"There is always a philosophy for lack of courage."—Albert Camus

Tuesday, October 17, 2017

Tillman and Blackman make the rubble bounce on the emoluments clause

Continuing their exposition of the emoluments clause and its inapplicability to President Trump and his business dealings, this blog's very own Prof. Seth Barrett Tillman and his co-author Prof. Josh Blackman have published this piece over at The Wall Street Journal online: The 'Resistance' vs. George Washington. Unfortunately, their article is behind the WSJ's paywall, but an excerpt can he read over at Instapundit, available here. Worth reading!

Monday, October 16, 2017

Resolving the paradox of the American Revolution

Was the American Revolution a Real Revolution? The American Conservative raises that question by re-publishing this essay by the late Robert Nisbet, a sociologist and one of the leading conservative thinkers of the post World-War II period: Was There An American Revolution? Nisbet covers a lot of ground in this essay, touching on everything from class and property to religious liberty. Nisbet's conclusion, contra other conservatives like Russell Kirk and M.E. Bradford, is that the American Revolution was indeed a real revolution, impacting social, cultural and religious aspects of American life, leading to a profound change not only in the formal political institutions of the country but also the underlying spirit of the nation. As Nisbet concludes:
I would argue, then, that there was indeed an American Revolution in the full sense of the word–a social, moral, and institutional revolution that effected major changes in the character of American society–as well as a war of liberation from England that was political in nature. 
The line from the social revolution of the 1770s to the civil rights revolution of the 1960s is a direct one. It is a line that passes through the Civil War–itself certainly not without revolutionary implication–and through a host of changes in the status of Americans of all races, beliefs, and classes. The United States has indeed undergone a process of almost permanent revolution. I can think of no greater injustice to ourselves, as well as to the makers of revolution in Philadelphia, than to deny that fact and to allow the honored word revolution to be preempted today by spokesmen for societies which, through their congealed despotisms, have made real revolution all but impossible. 
The linkage between the revolutionary work of the American founding generation and the civil rights movement of the 1960s is one that was made repeatedly by many in the civil rights movement at the time, perhaps most notably by Martin Luther King, Jr. in The Letter From a Birmingham City Jail

Yet, at the time of the Revolution -- and it was a revolution in the sense that it cast off one set of political obligations and substituted another set -- its principles were grounded not in an abstract embrace of ideology but in constitutional premises and practices that tracked back deep into English common law. This common law patrimony was known to the colonists through their colonial charters and law courts, and through the study of the works of Sir William Blackstone. And yet, Blackstone's work furthered the cause of American Independence by dividing the colonists and the British government ever farther apart on the issue of representative government.

It is difficult to overestimate the impact that Blackstone had on the American Founding era, during both the revolutionary period and the formation of the American Republic afterward. For men of those times, Blackstone served as the source of their knowledge of the English common law tradition, as well as one of the major theorists of natural law. The close study of Blackstone was for many American lawyers their only academic exercise before qualifying for the bar, and more copies of Blackstone's mammoth Commentaries on the Laws of England sold in the American colonies and the early United States than sold in England itself.

With all that in mind, head on over the The Imaginative Conservative and read Richard Samuelson's essay on Blackstone's influence on our nation's struggle for independence: The Blackstonian Causes of the American Revolution. Samuelson does a very good job of demonstrating how the American Founders were shaped by Blackstone's theory of English constitutionalism while at the same time Blackstone's embrace of parliamentary supremacy made reconciliation between the rising American colonies and the Mother Country all the more problematic.

