"In the end, we will remember not the words of our enemies, but the silence of our friends."—MLK

Sunday, September 25, 2016

Response to Liz O'Donnell's—We must embrace desperate people as Europe fails those fleeing war

Letters to the Editor

Re:    Liz O’Donnell, ‘We must embrace desperate people as Europe fails those fleeing war’ The Irish Independent (Sept. 23, 2016, 2:30 AM). [http://tinyurl.com/h7fch9u]       

In your September 23 issue, your columnist, Liz O’Donnell, wrote: “This [situation] is a total denial of refugee rights under international law. What dispute can there possibly be about the status of civilians fleeing the six-year-long Syrian war? There is no dispute.” Actually, there is some dispute. Several pages earlier, in the very same issue of The Irish Independent, your foreign correspondent wrote a news article titled: Refugee (16) plotted bomb attack for Isil. (See http://shr.gs/0m4jthJ.) There is no common, coherent narrative to be drawn from these two articles: refugees as the endangered, and refugees as the danger.

All that begs the question if some of these people coming to Europe’s shores are what they claim to be. Are they escaping “refugees”? Or are some something else—genocidaires, war criminals, partisans in naked religious strife, and other irregular combatants—who are trying to flee their own homelands (perhaps, which they themselves helped to destroy) before justice and/or retribution catch up with them? Of course, if that is who they are, they are bringing their rather unique skill set with them. And they are bringing ithere—and tous.

Seth Barrett Tillman

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

Seth Barrett Tillman, Legislative Veto & Line Item Veto—Overturning INS v Chadha on Originalist Grounds, The New Reform Club (Sept. 25, 2016, 5:49 AM). [here]

Incest and Tyranny: Trump fits a historical pattern

Incest is an abuse of power. The incest, though, is more than physical abuse as it can include emotional or psychological elements. From ancient times, incest was shunned for its effect on the family and more widely on society. For the ancient Athenians, incest had political consequences as they saw the polis as an extended family.[1] In political terms, incest would be a way to describe tyranny. The tyrant, acting as the city’s patriarch, had a disordered eros as the city served his interests and the normal relationship between ruler and ruled was corrupted. In the medieval era, incest by the father was described as being a domestic tyrant.[2] The father corrupted the family by his incestuous relationship with his daughter. The father, unable to control his disordered eros, corrupted the family structure as the daughter replaced his wife as a sexual partner.

From the physical to the psychological, incest takes many forms.

The modern view of incest moves beyond the physical to the psychological. The physical abuse can be replaced by a form of psychological abuse. Judith Warner cites Judith Lewis Herman on that issue.
Incest, she says, is "an abuse of patriarchal power," a criminal perversion of fatherly control and influence. It is perpetrated, in many cases, by men who present themselves as the guardians of the moral order. And it isn't always physical; in her 1981 book (with Lisa Hirschman), "Father-Daughter Incest," she writes that the violation can be emotional, too, as when a "seductive father" oversteps his boundaries and goes places he never should in his daughter's head.[3] [emphasis added]

When we consider the emotional or psychological incest, we see how the seductive father oversteps the normal boundaries between a father and a daughter. When a divorced father boasts about his daughter, in her presence, that she has a hot body and that if he was not her father, he would date her, he crosses the boundary.[4] He gets into her head. The comment puts the daughter in an invidious position. The father erases the normal parental role as she is now eligible to be he sexual partner. He gives her his highest approval. She wants to be approved but not in that way. She cannot correct her father for that risks his displeasure. Yet, the father has crossed the boundary between a father and a daughter by transforming her, through that comment, into a viable sexual partner. The father forces the daughter to consider him as a potential sexual partner. She has to consider, if only to reject, the idea.  In that moment, the father publicly asserts his psychological power over his daughter. He reminds that her physical and sexual potential meet his approval. He asserts his sexual prowess, by his statement, and he abuses the psychological and emotional relationship. She is no longer his daughter, she is a viable sexual partner.

If a father will inflict that emotional abuse on his daughter, what is he capable on a larger scale? Thankfully, most father daughter incestual relationships have no consequences beyond the family. Yet, the ancient Greeks understood that individual abuse, driven by a disordered eros, could scale to the city level if the father was able to gain control of the polis. The problem was the disordered eros that drove the father to the incestuous comments would drive him in the political domain. In a larger state, the disordered eros would have even greater consequences. What the seductive father does to his daughter within the family, the tyrant can do to a community within a nation. He will abuse it so that it will serve his disordered erotic political vision. He will seduce the state that he is suppose to protect and serve to corrupt it to serve his interests. 

