Our problems remain epistemological.

Friday, January 14, 2022

How the Constitution’s Original (or pre-1801) Electoral College Worked


Under the original design of the Constitution, members of the Electoral College would each cast two votes for President for two distinct candidates, and, at least, one of the two votes cast by each elector could not be an inhabitant of the same state as the elector. There was no separate ballot for Vice President. Generally, the candidate with the most electoral votes would become President, and the runner-up in the Electoral College, who might very well be a political rival of the prevailing candidate, would become Vice President.

By modern U.S. elections standards it was an odd system, particularly because it was possible for more than one candidate to carry a majority of the electors. This is how that system worked.

If no candidate carried a majority of the electors appointed, then the election was thrown into the House, and the House—in a House contingent election*—could choose any of the top five candidates in the electoral college. Of the remaining four candidates, the one with the most electoral votes (even if not a majority) would become Vice President, unless there was a tie, and then, after the House chose the President, the Senate, in a Senate contingent election, would choose the Vice President between or among those who tied. (Interestingly, the Constitution did not clearly provide for the possibility where no candidate secured an electoral college majority, and six or more candidates tied for the top position.)

If only a single candidate carried a majority of the electors appointed, then that candidate became President, and the runner-up in the electoral college (even though that candidate did not carry a majority) would become Vice President, unless there was a tie for runner up, and then the Senate, in a Senate contingent election, would choose the Vice President between or among all those who tied. This scenario (in respect to the presidency) is what happened in the 1789 presidential election. General George Washington had 69 electoral votes: the vote of every appointed elector. John Adams was the runner up with 34 votes—one vote short of a majority. John Jay, with nine elector votes, trailed in a distant third place. (There were 73 authorized electors—four potential electors did not vote.)

If more than one candidate carried a majority of the electors appointed but one candidate had a greater majority than all the other candidates, then that candidate became President, and the runner-up in the electoral college (who also carried a majority) would become Vice President, unless there was a tie for runner up, and then the Senate, in a Senate contingent election, would choose the Vice President between or among all those who tied. This scenario (in respect to the presidency) is what happened in the 1792 presidential election: incumbent President George Washington had 132 electoral votes: the vote of every appointed elector. On this occasion, however, incumbent Vice President John Adams carried a substantial majority of the electors, but Washington carried a greater majority than Adams. New York’s Governor Clinton came in third, but he did not carry a majority of the electors. (There were 135 authorized electors—three potential electors did not vote.)

If two candidates tied, carrying a majority of electors appointed, and carried more electoral votes than all the other candidates, then that threw the election into the House. The House, in a House contingent election, could choose between the two candidates who tied, and the remaining candidate became Vice President. This actually happened in the Jefferson-Burr election of 1800. This odd, and somewhat unexpected, result led to the Twelfth Amendment, which now provides for separate presidential and vice presidential electoral ballots.  

Finally, there was the possibility that three candidates tied, carrying a majority of electors appointed. In that situation, the House, in a House contingent election, could choose among the three candidates who tied, and then, after the House chose the President, the Senate, in a Senate contingent election, would choose the Vice President between the two remaining candidates. This situation never occurred, and because of post-1800 constitutional amendments, this situation, now, never can occur.

All this is reasonably clear under the Constitution’s original design. Again: under this original design, it was possible: [1] for one, two, or even three candidates to secure a vote from a majority of the electors, and [2] for two or three such candidates to tie having secured a vote from a majority of the electors. 


*The unusual rules applicable in a House contingent election and in a Senate contingent election will be discussed in another post

For further details, see Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Interpretation, 105(3) West Virginia L. Rev. 601 (2003), <https://ssrn.com/abstract=422700>. 

Seth Barrett Tillman, How the Constitution’s Original (or pre-1801) Electoral College Worked, New Reform Club (Jan. 14, 2022, 3:56 AM), <https://reformclub.blogspot.com/2022/01/how-constitutions-original-or-pre-1801.html>.

Sunday, January 09, 2022

Genius on Twitter


Seth Barrett Tillman, Genius on Twitter, New Reform Club (Jan. 9, 2022, 10:10 AM), <https://reformclub.blogspot.com/2022/01/genius-on-twitter.html>; 

Wednesday, January 05, 2022

Impeaching Prosecutors Who Fail To Prosecute

        With the election of the Soros-funded prosecutors, and radical policy innovations in prosecutorial discretion, and changed incidence (including increased incidence) in crime, those who (politically) oppose such policies will naturally look to push back against these prosecutors and their policy changes. Some will suggest impeachment as a valid route. I would not support that approach. This is why. 