This eventually forced the colonists into the position of either submitting to Parliament without the limitation of the traditional rights and liberties of the colonies, or throwing off the authority of the King in Parliament to assert their own independence. As Samuelson writes:
Blackstone made colonists choose between being free and being British. The necessities of an empire run by Parliament from the imperial center became incompatible with the liberties of British subjects living on the imperial periphery. In his essay, “The Irrelevance of the Declaration,” Reid points out that once one gets past the first two paragraphs, the Declaration of Independence is nothing more than a common law indictment of King George. In other words, declaring independence from Great Britain was a final act of devotion to the Whig constitutional principles that Anglo-Americans had imbibed since their settlement. Americans assumed a separate and equal station with their mother country so that they could enjoy the rights of Britons, and continue the mission of a free, protestant people in America. 
That last observation cannot be emphasized enough. For the American patriots, Protestantism was a key feature of American political economy. No less a statesman than Edmund Burke recognized this in his famous analysis of the role that dissenting Protestantism played in the American commitment to liberty, given in his Speech on Conciliation with the Colonies, dated March 22, 1775:
Religion, always a principle of energy, in this new people is no way worn out or impaired; and their mode of professing it is also one main cause of this free spirit. The people are Protestants; and of that kind which is the most adverse to all implicit submission of mind and opinion. This is a persuasion not only favourable to liberty, but built upon it. I do not think, Sir, that the reason of this averseness in the dissenting churches, from all that looks like absolute government, is so much to be sought in their religious tenets, as in their history. Every one knows that the Roman Catholic religion is at least coeval with most of the governments where it prevails; that it has generally gone hand in hand with them, and received great favour and every kind of support from authority. The Church of England too was formed from her cradle under the nursing care of regular government. But the dissenting interests have sprung up in direct opposition to all the ordinary powers of the world; and could justify that opposition only on a strong claim to natural liberty. Their very existence depended on the powerful and unremitted assertion of that claim. All Protestantism, even the most cold and passive, is a sort of dissent. But the religion most prevalent in our northern colonies is a refinement on the principle of resistance; it is the dissidence of dissent, and the Protestantism of the Protestant religion. This religion, under a variety of denominations agreeing in nothing but in the communion of the spirit of liberty, is predominant in most of the northern provinces; where the Church of England, notwithstanding its legal rights, is in reality no more than a sort of private sect, not composing most probably the tenth of the people. The colonists left England when this spirit was high, and in the emigrants was the highest of all; and even that stream of foreigners, which has been constantly flowing into these colonies, has, for the greatest part, been composed of dissenters from the establishments of their several countries, and have brought with them a temper and character far from alien to that of the people with whom they mixed. 
And it is in Burke's analysis that we find the resolution of the paradox of the American Revolution -- that it was a revolution that changed everything, while at the same time being a revolution "prevented and not made" (to use Russell Kirk's phrase). The American principles vindicated by the Revolution where themselves principles grounded in heritage of most of the colonists -- a heritage that valued the stability of English law but which also chaffed at the restrictions of English government, particularly those restrictions that were felt in the religious sphere. There was, in Burke's wording, "the principle of resistance" met with the "spirt of liberty." And it was this spirit of liberty that drew in immigrants from non-British lands, immigrants who more often than not were dissents of the religious establishments in their native countries.

So, Nesbit, Kirk, and Bradford were all right -- although in different ways. The American Revolution was indeed a true revolution, a casting off of the old in favor of the new, while at the same being being a revolution grounded in the established practices and perspectives of colonial society. The keys, as in so much of understanding the American Revolution, are found not only in the work of the American Founders, but in Burke and Blackstone as well.

Thursday, October 12, 2017

Alexander Hamilton & William Blackstone on the nature of government

One of the often overlooked documents leading up to the American Revolution is The Farmer Refuted, written in 1775 by a young Alexander Hamilton. One of a number of critical works that set the stage for American independence, Hamilton's treatise set forth in very clear terms much of the intellectual foundation to justify the colonists' move to defend their rights against incursions by the British government.

While not an explicit call for independence,  The Farmer Refuted is an excellent statement of the principles that would eventually lead the Americans to declare their separation from the British Empire. The core of Hamilton's argument in The Farmer Refuted centers around divinely-given natural law as the core of human obligation to one another. This natural law, since it comes from God, is not dependent on human government or human institutions for its validity, but instead stands as judge over human laws and customs.

