Governor Newsom, Laphonza Butler, and the Constitution’s Plain Text

 

 

Since 1913, when the Seventeenth Amendment was ratified, there have been two ways to become a senator. A would-be senator could be “elected by the people” of his state, or, in the event of a senate vacancy, the vacancy can be temporarily filled by appointment by the state’s governor. (It is a temporary appointment because the remainder of the term can be filled by a special senate election, which would displace the governor’s temporary appointee.) The key point is that there are two ways to become a senator: election by the people, and appointment by the governor. 

This textual distinction appears across many constitutional provisions. For example, the Ineligibility Clause states: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time.” [Article I, Section 6, Clause 2 (emphases added)]

Still not just anyone can hold the position of senator. Article I provides three basic qualifications.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. [Article I, Section 3, Clause 3]

The age-related qualification and the citizenship-related qualification apply to all would-be senators: elected senators and appointed senators. But the inhabitancy-related qualification only applies to elected senators. If a senator is appointed by a state’s governor, there is no inhabitancy-related qualification.[1] Thus Governor Newsom is free to pick a non-Californian, including Laphonza Butler. This follows from the Constitution’s plain text.

It is not difficult to understand why the Framers of both the original Constitution of 1788 and the Seventeenth Amendment made this choice. The nation was geographically vast. It would take time to hold an election and, similarly, it would take time for a temporary appointee from one’s home state to physically move to the national capital. The capital itself, over time, would become the home to many former representatives, former senators, and other former senior government officials. It would make sense for states to be able to draw on these individuals as a temporary matter to fill vacancies—even where such appointees had no home-state residence. Where a candidate was filling a full six-year term, one wanted him to have home-state connections. But where a candidate, living in or near the national capital, was filling a temporary trust, it would make sense to loosen residence requirements so that a state could immediately have senate representation. For similar reasons, the strictures of the Ineligibility Clause applies only to elected representatives and senators, and not to temporary senators holding short appointments.

Seth Barrett Tillman, ‘Governor Newsom, Laphonza Butler, and the Constitution’s Plain Text,’ New Reform Club (Oct. 2, 2023, 3:54 PM), <https://reformclub.blogspot.com/2023/10/governor-newsom-laphonza-butler-and.html>; 

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[1] See Seth Barrett Tillman, Understanding Nativist Elements Relating to Immigration Policies and to the American Constitution’s Natural Born Citizen Clause, 32(2) Study on the American Constitution 1, 4 n.5 (Aug. 2021) (peer review) (“Under Article 1, senators were originally elected by the United States’ constituent state legislatures. Under United States Constitution Amendment 17 (1913), senators are now popularly elected. However, if a senate seat is vacant, a temporary senator may be chosen by a state governor to fill the senate vacancy. Id. In such circumstances, it is not clear that the senator must be an inhabitant of that state.”), <https://tinyurl.com/dhkxfzby>; Josh Blackman & Seth Barrett Tillman, Symposium: Biden’s First 100 Days, What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?, 2021 U. Ill. L. Rev. Online 190, 192 (Apr. 30, 2021) (“The Constitution of 1788 imposes three somewhat stricter qualifications on senators. First, senators must ‘have attained to the Age of thirty Years ....’ Second, they must be ‘nine Years a Citizen of the United States ....’ Third, ‘when elected,’ the Senator must ‘be an Inhabitant of that State in which he shall be chosen.’ The Constitution authorizes a governor to temporarily fill a senate vacancy by appointment. In these situations, it is not clear that the inhabitancy qualification applies, as temporary senators are not ‘elected.’”). See generally Brian Kalt, Can the Senate Refuse to Seat Blagojevich's Appointee?, Concurring Opinions (Dec. 30, 2008, 11:22 PM), http://tinyurl.com/q55uzo (comment 6) (Nexis).

Farage and the Debanking Scandal

The Spectator

Letters Editor 

letters@spectator.co.uk 

 

Re: Matthew Paris, ‘The hypocrisy of Nigel Farage’s supporters,’ The Spectator (12 August 2023), <https://www.spectator.co.uk/article/the-hypocrisy-of-nigel-farages-supporters/>; Matthew Parris, ‘The Hypocrisy of the Farage Outcry,’ The Spectator, 12 August 2023, page 23.