        My discussion is limited to federal impeachment rules—applicable to federal officeholders—which limit impeachment to “high crimes and misdemeanors.” Some states have impeachment rules akin to the federal model, and such states impeachment rules will apply to their state officeholders. By contrast, under New York law, which lacks any “high crimes and misdemeanors” language regarding impeachment in its state constitution, the scope of the state legislature’s impeachment power may be considerably wider than Congress’ power under the United States Constitution. And, under the California state constitution, certain county and municipal offices are not subject to impeachment by the state legislature. Thus, elected California county prosecutors may be beyond the power of the California state legislature to impeach. 

      Again, impeachment under the federal model is limited to “high crimes and misdemeanors.” Differences of opinion in regard to best policy, and after-the-fact investigations of the real world consequences which flow from such differences of opinion regarding policy, standing alone, cannot meet the “high crimes and misdemeanors” standard. This is particularly true where the alleged wrongdoer, i.e., the officeholder-defendant, announced his policy positions prior to his appointment or election. 

        So, in what circumstances can a prosecutor be impeached under the federal model? There are primarily three situations where impeachment would be appropriate. 

        First, if a statute mandates that a prosecutor prosecute a particular class or type of crime in all circumstances (as opposed to mandating a prosecution regarding a particular or named alleged criminal), and the prosecutor knowingly fails to bring such a case (or if the prosecutor, in his role as prosecutor, intentionally loses or frustrates the case during ongoing judicial proceedings), then the legislature can lawfully impeach the prosecutor under the high crimes and misdemeanors standard. Why? Generally, knowing violations of positive law relating to one’s office meet the high crimes and misdemeanors standard. Notwithstanding such federal statutes, i.e., statutes mandating prosecuting a particular class or type of crime in all circumstances, the Executive Branch has laid claim to the discretion not to bring such prosecutions. This view has not been endorsed by the Supreme Court—or, as far as I know, by any other Article III court. It follows that a member of Congress, in good faith, could support impeaching a prosecutor in such circumstances, notwithstanding the announced position of the Executive Branch. 

        On the other hand, if Congress seeks [1] to mandate a prosecution in regard to a particular or named alleged criminal defendant, or [2] to make some conduct criminal after-the-fact, or [3] to increase the punishment for some conduct after-the-fact, a prosecutor is not duty bound to bring such a prosecution. A prosecution based (entirely) on such a statute would be unconstitutional. In such circumstances, impeaching the prosecutor for violating the statute would be wrong. 

        Furthermore, where Congress’ statute mandating a prosecution is constitutional, the scope of the prosecutor’s duty extends to his job-related conduct and to his concomitant use of government property (i.e., that government property over which he has authority as an officeholder). But it ends there. A federal prosecutor remains a human being and citizen—in other words, a prosecutor has all the First Amendment rights anyone else has. So in bringing a lawful prosecution, the prosecutor must be diligent and zealous. But, on his own time, and when using his own resources, a prosecutor is free to express the view that Congress’ policies—embodied in the statutes supplying the basis for prosecutions his office has brought—are wrong. A prosecutor can even state that the prosecutions his office has launched are a mistake. A prosecutor can express that view in private and public. Indeed, if asked under oath what his view is, the prosecutor is obliged to tell the truth and, in a judicial proceeding, the prosecutor must answer with candor. A prosecutor, in his capacity as a private citizen, can lobby the legislature to repeal a statute making conduct criminaleven where that statute furnishes the basis for an ongoing prosecution he or his office has brought. The expression of such views by a prosecutor is entirely legal; therefore, it cannot be the basis for an impeachment. 

        By way of example: Whether President Clinton’s perjury in regard to sex was impeachable conduct, or not, is a question capable of different reasonable views. By contrast, it was not impeachable conduct for Clinton to express the opinion, even in public, that the Whitewater prosecution was a political hit job. His expressing that viewpoint was core First Amendment protected speech. It does not matter if he was “correct” or not in regard to that view—it does not even matter if he sincerely believed what he way saying. The expression of such a view, even if it in some sense frustrates government policies embodied in federal statutes, is entirely legal, and therefore, it cannot form the basis for an impeachment. 

