then no process will make the grade. 

Again, I don’t claim to know how the British people ought to have voted. I am not British, and the UK is not my country. I was not born there; I am not a citizen by naturalisation or otherwise; I was not educated there; I do not have any higher degrees specialising in British history, government, culture, etc; I do not live there; and, I do not pay taxes there. It is not my job to tell them how to vote. I see no reason to call their elected politicians and their public “inept” or “stupid” because the People voted in a way which was not expected by those who think or thought they know or knew better. So I am left wondering why you continue to use such strong language about a foreign country’s politics and politicians? Is it that you believe the result was obviously wrong?—How did you reach that conclusion? Or, is it that you believe the process was substantially defective (a process wholly free of gerrymanderinga subject which is a frequent source of complaint by academics here on Conlawprof)?—How did you reach that conclusion? And even if you think the result wrong or the process defective, why are you using such strong language? When you use such strong language about Brexit, and you do so for reasons that are (in my opinion) entirely opaque, it sort of undermines the force of the similar hyperbolic language you use in regard to Trump. You do see that, right? 


Seth Barrett Tillman, CONLAWPROF: Americans Arguing Over Brexit, New Reform Club (Jan. 16, 2019, 2:19 AM), <https://reformclub.blogspot.com/2019/01/conlawprof-americans-arguing-over-brexit.html>. 

Welcome Instapundit Readers.

I have a series of prior posts on Brexit. Have a look around New Reform Club to see them and other interesting posts -- by my co-bloggers and me.

See, e.g., Seth Barrett Tillman, A Letter to George F. WillNew Reform Club (Jan. 13, 2019, 10:27 AM); 

Seth Barrett Tillman, Brexit And The “Flailing” United KingdomNew Reform Club (Nov. 30, 2018, 4:05 AM), <https://reformclub.blogspot.com/2018/11/the-flailing-united-kingdom.html>; 

Seth Barrett Tillman, Trump, American Greatness, and BrexitNew Reform Club (Nov. 30, 2018, 12:01 AM) <https://reformclub.blogspot.com/2018/11/the-united-states-and-brexit.html>; 

Seth Barrett Tillman, A Response to Megan Nolans: I Didn’t Hate the English—Until Now, New Reform Club (Nov. 4, 2018, 10:58 AM), https://reformclub.blogspot.com/2018/11/a-response-to-megan-nolans-i-didnt-hate.html



Seth Barrett Tillman, Melodies for BrexitThe New Reform Club (June 24, 2016, 1:40 PM);

Tuesday, January 15, 2019

The New Property Qualifications and Your Right to Vote

In 1787, when the Constitution was drafted many states had property qualifications. There were property qualifications to vote (for state positions) and property qualifications to hold elected (state) positions. The 1787 Constitution departed from that model—qualifications for elected federal positions relied upon age, inhabitancy, and citizenship. Generally, the rest would be left up to the voters. By stripping property out of the system, government and people—both administration and elections—were freed to debate ideas and ideologies, rather than class loyalties (or mere personal loyalties to factional leaders). Ending property qualifications paved the way to egalitarian national citizenship and to rational Popperian democracy.

Of course, people in office still had property and property-like interests. A doctor-congressman could continue to practice medicine (and charge patients). A lawyer-vice president could continue to teach law (for pay) or author books on law and politics (for sale). If some goodwill attached to the doctor’s or the lawyer’s practice because he was a public celebrity—that was a matter for the voters. It does not stop there: we allow felons (even if in prison), the indigent (even while on welfare), and the bankrupt (contrary to British tradition!) to run for and hold public office. Who would say that a person on food stamps is legally or constitutionally prohibited from running for and being President? It is a matter for the voters—it is not a forbidden emolument. 