Hamilton cites as his authority for this point not the Bible or any of the classical or scholastic writers who discuss natural law, but rather William Blackstone, the great compiler of the principles of English law. He does this, of course, to ground his point in the firm soil of the English Constitution -- to demonstrate that his point is not some radical notion but rather is part of the traditional approach to law and morality that sustained the British Empire itself.

The natural law defends the rights of Americans as much as the rights of Englishmen because, as Hamilton quotes Blackstone, "It is binding over all the globe, in all countries, and at all times." After his citation of Blackstone, young Hamilton then began to build an argument about the nature of government. Since God creates human beings and sustained them, the rights of human beings are dependent upon God's natural law. Understood by reason, which is itself a gift of the Creator, natural law allows human beings to "discern and pursue such things as were consistent with [their] duty and interest." Critically, natural law gives to each person "an inviolable right to personal liberty and personal safety." In the absence of government, no person has the right "to deprive another of his life, limbs, property, or liberty," or to command another person under obedience.

Striking directly at the British claim to be able to govern by right other than consent, Hamilton then applies these principles to the notion of government's origin. "[T]he origin of all civil government, justly established," Hamilton proclaims, "must be a voluntary compact between the rulers and the ruled." In such a compact, the power of government is limited in order to secure the "absolute rights" of the people. No pedigree can substitute for the consent of the governed, "what original title can any man, or set of men, have to govern others, except for their own consent?" To assume such power, "to usurp domination," is to break God's natural law, and thus renders such an assumption invalid. The people have, in Hamilton's words, "no obligation to obedience" in such a situation.

Hamilton concludes this portion of his argument with another quote from Blackstone, book-ending, as it were, his position on the necessity of consent of the governed with the authority of the great expositor of the English legal system. The principal aim of society is to protect individuals in the enjoyment of those absolute rights which were vested in them by the immutable laws of nature, but which could not be preserved in peace without that mutual assistance and intercourse which is gained by the institution of friendly and social communities. Hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals.

With that, Hamilton expressed in detail the fundamental principles about God, natural law and government by consent that would later be used by Jefferson at the beginning of the Declaration of Independence. While Jefferson's formulation of those principles is well-known, Hamilton's earlier, more precise and grounded formulation of those same principles in The Farmer Refuted deserves greater appreciation by Americans and all those concerned with human liberty and limited government.

Wednesday, October 11, 2017

Tillman and Blackman: bringing light to President Trump and the Constitution's emoluments clause

If you've been following NRC's Facebook page, you know that this blog's own Professor Seth Barrett Tillman has co-authored a series of posts with Professor Josh Blackman over at the Washington Post online detailing flaws in efforts to apply the emoluments clause of the Constitution to President Trump and his private business activities. Their work there is high-level constitutional and historical scholarship packaged to be accessible to a non-specialist audience. And it makes crystal clear that which so many of the leading "scholars" of constitutional law would rather have opaque.

Part 1 is here.

Part 2 is here.

Part 3 is here.

Part 4 is here.

Part 5 is here.

Professor Tillman took a lot of flack prior to publishing this series for his views on the emoluments clause and its applicability to President Trump. We won't go into that here, but here's a New York Times story about the controversy about Tillman's groundbreaking scholarship regarding the emoluments clause and its applicability to the president. His work with Professor Blackman is so definitive that his leading critics have issued formal apologies to him. Some of those apologies are online here and here.

Why is all this important? Because the emoluments clause is the basis of a lawsuit designed, ultimately, to pressure President Trump from office by targeting his businesses. The strategy targeting Trump's businesses is outlined in this post over at Instapundit. Tillman and Blackman have done yeoman's service in showing how weak the overall legal arguments against the president truly are.

