Everything you say can and will be used against you.

Monday, July 15, 2019

After Syriza—the Future of the Left

Letter to the Editor:

guardian.letters@theguardian.com



July 15, 2019

Re: Gary Younge, ‘Syriza’s defeat shows the left needs a plan to sustain power’ The Guardian (12 July 2019) journal 1–2, <https://www.theguardian.com/commentisfree/2019/jul/12/syriza-left-election>.

Gary Younge wrote that Syriza “folded,” and did so because “there is a limit to how much any election can achieve under neoliberal globalisation—because no matter who you vote for, capital and its proxies always get in, from currency traders to international organisations.” What currency traders?—Greece is in the Eurozone. All the key negotiations were among parties using the same currency.

As for international organisations—that is a euphemism for the European Union. Syriza failed because its leadership was more interested in taking direction from Brussels than from its own citizens, voters, and supporters. Had the Greek government abandoned the Eurozone (albeit, abandoning the Euro may have cost Greece EU membership**), the Greek government would have been better positioned to renegotiate its debt with both the EU and with its other creditors. The Syriza government chose not to do so, and that is why it lost the last election.

One might also see the broader lesson for the UK and the Left. If an elected government abandons its popular mandate, its election manifesto, and its commitment to national democracy (eg, referendums), voters have no reason to stick around. The Left, in the UK and elsewhere, has a similar choice. Parties of the Left, ie, its governments-in-waiting, can commit to holding public power in trust for actual citizens, or, instead, they can choose to wield power on behalf of mere consumers and patients—all the while taking direction from distant, unaccountable bureaucrats who lack democratic bona fides. The latter road—whether taken by parties of the Right or the Left—is not a path to meaningful electoral victory. Just ask Syriza. 

Seth

/s/

Seth Barrett Tillman, Lecturer
Maynooth University Department of Law

Seth Barrett Tillman, After Syrizathe Future of the Left, New Reform Club (July 15, 2019, 5:33 AM), <https://reformclub.blogspot.com/2019/07/after-syrizathe-future-of-left.html>. 

**Characterizing the loss of EU membership as a cost is a contentious value judgment. That Greek exit from the Eurozone might also result in GREXIT (ie, Greek exit from the EU) might also be characterized as a feature, not a bug. 

Thursday, July 11, 2019

The Tale of Sir Beaumains and the Churlish Damsel

Follows below a modified excerpt of the tale of Sir Beaumains, from Sir James Knowles' King Arthur and His Knights, copies of which abound online. As in my previous Arthurian adaption, The Tragedy of the Moot Point, it is hoped the hints of Trump-era political relevance are plain enough (lest the reader think "Fair-hands" too on the nose, it is from the original Malory). 
_______________


Now, on Whitsuntide came a man before King Arthur's Table Round as they were sitting to meat, asking after quests. The man's face and hair shone the color of the sun as he told of his many adventures, and the king, being taken with the artfulness of his dealings, granted him three gifts. 

Then said King Arthur, "What is thy first request?" "This, lord," said he, "that thou wilt give me meat and drink enough for twelve months from this time, and then will I ask my other two gifts." 

The king had granted his desire, and given him into the charge of Sir Key, the steward. But Sir Key scorned and mocked the man, calling him Beaumains, that is, Fair-hands, and putting him into the kitchen, where he had served for twelve months as a scullion, serving below even the jesters and troubadours and jongleurs among the guests of the court. And, in spite of this treatment, Beaumains had faithfully obeyed Sir Key.

And so in the twelfth month a damsel came before the king. Now, this damsel brought news from across the kingdom, and told of a tyrant of the Redlands across the marshes. "I know him not," said Arthur. "But I know him, lord," said Sir Gawain, "and he is one of the most perilous knights in all the world. Men say he hath the strength of seven; and from him I myself once hardly escaped with life."

And now at this time came young Beaumains to the king, while the damsel was there telling of this news, and said, "Lord, now I thank thee well and heartily that I have been twelve months kept in thy kitchen, and have had full sustenance. Now will I ask my two remaining gifts." "Ask," said King Arthur, "on my good faith." "These, lord," said he, "shall be my two gifts--the one, that thou wilt grant me this adventure of the damsel, for to me of right it belongeth; and the other, that thou wilt bid Sir Lancelot make me a knight, for of him only will I have that honour." "Be it as thou wilt," replied the king. 

But thereupon the damsel was full wroth, and said, "Shall I have a kitchen page for this adventure?" and so she took horse and departed. Then said Beaumains to the king: "My lord, the honor of this quest being mine by right not only, but nor by my honor shall I suffer go unmet such a challenge to the sovereignty of thy lordship, who has shown me favor."

Then came one to Beaumains, and told him that a dwarf with a horse and armour were waiting for him. And all men marvelled whence these things came. But when he was on horseback and armed, scarce any one at the court was a goodlier man than he. 