Matthew Parris compares Coutts’s decision to debank Farage with Cadbury’s 1909 decision to boycott slave-grown cocoa from São Tomé, then a Portuguese colony. The comparison is not an apt one. 

First, a private company actively chooses its suppliers. As for customers—most companies invite all comers. Second, banking comes with confidentiality—by custom and by regulation. So a bank is not likely to accrue bad will for holding the “wrong” customers. Third, Cadbury acted in public to enjoy good will for associating with the “right” cause. Coutts, by contrast, sought to leak confidential information privately to the BBC. It might even be said that Coutts used confidential information—which it held in a fiduciary capacity—in an attempt to injure its own former client. Fourth, a domestic bank owes its nation’s citizens and non-citizen residents a bit more fair-play and due process than it owes foreigners overseas—especially where those citizens and residents are local taxpayers who have bailed out that bank and, as a result, the government holds substantial equity in the enterprise on behalf of the taxpaying public. And, fifth, Cadbury’s 1909 public boycott of slave-grown tobacco from abroad was consistent with and supported long-standing national policy, established by Parliament, against slavery. Coutts, by contrast, appears to have debanked Farage as part of its opposition to national policy that was popularly resolved in the 2016 referendum. Moreover, Coutts denied what it had done right up until those denials became untenable. Again: Parris’s comparison is not apt.

Matthew Paris writes: 

Peter Oborne, while disapproving of the exclusion of Farage, makes the point that a number of prominent Muslim activists and organisations have been denied bank accounts and the media has never taken any interest at all in their ‘right to free speech’. ‘Nobody cares,’ he writes. 

   Perhaps such decisions were justified—I don’t know—but I can feel readers switching off as I write about excluded Muslims, muttering: ‘That’s different.’ It isn’t: not if you want to maintain a right to an account with a particular bank as a general principle. What chance Farage will take up these Muslims’ cause? 

What Parris “feel[s]” is hardly evidence of prejudice and bigotry, except his own, and his feelings are directed against millions of his fellow countrymen. And if Parris genuinely wants to know if Farage and his supporters will take up the wider debanking cause on behalf of minorities, then the way to find out is to ask Farage and his supporters, and not to hint—absent any concrete evidence—that they will refuse to act even-handedly.

[end]

Seth Barrett Tillman, ‘Farage and the Debanking Scandal,’ New Reform Club (Sept. 6, 2023, 8:21 AM), <https://reformclub.blogspot.com/2023/09/farage-and-debanking-scandal.html>; 

 

The Department of Air Conditioning

A friend shared this piece by Noah Rothman about the anti-air-conditioner movement. This particular wing of the environmental left urges, reports Rothman, that "among the corrupting tastes to which we’ve succumbed is the affinity for modern conveniences like air-conditioning." The pursuit of happiness took a wrong turn some way back, the movement believes. Like, way back, as in, with the advent of agriculture and writing. Rothman notes that journalist and novelist John Lanchester, writing for the New Yorker in 2017, wrote that even the development of writing loosed on the world a tool of “control” from which “war, slavery,” and “rule by elites” flow, imprisoning mankind in an unnatural state of affairs. “It turns out that hunting and gathering," Lanchester said, "is a good way to live." 

My friend shared the piece with me because we have shared criticism of the political left's simultaneous revulsion and insistence on progress, often with the upshot that one cannot know when these types are in earnest. But I do not raise my objections too strongly, because I also harbor misgivings about the mechanistic ideology on which most promises of utopia depend. 

Anyway, here is my response to my friend about the Rothman piece: 

Thanks for sending along the Rothman piece in opposition to the war on air conditioners. It is certainly on theme of our recent discussions. At our last lunch, we broached briefly the "Walden Pond" question whether there is such a thing as too much civilization: Might there be such a thing as too much equality, if we go to the extent of Vonnegut's "Harrison Bergeron"? Or too many comforts and conveniences? Louis CK's famous bit on this, "Everything's Amazing, and Nobody's Happy," is on point. (https://www.youtube.com/watch?v=kBLkX2VaQs4.) 

