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

Saturday, February 18, 2017

Fake news? Fake scholarship.

Barack Obama is the 12th best president in American history.  So say 91 experts in the latest C-SPAN survey of academic historians.


It's only the 3rd such poll; none was held after 2004 and 2012.  Still, in 2001, what made them think they could put Clinton's presidency into a historical context so soon? Why at that moment in history, when Clinton left office high in the polls but leaving his Democratic Party an electoral wreck, did someone decide to conduct this survey before the smoke had even cleared?

That is politics, not history.  If one judged Harry Truman or LBJ positively at the close of their presidencies--each so wretchedly unpopular and besieged by events they declined to run for re-election--he would be laughed at.  But now LBJ's Top 10. Harry Truman's 6th!

For those two examples alone, this survey is exposed as worthless as serious history. It's simply too soon, especially if the lion's share of these experts most likely voted for those they're presumably judging impartially--and would vote for them again!

Further, this is not a rating of presidents or presidencies as advertised or at least understood by the general public:  It's a subjective set of criteria with even more subjective 1-10 ratings of "ten qualities of presidential leadership." Thus 2 1/2 years of Jack Kennedy's inspirational bumbling can somehow be rated above Ronald Reagan's greatly significant two terms.  We expect such silly outcomes from Gallup, but not social "scientists."

I find the historiography far more interesting.  Who watches the watchers?  See PARTISANSHIP AS A SOURCE OF PRESIDENTIAL RANKINGS, Joseph E. Uscinski and Arthur Simon.

This study looks for evidence of a partisan bias in the ranking polls. 
Concentrating on the modern presidency, we find that
presidential partisanship is a potent predictor of rank; academic raters consistently rank Democratic presidents ten places higher on average than Republican presidents. We also compare the rankings from academics to rankings from non-academics and show that academic raters favor Democratic presidents more than non-academic raters. Our findings suggest, in accordance with previous literature, that partisan attachment affects the subjective judgments that presidential ranking polls inherently require.

This is what folks like me mean by fake news, and also why we Great Unwashed are so hostile to the academic powers that are, their opinion and bias passed off as fact and "science." This survey makes our nation more ignorant, not less. It should not exist, especially under C-SPAN's putatively neutral imprimatur.

Thursday, February 09, 2017

America's Christian Heritage: Dreisbach vs. Fea, 𝑒𝑡 𝑎𝑙.

Liberal historian/polemicist John Fea of Messiah College has made great and amusing hay fisking best-selling activist/amateur historians of the Right such as Eric Metaxas, Dinesh D'Sousa, and of course the left's favorite tomato can, the perennial David Barton

John's own claim to pop history fame, Was America Founded as a Christian Nation?, explicitly attacks the unaccredited history writer/GOP operative Barton by name.

[Fea's answer to his own question

         is, unsurprisingly, 'not really.']

Which brings us to Daniel Dreisbach of American University's new book, Reading the Bible with the Founding Fathers.

Product Details

John Fea himself gets named by name and pulled into the docket, and although the highly accredited Dreisbach does not share Fea's taste for polemics or baldly partisan "scholarly"politics [such as "Historians Against Trump"] and the culture war, Dr. Fea, et al., are definitely in his sights.

Can you tell the story of America only via economics, Greek democracy, Roman law, and the Enlightenment?

It's the view of those not in that left-leaning in-crowd that the strict secularism of the 20th century tended to whitewash America's religious foundations, and Dreisbach [who is no easy pickins like the uncredentialed Barton: He not only holds a doctorate from Oxford but a law degree from the prestigious University of Virginia] shows himself an able ally of that view.

Dreisbach is one major-leaguer who can't be waved away for lack of academic credentials, or be delegitimized by the death of a thousand cuts that amateur historians often suffer for sloppy [though usually inconsequential] errors.  The modern academy may not be dishonest in its prevailing view, but Dreisbach argues that they're staring directly at the primary documents but because of a lack of familiarity with scripture and Christian theo-political thought, they are losing the thread.

In Dr. Dreisbach, the "aristorian" club finds itself forced onto a level playing field with a worthy opposition.  We can only hope that this debate becomes a debate once again, instead of the current scholarly shooting gallery at laughably outgunned sitting ducks like David Barton.