Tuesday, October 10, 2017

The flowering of the West in the American Founding

What are the roots of the West, that civilization that has given birth to so much that the modern world takes for granted: the rule of law, human rights, limited government, free enterprise, and so much else? Among conservatives, it is often said that the roots of the West are in Athens and Jerusalem, symbols of the classical Greek culture and the Judeo-Christian tradition that informs the moral, ethical and political basis of the Western patrimony. Others point to the great synthesis of classical philosophy and Christian faith that took place in the late classical and medieval period, when the light of faith centered in the Rome kept the fires of civilization burning in the West as barbarian waves reshaped the map and peoples of Europe. Still others look to the Enlightenment as the basis of the modern West, with its combination of optimism and skepticism, boundlessness and tragedy.

The roots of the West are undoubtedly found in Athens and Jerusalem and Rome, but that those three are insufficient to explain the full flowering of Western civilization and the full development of its ideals. It was the Enlightenment that adds to the full picture of the West and its meaning, but not the Enlightenment that so many look too -- the Enlightenment of Kant and Voltaire, of pure reason devoid of tradition, custom and context. Instead, the Enlightenment that mixed with Athens and Greece and Rome to form the great currents of the West at its zenith is the British Enlightenment. Informed by the great well-springs of English culture and law, nourished by study of the classical tradition and the Christian faith, the British Enlightenment built upon the traditions of the West rather than seeking to tear them down and replace them with the fancies of decultured reason. Not reason devoid of connection to real life but common sense bolstered by experience were the guideposts of inquiry. Rather than the rights of man viewed in terrible abstract, the rights of Englishmen were the concern of the British Enlightenment's ethics. The names of the men who brought us this British Enlightenment are familiar to any student of 18th century Britain: David Hume, Adam Smith, Edmund Burke.

And in America too the British Enlightenment took root, further vitalized by the frontier revivalism of Whitfield and the early Methodists. Benjamin Franklin -- great friend of philosophers and evangelists alike -- is the exemplar of this American Enlightenment, but others of the Founding Generation were part and parcel of this movement, perhaps none moreso than John Adams. America's British culture, as Russell Kirk called it, drank deep of the well-springs of Athens, Jerusalem, Rome and England, and it is in the Founding Period in America that the ideals of the West blaze forth fully in clarity and power, in many instances beyond the realization of the Founders themselves. As the late Peter Lawler put it so insightfully, "they built better than they knew."

The Founders were well-grounded in the law and theory of the British system of government, and many of them were quite well-read in the principles not only of the British Enlightenment but of the Continental Enlightenment as well. And to a degree difficult for many modern Americans to understand, the Founding generation was shaped by classical literature from Greece and Rome. Nearly every literate person had a least a passing acquaintance not only with the ancient Hebrew and Christian patrimony of the Bible, but with the stories, myths and literature of the ancient Mediterranean as well. A significant number of Americans could approach that classical heritage in one or both of its original languages -- Latin or classical Greek. Yet, classical education in colonial and early republican America wasn't primarily about learning Latin or Greek to read the classics -- it was about training people in virtue and civic responsibility. As a result, for America at the Founding, the great strands of the West all came together in a unique synthesis that resulted in the finest flowering of Western ideas in forms of the culture of the young American Republic.

To know the West, look to Aristotle and Cicero, to the Gospels and to Augustine, to Aquinas and Dante, and also to the American experiment of ordered liberty manifested in its public record: the Declaration of Independence; the Constitution of the United States; the constitutions of the individual States in Union; and the dialogues, speeches and letters of the American Founders.

Monday, October 09, 2017

Follow NRC on Facebook and Twitter

For our readers who use social media, we extend a cordial invitation to follow the New Reform Club on Twitter and Facebook. NRC shares unique content on each platform, so be sure to follow the blog on both to maximize your NRC reading pleasure. You can follow the blog on Twitter here, and on Facebook here.

Wednesday, September 27, 2017

A Question of National Identity


Another question for you...

I was listening to a Peter David Shore speech about the '75 referendum [on membership in the European Economic Community]. It was a student union speech, maybe the Oxford Student Union--I don't know.

In it he said: "And a constant attrition of our morale, and a constant attempt to tell us that what we have and what we have [inherited] is not only our own achievement but what generations of Englishmen have helped us to achieve ... is not worth a damn."