And while looking for the source of one of the Rousseau quotes (“it was iron and corn which first civilized men and ruined humanity"), I stumbled on another thread of that theme of the pursuit of happiness having taken perhaps a wrong turn. In my desultory search I was led to the CafeHayek.com site. Briefly browsing there, I read Jonah Goldberg's recent short piece supporting the Jack Smith prosecution of Trump, calling it a "necessity" because America elected such an "unfit" person as Trump (what makes him less "fit" than an unaccomplished Obama or a corrupt Clinton was not explained), and because America then twice failed to cashier him after two impeachment opportunities (because stupid Americans fell prey to populism, unlike us super smarts who only want to defend democracy!).

Dwelling on Goldberg's "unfit" remark, I concluded he was making another form of defense of air-conditioning, but in Goldberg's version (I am conjecturing), it is the defense of technocratic managerialism. Yes, true, Goldberg would concede, the technocratic state does belch noxious plumes of black smoke into the air of liberty, and it does discharge poisonous oily chemical waste into the rivers of ideas, so that we choke and splutter and become dizzy if we do not stay within its comfortable if labyrinthine interior  But, yet, and although, the technocratic managerial state alone supplies us with the miracle of democracy! It is the height of ingratitude to toss it aside without a thought to what would replace it!

There is a truth to this position I am attributing to Goldberg. The man who doesn't think things can get any worse has no imagination. The greens talk romantically about ending air conditioning—but with no earnest intention of giving it up themselves. Trump supporters talk romantically about toppling their technocrat managers—and no one, surely, has any idea what this would look like. So Goldberg is, at least, consistent—at least ostensibly—in the sense he is not willing to give up either his air conditioning or his technocrats.

But Goldberg also does not understand his Trump-supporting countrymen who, while perhaps not knowing what they are getting into, at least are willing to give up the benefits of the technocratic state, for they sense at their core that there may be things more important that have been lost along the way, and that it might not yet be too late to double back and recover them.

Tocqueville said something about this in his observations about the left and right banks of the Ohio River, with industriousness being the lifeblood of the American spirit  that Tocqueville admired (slavery being the bane of the spirit of industry).

My point is, while I have some concerns that we have entered into an age of hyperabundance of comforts and conveniences, those concerns arise, not from ingratitude, but from a spirit of industry. I have nothing against air conditioning, precisely because air conditioning tends to facilitate the spirit of industry. But I am concerned that we seem to be replacing the spirit of industry with a department of industry. Goldberg and the supporters of the technocratic state stand for air conditioning only ostensibly: in fact, they only further the cause of the department of air conditioning.

Cheers, 

Tim 

Professor Amy Wax—The Disciplinary Committee’s Decision Is Expected By September 5, 2023: What Is At Stake?

 

Dean Ruger wrote:

Wax has made repeated disparaging comments to and about faculty colleagues that violate this standard and exhibit a disregard for her colleagues and her role at the University, including but not limited to:

• Telling a Black faculty colleague, Anita Allen, that it is “rational to be afraid of Black men in elevators.”

• Stating, while on a panel with openly gay faculty colleague Tobias Wolff, that no one should have to live in a dorm room with a gay roommate and, separately, that same-sex relationships are self-centered, selfish and not focused on family or community. Wolff reported to Quinn Emanuel feeling “distressed” and that it was “striking she would choose to hold forth that way with me sitting there.” Wolff reported that conversations or disagreements with Wax end with “being made to feel you are a fundamentally debased human being.”

If your point is that Professor Wax broke an academic norm because she made a disparaging statement about Black people to Professor Allen, a black person, but her statement would otherwise be A-OK had her audience been entirely absent any Black person, then you are advocating intellectual apartheid for your university. Would not an argument for wrongful harassment depend on your showing that Wax made the alleged disparaging statement to Allen precisely because Allen was a Black person? But you do not allege that—in fact, the real “problem” is not that Professor Wax had singled out Professor Allen or other Black members of the Penn community, but that Professor Wax makes these statements in public, all the time, to one-and-all. The real “problem” is that you disagree with the purportedly illiberal content of her alleged statements.

