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

Sunday, September 23, 2018

New Evidence That President Washington, and not Judge Messitte, Was Right about the Domestic Emoluments Clause




President George Washington’s Multiple Purchases Involving Federal Lands

The purpose of this post is to further develop, accentuate, and clarify a point I developed in my 2017 Harvard Journal of Law & Public Policy paper, in my several amicus briefs (filed by Professor Josh Blackman), and in our (Blackman’s and my) recent post on The Volokh Conspiracy.

In his July 25, 2018 opinion denying the Department of Justice’s motion to dismiss in DC & MD v. Trump, Judge Messitte (D. Md.) concluded that the Domestic Emoluments Clause and its “emoluments” language reaches the President’s private commercial transactions with domestic government entities. This understanding of “emoluments” includes all such transactions, even if the President does not have a traditional employment-like relationship with the party on the other side of the transaction. Judge Messitte reached that conclusion only after he rejected as good historical precedent President Washington’s several land transactions in 1793 with the federal government. Messitte rejected the precedential value of these transactions for two reasons.

First, Judge Messitte said the historical record in regard to these transactions was “seriously incomplete.” Slip op. at 46. Specifically, he stated that there was no information as to: [i] what kind of land auction was held; [ii] how it was advertised; and, [iii] how many bidders were involved. The Blackman-Tillman amicus brief put forward good authority answering each of these three questions—[i] it was an open auction with oral bids; [ii] it was advertised in a Philadelphia newspaper 6 months prior; and, [iii] there were some 18 bidders. See Blackman-Tillman Br. at 28–29

Judge Messitte also stated that the whole transaction was suspect because “Washington later made clear that he was ‘ready to relinquish’ the property.” Slip op. at 46. Messitte based his conclusion here on representations made by Plaintiffs in their brief. But Plaintiffs erred here, and Messitte erred in relying on their representations—all of which were squarely contrary to the Department of Justice’s brief, to the primary document cited by both parties, and to my prior scholarship on this point. See Tillman, Harvard Journal of Law & Public Policy, 761 & n.7, 762 & n.13. Washington bought four lots of land at public auction on September 18, 1793. That is lots nos. 5, 12, 13, and 14 in square 667 (in the new federal capital), for which Washington was given two separate certificates of purchase.

Washington never expressed, in any way, any desire to relinquish that land—i.e., the land he purchased in 1793. Instead, what Washington did do was to express an interest in making further purchases in the future—in square 21 (again, in the new federal capital). Washington explained in a 1794 letter to his land commissioners: “I should be glad to know what my prospect is; adding, that I am as ready to relinquish, as I was to imbibe the idea, of this [future] purchase.Founders Online (emphasis added). Again, Professor Josh Blackman and I explained in our prior post on The Volokh Conspiracy that the 1793 land purchases are a substantial public precedent from early Executive Branch practice indicating that the President’s private commercial transactions—even with the federal government—are not “emoluments” and are not subject to the Domestic Emoluments Clause. Moreover, no contemporaneous or subsequent authorities (of which we are aware) have ever suggested that President Washington acted unconstitutionally (or, even, unethically) until litigation began against President Trump. Once the litigation against President Trump began, an Orwellian project of rewriting our national history took shape. Regrettably, Judge Messitte’s recent judicial opinion embraced that revisionism. (Representations of just this sort have been pattern-and-practice by plaintiffs and their supporting amici in each of the three Emoluments Clauses lawsuits: I write from personal experience.) 

Here I clarify what happened subsequent to 1793.

In 1794, President Washington went forward, just as he had suggested he might, and purchased square 21. In other words, what had been an “idea” became a reality. See From George Washington to the Commissioners for the District of Columbia, 14 March 1794, Founders Online (last accessed Sept. 23, 2018), https://founders.archives.gov/documents/Washington/05-15-02-0289 (“GW ultimately purchased square 21.”).

All these facts—both the original purchases at the 1793 government auction and the subsequent purchase in 1794—are supported by a pellucidly clear documentary record. Yet, Judge Messitte characterizes all these transactions as a “single example” involving the President’s purchasing federal lands. Slip op. at 46 (emphasis added). The historical reality is quite different: there were, at the very least, two such transactions: one in 1793 and one in 1794. There may even have been as many as five Washington land transactions: four separate purchases in 1793, and a fifth in 1794. (In other words, a separate purchase for each of the 4 lots purchased in 1793 and a fifth purchase for square 21 in 1794.) More importantly, the evidence of the 1794 land transaction confirms Blackman’s and my interpretation (and the DOJ’s interpretation) of Washington’s 1794 letter to his land commissioners. When Washington wrote: “I should be glad to know what my prospect is; adding, that I am as ready to relinquish, as I was to imbibe the idea, of this purchase,” he was writing about an idea—that is, an idea for a future land purchase. He ultimately consummated that future land purchase in 1794. It was square 21.