We used to think that a wide open competition for public positions was a public good and one of the great achievements of 1787. We used to trust voters. But now all is changed.” We have a newly invented set of norms—which came into existence to stop Trump. We have a new property qualification. It is not in the Constitution or in any statute. No onenot one voter and not one elected federal officialhas had a chance to vote on it. It was invented in 2016. Candidates and officeholders are now not allowed to own illiquid investments, e.g., land, buildings, and hotels—particularly in foreign countries. And if you do own them, you cannot deal in them just the same way you have always dealt in them—i.e., charging customers for services, and petitioning the government for regulatory and tax relief. This new norm is not grounded in any ideal that all property and contracts involving those who hold elected positions cause conflicts. We know that is not the new norm because presidents and other elected federal officials have, continue, and will continue to write and sell books to all comers—foreign government libraries included. In short, the sort of property (e.g., liquid stock and bond investment and retirement funds) held by our elites—in government, in academia, and in journalism—their property and their dealings in such property will remain constitutionally sanctified, and the people who own such property will continue to enjoy all the protections the law offers. It is just some property—the sort held by people not pleasing to the elites—is now seen as disabling in regard to holding elected federal positions. What kind of property?: Trump’s property. And if that takes away a meaningful right to vote from millions of Americans—that is A-OK with the inventors of the new norm. 

To put it another way, the creation of property qualifications, particularly ad hoc and post hoc property qualifications, is a means by which the powerful manipulate democratic results and nullify your vote and elections. Today, it might not be your candidate, but tomorrow . . . . 

One day—in the not too distant future—I expect people will look back calmly on all that has transpired. The inventors of the new norm—including many who know the sad, sorry history of property qualificationswill compare favourably to Bull Connor—but not by much.


Seth Barrett Tillman, The New Property Qualifications and Your Right to Vote, New Reform Club (Jan. 15, 2019, 2:53 AM), <https://reformclub.blogspot.com/2019/01/the-new-property-qualifications-and.html>.

FYI: I have participated as an amicus in the three Emoluments Clauses cases against the President. They are: CREW v. Trump; Blumenthal v. Trump; and, DC & MD v. Trump. See 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>. 

PSSeth Barrett Tillman, A Letter to Professor John McWhorterNew Reform Club (Jan. 13, 2019, 8:29 AM), <http://reformclub.blogspot.com/2019/01/a-letter-to-professor-john-mcwhorter.html>.

PSSeth Barrett Tillman, A Letter to George F. WillNew Reform Club (Jan. 13, 2019, 10:27 AM), <https://reformclub.blogspot.com/2019/01/a-letter-to-george-f-will.html>. 

Welcome Instapundit readers!

Sunday, January 13, 2019

A Letter to George F. Will

Responding to: George F. Will, Brexit Shows How Direct Democracy Can Be Dangerous, Investor’s Business Daily (Jan. 12, 2019)

@GeorgeWill asks: "But why, with its primacy at stake, did Parliament punt one of the most momentous decisions in British history to a referendum?"

Answer: Because continued membership in the EU means ceding further powers of Parliament to the EU. Those powers are entrusted to Parliament by the People. Parliament is not free to give them away to any other entity, including to EU institutions. Parliament is also conflicted in making such a choice. Recourse to the People is proper—particularly given that in 1975 that was the vehicle (i.e., a referendum) which was used to take the UK into the EEC (i.e., the predecessor of the EU). We (Americans) do much the same in the United States—when amending the U.S. Constitution we have methods to bypass both Congress and/or the state legislatures—because they might have an interest in the proposed reform.


Seth Barrett Tillman, A Letter to George F. WillNew Reform Club (Jan. 13, 2019, 10:27 AM)

PS: Welcome Instapundit readers! Feel free to look around New Reform Club--my co-bloggers do good work.

PPS: If you liked this letter, see also: Seth Barrett Tillman, A Letter to Professor John McWhorter, New Reform Club (Jan. 13, 2019, 8:29 AM), <http://reformclub.blogspot.com/2019/01/a-letter-to-professor-john-mcwhorter.html>.

A Letter to Professor John McWhorter

This letter responds to: John McWhorter, Trump’s Typos Reveal His Lack of Fitness for the Presidency, The Atlantic (Jan. 11, 2019), <https://tinyurl.com/y8nae79q>. 