        Second, mundane statutes provide prosecutors with discretion. But even discretion has limits. A prosecutor has limited resources and can choose priorities. A prosecutor can choose to prosecute a crime in particular circumstances—e.g., where the evidence is particularly strong, or where the societal harm caused by the crime is particularly great. But if a prosecutor establishes a policy for his office, e.g., that his office will never bring a prosecution in regard to a particular class or type of crime, then that policy choice would entirely nullify or suspend a statute.* The President cannot do that, i.e., entirely nullify or suspend a statute, and, a fortiorineither can his prosecutors and other appointees. An elected or appointed officeholders knowingly embracing such a policy choice—i.e., one entirely nullifying or suspending a statute—would meet the high crimes and misdemeanors standard. Why? A prosecutor cannot make legal what the legislature has determined to be a crime. 

        Third, there is always bribery. Bribery is a good basis for bringing an impeachment. But after-the-fact recharacterization of normal democratic political expression and conduct as bribery does not make otherwise legal conduct either illegal or impeachable. Traditionally, bribery means receiving a private benefit, like cash or other property, accepting it secretly, and not paying taxes on itall in exchange for some act or inaction by an officeholder.** If a prosecutor takes $1,000 from a potential defendant, and puts the money in his (i.e., the prosecutor’s) closet in exchange for not prosecuting that defendant, then that is a bribe—it is a crime, and it is impeachable conduct. But if a president runs for office or a prosecutor seeks an appointment based on a platform or programme of limiting the frequency or number of prosecutions for street crime, and then reminds every defendant and their family of his decision not to prosecute or of his decision to seek only limited penalties, and as a result, many such wrongdoers (and their immediate family members, close friends, and other associates) vote for that president or prosecutor, or donate to that presidents or prosecutors campaign committee, or volunteer to pass out that presidents or prosecutor’s campaign literatureall such activity is entirely legal (even if in some sense regrettable). And just as it is legal, such conduct is not impeachable. It is normal democratic politics. The proper response by the opposition is to oppose that candidate at the polls and to remind all the victims, citizens, and voters in the wider polity of what the stakes are in the election. That too is normal democratic politics. If one fails to engage in normal democratic politics, others will fill in that vacuum, and certain consequences are likely (or, at least, more likely) to follow.

        In conclusion, one may ask: If impeachment is off the table, how can one lawfully oppose prosecutors whose policies one opposes? There is normal democratic politics, recall if available, and, of course, the next election. If you cannot wait for the next election, one possibility is to cabin prosecutorial discretion by statute. Of course that solution is based on trusting that the officeholder will comply in good faith.  

        Another possibility is that you can seek to have an office terminated by statute. (Generally, offices created by a constitution cannot be terminated by statute, but offices created by statute*** can be terminated by statute.) Indeed, such a statute only requires a simple majority in each house of the legislature. Federal impeachment, by contrast, requires a House majority and a two-thirds super-majority in the Senate. Of course, the responsibilities currently handled by the officeholder whose position is being terminated will have to be re-assigned. Who, Whom? And that takes us all back to normal democratic politics. 


        Seth Barrett Tillman, Impeaching Prosecutors Who Fail To Prosecute, New Reform Club (Jan. 5, 2022, 6:21 AM), <https://reformclub.blogspot.com/2022/01/impeaching-prosecutors-who-fail-to.html>; 

        * There is a rich historical and legal literature, much of it opposing a particularly strong version of the unitary executive theory, arguing that the President has no regal power to suspend statutes. My own view is that any effort by an Executive Branch officeholder to suspend a statute, where the constitutionality of the statute is not in doubt, is a violation of the officeholders oath of office. Where a subordinate Executive Branch officeholder’s conduct is at issue, then the President’s supervisory duties under the Take Care Clause are implicated. (I am not making any claim here related to what lawful powers a king of England/Scotland/GB had (or purported to have) in the late eighteenth century.) 

        ** The core of bribery serving as a basis for impeachment relates to an officeholder’s engaging in an exchange involving his office’s powers (or government property over which he has authority in his role as an officeholder).

    *** Under the Constitution of 1788, an office created by, ratified by, or entirely defeasible by statute is traditionally called an office . . . under the United States.” Terminating an Article III court effectively amounts to a removal from office. Article III mandates good behavior tenure for Article III judges. Therefore, such terminations are likely to give rise to constitutional challenges, which will be heard by other Article III judges and Justices. See, e.g., Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803). 

Friday, December 24, 2021

What Did Alexander Hamilton Mean?