If your point is that Professor Wax broke an academic norm because she made a disparaging statement about gay people to Professor Wolff, a gay person, but her statement would otherwise be A-OK had her audience been entirely absent any gay person, then you are (again) advocating intellectual apartheid for your university. Would not an argument for wrongful harassment depend on your showing that Wax made the alleged disparaging statement during the panel discussion precisely because Wolff, her fellow panelist, was a gay person? But you do not allege that—in fact, the real “problem” is not that Professor Wax had singled out Professor Wolff or other gay members of the Penn community, but that Professor Wax makes these statements in public, all the time, to one-and-all. The real “problem” is that you disagree with the purportedly illiberal content of her alleged statements.

Your framing the issue here, i.e., Professor Wax’s speech, in terms of discriminatory conduct or harassment is simply a cover—to make the censorship of ideas in an academic setting appear palatable.

I do not know Professor Wax. I cannot and do not speak to the remainder of your “charge sheet.” I do know something about Powell.[1] On that basis, I state that should Wax be disciplined, in whole or in part for assigning the Powell interview, or for voicing her unpopular opinions in a non-discriminatory fashion, I tremble in regard to what the consequences will be for freedom of speech, thought, and conscience in your university, in the United States, and elsewhere.

Seth Barrett Tillman, ‘Professor Amy Wax—The Disciplinary Committee’s Decision Is Expected By September 5, 2023: What Is At Stake?,’ New Reform Club (Aug. 10, 2023, 1:51 PM), <https://reformclub.blogspot.com/2023/08/professor-amy-wax-what-is-at-stake.html>; 

Seth Barrett Tillman, A Response to Dean Ruger’s Letter to Professor Gadsden, University of Pennsylvania Faculty Senate Chair, Calling for the Imposition of a Major Sanction Against Professor Wax (Aug. 2, 2022), <https://ssrn.com/abstract=4168694>; 