Dear Professor: 

I have read your material on and off for many years. You say interesting, and sometimes courageous things. That said, I was disappointed by your recent article in The Atlantic

We (Americans) have had many talented wordsmiths in the White House. I see no connection between such talents, and adopting & putting into effect substantively sound policies. Woodrow Wilsona university academiccomes to mind. But very few can explain precisely why the U.S. entered WWI or offer any justification for Wilson's allowing the federal civil service to be (re)segregated by race. He was good with words. 

Your article amounts to a non-instrumental claim that elites who share your specific skill set should have power and those who do not share that skill set should not. Unless you can offer some substantial connection between those skills which you value and something akin to objective success in office, then your argument amounts to a shallow elitist claim, not an instrumental or pragmatic one. Eg: "He simply cannot accept—cannot grasp—that international diplomacy could possibly require more subtlety than a real-estate transaction.

Your repeated references to President Truman are illustrative. Truman took the U.S. into a major land war in Asia. It was an undeclared war. More than 50,000 American died or were wounded. The U.S. and its U.N. allies did not prevailat least, not in the traditional sense. That conflict—the Korean conflictstill festers to this day. Trump has not taken us into any such conflict; indeed, he is ramping down our participation in such conflicts. Maybe your focus on spelling and sound composition skills aremaybe just a tadmisplaced? 

It is certainly better for the President to spell "forest" with a single R rather than two Rs. But a lot of property was destroyed in California, and more importantly, many were injured or died from the conflagration. All told: it is probably more important that better policies be put in place to stop similar future disasters than we worry about spelling. I think those situated closer to the disaster might agree with me, even if you and others in New Yorkcomfortably distantsee it otherwise. 


Seth Barrett Tillman, A Letter to Professor John McWhorter, New Reform Club (Jan. 13, 2019, 8:29 AM), <https://reformclub.blogspot.com/2019/01/a-letter-to-professor-john-mcwhorter.html>, <https://tinyurl.com/yak58zs8>. 

PS: Welcome Instapundit readers! Feel free to look around New Reform Club--my co-bloggers do good work.

PPS: If you liked this letter, you might also want to see: Seth Barrett Tillman, A Letter to George F. WillNew Reform Club (Jan. 13, 2019, 10:27 AM). 

Charles Thomson (1730–1824)

I think your citing Charles Thomson [Secretary of the Articles Congress] is more trouble than you acknowledge. Thomson was the highest functionary of the outgoing Articles [of Confederation] government. He held official materials for George Washington and surrendered those materials personally to George Washington at the inauguration of the new government. Yet Thomson held no position in George Washington’s government, and as far as I know, George Washington offered Thomson no position. The same was true (as far as I know) for Washington’s successors and high ranking cabinet members in his and his successors administrations. 

The reason might have been that Thomson was just no good. The letters you cite [where Thomson offered Washington legal advice regarding the new constitution] might be seen as George Washington’s offering Thomson a try out for a position in the new government. [If that is true, then] Thomson [apparently] flubbed the audition. You cite him as good authority—but maybe he was seen as bad authority offering second rate advice—and that’s why he was offered nothing by George Washington, his successors, his cabinet, and the new Congress (e.g., posts such as Clerk of the House and Secretary of the Senate). It is difficult to be sure.


Seth Barrett Tillman, Charles Thomson (17301824), New Reform Club (Jan. 13, 2019, 2:56 AM), <https://reformclub.blogspot.com/2019/01/charles-thomson-1730-1824.html>

Friday, January 04, 2019

On "Jefferson's Qur'an"

The title page from Jefferson's copy of the Koran.
Cover page of "Jefferson's Qur'an"
Missing from the current "happy face" reporting on new congresspersons swearing in on "Jefferson's Qur'an" is that his 1734 translation by George Sale is accompanied by a preface that is highly critical of Islam as serious religion.

The Protestants alone are able to attack the Koran with success; and for them, I trust, Providence has reserved the glory of its overthrow.


...for how criminal soever Mohammed may have been in imposing a false religion on mankind...

The Qur'an of course, borrows liberally from the stories in the Bible and indeed contains many common sense truths of its own; thus the cover page itself carries an ominous caveat from St. Augustine, "Nulla falsa doctrina est quae non aliquid veri permisceat," that is, “There is no false doctrine that does not contain some truth.”