In the Hola Massacre Speech [from 1959], J. Enoch Powell said: "All Government, all influence of man upon man, rests upon opinion. What we can do in Africa, where we still govern and where we no longer govern, depends upon the opinion which is entertained of the way in which this country acts and the way in which Englishmen act."

Both speeches phrased the issue in terms of Englishmen. Do people (not immigrants, but UK subjects) from the other parts of the UK feel slighted by such language? And if not, why not? Why didn't the speakers use "British" rather than "English"?



Henry is a friend in Northern Ireland. 

I am not British, but when I listen to both these speeches, I am moved to tears.  

Seth Barrett Tillman, A Question of National Identity, New Reform Club (Sept. 27, 2017, 1:54 PM), https://reformclub.blogspot.com/2017/09/a-question-of-national-identity.html 

Tuesday, September 19, 2017

Tillman Responds to the Legal Historians Amicus Brief in CREW v. Trump Emoluments Case

In an amicus brief (supporting Defendant President Trump) submitted to this Court (Southern District of New York), my counsel included the following footnote:

See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton (“PAH”), 157, 157–59 (1969), perma.cc/49RT-TTGF. The editors of PAH marked this document “DS,” meaning “document signed,” which indicates that this document was the original signed by Hamilton. The original Hamilton-signed document, on which the PAH reproduction is based, remains in the vaults of the National Archives & Records Administration (Record Group #46). An excerpt of the original Hamilton signed document is available at bit.ly/2rQCDxX. Amicus notes that an entirely different document (but bearing a similar name) can be found in American State Papers (“ASP”). See List Of Civil Officers Of The United States, Except Judges, With Their Emoluments, For The Year Ending October 1, 1792, in 1 American State Papers/Miscellaneous 57 (1834). The document in ASP was not signed by Hamilton. The undated ASP document was drafted by an unknown Senate functionary. Unlike Hamilton’s manuscript, the record in ASP includes the President and Vice President. Both documents are probative of the legal meaning of Office . . . under the United States as used in the Senate order. But the two documents are not equally probative.

I stand entirely behind the above footnote: behind every sentence, every phrase, every word, and every syllable. I have made no mistake, intentional or inadvertent. I retract nothing, and I do not intend to retract anything.

Recently, my amicus brief and scholarship has been criticized by the Legal Historians Brief, other academics, some litigators, and by the press. Here I respond. This document is my declaration submitted as an exhibit to a motion responding to the Legal Historians Brief.

Complete Motion with Supporting Declarations:

Seth Barrett Tillman, The Reports of My Death Were Greatly Exaggerated: Tillman Responds to the Legal Historians Amicus Brief in CREW v. Trump (Sept. 14, 2017), http://ssrn.com/abstract=3037107

The Reports of My Death Were Greatly Exaggerated: Tillman Responds to the Legal Historians Amicus Brief in CREW v. Trump, New Reform Club (Sept. 19, 2017), http://tinyurl.com/ycqlttk6 

Wednesday, September 06, 2017

Why the "Godless Constitution" Thesis Tells Only Half the Story

It's true that God appears nowhere in the U.S. Constitution.  Religion was left to the states.

Monday, September 04, 2017

The U.S., the U.K., and Suez

E-mail September 3, 2017, from Tillman to Friend in Northern Ireland, U.K.


My wife and I are having a debate. I am asking you to settle it. Do you think there are still Tories and other loyalists in the U.K. who remain bitter against the U.S. in regard to Suez?

Don't hold back.



E-mail September 3, 2017, from Friend to Tillman in the Republic of Ireland. 

[That] was in my Father's generation but it has largely dissipated. I would rarely hear it mentioned now and that includes my time in [a leadership role in a U.K. political party] with mainland Unionists and loyalists.  

I often hear discontent at how the U.S. calls the shots militarily and manage our foreign policy at present. We often appear to tag along and do as dictated to by Uncle Sam and there may well be a residual hangover from Suez in that, but Suez is rarely specifically mentioned.