What does all this mean? It means notwithstanding titanic efforts by Plaintiffs (which misled the court) to impeach the 1793 land transaction(s) as on-point, that view cannot withstand genuine historical scrutiny. Washington’s 1793 land purchases are an on-point precedent showing that early Executive Branch practice permitted the President to do business with the federal government, notwithstanding the Domestic Emoluments Clause and its “emoluments” language. (Indeed, one of President Washington’s land commissioners served on the Supreme Court of the United States and had also been Chief Judge of the General Court of Maryland.

The choice then is a simple one: either Judge Messitte was right in 2018, and President Washington (and the American public) was wrong in 1793 and 1794; or, President Washington was right, and Judge Messitte is wrong. They cannot both be right. Then-Justice Rehnquist stated the appropriate rule in Wallace v. Jaffree: “[N]o amount of repetition of historical errors in judicial opinions can make the errors true.” 472 U.S. 38, 107 (1985) (Rehnquist, J., dissenting). 



Pending before the District of Maryland is the DOJ’s motion to certify an interlocutory appeal. DOJ asserts that Judge Messitte’s “reasoning” about Washington’s participation in the 1793 land auction “is premised on a factual error introduced by Plaintiffs.” The DOJ adds that this historical error warrants certification so the Fourth Circuit can assess the proper scope of the term “emoluments”:

This historical example is significant not only because it involved the conduct of President Washington, but also because one of the three D.C. Commissioners had attended the Constitutional Convention, and the other two had voted in the state ratification conventions. See MTD at 43–44. And yet, no concern was raised about a possible violation of the Domestic Emoluments Clause. Reasonable jurists thus could disagree about whether this example should tip the scale in favor of the narrower interpretation of “Emolument.”

I agree. I would urge Judge Messitte to do the right thing: he should either retract his error, or grant the DOJ’s motion so another court can consider this well-documented historical record.



Seth Barrett Tillman, New Evidence That President Washington, and not Judge Messitte, Was Right about the Domestic Emoluments Clause, New Reform Club (Sept. 23, 2018, 11:29 AM), 


Thursday, September 20, 2018

My Post on CONLAWPROF: on Kavanaugh (II)

[Dear Professor ____________,]

You wrote: "Therefore, by taking this position you prove yourself unworthy of being a Supreme Court Justice -- or even a magistrate judge." (emphasis Tillman's) 

I clerked for several judges, including a federal Magistrate Judge in Pennsylvania. He is now an Article III judge. We stay in touch. My own view is that there is something wrong with this "even a ...." language. Perhaps, you might agree?

Notice I say "something wrong," not "something deeply wrong," as, I suppose, we all get to choose our own adverbs (or, more accurately, lack thereof).

Seth

Seth Barrett Tillman, My Post on CONLAWPROF: on Kavanaugh (II), New Reform Club (Sept. 20, 2018, 3:47 AM), https://reformclub.blogspot.com/2018/09/my-post-on-conlawprof-Kavanaugh.html

Wednesday, September 19, 2018

The Tragedy of the Moot Point

 The exchange below is adapted from a scene in T.H. White's The Once and Future King, Book IV: The Candle in the Wind, as a commentary on the recent sexual-misconduct accusations against President Donald Trump's nominee to the U.S. Supreme Court, Judge Brett Kavanaugh, which accusations, initially anonymous and confidential, have now become a national scandal through the efforts of Congressional Democrats. 

______________________
 
The Orkney brothers Agravaine, Gawaine, and Mordred, having plotted to overthrow King Arthur by removing the Queen and defeating his chief knight, Lancelot, enter the King's court.

MORDRED: We came to tell you of a treason of which we have learned. Queen Guenever is Sir Lancelot's mistress.  

ARTHUR: Are you ready to prove this accusation? 

MORDRED: We are. 

ARTHUR: You know that the Queen and Sir Lancelot deny it. 

MORDRED: It would be extraordinary if they did not. 

ARTHUR: And that such an accusation, on your standing alone, would supply the accused no possibility of their own defense or the public of any possibility of forming a reasonable belief of the facts by which justice may be dispensed through the courts. Indeed it is for such very reasons that the courts of law do not countenance claims of this nature -- claims as are not susceptible to being either proved or disproved.

MORDRED: We know all that. But the charge is now made, and neither the King nor the courts may deny standing to its maker or the possibility of its credibility. To remain silent on the claim would be no different than to deny it, and would stir a feeling of great unfairness in the public. 

ARTHUR: You are still very young, Mordred. You have yet to learn that nearly all the ways of giving justice are unfair. If you can suggest another way of settling moot points, except by evidence in a court of law, I will be glad to try it.

MORDRED: Because the standards of evidence require greater proof than we possess to overcome the innocence of the accused, does not mean that the accused is always in the right. 