"Many scholars have described the founding era, sandwiched
between the momentous religious revivals known as the first and
second Great Awakenings, as an age of Enlightenment and
rationalism, in which “the founding generation,” according to political
theorist Wilson Carey McWilliams, “rejected or deemphasized the
Bible and biblical rhetoric.” Writing more specifically about the
arguments and rhetoric Americans used as they contemplated
resistance to British colonial rule and, eventually, independence,
historian John Fea asserted that, “when one examines the specific
arguments made by colonial political leaders in the years leading up to
1776, one is hard-pressed to find any Christian or biblical language
apart from a few passing references to God.” Rather, the “most
important documents” produced by Americans “focused more on
Enlightenment political theory about the constitutional and natural
rights of British subjects than on any Christian or biblical reason why
resistance to the Crown was necessary.” 
Historian Mark A. Noll observed “that the nation’s founders were conversant with scripture,”which “should not be surprising for they lived at a time when to be an educated member of the Atlantic community was to know the Bible.” He further contended, however, that explicit references to Scripture or Christian themes “are conspicuously absent in the political discussions of the nation’s early history. In short,” Noll concluded, “the political figures who read the Bible in private rarely, if ever, betrayed that acquaintance in public. [T]he Bible’s direct political influence was extremely limited, the occasions when leaders turned to it for assistance in political reasoning extremely rare.”
Did the founders avoid or repudiate biblical influences on their
politics? Reports of the Bible’s demise in the founding era are
controverted by Professor [Donald S.] Lutz’s study and ample illustrations in this
volume. The Bible continued to permeate both the private expressions
and public pronouncements of those who shaped the new nation and
its civic institutions. Compared to an earlier age dominated by
Puritan divines, biblical language in the founding generation’s
political rhetoric may seem muted. Nonetheless, late eighteenth-
century Americans remained biblically literate and, contrary to the
claims of modern scholarship, the Bible continued to inform public
culture. Biblical language pervaded the discourse of not only pious
founders, such as Samuel Adams, Patrick Henry, John Jay, Roger
Sherman, and John Witherspoon, but also those figures most
influenced by the Enlightenment, including Benjamin Franklin and
Thomas Paine. 
No less a founding figure than George Washington
opined in 1783 that Americans were fortunate that “[t]he foundation of
our Empire was not laid in the gloomy age of Ignorance and
Superstition, but at an Epocha when[,] above all, the pure and
benign light of Revelation, have had a meliorating influence on
mankind and increased the blessings of Society.” There is little
doubt that by “Revelation” he meant the Bible. 
Why, then, has modem scholarship missed or dismissed the Bible’s
place in the political discourse of the founders? Often the most
important things in life, like the air we breathe, do not receive the
attention they merit because they are so pervasive and so much a part
of our very existence that they are taken for granted. This may account
for the historians’ inattention to the Bible’s place in the American
founding. Biblical illiteracy, especially a lack of familiarity with the
distinct phrases and cadences of the King James Bible, may explain
the failure of some scholars to recognize the biblical language in this
The founders often quoted the Bible without the use of
quotation marks or citations, which were not necessary for a biblically
literate society but the absence of which fail to alert a biblically
illiterate modem audience to the Bible’s invocation. Also, scholars
trained in the modern academy, with its emphasis on the strictly
rational and the secular, may discount biblical themes because they
find them less noteworthy or sophisticated than the intellectual
contributions of the Enlightenment.  
There may even be a discomfort with or, perhaps, hostility toward
explicitly religious material and themes.
Some fear that mere acknowledgment of Christianity’s and the
Bible’s influence on the American founding will diminish the
Enlightenment’s influence and buttress the alleged theocratic impulses
of some twenty-first-century citizens. Moreover, some scholars find a
focus on the God of the Bible and biblical religion divisive or even
offensive to twenty-first-century, secular sensibilities. In an
admonition seldom mentioned in the scholarly literature, for example,
George Washington warned in his Farewell Address of September
1796 that one who labors to subvert a public role for religion and
morality cannot call oneself a patriot.” Such rhetoric, unexceptional
in its time, is discordant with the secular ethos of our time. Other
founders held views similarly out of step with secular academic and
popular sentiments of the twentieth and twenty-first centuries, such as
advocating state support for Protestant denominations and restricting
the civil and religious rights of Catholics, Unitarians, atheists, and
In any case, this book should put to rest the notion that the
founding generation ignored biblical language and themes in its
political discourse."