Then Sir Key cried, "I also will ride after the kitchen boy, and see whether he will obey me now." And taking his horse, he rode after him, and said, "Know ye not me, Beaumains?" "Yea," said he, "I know thee for an ungentle knight, therefore beware of me." Then Sir Key put his spear in rest and ran at him, but Beaumains rushed upon him with his sword in his hand, and therewith, putting aside the spear, struck Sir Key so sorely in the side, that he fell down, as if dead. Then he alighted, and took his shield and spear, and bade his dwarf ride upon Sir Key's horse.

By this time, Sir Lancelot had come up, and Beaumains offering to tilt with him. And after giving long battle Lancelot marvelled at the strength of Beaumains, for he fought more like a giant than a man, and his fighting was passing fierce and terrible. So, at the last, he said, "Fight not so sorely, Beaumains; our quarrel is not such that we may not now cease." "May I, then, stand as a proved knight?" said Beaumains. "For that will I be thy warrant," answered Lancelot. So then he knighted Beaumains, and, after that, they parted company, and Sir Lancelot, returning to the court, took up Sir Key on his shield. And hardly did Sir Key escape with his life, from the wound Beaumains had given him. 

But all men blamed Sir Key for his ungentle treatment of so brave a knight.


Then Sir Beaumains rode forward, and soon overtook the damsel; but she said to him, in scorn, "Return again, base kitchen page! What art thou, but a washer-up of dishes!" And in such manner did the damsel speak of Beaumains to any whom they met in their adventure.  

And on the morrow, the damsel and Sir Beaumains rode on their way till they came to a great forest, through which flowed a river, and there was but one passage over it, whereat stood two knights. And the damsel beseeched the knights to seize Beaumains, calling him a false knight. So there, in the river, one of the knights met him, and they brake their spears together, and then drew their swords, and smote fiercely at each other. And at the last, Sir Beaumains struck the other mightily upon the helm, so that he fell down stunned into the water, and was drowned. Then Sir Beaumains spurred his horse on to the land, where instantly the other knight fell on him. And they also brake their spears upon each other, and then drew their swords, and fought savagely and long together, and all the while the damsel did not cease calling imprecations upon Beaumains and giving encouragement to his assailant. And after many blows, Sir Beaumains clove through the knight's skull down to the shoulders. 

But ever the damsel still scoffed at Sir Beaumains, and said, "Alas! that a kitchen page should chance to slay two such brave knights! Thou deemest now that thou hast done a mighty deed, but it is not so; for the first knight's horse stumbled, and thus was he drowned--not by thy strength; and as for the second knight, thou wentest by chance behind him, and didst kill him shamefully." And said the damsel, "if thou followest me thou wilt be surely slain, since I see all thou doest is but by chance, and not by thy own prowess." 

Anon the damsel and Sir Beaumains came into a black space of land, where they came upon the Knight of the Blacklands, who said, "Fair damsel, hast thou brought this knight from Arthur's court to be thy champion?" "Not so, fair knight," said she; "he is but a kitchen knave." "Then wherefore cometh he in such array?" said he; "it is a shame that he should bear thee company." "I cannot be delivered from him," answered she: "for in spite of me he rideth with me; and would to Heaven you would put him from me, or now slay him, for he hath slain two knights at the river passage yonder, and done many marvellous deeds through pure mischance." "I marvel," said the Black Knight, "that any man of worship will fight with him." "They know him not," said the damsel, "and think, because he rideth with me, that he is well born." 

In lordly deference to the damsel the Black Knight addressed Sir Beaumains, "Now quit this lady also, for it beseemeth not a kitchen knave like thee to ride with such a lady." "I am of higher lineage than thou," said Sir Beaumains, "and will straightway prove it on thy body." Then furiously they drove their horses at each other, and came together as it had been thunder. But the Black Knight's spear brake short, and Sir Beaumains thrust him through the side, and his spear breaking at the head, left its point sticking fast in the Black Knight's body. Yet did the Black Knight draw his sword, and smite at Sir Beaumains with many fierce and bitter blows; but after they had fought an hour and more, he fell down from his horse in a swoon, and forthwith died. Then Sir Beaumains lighted down and armed himself in the Black Knight's armour, and lamented the tragedy that such an honorable knight had met an end merely by cause of the damsel's churlishness.

But notwithstanding all his valour, still she scoffed at him, and said, "Away! for thou savourest ever of the kitchen."

Anon the damsel and Sir Beaumains entered the domain of a knight clad all in green. And to this honorable knight the damsel in like manner delivered her fulmination against Sir Beaumains. And the Green Knight, being bound by damsel's petition, rode at Sir Beaumains, and they brake their spears together, and then they drew their swords, and gave many sad strokes, and either of them wounded other full ill. 

And when the Green Knight fell under the mighty blows delivered by Sir Beaumains, he yielded, and prayed him to spare his life. "All thy prayers are vain," said he, "unless this damsel who came with me pray for thee." "That will I never do, base kitchen knave," said she. "Then shall he die," said Beaumains. "Alas! fair lady," said the Green Knight, "suffer me not to die for a word!" Then cried the damsel, "Slay him not; for if thou do thou shalt repent it." "Damsel," said Sir Beaumains, "at thy command, he shall obtain his life." 