ARTHUR: I am sure it doesn't. But then, you see, moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody. It is not as if you would have to argue against the accused in your own person. You could hire the greatest arguer you knew to argue your case. And the accused would, of course, get the best arguer he knew to argue theirs. It would be much the same thing if you each hired the strongest man you knew to fight for you. In the last resort it is usually the richest person who wins, whether he hires the most expensive arguer or the most expensive fighter, so it is no good pretending that this is simply a matter of brute force. 

MORDRED: Proved or no, the claim is now asserted in full view of the King's court. Neither the King nor his courts of law may deny the public its privilege of forming its opinion against the accused and of having its justice upon it. 

ARTHUR: An opinion, Mordred, is not a fact. And justice against a person must rest upon established facts. 

MORDRED: The law's justice rests on facts. We do not seek that kind of justice. 

ARTHUR: What is it you seek? 

AGRAVAINE: Justice for the House of Orkney. 

MORDRED [muttering]: I don't care a damn about my House. 

AGRAVAINE [ignoring Mordred]: To establish the standing in the realm to which our House is entitled.

ARTHUR: You tell me that my wife is the mistress of my best friend, and apparently you are to prove this by demonstration, so let us stick to that. I take it that you understand the implications of the charge? The implications are these. If you insist on a civil proof, instead of an appeal to the Court of Honour, the matter will go forward along the lines of civil proof. Should you establish your case, the man who saved you both from Sir Turquine will have his head cut off, and my wife, whom I love very much, will have to be burned alive, for treason.

AGRAVAINE: if you will excuse me, uncle, what I was going to say was this. We intend to settle the matter without civil proof or any appeal to the Court of Honour at all. The standards of proof as you said are designed to satisfy the public mind as to the truth of a claim. But what do we care about the contents of the public's mind when their excited passions will produce that which is needful? 

ARTHUR: Passion alone cannot support the execution of justice under the laws, particularly when it means condemnation to death. 

AGRAVAINE: Uncle, we are in no pursuit of any result offered by justice and the requirements of law to establish true facts; we pursue not that condemnation be carried out, merely that condemnation be declared, in whatever way it might. By this means we shall have justice for our House. We will not be denied this by any more general or public pursuit of truth established by law, in which we do not share besides. Let the public call for their heads, and the Queen and Lancelot will be forced into exile, and justice for our House will be achieved. 

ARTHUR: That may be, Agravaine: you are a keen advocate, and you are determined to have your result. But you underestimate that the public, once its passions have subsided, will once more take an interest in truth, and in justice. I suppose it is no good reminding you that, in the mind of a man not of Orkney, justice is a thing done to a man, not for a House. And that it rests upon truth revealed to a candid mind through facts revealed to be of sound quality and probity as the laws ensure. 

MORDRED: What need has the public of truth after justice is done? Why, an entire people must be convinced of a fact in your courts before it may do justice to a single person! Yet a lightning bolt may dispense justice though it knows not a single fact. 

ARTHUR: Then it is not justice. 

MORDRED: We do not want justice, we want the storm. 

ARTHUR: I understand the situation. 

Tuesday, September 18, 2018

My Post on CONLAWPROF on Professor Christine Blasey's Allegations Against Judge Kavanaugh



[Dear Professor _____]

Could you explain what specific details pushed you to conclude that the Professor Blasey's ( https://www.paloaltou.edu/faculty/christine-blasey ) allegations are not merely "detailed," but "highly detailed," and not merely "credible," but "extremely credible"? 

Thanks,

Seth

Seth Barrett Tillman, My Post on CONLAWPROF on Professor Christine Blasey's Allegations Against Judge Kavanaugh, New Reform Club (Sept. 18, 2018, 3:51 AM), https://reformclub.blogspot.com/2018/09/my-post-on-conlawprof-on-professor.html

Sunday, September 16, 2018

Tillman Interview


Demography—it’s an important issue. It may very well be the defining issue of our time. The demographic implosion of the Western world—people just aren’t having kids.

I remember when PD James’ novel, Children of Men, came out: we laughed. It was sci-fi, a dystopian future with no real implications, but the truth is we are now living in such a culture.

The whole social welfare system—especially Social Security in the U.S.—was built on the presumption there would be a pyramid in terms of workers—fewer people going into retirement than coming into the working world.

The pensions (or quasi-pensions) that the state created would be supported by an ever growing population. That presumption has been proved wrong. That will put a strain on or perhaps cause the collapse of the budgets of Western governments or the implosion of many local authorities. There just aren’t the taxpayers.

What the governments are quietly doing is embracing open immigration to bring new people in to replace the people that they thought they’d have, but don’t have. I think it’s the driving force why the elites want so much immigration. It’s not that they care about the newcomers or dislike their own citizens, it’s that they don’t have enough people.

That’s one reason why we’re not seeing children of prominent politicians. Politicians are reflecting wider society, which is not to have children. One of the reasons so many women are actively getting IVF and other procedures is because they’re waiting late in life.