Indeed, as Dreisbach writes in a questionnaire-type "interview" at John Fea's blog,

Another question worth exploring, I believe, is did the Bible inform the founding generation’s political thought and influence their political and legal projects? I see evidence that the founders looked to Scripture for insights into human nature, civic virtue, social order, political authority and other concepts essential to the establishment of a political society. Many in the founding generation saw in the Bible political and legal models – such as republicanism, separation of powers, and due process of law – that they believed enjoyed divine favor and were worthy of emulation in their polities.

Then there is much more to the question of "Christian America" than "not really."

More generally, but no less significant to the founders’ political vision, many in the founding generation believed the Bible was an indispensable handbook for republican self-government. In a republican government, the founders believed, the people must be sufficiently virtuous that their personal responsibility and discipline would facilitate the social order and stability necessary for a regime of self-government. And the Bible was an ideal tool for developing civic virtue. Believing that “without national morality a republican government cannot be maintained” and that “[t]he Bible contains the most profound philosophy, the most perfect morality, and the most refined policy, that ever was conceived upon earth,” John Adams described the Bible as “the most republican book in the world.” In other words, the Bible nurtures the civic virtues that give citizens in a republic the capacity for self-government. Such sentiments were commonplace in the political discourse of the founding.

A study of the Bible in the political culture of the founding era gives us insights into one source of ideas that shaped the founders’ political thoughts and the political and legal systems they sought to establish. These insights, I hope, will enhance our understanding of ourselves as a people, our history, and the American experiment in republican self-government and liberty under law.

Monday, February 06, 2017

February 6, 1911

Thursday, February 02, 2017

Tillman on Irish Television and Radio

Sharon Ní Bheoláin & Bryan Dobson, RTÉ News: Six One (Jan. 31, 2017, 6:00 PM) (interview), http://tinyurl.com/h2yatsx ; http://tinyurl.com/hx3ndjc

Cormac Ó hEadhra, The Late Debate, RTÉ Radio 1 (Jan. 31, 2017, 10:00 PM) (panellist), http://tinyurl.com/hfs62h2

Pat Kenny, The Pat Kenny ShowNewstalk.com 106–108fm (Feb. 1, 2017, 9:00 AM), http://tinyurl.com/gvvqdnb


Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My most recent post: Seth Barrett Tillman, Three Podscasts on the Foreign Emoluments Clause, with Seth Barrett Tillman, The New Reform Club (Jan. 20, 2017, 5:37 AM). [here]

Friday, January 20, 2017

Three Podscasts on the Foreign Emoluments Clause, with Seth Barrett Tillman

Marc Johnson, Episode 8: Article 1, Section 9, Clause 8, Many Things Considered (Jan. 18, 2017), http://manythingsconsidered.com/podcast (at 28:15ff) ; 

Andrew Torrez & Thomas Smith, OA36: The Emoluments (w/Seth Barrett Tillman), Part 2, Opening Arguments (Jan. 20, 2017), http://tinyurl.com/hxg9ruk (at 7:30ff) ; and, 

Andrew Torrez & Thomas Smith, OA35: The Emoluments Clause (w/Seth Barrett Tillman), Part 1, Opening Arguments (Jan. 16, 2017), http://tinyurl.com/zsvebop (at 24:40 to 47:00). 

I think the best of the 3 was Opening Arguments, Part 2


My former post: Seth Barrett Tillman, Tillman’s Poetry Corner: Flanders Fields, The New Reform Club (Jan. 16, 2017, 10:54 AM) [here

Monday, January 16, 2017

Tillman’s Poetry Corner: Flanders Fields

John McCrae’s Flanders Fields is iconic. No more need be said. Unfortunately, its meaning has been distorted by the most popular voice and instrumental accompaniment. This new reading of the poem has transformed Flanders Fields meaning. My guess is that this metamorphosis was unintentional, but one and all should work to recover the original public meaning.

This is Flanders Fields. The key two changes are in bold.

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

You can find several very fine readings and other renditions on Youtube. My favourites include:

These four readings are stylistically quite different from one another, but they are faithful to McCrae’s original text. How so? They each read “Scarce heard amid the guns below” as the last line of the first stanza.

There is a new rendition, and it has grown quite popular because its score (for voice and instruments) is simple and beautiful—making it all the more pernicious. This is how Flanders Fields is now read:

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly.