[1] Wohl, V. 2002. Love Among the Ruins: The Erotics of Democracy in Classical Athens, Princeton and London: Princeton University Press. p 221. Quoted in Larivee, Annie. Eros Tyrannos: Alcibiades as the Model of the Tyrant in Book IX of the Republic. The International Journal of the Platonic Tradition 6 (2012) p.9.
[3] Warner, Judith. Pure Tyranny ,New York Times, The Opinion Pages, 13 June 2008
[4] https://www.youtube.com/watch?v=DP7yf8-Lk80
Trump repeated his remarks on other occasions and has never retracted his views nor has he apologised publicly to his daughter. 

Legislative Veto & Line Item Veto—Overturning INS v Chadha on Originalist Grounds

Dear Professor,

I appreciate your citing my work on past occasions.  I wanted to mention to you that an entry on Article I, Section 7 on The Interactive Constitution will go live in the next few weeks, perhaps as early as the next few days. I am not the author of that entry, but I can tell you that the author is an academic with a very good reputation in originalist circles. I also know that the author is going to cite my 2005 Texas Law Review paper and exchange with Professor Gary S. Lawson (Boston University) on the original public meaning of U.S. Constitution Article 1, Section 7, Clause 3.** See Seth Barrett Tillman, A Textualist Defense of Article I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned, 83 Tex. L. Rev. 1265 (2005), http://ssrn.com/abstract=475204; Gary Lawson, Comment, Burning Down the House (and Senate): A Presentment Requirement for Legislative Subpoenas Under the Orders, Resolutions, and Votes Clause, 83 Tex. L. Rev. 1373 (2005), http://ssrn.com/abstract=556789; Seth Barrett Tillman, The Domain of Constitutional Delegations Under the Orders, Resolutions, and Votes Clause: A Reply to Professor Gary Lawson, 83 Tex. L. Rev. 1389 (2005), http://ssrn.com/abstract=658003.  

Can I interest you in writing a post, especially prior to the election, citing the new entry on The Interactive Constitution, and pointing out the possibilities and benefits of a revived legislative veto / line item veto project?

For what it is worth, I think the current configuration of the Supreme Courteven a Supreme Court with a ninth Justice appointed by Obama, Clinton, or Trumpis likely to uphold such a mechanism. Justice Breyer would lead a contingent of (at least) 4 liberals/pragmatists supporting such a position (much as Justice White dissented in Chadha). If any one (or more) of the conservative/originalist Justices sign that bill on to such a judicial decision, perhaps based on the originalist reasoning put forth in my 2005 Texas paper and exchange with Lawson, that makes a majority of at least 5.  

A new election, a new Congress, and a new President poses an opportunity to change things, sometimes for the better. So let me invite you to use your widely-read blog in this way. I am not sure if you support the REINS Act, but I don’t think such a post, as I suggest here, would get in the way of that project (assuming it is not already moribund).

I know this is an unusual requestbut we no longer live in usual times.  

Thank you.  


I plan to post this letter (in anonymized form) on my blog: The New Reform Club

**This clause is also known as: the Second Presentment Clause; the Residual Presentment Clause; the Presentment of Resolutions Clause; and the Orders, Resolutions, and Votes Clause.

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

Seth Barrett Tillman, Hola Camp Massacre Speech, House of Commons Debate, 27 July 1959, The New Reform Club (Sept. 23, 2016, 7:18 AM). [Here] 

Friday, September 23, 2016

Hola Camp Massacre Speech, House of Commons Debate, 27 July 1959

"Those documents, that evidence, prove to me conclusively that the responsibility here lies not only with Sullivan and Lewis, but at a level above them. It lies with those to whom they actually appealed for help, whom they warned of the danger, from whom they received indeed a decision which transferred responsibility upwards, but no other help or guidance. That responsibility, transcending Sullivan and Lewis, has not been recognised; but it cannot be ignored, it cannot be burked, it will not just evaporate into thin air if we do nothing about it.

I am as certain of this as I am of anything, that my right hon. Friend the Secretary of State from the beginning to the end of this affair is without any jot or tittle of blame for what happened in Kenya, that he could not be expected to know, that it could not be within the administrative conventions that these matters should be brought to his attention before or during the execution. When I say my right hon. Friend was in this matter utterly and completely blameless, that is of a piece with his administration of his high office generally, which has been the greatest exercise of the office of Colonial Secretary in modern times. It is in the name of that record, it is in the name of his personal blamelessness, that I beg of him to ensure that the responsibility is recognised and carried where it properly belongs, and is seen to belong.