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[1] Cf. “Si monumentum requiris, circumspice,” Inscription emblazoned above the Tomb of Sir Christopher Wren, St. Paul’s Cathedral, <https://tinyurl.com/3aukcn9a>. It is also noteworthy that Enoch Powell was in life and continues to be—even long after his death in 1998—a muse or focal point for much drama, other fiction, pop music, and modern political and wider social commentary. One recalls: Olivier Esteves, Book Review, 57(4) Journal of Contemporary History 1126 (2022) (reviewing Paul Corthorn, Enoch Powell: Politics and Ideas in Modern Britain (OUP 2019) (book)); Lindsay Aqui, Michael Kenny, and Nick Pearce, ‘“The Empire of England”: Enoch Powell, Sovereignty, and the Constitution of the Nation,’ 32(2) 20th Century British History 238 (2021); Robbie Shilliam, ‘Enoch Powell: Britain’s First Neoliberal Politician,’ 26(2) New Political Economy 239 (2021); Paul Corthorn, ‘Enoch Powell, the Commonwealth and Brexit,’ 109(6) New Commonwealth Journal 750 (2020); Colin Kidd, ‘The Provocations of Enoch Powell: Fifty years after it shunned him, the Conservative Party has embraced Powell’s Eurosceptic and Nationalist views,’ 148(5486) New Statesman 42 (2019); Shirin Hirsch, In the Shadow of Enoch Powell: Race, Locality and Resistance (Manchester University Press 2018) (book); Sally Tomlinson, ‘Enoch Powell, Empires, Immigrants and Education,’ 21(1) Race, Ethnicity and Education 1 (2018);  Jonathan Coe’s Middle England (2018) (fiction); Chris Hannan’s What Shadows (2016) (a play); Andrew Smith’s The Speech (2016) (fiction); Sunder Katwala, ‘Powell: “best understood as part of our history”,’ British Future (June 15, 2012), <https://tinyurl.com/24ffucxt> (“There are many debates about identity, immigration and integration that we still need to have. A centenary after his birth, Enoch Powell’s contribution to them are best understood as part of our history now.”) (commentary); C.J. Sansom’s Dominion (2012) (fiction); Christopher Caldwell’s Reflections on the Revolution in Europe (2009) (commentary); Brian Walden (Labour-MP, for Birmingham–All Saints, and Ladywood), ‘Walden Reminisces,’ BBC Radio 4 (Oct. 3, 2004), <https://tinyurl.com/3786xawk> (“On the issues [Powell and I] were fiercely opposed and [we] couldn’t discuss immigration for five minutes without disagreeing. But unlike many people, including leading Tories, I never regarded Powell as a racist.”); ‘NCS: Manhunt,’ BBC One (Mar. 12, 2002), <https://tinyurl.com/yu6j75uy> (Marc Warren’s I am an Englishman speech was expressly influenced by Powell’s St. George’s Day speech (1961)) (television drama); Jonathan Coe’s The Rotters’ Club (2001) (fiction); Zadie Smith’s White Teeth (2000) (fiction); Shivaji Sondhi, ‘Enoch Powell and the invention of Thatcherism’ (1999) IV(7/8) Biblio: A Review of Books 24 (reviewing Simon Heffer, Likie the Roman: The Life of Enoch Powell (London: Weidenfeld and Nicholson 1998)) (“It has come as a delight then to come across Simon Heffer’s recent biography of the man who died last February 9th, and to discover that the cardboard Powell was fiction.”) (India), <https://tinyurl.com/249kz7ar>; Christopher Morgan, ‘[Westminster] Abbey vigil for Powell enrages bishops,’ The Sunday Times (Feb. 15, 1998) (“Unexpected backing [for the abbey vigil], however, came from the Association of Black Clergy. Charles Lawrence, its chairman, said: ‘Powell was not a single-subject person and served his country well. Each person stands before God and deserves the same level of love.’”); Ayub Khan Din’s East Is East (1996) (a play); Hanif Kureishi’s The Buddha of Suburbia (1990) (fiction); Salman Rushdie’s The Satanic Verses (1988) (fiction); Paul Gilroy’s There Ain’t No Black in the Union Jack: The Cultural Politics of Race and Nation (1987) (commentary); Samuel Selvon’s Moses Migrating (1983) (fiction); Howard Barker’s The Loud Boy’s Life (1980) (a play); David Edgar’s Destiny (1976) (a play) and Tedderella (1971) (a play); Millie Small’s Enoch Power (1970) (pop recording); Arthur Wise’s Who Killed Enoch Powell (1970) (fiction); The Beatles’ Get Back (1969) (pop recording); Cartoon Archetypical Slogan Theatre’s Muggins’ Awakening (1968) (a play); and any number of items within the collection of the [United Kingdom] National Portrait Gallery, <https://tinyurl.com/kc5dpnp2>. See also ‘Question Time,’ BBC One (Dec. 11, 2014), <https://tinyurl.com/2uk7jc44> (Russell Brand describing Nigel Farage, leader of the UK Independence Party and Member of the European Parliament (South East England), as a “pound shop Enoch Powell”) (at 1:45ff). One cannot help but notice that Brand thought “pound shop” was a legitimate criticism.

Three Draft Treatise Entries

 

Seth Barrett Tillman, ‘Presentment of Resolutions Clause,’ in The Heritage Guide to the Constitution (3d ed. forth. circa Sept. 2025), <https://ssrn.com/abstract=4512365>;

 

Seth Barrett Tillman, ‘Convening of Congress Clause,’ in The Heritage Guide to the Constitution (3d ed. forth. circa Sept. 2025), <https://ssrn.com/abstract=4512375>; and,

 

Seth Barrett Tillman, ‘Quorum Clause,’ in The Heritage Guide to the Constitution (3d ed. forth. circa Sept. 2025), <https://ssrn.com/abstract=4512557>.