So the front page of the very "Jefferson Qur'an" these folks are swearing upon calls its contents "false doctrine" mixed with some truth. The irony is complete. And so it goes also in our current world of "news": We may get the truth, but seldom the whole truth.

Full text here, courtesy of gutenberg.org.

Tuesday, December 25, 2018

Merry Christmas from the Moon

Fifty years ago today, remembering the important things as these men did, seems longer ago and even farther away with each passing year, and to some, even more silly. But Merry Christmas to all those here gathered anyway, and may we smile today, give thanks, and be inspired in the coming year to perpetuate their silliness...

It was on Christmas Eve 1968 that the astronauts of Apollo 8, Frank Borman, Jim Lovell, and Bill Anders, became the first of mankind to see an earthrise from the orbit of the moon, and looking back on us, they spoke these words:

Anders: "We are now approaching lunar sunrise. And, for all the people back on earth, the crew of Apollo 8 have a message that we would like to send to you...

"In the beginning, God created the Heaven and the Earth. And the Earth was without form, and void; and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters. And God said, Let there be light; and there was light. And God saw the light, that it was good; and God divided the light from the darkness."

Lovell: "And God called the light Day, and the darkness He called Night. And the evening and the morning were the first day. And God said, Let there be a firmament in the midst of the waters, and let it divide the waters from the waters. And God made the firmament, and divided the waters which were under the firmament from the waters which were above the firmament; and it was so. And God called the firmament Heaven. And the evening and the morning were the second day."

Borman: "And God said, Let the waters under the Heaven be gathered together unto one place, and let the dry land appear; and it was so. And God called the dry land Earth; and the gathering together of the waters He called Seas: and God saw that it was good."

And from the crew of Apollo 8, we close with good night, good luck, a Merry Christmas, and God bless all of you, all of you on the good earth."

Friday, December 21, 2018

What The Media Is Not Reporting (with Update)

This has not been reported much in the media. The Plaintiffs (i.e., the Attorneys General for DC and Maryland) have moved to voluntarily dismiss (without prejudice) their individual capacity claim against the President, and to move forward exclusively with their official capacity claim against the President (in reality a claim against the government, not Donald J. Trump). It is not yet clear if the President will consent to the dismissal! The President's private counsel might take the position that the matter has been fully briefed for nearly 7 months. No oral argument has been held—or, even scheduled. In other words, the President is entitled to have his day in court. Moreover, the President's counsel might take the view that it is better to litigate the matter now and on these facts in the expectation that the President might gain an outright victory and see the matter dismissed with prejudice, than to allow these Plaintiffs to dangle a sword of Damocles over the President's head forever and to bring the same suit forward again at a later date (possibly with new facts which are more helpful to the Plaintiffs).

The President's brief is due later today—then we will know the President's position. 
This is all a stunning turn of events. The media is not reporting it.

Update: The President's private counsel filed a reply brief on Friday, December 21, 2018. The President's counsel argued that the federal rules of civil procedure (and appellate procedure) prevent the Plaintiffs from dropping their claim against the President at this late juncture. Courageous! The President wants his day in courtwhich the Attorneys General for DC and MD are seeking to deny. 


Welcome Instapundit readers! Please look around New Reform Clubmy co-bloggers do good work.

Seth Barrett Tillman, What The Media Is Not Reporting (with Update), New Reform Club (Dec. 21, 2018, 7:20 AM) <https://reformclub.blogspot.com/2018/12/what-media-is-not-reporting.html>. 

For a list of all major filings, see: 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>.

Greenbelt Division
Civil Action No. 8:17-cv-01596-PJM

Pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, Plaintiffs the District of Columbia and the State of Maryland voluntarily dismiss without prejudice the above-captioned action against Donald J. Trump in his individual capacity to allow the claims against President Trump in his official capacity to move forward expeditiously. This notice of dismissal is being filed with the Court before service of either an answer or a motion for summary judgment by Defendant Donald J. Trump in his individual capacity. This notice shall not pertain to the claims brought against Defendant Donald J. Trump in his official capacity.