Seth Barrett Tillman, The U.S., the U.K., and Suez, New Reform Club (Sept. 4, 2017), https://reformclub.blogspot.com/2017/09/the-us-uk-and-suez.html

Friday, September 01, 2017

Press Release from a Member of the Irish National Legislature (i.e., a TD in the Oireachtas)

Press Release
“Despite a new Court of Appeal the judicial backlog is not being reduced,” Mattie McGrath
Independent TD Mattie McGrath has called on the Minister for Justice, Charlie Flanagan, to address ongoing concerns around the inability of the Court of Appeal to address its persistently high backlog of civil and criminal cases. Deputy McGrath was speaking after an analysis of the Court Service’s Annual Report for 2016 by Seth Barrett Tillman, Lecturer in Law at Maynooth University Department of Law, found that without significant reform the Court of Appeal will be incapable of reducing its judicial backlog:
“This analysis by Seth Barrett Tillman is a forensic deconstruction of the spin that is being pedalled regarding the impact the ‘new’ Court of Appeal is allegedly having on addressing the current backlog of cases.
At the time the idea of the new Court was being sold to the Irish people, it was touted as a kind of panacea for the massive delays that were afflicting our judicial system.
Some of us tried to highlight the fact that all this would do, in the absence of more fundamental reform, was to create the illusion of progress.
That position has now been vindicated.
Seth Barrett Tillman has shown that in the course of the Court of Appeal’s second complete calendar year, with millions spent, the number of pending cases started at 1,814, and by the end of the year the number of pending cases increased to 1,821. In other words, there was no net reduction in the number of cases in  the  backlog.
In point of fact he has also highlighted that there was a 19% decrease in the number of cases disposed of between 2015 and 2016.
All of these issues raise profound challenges for the operation of this Court and public value for money.
They must be addressed and scrutinised without the kind of delays that may arising from an undue sense of deference toward judges.
If they are not getting through the backlog then questions need to be asked about why that is happening year after year even with additional Court facilities at their disposal.
The reasonable conclusion is that more fundamental reform is needed instead of creating another Court with the exact same procedural blocks as has happened in this case,” concluded Deputy McGrath.


Notes for Editors:
Seth Barrett Tillman, ‘The Court of Appeal Backlog’ (2017) 35(15) Irish Law Times 206–08 (2017) <http://ssrn.com/abstract=2996405>. This 2017 article continues and extends the arguments which I developed in my prior publications: see, e.g., Seth Barrett Tillman, ‘Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?’ (2016) 34(14) Irish Law Times 210–12 <http://ssrn.com/abstract=2816458>; see also, e.g., Seth Barrett Tillman, Opinion Editorial, ‘Court of Appeal just a new version of Supreme Court—only more costly’ The Irish Times (July 28, 2014, 1:30 AM), at 7 <http://ssrn.com/abstract=2465554>; Seth Barrett Tillman, Opinion Editorial, ‘Time to Open Courts and Let Justice Be Seen’ The Irish Independent, August 22, 2012, 17:00 pm, at A14 <https://ssrn.com/abstract=2129771>. 

Le gach dea ghuí,

Le gach dea ghuí,


Mattie McGrath TD
Tipperary Constituency 


Seth Barrett Tillman adding: The language in bold is from the TD, and it was not in my Irish Law Times article. That said, I entirely agree with his sentiment. 

Seth Barrett Tillman, Press Release from a Member of the Irish National Legislature, New Reform Club (Sept. 1, 2017, 4:23 AM), http://tinyurl.com/ycfapaof

McGrath's website: http://mattiemcgrath.ie/despite-a-new-court-of-appeal-the-judicial-backlog-is-not-being-reduced-mattie-mcgrath/