 

 

Seth Barrett Tillman, ‘Three Draft Treatise Entries,’ New Reform Club (Aug. 10, 2023, 6:11 AM), <https://reformclub.blogspot.com/2023/08/three-draft-treatise-entries.html>;

The Debanking Scandal

 

 

Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

(academic title & affiliation for identification purposes only)

 

28 July 2023

 

The Guardian

Letter to the Editor

guardian.letters@guardian.co.uk

 

RE: Ann Francke, ‘Was Alison Rose held to a higher standard because she is a woman?,’ The Guardian (27 July 2023, 18:37 BST), <https://tinyurl.com/3a6xrycy>.

 

Ann Francke writes that: “Alison Rose, who resigned on Wednesday as chief executive of NatWest Group, which owns Coutts [Bank], clearly made a serious error of judgment in discussing the former UKIP leader’s [Nigel Farage’s] case with a [BBC] journalist. It was an error she accepted and for which she readily apologised.” If Rose had sincerely accepted that she and Coutts Bank had made an error, she would have offered Nigel Farage the opportunity to continue to bank at Coutts under the same terms which he had enjoyed prior to his being “debanked” along with a concomitant promise not to terminate his account in the future absent good cause and due process. Instead, Rose offered Farage only “alternative” banking arrangements—without explanation what that might mean and without any explanation why he should entertain accepting any private banking services, including confidentiality, amounting to less than what other valued bank customers receive as a matter of course.

Alison Rose’s offer was hardly recognizable as an acceptance of responsibility. [Post July 31: Alison Rose’s offer was hardly recognizable as an acceptance of responsibility. It is true that Rose’s successor at Coutts Bank has offered Nigel Farage his accounts back, but that only illustrates how poor Rose was in offering a timely and fundamentally fair response to a crisis she had, in large part, put into motion.]

Is mise, le meas, 

Seth Barrett Tillman

(academic title & affiliation for identification purposes only)

Seth Barrett Tillman, ‘The Debanking Scandal,’ New Reform Club (July 28, 2023, 6:08 AM), <https://reformclub.blogspot.com/2023/07/the-debanking-scandal.html>; 

Some Thoughts on How One Ought to React to Supreme Court Rulings?

 

 

Letter from Mark Tushnet and Aaron Belkin to the Biden Administration (2023):

We do not believe that President Biden should simply ignore every MAGA ruling. The President should act when MAGA justices issue high-stakes rulings that are based on gravely mistaken constitutional interpretations, and when presidential action predicated on his administration’s constitutional interpretations would substantially mitigate the damage posed by the ruling in question. (emphasis added)

Steven G. Calabresi, Caesarism, Departmentalism, and Professor Paulsen, 83 Minn. L. Rev. 1421, 1433–34 (1999):

The President is obligated to execute all court judgments absent a clear mistake, even those that concern the scope of his constitutionally rooted executive privilege. (emphasis added)

Michael Stokes Paulsen, Lincoln and Judicial Authority, 83 Notre Dame L. Rev. 1227, 1301 (2008):

 

But if, with Lincoln, we think this notion of judicial supremacy wrong, then there is nothing wrong with resistance, through all available legal means, to Supreme Court decisions that one in good faith believes improper. The Constitution is not the exclusive province of the Supreme Court. The Court’s decisions are not the Constitution. And neither the Supreme Court nor any other authority properly may declare resistance to judicial decisions to be illegitimate. (emphasis added)

 

Seth Barrett Tillman, Some Thoughts on How One Ought to React to Supreme Court Rulings?, New Reform Club (July 21, 2023, 12:37 PM), <https://reformclub.blogspot.com/2023/07/some-thoughts-on-how-one-ought-to-react.html>;

Two Article III Queries

 

U.S. Constitution Article II, Section 2, Clause 2 states:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

It is customarily understood to mean this:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and [in] those [Cases] in which a State shall be Party, the supreme Court shall have original Jurisdiction.

But why can it not be equally understood as meaning this:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and [in all] those [Cases] in which a State shall be Party, the supreme Court shall have original Jurisdiction.

To put it another way: If “those” means “Cases,” and if “in” modifies “those,” then why should not “all” also modify “those”?