Scarce heard amid the guns below.
We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.

Take up your quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

See the difference? The new reading places “Scarce heard amid the guns below” at the beginning of the second stanza. You can find the unconstitutional post-modern rendition here (and nearly everywhere else): https://www.youtube.com/watch?v=3WCd3lQY0o8.

So in what way do these changes affect the poems meaning?

In the original text, it is the larks—the natural world—that is “scarce heard” by man “amid the guns below.” The technological terror of modern war and death has separated man from nature, but the natural world continues. Mans separation from the natural world confirms the horror and loneliness of war and death. As to the second stanza, it is the “Dead” who call out to us, the living; they call out to us as if they were actually alive. It is the larks who are distant from us, not our dead, hallowed through sacrifice. Understood this way, Flanders Fields is the Gettysburg Address, although it is in the third stanza where all this is made clear.

The new reading wholly transforms Flanders Fields’ meaning. In the new reading, we the living remain close to the larks. Indeed, it is the larks’ bravery, akin to that of the living and dead who fought [t]here,” which becomes the focus of the first stanza, as opposed to McCrae’s originally intended and deeply disturbing image of man, both living and dead,” cut off from the natural world. 

More importantly, in the new reading, it is now “the Dead” who we the living can “scarce[ly] hear[] amid the guns below.” The Dead’s call to us is now a plaintive one, rather than a compelling one. Indeed, the less we can clearly hear them, the less we believe it is truly they who we are hearing. The effect is to transform the third stanza from a Gettysburg Address-like call to united service in the great cause, to a personal prayer (i.e., the shift from “our quarrel,” which indicates that the living and our fallen remain as one people, to the lesser and more individualistic “your quarrel) or a mere meditation mourning for distant dead, with whom we do not remain in substantial communion. At worst, the new reading transforms a patriotic call for continued resolute devotion” into a claim for useless retribution. “Useless” in the sense that the dead, who would make these demands on the living, can draw no real benefit or succour in consequence of any future defeat or victory within our mortal reach. 


PS: One professor who teaches poetry in a university in a Commonwealth country (i.e., not in the United States, and not in Ireland) wrote me as follows:

What an interesting article! I had no idea this pernicious re-forming of the poem was taking place. Thank you SO much for sending this to me. In [my home country,] I have certainly seen how selective reading and snipping and quoting of this poem has undermined its ambiguities. This is such a fine observation.

[end quotation]

PPS: Another professor who teaches poetry in a university in a Commonwealth country (i.e., not in the United States, and not in Ireland) wrote me as follows: 

This is fascinating, and creepy. I had to listen to the tendentious musical rendition on YouTube a couple of times to take in the difference, and it really does change the poem’s meaning significantly. The change of emphasis is insidious enough, but the substitution of “Take up your quarrel with the foe” for the original is a bit bizarre. I wonder just how widespread this version has become… 

It just so happens that I’m teaching my WWI poetry class again this semester, so this will come quite handy. 

[end quotation]

I can respond as follows: 

The change from “our” to “your” makes complete sense; it is not bizarre at all; it accords with shifting the end-line from the first stanza to the second stanza. If the dead are dead, and we are not in communion with them, then it is no longer “their” cause so it cannot be “our” cause—it is just “your” cause, as in the living.

I don’t think all these changes were intentional. It is just the concept of devotion and sacrifice to a national cause is nearly incomprehensible to moderns. The revised version is the best sense a modern could make of the poem and was probably how they (mis)heard it because they could not otherwise recognize the original meaning. So their mind played a trick on them and modified the words into something more sensible which they could understand. This sort of thing happens all the time when modern readers read old or pre-modern law. Viz, “the prisoner shall not receive the benefit of clergy” has confused modern readers for 100s of year.

[end quotation] 

Seth Barrett Tillman, This is what balanced news reporting looks like ...., The New Reform Club (Jan. 13, 2017, 9:04 AM). [here

Friday, January 13, 2017

This is what balanced news reporting looks like ....