Just a few decades ago, by the time women were 40, the kids were grown up. Now people are delaying having children until the woman is 40. But it is difficult to conceive then and the state puts up the cost of the IVF and they have only one kid. The idea of having two children—and being at replacement level—or three or four childrenis lost on wider society.

There are even greater incentives on politicians: they get no credit for having children in that whatever fault of the child is ascribed to the parent. That can hurt them politically. The only way to get away with having children as a politician is to have an infant—so the child can’t screw up.

That’s why Cameron got away with it: his children were really young. God forbid you have a kid who uses marijuana or commits a crime: it’s the end of your career. I’m not surprised in the strong competition for political office, the advantage goes to the person without children. One of the interesting things about Trump is he has got a lot of kids. That didn’t hurt him at all with the sort of people who live in the key states he was trying to win.

Not having children is reflecting a large part of wider society delaying marriage, delaying having children, or not having children at all or putting it off until you’re infertile. It’s not where Western society was even a short time ago.

Seth

Seth Barrett Tillman, Tillman Interview, New Reform Club (Sept. 16, 2018, 1:49 PM), https://reformclub.blogspot.com/2018/09/tillman-interview.html


Friday, September 07, 2018

Unpolitical Animals

Harvard's Robert Putnam, in his famous work of political science Bowling Alone, observed Americans have transitioned (progressed?) from true "democratic deliberation" through actual, human contact among communities, to the more symbolic, impersonal political engagement of the last several decades:
"'Nationalization and professionalization have redefined the role of citizen activist as, increasingly, a writer of checks and letters,'..."

But if you're not a man of letters, or if the checking account is a little lean, don't feel left out! Just tell us to what address shall we deliver your democratic deliberation uniform?


The more Putnam-spirited local activist group in my city used to be quite active, but presented with modern options many residents have chosen to send their business to Facebook, who serves the public's grousing needs with more slickness and facility, but, in my view, with the approximate effectiveness of a giant protest condom. Our mayor confirmed for me this feckless politics of digital pecking and clicking suited politicians' preferences just fine when I met with him about a program our group was urging, but which I knew the mayor did not support. "How about," he scoffed, "you just do a SurveyMonkey?" 

Surveys, Facebook comments, petitions, none of these are probative of any real political engagement, or of any real social capital, or of any shared interest in finding answers to the problems that face us. "Neither force, nor argument, nor opinion...are thinking," wrote T.H. White, speaking through Merlyn in the Arthurian epic The Once and Future King. "At present, however, Homo impoliticus is content either to argue with opinions or to fight with his fists, instead of waiting for the truth in his head. It will take a million years, before the mass of men can be called political animals."

There was a fine example of how the modern protest culture forebodes the end of thought in 1993 when a feminist in Maryland raised a fuss over the motto on the official stationery: "Fatti maschii, parole femme," which translates as, "Manly deeds, womanly words." The crisis was neatly averted, however, by simply changing, by legal fiat, the official translation to "Strong deeds, gentle words." No need for democratic deliberation, historical analysis, etymological exegesis, or indeed any thought of any kind whatever. Protesters created a problem, such as it was, and government, without the need to bother the general public with it, simply legislated it out of existence.

Rather a nice cottage industry, that. Might look for more ways, you may be tempted to think if you are in government, to avoid democratic deliberation, all due respect to Bob Putnam.

Tuesday, September 04, 2018

Some Reflections on Trump and his North Korean Condominiums





For the last seven years, my family and I have lived in Ireland. So for the most part, my children have grown up abroad. That has had some lasting effects. The history they study at school is Irish history, European history, and Western history—it is not focused on American history, except insofar as American history impinges on the greater world. The French & Indian War (as I learned it) is taught as the Seven Years War, or the Pomeranian War, or the Third Silesian War, and occasionally as the First “World” War. Likewise, when I was their age, my family vacations—along the East Coast (of the U.S.)—was peppered with visits to Revolutionary War and Civil War battlefields, cemeteries, museums, and re-enactments. Not so for my children—America is too far away. We take our modest vacations in nearby Great Britain and Europe. But still we do what we can. This year we visited Bayeux. We saw the tapestry—not quite American history. We also visited Normandy—its museums, cemeteries, and, of course, its beaches.

On Omaha Beach, the French have put up two monuments—one traditional and one more modern. The beach itself is open and used. People traverse the beach and dip their feet in its cold water. Small children play in the sand. There is ample parking for tourists. There are places to buy souvenirs. And not so distant from the epicentre of the beach and its monuments—people have private homes. Maybe some of those homes are condominiums—I don’t know. What this means is that at some point, temporally and geographically, the mourning and the monuments must run out. Yes, the dead are buried. But the earth belongs in usufruct to the living.