Wednesday, August 30, 2017

The Irish Court of Appeals -- Inefficient & Expensive

I have a new article (just 3 pages) on the efficiency of the Court of Appeal (of Ireland). My article is available on the Social Science Research Network (“SSRN”). Seth Barrett Tillman, ‘The Court of Appeal Backlog’ (2017) 35(15) Irish Law Times 206–08 (2017) <http://ssrn.com/abstract=2996405>. This 2017 article continues and extends the arguments which I developed in my prior publications: see, e.g., Seth Barrett Tillman, ‘Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?’ (2016) 34(14) Irish Law Times 210–12 <http://ssrn.com/abstract=2816458>; see also, e.g., Seth Barrett Tillman, Opinion Editorial, ‘Court of Appeal just a new version of Supreme Court—only more costlyThe Irish Times (July 28, 2014, 1:30 AM), at 7 <http://ssrn.com/abstract=2465554>; Seth Barrett Tillman, Opinion Editorial, ‘Time to Open Courts and Let Justice Be Seen’ The Irish Independent, August 22, 2012, 17:00 pm, at A14 <https://ssrn.com/abstract=2129771>. 

From the abstract:
On 4 October 2013, Ireland held a referendum to create an intermediate court of appeal. The referendum passed, and the Court of Appeal went into operation on 28 October 2014. On 25 July 2017, the Courts Service published its Annual Report 2016. That report provides statistics in regard to the Court of Appeal’s second complete calendar year of operation. We can now ask the question: Has the Court of Appeal successfully dealt with the judicial backlog of appellate cases which it was created to address? We can now also make a tentative answer. The expensive experiment has not succeeded—or, at least, it has not succeeded so far.

Seth Barrett Tillman, The Irish Court of Appeals -- Inefficient & Expensive, New Reform Club (Aug. 30, 2017, 6:46 AM), http://tinyurl.com/ycytq3dr

Saturday, August 19, 2017

When Pseudo-Scholars Attack

Fresh from beclowning himself at history, Grove City College psych teacher Warren Throckmorton tries his hand at embarrassing himself on theology.

Throckmorton's leftism has led him to devote a large part of his life to attacking the Religious Right. In this case, Throckmorton presumes to interpret the Bible and lecture conservative Rev. Robert Jeffress on the meaning of Romans 13

What Throckmorton loses in the haze of his partisanship is that Biblically, Jehovah used unworthy rulers such as King Saul as the instrument of his justice against wicked peoples like the Amalakites and Canaanites. Indeed, Babylonian King Nebuchadnezzar was used to punish the wicked Israelites themselves. In this theology, the goodness of the ruler or righteousness of his intentions is irrelevant. He is merely the "sword of God's wrath" against the evildoers. [Indeed, in this Romans 13 passage, Paul was referring to Emperor Nero.]

I don't purport to speak for God or even as a theologian except to note that according to his own religion, Jeffress's interpretation is as valid as anyone else's, especially duffers like Throckmorton operating far above their pay grade.  And we can certainly hope that God sees fit to use the world's rulers to end the wicked tyranny of the Kim family, who have murdered millions and make their people suffer hell on earth. This is what matters, and I agree with Jeffress that they do indeed have the divine authority to do so.

Tuesday, August 15, 2017

The Emoluments Clauses Lawsuits’s Weak Link: The Official Capacity Issue

Cross-post from Seth Barrett Tillman, The Emoluments Clauses Lawsuits’s Weak Link: The Official Capacity Issue, Notice & Comment: A Blog from the Yale Journal on Regulation (Aug. 15, 2017), http://tinyurl.com/y9g2v6xf 

The Emoluments Clauses Lawsuits’s Weak Link: The Official Capacity Issue

Seth Barrett Tillman**

All three lawsuits have provoked sharp debate—debate about constitutional purpose, divided loyalties, and national security; debate in relation to threshold legal questions such as standing (qua harm), standing (qua redressability), political question doctrine, and justiciability; and also debate in regard to more merits related issues, including whether business transactions and regulatory benefits are “emoluments,” and whether the presidency falls under the scope of the Foreign Emoluments Clause’s office of profit or trust under the United States language. U.S. Const. art. I, § 9, cl. 8.