Yet still did the damsel rebuke and scoff at Sir Beaumains, and would not suffer him to sit at her table.

At last the damsel and Sir Beaumains came through the marshes and into the Redlands where they met the Red Knight, who gave battle. Then, with their swords, they fought fiercely for the space of three hours. And at last, Sir Beaumains overcame his foe, and smote him to the ground. Then the Red Knight prayed his mercy, and said, "Slay me not, noble knight, and I will yield to thee with sixty knights that do my bidding." "All avails not," answered Sir Beaumains, "save this damsel pray me to release thee." Then did he lift his sword to slay him; but the damsel cried aloud, "Slay him not, Beaumains, for he is a noble knight." Then Sir Beaumains bade him rise up and thank the damsel, which straightway he did, and afterwards invited them to his castle, and made them goodly cheer. 

But notwithstanding all Sir Beaumains' mighty deeds, the damsel ceased not to revile and chide him. 

And as she constantly reviled him and tormented him, he said to her, "Damsel, ye are discourteous thus always to rebuke me, for I have done you service; and for all your threats of knights that shall destroy me, all they who come lie in the dust before me. Now, therefore, I pray you rebuke me no more, and so spare the kingdom the tragedy of the needless dishonor and defeat of more good knights. For whatsoever ye said to me I took no heed, save only that at times when your scorn angered me, it made me all the stronger against those with whom I fought, and thus have ye furthered me in my battles. 

"But whether I be born of gentle blood or no, I have done you gentle service, and peradventure will do better still, ere I depart from you." 
 





Trump, the UK, and Ambassador Kim Darroch


Letter to the Editor:
guardian.letters@theguardian.com

July 11, 2019

Re: Martin Kettle, ‘Kim Darroch has resigned. Now Britain risks becoming a vassal of the US’ The Guardian (10 July 2019, 18.29 BST), 
<https://tinyurl.com/y65tnz7y>              

Martin Kettle quotes British diplomatic officials as stating that there is no precedent for what Trump has done—in seeking to have Kim Darroch removed from his post as the UK’s ambassador to the United States. Kettle and the diplomatic officials he quotes are simply mistaken. It is common practice for countries to deny granting consent and also to withdraw consent once granted in regard to the presence of foreign diplomatic officials who are not—or who are no longer—wanted. It is so common that it has been codified as established practice by the Vienna Convention on Diplomatic Relations (1961). Article 9 provides:
The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.
Historically, the most famous such case was when the Pope refused to grant credentials to the ambassador designated by the German Empire. See Otto von Bismarck, ‘The Canossa Speech’ (1872), in 7 Francis W. Halsey & William Jennings Bryan (eds), The World’s Famous Orations (Funk & Wagnalls Co. 1906) 243, <https://www.bartleby.com/268/7/48.html>.

Again, what Trump has done is not exceptional in the least.


Seth Barrett Tillman, Letter to the Editor, ‘Britain hasn’t got much out of the special relationship for a long time,’ The Guardian, July 11, 2019, 18:22 BST, <https://tinyurl.com/yyzkhhc4>. 

Seth Barrett Tillman, Trump, the UK, and Ambassador Kim DarrochNew Reform Club (July 11, 2019, 5:02 AM), <https://reformclub.blogspot.com/2019/07/trump-uk-and-ambassador-kim-darroch.html>. 


Friday, July 05, 2019

Brexit—What Academics Are Saying


On July 4, 2019, Professor AAA wrote: “There are two other possibilities: d) a fantasy, rejected by every single EU official each time it is floated, that the ‘deal’ can be renegotiated. And then there is e) crashing out without a deal.” The term “fantasy,” like “unicorns” used on another occasion, seems to me to be misplaced hyperbole.

First, as one-and-all get closer to the deadline, Oct 31, 2019, if the UK makes a credible threat of a hard Brexit (i.e., a Brexit without an EU-UK deal providing for something akin to current frictionless trade), the EU will have to consult its interests, the interests of its member states, and its citizens’ interests. Mostly EU negotiators will be mindful of the EU’s institutional interests. The EU is not in the black. Its current and next few annual budgets were arranged having in mind annual member payments by the UK into the EU treasury. The UK is a large net contributor to the EU budget. The continuing members will not want to pick up the shortfall caused by the UK’s exit—and that includes the German taxpayer—another large net contributor. In that situation, there might be some play in the joints (i.e., support for amendments to the deal now on offer, and further negotiations). 