In Federalist No. 77, Alexander Hamilton wrote: “The consent of [the Senate] would be necessary to displace as well as to appoint.” What did Hamilton mean?

Compare Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (“In order to prevent arbitrary executive action, the Constitution provided in terms that presidential appointments be made with the consent of the Senate, unless Congress should otherwise provide; and this clause was construed by Alexander Hamilton in The Federalist, No. 77, as requiring like consent to removals.” (emphases added)), Ray Raphael, Constitutional Myths: What We Get Wrong and How To Get It Right 118–119, 277 nn.34 & 36, 278 n.38 (2013) (affirming that Hamilton’s “displace”-language addressed removals, and characterizing the contrary view as “purely legalistic” and “subtle”), <https://tinyurl.com/2p8jhwkc>, and Jeremy D. Bailey, The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge, 33 Harv. J.L. & Pub. Pol’y 169 (2010) (arguing that Federalist No. 77’s “displace”-language was akin to “remove”), <https://ssrn.com/abstract=1473276>, with Reply Brief for the Respondent [Consumer Financial Protection Bureau (“CFPB”)] at 10, Seila Law LLC v. CFPB, No. 19-7, 140 S. Ct. 2183 (2020) (brief filed on Feb. 14, 2020 by Francisco, S.G.), 2020 WL 774433 (“In The Federalist No. 77, Hamilton said only that the Senate’s consent ‘would be necessary to displace’ principal officers . . . not to ‘remove’ them. Replacing an officer would of course require Senate confirmation of the replacement—which is all Hamilton may have meant.”), <https://tinyurl.com/y4fbdh2x>, 3 Joseph Story, Commentaries on the Constitution of the United States §§ 1532–1533, at 390 (Boston, Hilliard, Gray, & Co. 1833) ("§ 1532. [I]n an early stage of the government, [the power of removal] underwent a most elaborate discussion [in Congress]. The language of the constitution is, that the president ‘shall nominate, and, by and with the advice and consent of the senate, appoint,’ &c. The power to nominate does not naturally, or necessarily include the power to remove; and if the power to appoint does include it, then the latter belongs conjointly to the executive and the senate. In short, under such circumstances, the removal takes place in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the [subsequent] appointment itself. § 1533. This was the doctrine maintained with great earnestness by the Federalist [No. 77] . . . ." (emphases added)), <https://tinyurl.com/a5hsn8zr>, Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010) (arguing that Federalist No. 77’s “displace”-language was akin to “replace,” and was not addressing “removal” per se), <https://ssrn.com/abstract=1331664>, Ilan Wurman, The Removal Power: A Critical Guide, 2020 Cato Sup. Ct. Rev. 157, 197 (“Hamilton’s entire paragraph [in Federalist No. 77] is about ‘the business of appointments.’ Thus, he speaks of ‘displacing’ an officer after a new president is elected. This seems most logically to be a reference to the advice and consent of the Senate to a new appointment.”), <https://tinyurl.com/2p9xzn8s>, and Letter from Professor Forrest McDonald to Seth Barrett Tillman (Feb. 14, 2009), <https://tinyurl.com/2ueurpx4> (“Your argument [that is, the view regarding the meaning of Hamilton’s “displace”-language] is, in my opinion, irrefutable.”). See generally, e.g., Removal Power of the President, [16 June] 1789, Founders Online (last accessed Dec. 12, 2021), <https://tinyurl.com/rtvtdccx>:

[James Madison, in the House of Representatives’ Committee of the Whole:] Where the people are disposed to give so great an elevation to one of their fellow citizens, I own that I am not afraid to place my confidence in him; especially when I know he is impeachable for any crime or misdemeanor, before the senate, at all times; and that at all events he is impeachable before the community at large every four years, and liable to be displaced if his conduct shall have given umbrage during the time he has been in office.

Id. (emphasis added).

Seth Barrett Tillman, What Did Alexander Hamilton Mean?, New Reform Club (Dec. 24, 2021, 5:30 AM), <https://reformclub.blogspot.com/2021/12/what-did-hamilton-mean.html>; 

See also Seth Barrett Tillman, Non-Textualism and the Duck Season-Rabbit Season Dramaturgical Dyad: A Response to Professor Cass Sunstein (and others), 20(2) Geo. J.L. & Pub. Pol’y (forth. circa May 2022), <http://ssrn.com/abstract=3910416>.