At the outbreak of the Korean conflict, MacArthur believed the U.S. should engage in total war and defeat North Korea and its communist allies. For better or worse, his advice was rejected by the political authorities. Since then, more than half a century of containment has failedmiserably. The only path that remains open to us to wean the North Korean state off totalitarianism is peace. That could mean (among other possibilities) that North Koreans will need attractive homes (like the French at Normandy) and tourists (like the French at Normandy)—and that they should exploit that bit of the earth that is (North) Korea’s. For all the sacrifice of the Americans and others who fell at Normandy, I would not sneer at the French for living in attractive homes in their own country and doing business with tourists. For the very same reasons, we should not sneer at North Koreans should they choose to abandon barb wire and making instruments of war in order to build condominiums. Not only should we not sneer, we should applaud their doing so.

People sneered at Trump for telling Kim Jung-un to build condominiums on North Korea’s beaches. They were wrong; Trump was right.

Seth

Seth Barrett Tillman, Some Reflections on Trump and his North Korean Condominiums, New Reform Club (Sept. 4, 2018, 4:15 AM), https://reformclub.blogspot.com/2018/09/some-reflections-on-trump-and-his-north.html.

Sunday, August 26, 2018

My Post on CONLAWPROF: On Elected Judges and Elected Prosecutors



It strikes me that the complaint against judicial elections (as voiced on this listserv) is rooted in the absence of life tenure -- not elections per se. You could have elections filling judicial vacancies -- but with the candidates' receiving life tenure. And you could have appointments by political authorities to fixed and limited judicial terms -- with the possibility of reappointment. The threat to the rule of law (such as it is), lies with the prospective candidate for reelection/reappointment to judicial office biasing his/her decision for self-interested reasons. But that conflict of interest will appear whenever you have terms of limited duration with the possibility of reelection/reappointment. It is not elections per se that create the conflict.

Another solution to the conflict is to use either elections or appointment for fixed and limited terms -- but to preclude second or subsequent terms in judicial office (or, at least, to the same judicial post). 

I wonder if any might agree with the following proposed reform -- which is somewhat tangential to the discussion above.... U.S. attorneys (i.e., federal prosecutors) posts might only be filled with people at the end of their careers in private practice or in government. That is, former U.S. attorneys should be precluded from thereafter taking on both any federal judicial position (if not any appointed federal position) and any elected federal position. [I expect that any such reform would require a constitutional amendment.] I'd like to see prosecutorial discretion vested in those who are not thinking about the horizon of the next election or the next judicial appointment. If such a reform were passed, I expect the U.S. attorneys posts would fall to retiring federal (and state) judges, senators, governors, and, perhaps, very senior DOJ officials and other law officers in the civil service, professors, and members of the bar--all people who would be willing to give up a future career in regard to elective positions. If the feeling on this listserv is that (elected) judges are biased by elections--doesn't it make good sense to remove prosecutors from the orbit of such elections? 

Seth Barrett Tillman, My Post on CONLAWPROF: On Elected Judges and Elected Prosecutors, New Reform Club (Aug. 26, 2018, 9:21 AM), https://tinyurl.com/yd3q3ou8 

Tuesday, August 07, 2018

My Bertie Wooster Moment




After using the beach prior to sunrise, and after seeing the below-sea-level aquarium, I decided to leave Eilat. My time there was not exactly propitious. On arrival, I called one of the city’s two chief rabbis and asked what restaurants were kosher. I was told: “none.” So I left. I headed north—there was only one road in that direction. I was on my way to Safed. It was Friday, 9 AM. I had a full tank of gas—and I was in a black suit wearing sunglasses. Really. I was on my way to an arranged date to take place before sundown. But I never got there; I never made it to that date.

I was driving a new Subaru. A rental car. The sun was out, and it was hot—hot as only a desert could be hot. I was going about 90 mph, maybe 100, and I had a blow out. My car exited the safety of the raised road. In effect, I flew off a small cliff. It all happened so fast. It was over in what felt like an instant. And then the car landed, luckily, right side up. Thinking that my gas tank might be punctured, I exited the car hastily—not that there was much left of it. All the tires flattened. All the windows fractured in 1000s of pieces. A total wreck. I was fine—just the smallest cut on my left hand. A scar I still have. I was fine, not one broken bone or damaged organ. There was nothing left of the car. I fished out my kit from the wreck—all intact.

If I ever go by that spot, I have to say Hallel there.

The only other vehicle on the road nearby was an Egged tour bus. It was full of German tourists. Really. I am not making this up. I was befriended by a German nurse who took my pulse. The tourists all thought it was a miracle that I survived. The driver said: “If you could do that again, go to Hollywood as a stuntman.”

The driver offered me a ride to Masada. From there I would call the rental car agency, and get a new car, or, at least, a way back to a settled abode before sundown. I called the rental company. I told them I was at Masada, and that I’d need a replacement car, “as there had been some damage to their property.” Could they bring me a new car? It was about 11 AM, and they hoped to come by 2 to 4 pm.