Second, the Irish will also consult their interests. Again, if the UK makes a credible threat of a hard Brexit, the Irish will be faced with the unpalatable prospect of going forward without the current proposed deal and without its proposed backstop. That may mean that the Irish government, in order to comply with EU law, will have to have border checks and collect taxes for goods crossing the frontier into the EU common customs area from the UK, including Northern Ireland. In those circumstances, the Irish might be willing to reconsider their position and to allow the deal to be amended, but giving the backstop an automatic sunset (e.g., after 5 years) and/or giving each party (the EU and the UK) the unilateral right to terminate the backstop at any time. If the Irish are willing to live without the backstop as it is in the current proposal, surely the other EU members would be willing to redraft the proposal to support Ireland—a continuing EU member. After all, the backstop was only crafted by EU negotiators to support the Irish. If the backstop were amended in this way, it is likely that Prime Minister May’s agreement (as amended) would have the support of the entire Tory leadership, and concomitantly, the UK (on that basis) would continue to pay its EU member fees for the next few years into the EU budget.

Finally, other EU members will have some continuing interest to avoid a hard Brexit (just as the UK does): all (or nearly all) EU members have significant exports to the UK. German car manufacturers come to mind, as do the French and their agricultural products (including, e.g., wine and cheese).

Maybe the EU will refuse to reopen negotiations and maybe they won’t. I don’t have a crystal ball. But terms like “fantasy” and “unicorns” seem to me to lay claim to more predictive powers than most mere mortals have.

Professor AAA also wrote: “Under UK constitutional law, the UK’s approach to Brexit requires consent of the Parliament, and the Parliament will not agree to leaving without a transitional arrangement in place.” This seems to me to be unsupported. Professor AAA does not point to any legal authority for this view—not any ministerial order, not any statute, not any speaker’s ruling, and not any commentator’s pronouncement. I could see arguing that a new treaty (e.g., a deal) might require parliamentary authorization—before or after ratification by the executive. But if all the Government does is to run out the clock, thereby allowing EU membership (as a matter of public international law) to terminate by inaction, then it is certainly not obvious why any (further?) parliamentary consent is necessary. And the Government could plausibly make the argument (at least to the 52% of the public that voted for Brexit) that it already has parliamentary consent to do exactly that—to run out the clock—as Parliament delegated that decision to the people in the referendum and the Government is merely carrying out the referendum’s result.

Prorogation offers a means to stop an incipient Commons majority from stopping the Government’s Brexit plans—particularly any hard Brexit. But prorogation is not the only such means. All that the Government has to do is control the timing of Commons’ meetings and the agenda paper at those sittings, and then make sure a friendly speaker offers no opportunity to anti-Brexiteers to make a motion to stop the Government’s Brexit-related plans. In normal circumstances, that is exactly what is supposed to happen—with the exception that a Commons majority can bring down the Government in a no confidence motion (historically, this would customarily take place in the context of a motion for supply by the crown). If Tories are put to the hard choice of stopping the Government’s Brexit plans by bringing the Government down and forcing a new election, it is likely (in my view) that few Tories will rebel and those few who do will be easily made up for by DUP members, and by more than a few Labour members who are pro-Brexit (e.g., John Mann, Frank Field, Kate Hoey, etc). If the cost or consequence of rebelling is a new election, many rebelling Tories will lose their seats—this is particularly true in Tory constituencies which voted for Brexit in the referendum. If Tories are put to the choice of stopping the Government’s Brexit plan but in doing so risking the election of a Corbyn-led government in the near term, I think few will rebel.

Finally, Professor AAA wrote: “The other option—of having the new PM just run the clock out so that Parliament’s views become irrelevant—is also unconstitutional given the principle of parliamentary supremacy.” That principle is dead in the water until such a time as Brexit should occur. Until such a time, the UK Parliament and the UK is subject to EU law and the courts of the EU. Should Brexit occur, then we can again discuss the intellectual content of that now dormant principle.

Seth

Seth Barrett Tillman, Brexit—What Academics Are Saying, New Reform Club (July 5, 2019, 9:54 AM), <https://reformclub.blogspot.com/2019/07/brexitwhat-academics-are-saying.html>. 

Monday, July 01, 2019

Fears for Today’s American Republic


       “And, Mrs. Frisby,” said the owl, moving again toward the entrance to the hollow, “please understand: I was an admirer of your late husband, though I never met him in person. I wish you well. I hope your son’s life can be saved. You see, I can understand your particular problem, for I face a similar problem.”
        “You?” said Mrs. Frisby. “But you have no Moving Day.”
        “I have lived in this tree, in this same hollow,” the owl said, “for more years than anyone can remember. But now, when the wind blows hard in winter and rocks the forest, I sit here in the dark, and from deep down in the bole, down near the roots, I hear a new sound. It is the sound of strands of wood cracking in the cold and snapping one by one. The limbs are falling; the tree is old, and it is dying. Yet I cannot bring myself, after so many years, to leave, to find a new home and move into it, perhaps to fight for it. I, too, have grown old. One of these days, one of these years, the tree will fall, and when it does, if I am still alive, I will fall with it.”

Robert C. O’Brien, Mrs. Frisby and the Rats of NIMH (1971) 58.