Winand Von Petersdorff, “A student would thus fail the exam,” Frankfurter Allgemeine (Jan. 13, 2017), http://tinyurl.com/jq5aeq3 

Translated in part:

The renowned Harvard professor Laurence Tribe called the Trump-selected legal construction fraudulently and a "Potemkin village" via Twitter. A lawyer who presented such a construction would go through the constitutional examination. None of the ethical and legal problems is solved with the proposal. But lawyers are by no means in agreement as to whether Trump actually violates the law. The also in Harvard educated constitutional expert and professor in Ireland Seth [Barrett] Tillman argued that it is inconsistent with the American legal tradition to ask the President-elect to sell illiquid assets such as real estate. America's first president, George Washington, had extensive land ownership and continued to conduct ground [i.e., land] speculation as president. Democratic President Jimmy Carter had put his peanut farm in Georgia in a trust led by his brother.
Tillman also pointed out that many of the public service regulations were not valid for the purpose of preventing possible conflicts of interest for elected deputies [i.e., officials], judges and not least the presidents and vice-presidents. Tillman called [i.e., made reference to] the desired independence of the persons who hold such offices. If presidents had to submit their decisions to an ethics officer, in order to rule out possible conflicts of interest, the latter would gain a very powerful position, although he [i.e., the latter] was not legitimized by any choice [of the people]. Judges and elected representatives enjoy a trust advance.

No jurisprudence yet

Currently the question is discussed whether Trump specifically violates the so-called Emolument clause in the American Constitution. It forbids government officials to accept gifts, nobility titles or other donations from foreign governments. Specifically, the problem might arise when foreign diplomats stay in Trump's Hotel in Washington. Trump's lawyer Dillon argues that business transactions such as booking a hotel room are not gifts and therefore not subject to the Emolument clause. Nevertheless, Trump wants to donate profits from the overnight stays of foreign diplomats to the American Treasury.
Tillman believes that the entire clause is not applicable to presidents. It also confirms uncertainty on this issue. For there is no jurisprudence to date. So far, no President has been sued for breaching the clause. He also considers that an action for annulment [i.e., judicial review] is almost impossible because a plaintiff is bound to make a legal claim [i.e., one supported by statute]. Thus, according to Tillman's assessment of the violation of conflicts of interest, only Parliament's resignation [i.e., impeachment] proceedings remain.
An honest and balanced press is possible. It really is. 
My prior post: Seth Barrett Tillman, Tillman on Trump on RTE (Irish national television), The New Reform Club (Jan. 13, 2017, 4:27 AM). [here

Tillman on Trump on RTE (Irish national television)

Miriam O'Callaghan, Prime Time: A Segment on Trump, RTÉ (Jan. 12, 2017, 9:00 PM), http://tinyurl.com/jjm38q6 (at 5:50ff) (appearing with Eric Walker for DNC) 

Here I appear on RTÉ: Irish national (and state subsidized) television. Some have criticized my performance as "rude, bombastic and arrogant" and "ignorant, boorish & interrupting". Two very old law firms. Another person said, "Well,  just had that good looking chap for breakfast, lunch and dinner on there. Ouch.



My prior post: Seth Barrett Tillman, “Nonsense,” “Takedowns,” and “Giving Lawyers A Bad Name,” The New Reform Club (Jan. 8, 2017, 9:02 AM). [here]


Sunday, January 08, 2017

"Nonsense," "Takedowns," and "Giving Lawyers A Bad Name"

In a publication in 2013, I wrote:

See Message from the President of the United States to the Two Houses of Congress at the Commencement of the First Session of the Twenty-Third Congress 258-59 (Washington, Gales & Seaton 1833) (reproducing January 22, 1834 letter from the Secretary of State to the President explaining, in summary fashion, the history of the Adams and Jackson medals and how they came into the possession of the State Department) . . . .[1]

In a publication in 2016, Ambassador Eisen, Professor Painter, and Professor Tribe wrote:

See Message From The President Of The United States To The Two Houses Of Congress At The Commencement Of The First Session Of The Twenty-Third Congress 258–59 (Washington, Gales & Seaton 1833) (reproducing Jan. 22, 1834 letter from the Secretary of State to the President explaining the history of the Jackson medal and how it came into the possession of the State Department).[2]

See also Norman Eisen (@NormEisen) on Twitter, definitive @mjs_DC takedown of nonsense that EC doesnt apply 2presidents (THX 4cite of our paper, which also makes these points) @tribelaw (Jan. 5, 2017, 11:36 AM) (bold added), http://tinyurl.com/jbjz6dh;

Laurence Tribe (@tribelaw) on Twitter, The kind of analysis that tries to show, implausibly, POTUS is exempt from the Emoluments Clause is the kind that gives lawyers a bad name. (Jan. 5, 2017, 11:59 AM) (bold added), http://tinyurl.com/zpdopxu.