And, if “those” means “Cases,” then does that lean toward showing parity between “Cases” and “Controversies” (which is another term used in Article III)?

Seth

Seth Barrett Tillman, ‘Two Article III Queries,’ New Reform Club (July 21, 2023, 8:01 AM), <https://reformclub.blogspot.com/2023/07/an-article-iii-query.html>;

Is It True What They Say About Chinese Food?

 

The Legend of Mi Yue is a made-in-China 81 episode historical court drama set in the Warring States period (about 300 BCE). It aired on Chinese television during 2015 and 2016. The actors, including its star, Sun Li, all spoke in Chinese.

What follows is a conversation between the king of Qin and his queen, a former princess of Chu. (Qin and Chu were the two primary contenders for hegemony during much of the Warring States period, with Qin ultimately prevailing.)

King Huiwen: This hair pin and your hair style complement each other.

Queen Huiwen: Qin’s LanTian jade [jewellery] is the best in the world. I have this [pin] because of you.

King: [The] Queen likes Qin’s LanTian jade. But does not like Qin’s food. I heard that you think the grains [ie, wheat from northern and western China] are too rough.

Queen: My body is weak—grains can easily upset the stomach. So I dare not use it.

King: No harm. You are the Queen. The [relatively expensive] rice [from southern China] in the palace can be eaten at your discretion. But I prefer those rice. After eating the rice, I will be hungry in one or two hours. It is not useful.

Episode 29 (bold added), <https://tinyurl.com/z6k43r3a> (quoting close captioned materials) (at 7:20-8:15).

The concept that you might be hungry soon after eating certain traditional Chinese delicacies is not some foolishness rooted in bigotry, prejudice, and ignorance. Many people—including some Chinese people—have recognized that certain rice-based dishes can be digested quickly leaving the person feeling hungry in a relatively short period.

Of course, when my wife and I saw this scene, we both laughed, as I suspect many viewers in China did in 2015. The king merely stated what many know to be a true.

PS: The Legend of Mi Yue is an extraordinarily beautiful and moving historical drama. I give it 10 out of 10, only because I cannot give it an 11. 

Seth Barrett Tillman, ‘Is It True What They Say About Chinese Food?,’ New Reform Club (June 21, 2023, 13:51 PM), <https://reformclub.blogspot.com/2023/06/is-it-true-what-they-say-about-chinese.html>; 

Climate Change Activists’ Embrace of Rationing

 

Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

(academic title & affiliation for identification purposes only)

 

June 20, 2023

 

Irish Examiner

Letters Editor

letters@examiner.ie

 

RE: John Gibbons, ‘Why we should ration the distance each person can fly every year,’ Irish Examiner (June 20, 2023, 11:55 AM), <https://tinyurl.com/3cret6m8>.

John Gibbons suggests a 1,500 km annual allotment per Irish national/resident for air travel. So you could do Dublin–Paris round trip. Europe is within reach.

But if you are a new Irish national, from Caracas, Venezuela, and you’d like to visit family and friends: Dublin-to-Caracas is a 7,000 km distance, just one way. And if you are a new Irish national, from Cape Town, South Africa, and you’d like to visit family and friends: Dublin-to-Cape Town is a 10,000 km distance, just one way. And if you are a new Irish national, from New Delhi, India, and you’d like to visit family and friends: Dublin-to-New Delhi is an 8,000 km distance, just one way. Even Rabat, Morocco is over 2,000 km from Dublin.

Under Gibbons’ scheme, as near as I can make out, if you want to visit a historically Caucasian-majority country in Europe, then you can continue to do so tax free. But just go try and visit some third-world country where the majority population’s skin tone has a different complexion, and then you will be taxed for the privilege.

If one of Ireland’s minuscule right-wing nationalist parties proposed such a policy, they’d be labelled bigots. But if the very same policy is put forward in the name of environmentalism and climate change, precisely what conclusion or conclusions should we draw?