Seth Barrett Tillman, Fears for Todays American Republic, New Reform Club (July 1, 2019, 11:21 AM), <https://reformclub.blogspot.com/2019/07/fears-for-todays-american-republic.html>. 




Sunday, June 23, 2019

Private Eye’s: The Four Brexiteers

The Four BrexiteersPrivate Eye, No. 1498 (14–27 June 2019) at 33.


Brexiteer-1: If t’were up to me, I’d make sure we left on eve ‘Alloween, whether we got a deal or no deal or nowt else. That’s my thinking.
Brexiteer-2: No deal? That’s soft thinking. I’d make sure we left by end June. And I’d make EU pay us for £39 billion whether they like it or not, and I’d ensure we got preferential deal from t’German car industry to boot.
Brexiteer-3: End June?
Brexiteer-2: Aye.
Brexiteer-3: That’s Remain talk. I’d make sure we left last August, I’d get us £300 billion in payments for emotional damage, and I’d ensure Barnier [an EU negotiator] came to Britain to live out his days in Wormwood Scrubs [a London prison].
Brexiteer-4: Thou are all as soft as lilywhite Brussels cotton bedsheets.
Brexiteer-1: What’s tha’ plan.
Brexiteer-4: Easy. End session of t’Parliament, force through law, imprison any MP who objects. It’s the only way to preserve democracy in this country.
Brexiteer-3: Would tha keep t’Queen?
Brexiteer-4: Aye.
Brexiteer-3: Pathetic. I’d execute t’royal family, seize control of t’Army and t’utilities, destroy opposition with t’tactical nuclear strikes, and bomb Paris and Berlin to ensure favourable trading conditions for a thousand years.
Brexiteer-1: And if you don’t do that, you’ll get a [Jeremy] Corbyn government in.
Brexiteer-2: But if you tell the young people that, they won’t believe you.
All: Aye, they won’t.



The above is based on a well-known Monty Python sketch: The Four Yorkshiremen. See <https://www.youtube.com/watch?v=ue7wM0QC5LE>.

Seth Barrett Tillman, Private Eye’s: The Four Brexiteers, New Reform Club (June 23, 2019, 1:38 PM), <https://reformclub.blogspot.com/2019/06/private-eyes-four-brexiteers.html>. 

Friday, June 21, 2019

Seth P. Tillman: A Select Bibliography



Books
[Senator] J. William Fulbright with Seth P. Tillman, The Price of Empire (London, Fourth Estate 1989).

Seth P. Tillman, Anglo-American relations at the Paris Peace Conference of 1919 (Princeton, Princeton University Press 1961), <https://tinyurl.com/y2m4ve4c>, available on HeinOnline.

Seth P. Tillman, Diary of a trip to Asia: The Peace Corps and the Fulbright program (DC, Government Printing Office 1969).

Seth P. Tillman, The United States in the Middle East, interests and obstacles (Bloomington, Indiana University Press 1982).

Seth P. Tillman, Georgetown’s School of Foreign Service: the first 75 years (DC, Edmund A. Walsh School of Foreign Service, Georgetown University 1994).

Articles
Seth P. Tillman, Book Review, 19(3) Int’l J. 390 (Summer 1964) (reviewing Harold I. Nelson, Land and Power. British and Allied Policy on Germany’s Frontiers 1916–19 (London, Routledge & Kegan 1963)), available on JSTOR.

Seth P. Tillman, The West Bank Hearings: Israel’s Colonization of Occupied Territory, 7(2) J. Palestine Stud. 71 (Winter 1978), available on JSTOR.

Seth P. Tillman, Israel and Palestinian Nationalism, 9(1) J. Palestine Stud. 71 (Autumn 1979), available on JSTOR. 

[END]

Seth B. Tillman, Seth P. Tillman: A Select Bibliography, New Reform Club (June 21, 2019, 2:07 PM), <https://reformclub.blogspot.com/2019/06/seth-p-tillman-select-bibliography.html>.

Thursday, June 20, 2019

Tillman’s Primary Publications Touching on “Office,” “Emoluments,” and Other Issues in the Emoluments Clauses Cases




Peer-Reviewed Academic Publications
Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5(1) Br. J. Am. Leg. Studies 95–121 (2016) (peer reviewed), <http://tinyurl.com/j6hrlbu>.
Seth Barrett Tillman, Why Professor Lessig’s “Dependence Corruption” Is Not a Founding-Era Concept, 13(2) Election L.J. 336–45 (June 2014) (peer reviewed), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2342945>. 