When they picked up the car, they recognized that it was totalled. No chance of repair. It was then that I had an epiphany—which I’d like to share with you. It is the sort of thing Bertie Wooster might say to Jeeves. If you return a rental car so damaged that it cannot be repaired, you don’t have to (and, indeed, you cannot) fill up the gas tank when you return it. The incentives do not make any sense—but that is the world we live in.

Seth Barrett Tillman, My Bertie Wooster Moment, New Reform Club (Aug. 7, 2018, 12:08 PM), (https://reformclub.blogspot.com/2018/08/my-bertie-wooster-moment.html

Rocky & Racism




I was about thirteen years old when Rocky came out. I saw it during the summer, while in sleepaway camp—in a camp trip to the town movie theatre in Warrensburg, New York. I did not know much (actually—anything) about boxing. Still, I am sure I could have followed the basic plot had I been on my own. But I wasn’t on my own. Most of the camp counselors (who were with us in the theatre) were from Slippery Rock, and they were studying to be school gym teachers and college coaches. They were good guys, and they knew everything about things like boxing. So during the movie, I had a running commentary as to the details from a counselor.

Summer ended. We went home. And in pretty short order there were all sorts of reviews that Rocky was about race. The great white hope. A movie only racists could love. Here is Joe Queenan in The Guardian:

Cheerfully moronic, imbued with an almost infantile racism to which Stallone and the film's enthusiasts have long purported to be oblivious, Rocky lionizes a small-time South Philly hood who somehow manages to wangle a bout with the reigning heavyweight champion of the world, and thereupon gives him the fight of his life. The champion, Apollo Creed, is a motor-mouthed African-American punk who shows no respect for America, much less the flag; he is transparently a stand-in for Muhammad Ali, who, though sainted and adored now, was in those days reviled by a substantial percentage of white Americans, particularly old school Caucasian fight fans. (Joe Queenan, America’s great white hope?, The Guardian, https://tinyurl.com/y7wxb6g3).

Just about everything is wrong about the statement above. Apollo Creed was not portrayed as a “punk.” He was the champion. He was a boxer—who was so much better than his peers that he found difficulty finding contenders. When he could not find a contender, it was his idea to create one: giving “a local Philadelphia boy a shot at the greatest title in the world.” What this shows is that Creed was not just raw strength—he was a thinker. And that’s the truth too many of our movies never put forward about professional sports—athletes and their coaches are thinkers.

The remaining claims are similarly false. There was nothing about Creed that showed a lack of respect for America or its flag. As to Rocky, he did not “wangle” his way to getting the bout with Creed. It was handed to Rocky—a result which was wholly unexpected (from Rocky’s point of view) and wholly undeserved (ditto). Most of Rocky was about his transforming himself to make himself worthy of the shot fate (and Creed) had gifted him.

Then there is the racism charge. What is meant by an “almost infantile racism.” If it is “almost infantile,” does that mean that it is adult-like, or does it mean “almost racist,” as in not racist? Plain and simple: Queenan is a race huckster. The natural consequence of such race hucksterism is to make producers and others afraid to make movies with a diverse cast.

Still, I used to (sometimes) wonder—did I root for Rocky because he was the underdog, or because he looked more like me than Creed? I always thought it was the former, but now I am sure. Here is why.

Have you seen the Ip Man martial arts series starring Donnie Yen? Here is a link to Ip Man 2, where Ip Man fights Twister—the stand-in for British boxing. The fight is cast as a confrontation between East and West, martial arts and Western boxing, the champion and the underdog. I know that I was rooting for Ip Man, and I am not Chinese. I suspect that most people (including most Caucasian people) in British theatres (that is, in the country next door) were doing much the same—even though Twister is draped in a Union Jack.

It might be irrational to root for underdogs. Maybe underdogs don’t deserve our good will. But giving them our good will and support isn’t rooted in racism. It transcends race. I rooted for Ip Man. Rocky was never about race. Case closed.


Seth Barrett Tillman, Rocky & Racism, New Reform Club (Aug. 7, 2018, 7:06 AM), ( https://reformclub.blogspot.com/2018/08/rocky-racism.html )

Friday, July 27, 2018

What is the "Privilege" of the Writ of Habeas Corpus?