Is mise, le meas,

 

Seth Barrett Tillman

Seth Barrett Tillman, Letter to the Editor, ‘Restricting flights closes the world,’ Irish Examiner (June 27, 2023, 2:00 AM), <https://www.irishexaminer.com/opinion/yourview/arid-41170720.html> , <https://ssrn.com/abstract=4486380> (responding to John Gibbons’ ‘Why we should ration the distance each person can fly every year’); 

Seth Barrett Tillman,  ‘Climate Change Activists’ Embrace of Rationing,’ New Reform Club (June 20, 2023, 12:47 PM), <https://reformclub.blogspot.com/2023/06/climate-change-activists-embrace-of.html>; 

Tillman on Plagiarism in the Trump Litigation Briefs

This is my answer to an inquiry about “plagiarism” in certain briefs ....

I don’t think Trump’s lawyers used the word “plagiarism”—which is an assertion of a wrong. I do think it is more likely than not that my co-authored Lawfare paper (and other publications) influenced thinking on both sides and pointed both sides to further useful authorities. (Indeed, I sent copies of my publications to lawyers on both sides—a man has got to eat!)

Bragg’s attorneys cited many primary authorities (which I also had cited), and they did not take personal credit for the ideas in their brief as (wholly) original to themselves. They just decided to cite those other authorities and not to cite Professor Josh Blackman, my co-author, and me. That’s something they are entirely entitled to do. See Seth Barrett Tillman, ‘Some Thoughts on Plagiarism, Plagiarists, Fools, and Legal Fools,’ New Reform Club (Apr. 6, 2016, 2:11 PM), <https://reformclub.blogspot.com/2016/04/some-thoughts-on-plagiarism-plagiarists.html>. See generally anything by Professor Brian L. Frye on plagiarism. I have written on the scope of the duty to give credit. See Tillman, ‘Some Thoughts,’ supra. And I don’t fault Bragg’s lawyers for citing others and not me. (Of course, I would have been delighted to have been cited by Bragg’s lawyers—as I am only human.)

I also don’t think Trump’s lawyers did anything wrong by flagging to the court that there were similarities between what was in Bragg’s brief and what was in my publications, and how those similarities could be explained. “Cribbed,” as used in Trump’s lawyers’ brief, might mean no more than copied, as opposed to wrongfully copied. Some level of copying, particularly standard views and well known positions—as my views are by now after exposure on Opening Arguments and Instapundit, is to be expected in legal briefs. So some copying and cribbing is not necessarily a wrong, particularly where statements about law are at issue, as opposed to statements about facts. Indeed, that distinction is one appellate courts regularly apply to trial courts. If a trial court copies a party’s brief’s analysis of law, a court of appeals IS NOT likely to fault the trial court, much less overturn its decision. But if a trial court copies a party’s brief’s analysis of contested facts, a court of appeals IS likely to fault the trial court, and may overturn the trial court’s decision, and just perhaps, it may direct the case be moved to another judge for a retrial.

Of course Professor Hasen may have a different view.

Seth

Seth Barrett Tillman, ‘Tillman on Plagiarism in the Trump Litigation Briefs,’ New Reform Club (June 16, 2023, 13:55 PM), <https://reformclub.blogspot.com/2023/06/tillman-on-plagiarism-in-trump.html>;

See also Josh Blackman, ‘Trump’s Lawyers Cite, And Disagree with Blackman & Tillman On Whether The President Is or Is Not An “Officer of the United States”,’ Reason–Volokh Conspiracy (June 16, 2023, 1:39 PM), <https://reason.com/volokh/2023/06/16/trumps-lawyers-cites-and-disagrees-with-blackman-tillman-on-whether-the-president-is-not-an-officer-of-the-united-states/>;

See generally [Former] President Donald J. Trump’s Memorandum of Law in Opposition to the People of the State of New York’s Motion for Remand at v, 2 & n.1, The People of the State of New York v. Donald J. Trump, Civ. A. No. 1:23-cv-03773-AKH (S.D.N.Y. June 15, 2023) (Hellerstein, J.) (citing multiple Tillman-authored and Blackman-Tillman-authored publications), Doc. No. 34, <https://storage.courtlistener.com/recap/gov.uscourts.nysd.598311/gov.uscourts.nysd.598311.34.0.pdf>;