Full-Length Academic (Print) Publications
Seth Barrett Tillman, The Foreign Emoluments Clause—Where the Bodies are Buried: “Idiosyncratic” Legal Positions, 59 S. Tex. L. Rev. 237–79 (2017) (invited symposium contribution), <https://ssrn.com/abstract=3096986>.
Seth Barrett Tillman, Essay, Business Transactions and President Trump’s “Emoluments” Problem, 40(3) Harv. J.L. & Pub. Pol’y 759–771 (2017), <https://ssrn.com/abstract=2957162>.
Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014) (invited contribution), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2484377>. 
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. 285356 (2013), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1622441>. 
Seth Barrett Tillman, Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399421 (Dec. 2012); 107 Nw. U. L. Rev. Colloquy 1 (April 20, 2012) (republished from online journal), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182078>. 
On-Line Academic Publications
Seth Barrett Tillman & Josh Blackman, Is Robert Mueller an “Officer of the United States” or an “Employee of the United States”?, Lawfare: Hard National Security Choices (July 23, 2018, 2:50 PM), <http://ssrn.com/abstract=3214158>.
Zephyr Teachout & Seth Barrett Tillman, Common Interpretation—The Foreign Emoluments Clause: Article I, Section 9, Clause 8, in The Interactive Constitution (National Constitution Center 2016), <http://tinyurl.com/jxro4o9>.
Seth Barrett Tillman, Matters of Debate—The Foreign Emoluments Clause Reached Only Appointed Officers, in The Interactive Constitution (National Constitution Center 2016), <http://tinyurl.com/zgbdtso>.
Seth Barrett Tillman, Member of the House of Representatives and Vice President of the US: Can Paul Ryan Hold Both Positions at the Same Time?, Jurist–Forum, Aug. 23, 2012, <http://jurist.org/forum/2012/08/seth-barrett-tillman-vice-presidency.php>; <https://www.jurist.org/commentary/2012/08/seth-barrett-tillman-vice-presidency/>.
Seth Barrett Tillman, Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. Colloquy 122 (April 20, 2012), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2012800>. 
Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. Colloquy 180208 (April 2, 2013), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2012803>. 
Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 10741 (2009)Duke J. Const. L. & Pub. Pol’y Sidebar 134 (2008), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1660547>. 
Seth Barrett Tillman, Opening Statement, Why President-Elect Obama May Keep His Senate Seat After Assuming the Presidency, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 13540 (2008), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292359>. 
Seth Barrett Tillman, Closing Statement, An “Utterly Implausible” Interpretation of the Constitution: A Reply to Professor Steven G. Calabresi, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pa. L. Rev. PENNumbra 134, 14653 (2008), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1292334>. 
Lesser Publications: Opinion Editorials, etc
Josh Blackman & Seth Barrett Tillman, Opinion Editorial, The ‘Resistance’ vs. George Washington, Wall Street Journal, Oct. 15, 2017, at A17, <https://www.wsj.com/articles/the-resistance-vs-george-washington-1508105637>, <http://archive.is/QPO2N>. 
Josh Blackman & Seth Barrett Tillman, Opinion Editorial, Yes, Trump Can Accept Gifts, NY Times, July 13, 2017, <http://tinyurl.com/ycqa26bs>, <http://ssrn.com/abstract=2999976>. 
Seth Barrett Tillman, Letter to the Editor, Oath of Officers, 15(3) Claremont Review of Books 11, Summer 2015, <http://ssrn.com/abstract=2623473>. 
Popular Media: Interviews, etc.
Ian J. Drake interviewing Seth Barrett Tillman, Discussion of the Foreign Emoluments Clause and President TrumpNew Books Network: Law (Jan. 10, 2018), <http://newbooksnetwork.com/seth-barrett-tillman-on-the-foreign-emoluments-clause-and-president-trump/>. 
Adam Liptak, ‘Lonely Scholar With Unusual Ideas’ Defends Trump, Igniting Legal Storm, The NY Times, Sept. 25, 2017, <https://www.nytimes.com/2017/09/25/us/politics/trump-emoluments-clause-alexander-hamilton.html?mtrref=undefined>.  
Andrew Torrez & Thomas Smith, OA36: The Emoluments Clause (w/Seth Barrett Tillman), Part 2Opening Arguments (Jan. 20, 2017), <http://tinyurl.com/hxg9ruk(at 7:30ff).
Marc Johnson, Episode 8: Article 1, Section 9, Clause 8Many Things Considered (Jan. 18, 2017), <http://manythingsconsidered.com/podcast> (at 28:15ff). 
Andrew Torrez & Thomas Smith, OA35: The Emoluments Clause (w/Seth Barrett Tillman), Part 1Opening Arguments (Jan. 16, 2017), <http://tinyurl.com/zsvebop> (at 24:40 to 47:00).
Adam Liptak, Trump’s Foreign Business Deals May Test a Constitutional LimitThe NY Times, Nov. 22, 2016, at A22, <http://tinyurl.com/jpryysm>. 
Law Blogging
Josh Blackman & Seth Barrett Tillman, Parts 1 to 9: <http://ssrn.com/abstract=3311758>.