Until now, commentators, including those in the media and academic experts on federal courts, have refrained from discussing one obvious legal defect—a defect common to all three lawsuits. All three lawsuits have been brought against Donald J. Trump “in his official capacity as President of the United States of America.” It is likely that all three cases will founder on this issue.

In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself. This is why, when officials sued in their official capacities leave office, their successors automatically assume their role in the litigation. The real party in interest is the government entity, not the named official.
Id. at 1291 (citations omitted) (emphasis added). In the event of President Trump’s removal, death, resignation, or inability, Trump would be succeeded by Vice President Mike Pence. U.S. Const. art. II, § 1, cl. 6. In those circumstances, the three Foreign Emoluments Clause lawsuits could not be maintained against Pence. None of these cases involve government or public policy; rather, they all involve Trump’s private commercial ventures and investments. Thus per Lewis v. Clarke, not one of these cases is properly an official capacity lawsuit, and each must be dismissed unless plaintiffs’ complaints were significantly amended.

It is hardly obvious the District Court will permit the CREW v. Trump plaintiffs to replead or amend their complaint. After all, in CREW v. Trump, plaintiffs have already filed three complaints. Plaintiffs requested a 4 week extension and were granted 3 additional weeks. Most importantly, the Department of Justice has already filed its 12(b)(6) motion to dismiss along with its gargantuan 60 page brief in support of its motion. It is probably too late, far too late for the CREW v. Trump plaintiffs to amend their complaint and begin briefing all over again.

As for the remaining two lawsuits, those plaintiffs can file amended complaints and bring their constitutional claims against Trump in an “individual” (as opposed to an “official”) capacity. That would make more sense as a procedural matter, but such an individual capacity claim seeking injunctive relief would pose other, perhaps even more difficult challenges for these plaintiffs to overcome. To bring an individual capacity action against the President, plaintiffs would have to argue that their lawsuit is supported by an implied constitutional cause of action. There is simply no case law suggesting any such implied cause of action exists, particularly where the Foreign Gifts and Decorations Act (1966) appears to occupy the field.

To put it another way, if an implied constitutional cause of action under the Foreign Emoluments Clause (U.S. Const. art. I, § 9, cl. 8) or the Presidential Emoluments Clause (U.S. Const. art. II, § 1, cl. 7) had even an outside chance of being “discovered” or upheld by the federal courts, surely the CREW v. Trump plaintiffs would have pled their case as an official capacity case and as an individual capacity case in the alternative. One cannot blithely assume that CREW v. Trump plaintiffs simply overlooked the possibility of bringing their causes of action as an individual capacity lawsuit. After all, their complaint is signed by no fewer than 16 litigators, including 3 full time law school academics—one of whom has written the leading text on federal courts. See Dean Erwin Chemerinsky, Federal Jurisdiction (7th ed. 2016). One can only surmise that the CREW v. Trump plaintiffs did not plead in the alternative because an individual capacity suit would not be the slam dunk, strong lawsuit that they have continually promised their supporters. Instead, it would be a wholly novel claim which is not likely to survive either academic or judicial scrutiny. 


Seth Barrett Tillman, The Emoluments Clauses Lawsuits’s Weak Link: The Official Capacity Issue, New Reform Club (Aug. 15, 2017, 2:03 PM), http://tinyurl.com/yabyuz27 

Addendum: Adam Charnes, Esq made the same point on Twitter before I published on Notice & Comment. See https://twitter.com/AdamCharnes/status/874300556935933952.
Professor Hessick also made the same point on Twitter before I published on Notice & Comment. See https://twitter.com/AndyHessick/status/874329428947587072

** Seth Barrett Tillman, an American national, is a lecturer in the Maynooth University Department of Law, Ireland. Professor Josh Blackman and Robert W. Ray, Esq. filed a scholar’s brief on Tillman’s behalf in CREW v. Trump. See Motion and Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, President of the United States of America, Civ. A. No. 1:17-cv-00458 (S.D.N.Y. June 16, 2017) (Daniels, J.), Doc. No. 37, 2017 WL 2692500. Tillman’s brief supports the President.