I have heard it suggested that there were circumstances surrounding this affair at Hola Camp which, it is argued, might justify the passing over of this responsibility—which might justify one in saying, “Well, of course, strictly speaking, that is quite correct; but then here there were special circumstances.”

It has been said—and it is a fact—that these eleven men were the lowest of the low; sub-human was the word which one of my hon. Friends used. So be it. But that cannot be relevant to the acceptance of responsibility for their death. I know that it does not enter into my right hon. Friend’s mind that it could be relevant, because it would be completely inconsistent with his whole policy of rehabilitation, which is based upon the assumption that whatever the present state of these men, they can be reclaimed. No one who supports the policy of rehabilitation can argue from the character and condition of these men that responsibility for their death should be different from the responsibility for anyone else’s death. In general, I would say that it is a fearful doctrine, which must recoil upon the heads of those who pronounce it, to stand in judgment on a fellow human-being and to say, “Because he was such-and-such, therefore the consequences which would otherwise flow from his death shall not flow.”

It is then said that the morale of the Prison Service, the morale of the whole Colonial Service, is above all important and that whatever we do, whatever we urge, whatever we say, should have regard to that morale. “Amen” say I. But is it for the morale of the Prison Service that those who executed a policy should suffer—whether inadequately or not is another question—and those who authorised it, those to whom they appealed, should be passed over? I cannot believe that that supports the morale of a service.

Going on beyond that, my hon. Friend the Member for Leicester, South-East (Mr. Peel) reminded the House how proud the Colonial Service is of the integrity of its administration and its record. Nothing could be more damaging to the morale of such a service than that there should be a breath or a blemish left upon it. No, Sir; that argument from the morale of the Prison Service and the Colonial Service stands on its head if what we mean is that therefore the consequences of responsibility should not follow in this case as they would in any other similar case.

Finally it is argued that this is Africa, that things are different there. Of course they are. The question is whether the difference between things there and here is such that the taking of responsibility there and here should be upon different principles. We claim that it is our object—and this is something which unites both sides of the House—to leave representative institutions behind us wherever we give up our rule. I cannot imagine that it is a way to plant representative institutions to be seen to shirk the acceptance and the assignment of responsibility, which is the very essence of responsible Government.

Nor can we ourselves pick and choose where and in what parts of the world we shall use this or that kind of standard. We cannot say, “We will have African standards in Africa, Asian standards in Asia and perhaps British standards here at home.” We have not that choice to make. We must be consistent with ourselves everywhere. 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. We cannot, we dare not, in Africa of all places, fall below our own highest standards in the acceptance of responsibility."


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

Seth Barrett Tillman, Some Thoughts on Professor Garrett Epps’ “Trumpism Is the Symptom of a Gravely Ill Constitution”The New Reform Club (Sept. 21, 2016, 2:04 PM).

Wednesday, September 21, 2016

Some Thoughts on Professor Garrett Epps’ "Trumpism Is the Symptom of a Gravely Ill Constitution"

The funny thing is ... I don’t disagree with Professor Epps’ core thesis, which I restate here in my own words, as: something is wrong in the United States, and some of what is wrong relates to our Constitution.

That said: some of Professor Epps’ specific claims strike me as, at the very least, odd. How much worse than odd, if at all, I leave to you, the reasonable reader.

Now to brass tacks. Professor Epps wrote:

“Political correctness” is out of favor, so I won’t pretend that “both sides” bear responsibility. The corrosive attack on constitutional values has come, and continues to come, from the right. It first broke into the open in 1998, when a repudiated House majority tried to remove President Bill Clinton for minor offenses.

Garrett Epps, Trumpism Is the Symptom of a Gravely Ill Constitution, The Atlantic, Sept. 20, 2016 (emphasis added), http://tinyurl.com/zhv3rbw.  Let us (for a moment) leave aside Democratic opposition to the Supreme Court nominations of Judge Bork and Justice Thomas. Let’s go with Epps’ In 1998, the Republicans “first” started America’s descent into constitutional hell fire & brimstone.