Josh Blackman & Seth Barrett Tillman, [Part 9] Who was right about the Emoluments Clauses? Judge Messitte or President Washington?, ReasonVolokh Conspiracy (Aug. 3, 2018, 3:17 PM), <https://reason.com/volokh/2018/08/03/who-was-right-about-the-emoluments-claus>, <https://ssrn.com/abstract=3225939>. 
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 8: There is no cause of action for a suit against the President in his individual capacity for purported violations of the Emoluments Clauses, ReasonThe Volokh Conspiracy (Feb. 8, 2018, 3: 04 PM), <http://reason.com/volokh/2018/02/08/the-emoluments-clauses-litigation-part-8>, <http://ssrn.com/abstract=3311758>.
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 7: The President’s Acceptance or Receipt of Profits is not “Executive Action, ReasonThe Volokh Conspiracy (Feb. 7, 2018, 11:26 AM), <http://reason.com/volokh/2018/02/07/the-emoluments-clauses-litigation-part-7>.
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 6: Are the Claims Against the President in his Official or Individual Capacity?, ReasonThe Volokh Conspiracy (Feb. 6, 2018, 11:30 AM), <http://reason.com/volokh/2018/02/06/the-emoluments-clauses-litigation-part-6>.
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 5: Problems with the Complaints in CREW v. Trump, The Washington Post—The Volokh Conspiracy (Oct. 1, 2017), <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/01/the-emoluments-clauses-litigation-part-5-problems-with-the-complaints-in-crew-v-trump/?utm_term=.fa9685cda3f6>. 
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 4: An Emolument is the “profit derived from a discharge of the duties of the office, The Washington Post—The Volokh Conspiracy (Sept. 29, 2017), <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/29/the-emoluments-clauses-litigation-part-4-an-emolument-is-the-profit-derived-from-a-discharge-of-the-duties-of-the-office/?utm_term=.1cfd0d5fd6d6>. 
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 3: So what if the president does not hold ‘Office … under the United States,’? Washington Post—The Volokh Conspiracy (Sept. 28, 2017), <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/28/the-emoluments-clauses-litigation-part-3-so-what-if-the-president-does-not-hold-office-under-the-united-states/?utm_term=.847b995fd071>.
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 2: The Practices of the early presidents, the first Congress and Alexander Hamilton, Washington Post—The Volokh Conspiracy (Sept. 26, 2017), <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/26/the-emoluments-clauses-litigation-part-2-the-practices-of-the-early-presidents-the-first-congress-and-alexander-hamilton/?utm_term=.57a8ae2776f6>. 
Josh Blackman & Seth Barrett Tillman, The Emoluments Clauses Litigation, Part 1: The Constitution’s taxonomy of officers and offices, Washington Post—The Volokh Conspiracy (Sept. 25, 2017), <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/09/25/the-emoluments-clauses-litigation-part-1-the-constitutions-taxonomy-of-officers-and-offices/?utm_term=.7b840bb24101>. 
Seth Barrett Tillman, The Emoluments Clauses Lawsuits’s Weak Link: The Official Capacity Issue, Yale J. on Reg.: Notice & Comment (Aug. 15, 2017), <http://tinyurl.com/y9g2v6xf>. 
Seth Barrett Tillman, Room for Debate, Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents, The NY Times, Nov. 18, 2016, 10:41 AM, <http://tinyurl.com/jpbhom5>. 
Tillman & Ramsey on Originalism Blog, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2197209>. 
Tillman & Mike Stern on Point of Order Blog (2013), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2230244>. 
Tillman & Mike Stern on Point of Order Blog (2012), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2197204>. 
Working Papers and Misc. Documents
Seth Barrett Tillman, Part I, Understanding the Jefferson Diplomatic Gifts: A Response to Dr. Andrew Fagal (Feb. 14, 2019), <https://ssrn.com/abstract=3311186>. 
Seth Barrett Tillman, The Blue Book & the Foreign Emoluments Clause Cases Against the President: Old Questions Answered (Dec. 31, 2017), <https://ssrn.com/abstract=3094848>. 

Six Puzzles for Professor Akhil Amar 1–29 (2013), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2173899>. 
Seth Barrett Tillman, Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar—Contradictions and Reconciliation 1110 (2012) (unpublished manuscript, on file with author), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1970909>. 
Seth Barrett Tillman, Hamilton, the Secretary of the Senate, and Jefferson: Three (or Four) Views of the Cathedral and the Mysterious Identity of the ‘Officers under the United States’ 130 (2011) (unpublished manuscript, on file with author), <https://works.bepress.com/seth_barrett_tillman/203/> (reproducing primary documents--now at bottom of page). 
Seth Barrett Tillman, The Annals of Congress, the Original Public Meaning of the Succession Clause, and the Problem of Constitutional Memory 126 (Dec. 18, 2009) (unpublished manuscript, on file with author), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1524008
Seth Barrett Tillman, Legislative Officer Succession to the Presidency 1–28 (April 6, 2007) (unpublished manuscript, on file with author), <http://tinyurl.com/pcqdp3> (parts I & II), <http://tinyurl.com/qmzu26> (part III). 

Seth Barrett Tillman, Tillmans Primary Publications Touching on Office, Emoluments, and Other Issues in the Emoluments Clauses Cases, New Reform Club (June 20, 2019, 8:17 AM), <https://reformclub.blogspot.com/2019/06/tillmans-primary-publications-touching.html>. 