Seth Barrett Tillman, Merryman Redux: A Response to Professor John Yoo, 22 Chap. L. Rev(forth. 2018–19) (manuscript at 4 n.12), https://ssrn.com/abstract=3213353

[start]
The Constitution states: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2 (emphasis added). President Lincoln’s order, issued on April 27, 1861, only purported to give General Scott authority “to suspend the writ of habeas corpus.” See 6 Complete Works of Abraham Lincoln, 1860–1861, at 258, 258 (John G. Nicolay & John Hay eds., N.Y., The Lamb Publishing Co. new ed. 1894) (reproducing Lincoln’s order); Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Mil. L. Rev. 481, 527 & n.116 (2016) (peer reviewed), http://ssrn.com/abstract=2646888. But in his July 4, 1861 message to Congress, Lincoln recharacterized his prior order as permitting suspension of the “privilege of the writ of habeas corpus.” 6 Complete Works, supra, at 297, 308–09 (emphasis omitted) (emphasis added). The difference between suspending the writ and suspending the privilege of the writ is night-and-day. See, e.g., Ex parte Milligan, 71 U.S. (4 Wall.) 2, 130–31 (1866) (Davis, J., for a unanimous Court) (“The suspension of the privilege of the writ of habeas corpus does not suspend the writ itself.” (emphasis added)); see also, e.g., Ex parte Benedict, 3 F. Cas. 159, 174 (N.D.N.Y. 1862) (No. 1292) (Hall, J.) (“Such a suspension may prevent the prisoner’s discharge; but it leaves untouched the question of the illegality of his arrest, imprisonment, and deportation. If these are unlawful, the marshal and others engaged in these arrests are liable in damages in a civil prosecution; such damages to be assessed by a jury of the country.”). It is not particularly surprising that these distinctions are no longer understood, as this and much else relating to the Constitution’s original public meaning was forgotten even as early as Lincoln’s day, and, in regard to a few constitutional provisions and language, sometimes far earlier. But it is curious how few even notice there is a puzzle to be solved and a past to be explained. But see William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1853 n.255 (2008) (pointing out the same textual distinction regarding the “privilege” of the writ and the writ itself, but not resolving the distinction); but cf. Peter William Bautz, Lincoln’s Long Shadow: Recreating the Legal Debate over Habeas Corpus, 1861–1863 passim (Master’s Thesis, University of Virginia, Department of History, 2018), https://tinyurl.com/y96uy8ys (collecting some early authorities addressing the distinction).

My view is that suspension of the evidentiary privilege of the writ of habeas corpus precludes a court (or even an Executive Branch officer) from taking cognizance of a party’s pleading (or invoking) the writ (once granted to that party by that court or any other court of record) in subsequent contempt and enforcement proceedings (and, perhaps, in other collateral and ancillary proceedings). E.g., Merryman II (granting an order to serve an attachment for contempt where the defendant failed to produce the prisoner-plaintiff). Suspending the writ (as opposed to suspending the privilege of the writ) precludes a court from granting the writ, on the merits, in the first instance. E.g., Merryman I (i.e., an ex parte habeas order to produce a prisoner), or a Merryman III-like order (i.e., a habeas order to release a prisoner—albeit, of course, this did not actually happen in Merryman). When both the writ and/or the privilege of the writ are suspended, federal courts (having general federal question jurisdiction) will still have jurisdiction to determine if the suspension or suspensions themselves are constitutional—unless Congress has validly stripped the federal courts of jurisdiction to do so. The scope of Congress’s power to engage in such jurisdiction stripping is a complex subject, and one well beyond the scope of this Article. See generally Edward A. Hartnett, The Constitutional Puzzle of Habeas Corpus, 46 B.C. L. Rev. 251, 289 (2005). Recently, the Suspension Clause has received renewed interest and full-length treatment in books…but the meaning of the clause’s text…its actual words…they remain largely an undiscovered country. See generally, e.g., Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (2017). But see Baude, supra at 1853 n.255; but cf. Bautz, supra passim. I have put down some truly remarkable support for this position in another paper which this Response to Professor John Yoo is too small to contain. (I submitted a prior draft of this lengthy footnote as my abstract to the Tenth Annual Originalism Works-in-Progress Conference. See Tenth Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference, University of San Diego School of Law (last accessed July 27, 2018), http://www.sandiego.edu/events/law/detail.php?_focus=66934.)

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Seth Barrett Tillman, What is the Privilege of the Writ of Habeas Corpus?, New Reform Club (July 27, 2018, 2:41 AM), 



Thursday, July 26, 2018

Tillman on the Judicial Backlog and Transparency in the Irish Judicial System



Tillman-authored Materials on the Court of Appeal and Transparency in the Superior Courts of Ireland                                                                                  

Seth Barrett Tillman, Court of Appeal: ‘The new court has failed to meet expectations, Journal.ie (July 26, 2018), http://jrnl.ie/4144580http://ssrn.com/abstract=3216200;

Seth Barrett Tillman, Op. Ed. (Thunderer), Court of Appeal failure should fuel reform of judiciaryThe Times (Irish edn.), July 26, 2018, 12:01 AM, https://tinyurl.com/yb2qb8dc;

Seth Barrett Tillman, Letter to the Editor, Court BacklogThe Irish Times, July 23, 2018, 12:02 AM, at 13, https://www.irishtimes.com/opinion/letters/court-backlog-1.3572788;