Still what precisely does Professor Epps mean by a “repudiated” House majority? The 105th House was elected in 1996. The Republicans had a wafer thin majority of 8 members among 435 voting House members. In 1998, during the midterm election, the Republican’s majority was clawed back from 8 members to 5. A loss of 3 seats. But the Republicans retained the majority, and then its members proceeded—as they had indicated during the election—to impeach Clinton during the lame duck session. (On the Senate side, the Republican had 55 members before and after the 1998 election.) So what does Epps mean by a “repudiated House majority.” Its majority was returned, albeit ever so slightly reduced, and it was the Democrats who stayed in the minority. It appears Epps is unwilling to recognize the democratic legitimacy of the then Republican Congress, which is odd, very odd, because his claim against today’s Republicans is that they “have simply refused to accept [President Obama] as the nation’s legitimate leader.” Id.

Next point. What does Professor Epps mean by “minor offenses”? If Epps had said, “Clinton was innocent, and the Republicans knew he was innocent,” such a position, true or false, would be comprehensible, particularly as it depends on disputed facts. But Epps is not saying that; instead, he is saying the alleged offenses were “minor.” How so? Paula Jones claimed that Bill Clinton unlawfully sexually harassed her in violation of Section 1983 and Section 1985 of title 42 of the U.S. Code. These provisions, and their sister provision Section 1984, are more than a hundred years old, and tens of thousands of U.S. litigants annually use these provisions to mount civil rights actions under the Bill of Rights, particularly against state and local government officials. When has anyone, particularly anyone on the left, suggested that such allegations were minor? Indeed, the very fact that Congress has passed these statutes and provided federal forums to vindicate these rights establishes that the democratic arm of our government thinks these allegations are serious, not minor. Furthermore, Clinton was impeached for perjury in relation to his conduct in opposing Jones’ Section 1983 and Section 1985 claims. Perjury is not a minor wrong; it is a crime—a felony of longstanding. What court has ever suggested that perjury was a minor offense? It is sad to hear such arguments put forward by political scientists and historians, but for a law school professor to put such arguments forward is catastrophic. Why? Because Epps’ position will be heard, by students and by practitioners and by the lay public, and some number of people who hear it may come to believe it true: that perjury is minor. And when we reach the point that perjury is widely thought to be minor, we may have to reconsider if we need judges and courts at all, and if we don’t need them, we certainly won’t need American law professors.

Only Professor Epps can explain what he means by “minor.” I surely don’t know what he meant. But I can make a fair guess how many readers will understand him, albeit it is just my guess.

Clinton was an important person: the elected President of the United States. And Paula Jones was a nobody, and probably just a tool of the President’s opponents. He was important, and she was “minor.”

I think that is how a lot of people will understand Epps’ article in The Atlantic. If I am correct about this, and if Epps really wants to know why many people are voting Trump, then he should justlook in a mirror. It is writing like his that has and is pushing many Americans to do just that.

Now as you can see, I think Professor Epps is entirely wrong. Allegations that a defendant has violated someone’s civil rights, i.e., in violation of the Bill of Rights and federal statutes, are not minor. But for a moment, let us accept Epps’ position. Let us assume that sexual harassment and perjury in relation to allegations of sexual harassment are minor. If that were true, then the Democratic Senators who proffered Professor Hill’s allegations against Justice Thomas were ... only bringing up “minor offenses.” In that situation, Epps should date our polity’s descent into constitutional hell, not from 1998, but from 1991, and the fault would lie, not with Republicans, but with the Democrats. Epps’ position is all so odd. Very odd.

One last point. Professor Epps wrote: “Stanley Milgram’s ‘obedience to authority’ experiment suggests that others, who know better, will simply stand aside as the toadies take over.” Id. No: A thousand times no. The Milgram experiment suggests no such thing. The only lesson of the Milgram experiment is that some (hopefully few) academics are willing to impose on and to lie to people, i.e., ordinary people—sometimes struggling students—trying to pick up some spare change, and that Milgram and those like him will do these things in order to advance their academic careers, wholly without regard to the consequences endured by their experiments’ subjects. Furthermore, academic bodies and professional associations, which should maintain ethical boundaries and standards, will give positions, honors, and grants to such men. If Professor Epps thinks there is something else to be learned from Milgram’s experiment, then his judgment here is far worse than his misremembering and misunderstanding the events of 1991 and 1998. 

When the elite of our society quote Miligram and honor him, then other people will take the hint. Some of these ordinary people—who used to be called “citizens” and “voters,” but are now called “deplorables” and “irredeemables”—just might think they have more in common with Jones and the subjects of Milgrams experiments than they do with Professor Milgram and with Professor Epps. And if these people vote for Trump, I know why.


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

My prior post: Seth Barrett Tillman, “Weighing” Good & Evil, and What We “Forgive” in History, The New Reform Club (Sept. 21, 2016, 5:25 AM). [Here