Wednesday, June 19, 2019

Conlawprof, Dachau, and Auschwitz: The New “Learning”

Professor AAA wrote:
AOC is being condemned by the GOP for demeaning the Holocaust by referring to American “concentration camps” along the border. I note for the record that [Associate] Justice Roberts in his Korematsu dissent referred to the detention camps as “concentration camps.” Was he wrong to do so? Or what about the “original” concentration camps, those set up by the ever-civil British to confine their opponents in the Boer War?

Dachau was a “concentration camp.” Auschwitz was a “death camp.” Can the GOP really not tell the difference or, more to the point, is this confusion simply another desperate play for those regarded as “Jewish voters” who are the object of Jared’s affections?

What does this have to do with constitutional law? Not much, save for deciding, if one teaches Korematsu, exactly how to describe the camps and to explain why a Justice of the US Supreme Court believed that it was appropriate to refer to them as “concentration camps.” And to come to terms with the fact that the U.S. Constitution, as construed by the present majority, may in fact give the President basically unrestricted power to make life a living hell for the approximately eleven million undocumented aliens viewed by Stephen Miller, an unconfirmed presidential “advisor” who is far more powerful than perhaps any given member of the confirmed Cabinet on such matters, as little better than vermin.

Tillman Responds
I do not know what Associate Justice Roberts meant in 1944 when he penned his dissent in Korematsu. Certainly, some in Europe and among the Allies understood in 1944 that the Nazi regime was killing civilians using industrial means on a mass scale in its camps and elsewhere. I do not know if Roberts clearly understood all that when he drafted his dissent, or even if he suspected it, and I have real doubts that the largest part of his American audience in 1944 understood his words the way we understand these words today. Given what I believe to be linguistic slippage, I see no reason to criticize Roberts for using “concentration camp” to apply to US internment camps for US citizens of Japanese descent, enemy civilian nationals (some of Japanese descent), and others.

What the US civilian population and the wider world came to understand as Allied armies captured these camps in occupied Europe and elsewhere is not coextensive with what is known today. Indeed, the scope of the mass murder was not understood until some years after WWII ended. How different (if at all) the Holocaust was from prior mass death regimes is a matter of opinion about which many have well informed, but divergent views. I would be loath to tell (even if I believed it true) an Armenian that the Holocaust against the Jews was worse (in some meaningful way) than the Ottoman genocide against the Armenian civilian population.

My comments above go to how Roberts used “concentration camp” language circa 1944. How such language has been used in most of my lifetime in the US is another matter. I can only wonder what the reaction on CONLAWPROF and in the press would be if Trump or his supporters stated in public: “Dachau and Auschwitz—world of difference—concentration versus death camp.” No one would inquire if there was some legitimate, historically rooted technical difference—the immediate reaction would be that Trump was making an appeal to white nationalist sentiment and trying to obliterate the memory of the Holocaust. I suspect that if, today, some public figure voiced this claim—“Dachau and Auschwitz—world of difference—concentration versus death camp”—in Germany or in Poland, he would be arrested for Holocaust denial.

Professor AAA wrote: “Dachau was a ‘concentration camp.’ Auschwitz was a ‘death camp.’” The best I can say about Professor AAA’s comment is that it appears to me that it is not well crafted. Auschwitz is properly described as a death camp and a concentration camp. I will not bother with citations: they are easy to find. Dachau was a concentration camp. Whether it is properly described as a death camp is a matter of definition: What is a death camp? 

If people are going to make charged comparisons between Dachau (and what was intended to happen there by its creators) and what is going on at America’s borders (and what was or is intended to happen there by its creators), then the better course would be to proceed carefully and to clarify in what way (if any) those two events are meaningfully similar.

People are crossing America’s southern frontier—they are coming from Mexico, south of Mexico, and (it is reported) from other continents. They are doing so knowing full well that there is a good chance the US authorities will detain them in border facilities of the sort that are now being compared to Dachau. They are coming in large numbers—some (perhaps many) in good health with money and education. There is an element (for some of them) that can be fairly described as voluntary action seeking a better life in the US. I have never heard that such conduct was a proper characterization of those who inhabited Dachau or Auschwitz. If that is so, then the comparison is misplaced and odious.

Seth

Seth Barrett Tillman, Conlawprof, Dachau, and Auschwitz: The New Learning, New Reform Club (June 19, 2019, 3:55 AM), <https://reformclub.blogspot.com/2019/06/conlawprof-dachau-and-auschwitz-new.html>. 

See generally Korematsu v United States 323 US 214 (1944) (Black, J), 
<https://www.law.cornell.edu/supremecourt/text/323/214#writing-USSC_CR_0323_0214_ZO>; id. at 242 (Jackson, J, dissenting), 
<https://www.law.cornell.edu/supremecourt/text/323/214#writing-USSC_CR_0323_0214_ZD2>;