Seth Barrett Tillman, The Court of Appeal Backlog, 35(15) Irish Law Times 206–08 (2017), http://ssrn.com/abstract=2996405;

Seth Barrett Tillman, Has the Irish Court of Appeal Solved the Judicial Backlog? Can it?, 34(14) Irish Law Times 210–12 (2016), http://ssrn.com/abstract=2816458;

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), Business & Innovation at 7, http://ssrn.com/abstract=2465554http://www.irishtimes.com/news/crime-and-law/court-of-appeal-just-a-new-version-of-supreme-court-only-more-costly-1.1874746; and,

Seth Barrett Tillman, Opinion Editorial, Time to Open Courts and Let Justice Be SeenThe Irish Independent, August 22, 2012, 17:00 pm, at A14, http://tinyurl.com/bsy9789.

Quoted In:
Mark Tighe, Flanagan sees the appeal of more judgesThe Sunday Times (Irish edn.), July 22, 2018, at 8, https://www.thetimes.co.uk/edition/ireland/flanagan-sees-the-appeal-of-more-judges-rbxgbdpxs;

Mark Tighe, Flanagan sees the appeal of more judgesThe Sunday Times (July 22, 2018, 12:01 AM), https://www.thetimes.co.uk/edition/ireland/flanagan-sees-the-appeal-of-more-judges-rbxgbdpxs;

Willie Penrose TD (Labour Party, Longford-Westmeath), Dail Debate on the Judicial Appointments Bill 2016: Second Stage, Houses of the Oireachtas (Oct. 26, 2016), http://tinyurl.com/hqsvdeq (at 41:50ff) (discussing Tillman’s academic research);


Micheál Martin TD (Leader of the Opposition, Fianna Fail party, Cork South Central) in Dáil debates, Kildare Street (Oct. 18, 2016, 2:05 PM), https://tinyurl.com/jm4lbzs, http://tinyurl.com/zhnsw5w (quoting Tillman); 

Leading Article, The Legal Limit; Ireland’s courts system needs to be less like an academic common room and more like a busy branch of McDonaldsThe Times (Irish edn.), Sept. 27, 2016, 12:01 AM, http://tinyurl.com/zymmkow;

Mark Tighe, Supreme Court clears five-year backlogThe Sunday Times, Sept. 25, 2016, 12:01 AM, at News, at 10, http://tinyurl.com/hfnxlt2;

Connor Gallagher, Court of Appeal backlog ‘could take over a decade to clear’The Irish Times, Sept. 19, 2016, at 6, http://tinyurl.com/jdnqfkn;

Mark Tighe & Catherine Sanz, Half of cases overturned on appealThe Sunday Times (Irish edn.), Sept. 18, 2016, at 1–2, http://tinyurl.com/hvl3x3x;

Mark Tighe & Catherine Sanz, How we scraped for data on appeal decisionsThe Sunday Times (Irish edn.), Sept. 18, 2016, at 6;

Leanna Byrne, Backlog building at new Court of AppealThe Sunday Business Post, Dec. 28, 2014;

Leanna Byrne, An Appealing Prospect? The new court aims to improve efficiency, but critics are doubtfulThe Sunday Business Post, Nov. 2, 2014, at 20;

Mattie McGrath TD, Press Release, Court of Appeal Act will only entrench systemic delays, July 30, 2014;

Declan Lynch, Foresight beats hindsight in any raceThe Sunday Independent, Oct. 13, 2013, at 14;

Niamh Lyons, Now let’s see real reform of SeanadIrish Daily Mail, Oct. 7, 2013, at 6–7;

Colin Gleeson, How The Referendum Campaigns Unfolded: A brief history of the Seanad abolition and Court of Appeal referendumsThe Irish Times, Oct. 5, 2013, http://www.irishtimes.com/news/politics/how-the-referendum-campaigns-unfolded-1.1551693;

Mike Dwane, Supreme Court case delays ‘unsustainable’, says Chief JusticeLimerick Leader, Oct. 3, 2013;

Mark Tighe, Jobs For The Boys? The imminent referendum on whether to establish an appeal court has sparked fears the Justice Minister will put supporters on the benchThe Sunday Times, Sept. 22, 2013, at 10;

Ruadhan Mac Cormaic, Shatter arguments for Court of Appeal ‘incoherent’, says law lecturerThe Irish Times, Sept. 16, 2013, at 6, http://tinyurl.com/mqcxqp9http://ssrn.com/abstract=2326071; and,

Kieron Wood, Business of Law, Open Democracy Requires Free Media Access to Court DocumentsThe Sunday Business Post, July 14, 2013, at n21.

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Seth Barrett Tillman, Tillman on the Judicial Backlog and Transparency in the Irish Judicial SystemNew Reform Club (July 26, 2018, 5:43 AM), https://reformclub.blogspot.com/2018/07/tillman-on-judicial-backlog-and.html.