“Nonsense” and “Takedowns.” Exactly who or what is giving lawyers a bad name?


My prior post: Seth Barrett Tillman, Moving the Overton Window and Student Notes, The New Reform Club (Jan. 6, 2017, 7:09 AM). [here]

[1] 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. 285, 324 n.64 (2013), https://ssrn.com/abstract=1622441

[2] Norman L. Eisen, Richard Painter & Laurence H. Tribe, The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump, Governance Studies at Brookings 9 n.34 (Dec. 16, 2016), http://tinyurl.com/zsxrayj.  

Friday, January 06, 2017

Moving the Overton Window and Student Notes

When you launch a new idea, its very newness puts it outside of the mainstream. Back in 2007, in an academic article, recess appointments were one of the issues du jour. I wrote that if a President made a recess appointment, a determined Senate could kill the appointment by ending its current session and immediately starting a new one (or by doing so twice, in the case of an intra-session recess appointment). See Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007), https://ssrn.com/abstract=956164 (the first part of a four-part Tillman-Kalt exchange).

I admit that the idea was a bit novel—but it does follow from the text of the Constitutions Recess Appointments Clause. One student note called my “innovation[] … at once both plausible and absurd ….” David Frisof, Note, Plausible Absurdities and Practical Formalities: The Recess Appointments Clause in Theory and Practice, 112 Mich. L. Rev. 627, 643 (2014).

Two years later, in 2016, what was absurd is now standard fare.

All that the [Republican majority] Senate would need to do [to terminate a purported recess appointment by President Obama of Judge Garland to the Supreme Court] is end its next session by adjourning sine die and Garland’s term would end. This is because, under the Constitution’s Recess Appointments Clause, such appointments terminate at the end of the next Senate session. Adjourning sine die would require the cooperation of the House and a president’s signature, but that would be no obstacle come Jan. 20. In other words, Congress could terminate any recess appointment made by Obama in less than three weeks.

Jonathan H. Adler, The real reason President Obama won’t recess-appoint Merrick Garland to the Supreme Court, The Washington PostThe Volokh Conspiracy (Dec. 29, 2016, 7:15 PM), http://tinyurl.com/jljwrrm.

Back in 2008, I argued that slight differences in the Constitution’s “office” terminology may have been meaningful back in 1788. I tentatively suggested in a footnote that: “Perhaps the President is not an officer at all, rather, the President is an official, a magistrate, an officeholder, or the holder of an Article VI public trust?” Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitutions Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y Sidebar 1, 2 n.4 (2008).

One student note responded:

Th[e] [Constitution’s text] would also imply that the President himself is an “officer of the United States.” See Black’s Law Dictionary 1117 (8th ed. 2004) (defining an “officer” as “[a] person who holds an office of trust, authority, or command”). But see Tillman, supra note 10, at 10–12 (arguing that the president is not an “officer” and distinguishing between an “officer” and an “officeholder”).

For an example of drawing out numerous minor textual differences without any meaningful distinctions, see Tillman, supra note 10, at 10–12. Tillman relies on such differences to attempt to show that the President is an officeholder, but not an officer. Id.

David J. Shaw, Note, An Officer and a Congressman: The Unconstitutionality of Congressmen in the Armed Forces Reserve, 97 Geo. L.J. 1739, 1743 nn.19–20 (2009) (bold added). More recently, I came across an unpublished Scalia-authored OLC memorandum. Scalia wrote: “[W]hen the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President or Vice President.” Memorandum to Honorable Kenneth A. Lazarus, Asso. Counsel to the President, from Antonin Scalia, Asst Att’y Gen., Office of Legal Counsel, Re: Applicability of 3 C.F.R. Part 100 to the President and Vice President, at 2 (Dec. 19, 1974) (bold added), https://ssrn.com/abstract=2889011.

So you can shift the Overton window in the legal world, but it takes about 8 years and a good bit of luck (such as a “fortunate constellation of facts” [per Rumpole] which focuses a lot of attention on your issue or the discovery of missing authority).


Twitter: https://twitter.com/SethBTillman ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, Ed Kilgore’s Recess Appointments Strategy Won’t Work & This Is Why, The New Reform Club (Dec. 29, 2016, 2:48 AM). [here]