Wednesday, December 15, 2021

Monday, December 13, 2021

Friday, December 10, 2021

Some Uncomfortable Thoughts About the Smollett Prosecution



Let the jury consider their verdict,’ the King said, for about the twentieth time that day.

No, no!’ said the Queen. ‘Sentence first—verdict afterwards.’

 —Lewis Carroll, Alice’s Adventures in Wonderland (1865)

Dave Chapelle knows it. See <https://tinyurl.com/4j2wj259>. I know it. And you know it too. There was no hate crime; it was a hoax. And there have been many hoaxes in recent history. It is a long, long list. Smollett’s actions have (inadvertently) exposed the race hoax industry, and its regular accessories across the U.S. news-media-&-entertainment-industry complex. The media will purport to believe anything. The beast has to be fed—copy has to be sold—clicks have to be inflated—even if the ultimate result is racial violence grounded in a hoax.

But we should still take a good, hard look at the Smollett prosecution. The latter has also exposed the seedy underside of the legal world of criminal prosecution. It is not a pretty picture. The prosecutor, Kimberly M. Foxx (the State’s Attorney for Cook County, Illinois) and her office made some mistakes. They started a prosecution of Smollett, and then stopped it—with little explanation or transparency. Foxx also (arguably) made technical or administrative errorswhen she informally recused herself from the Smollett case and then directed one of her subordinates to take over the case.

As a result, the matter was shifted into Judge Toomin’s court. He had discretion to appoint a special prosecutor to take over the Smollett prosecution. His exercising that discretion depended on whether Foxx and her office had violated the law controlling the administration of justice. Toomin’s decision hinged (or should have hinged) on Foxx’s conduct, not Smollett’s. A judicial resolution of Smollett’s guilt or innocence would only follow a jury’s verdict after a trial, should a newly appointed prosecutor choose to bring a prosecution. This is all basic. You don’t have to go to law school, or even watch Matlock reruns, to understand this, right? Actually, no, some people do not understand this most basic principle. And some of these people are our judges. 

In his decision, which granted the motion to appoint a special prosecutor, Judge Toomin wrote:

Rather, in perhaps the most prominent display of [Smollett’s] acting potential, Smollett conceived a fantasy that propelled him from the role of a sympathetic victim of a vicious homophobic attack to that of a charlatan who fomented a hoax the equal of any twisted television intrigue.

[Judge Michael P. Toomin, In re Appointment of Special Prosecutor (Jussie Smollett), No. 19-MR-00014 (Circuit Court of Cook County, Illinois, Criminal Division, June 21, 2019) (slip op. at 2), <https://tinyurl.com/2s37y247>.] Lewis Carroll’s Red Queen would have agreed with Judge Toomin’s sentiment: here, guilt is announced before trial. This sort of pronunciamento does not leave much residual discretion for the prosecutor. With his only having one case to sort out, the prosecutor has every reason: to bring the case to trial; to enjoy the perquisites of his temporary government appointment; and to rack up any concomitant media attention. See Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting). And, here, a judge has already tipped his hand as to the accuseds guilt—so, a decision to prosecute looks unusually safe.

If you believe, as I do, that none of this makes any sense … that is because none of this makes any sense.


Seth Barrett Tillman, Some Uncomfortable Thoughts About the Smollett Prosecution, New Reform Club (Dec. 10, 2021, 7:19 AM), <https://reformclub.blogspot.com/2021/12/some-uncomfortable-thoughts-about.html>; 


Sunday, December 05, 2021

The Teepee and Trump Tower: The Environmentalist Vs. Christendom

Let me tell you about an essay I just read by a friend of mine. The essay is ostensibly about global warming theory. I say the essay is about "global warming" theory because my friend prefers "global warming" over the theory's hazier new name, "climate change." Many of the exponents of "climate change" theory bristle upon being reminded their theory went, until recently, by the more forthright name "global warming." That is probably because the globe has not actually warmed since the '90s, and because in the 4 billion or so years of existence our globe has warmed – and cooled again – rather a lot of times, even before there were humans around emitting carbon or carbon theories. But rest assured, my friend's essay is not partisan, and in fact his essay stipulates to the principal tenets of global warming. Or climate change. Whatever. 

I also said the essay is ostensibly about global warming. I say "ostensibly" because the essay really is about something else. And about that something else I would like to say more, because it is a provocative point. My friend delays gratification about the something else to page twenty-something of his essay. But being a more promiscuous essayist I give it away right up front. Here is the something else: 

Yes, the global-warmists hate what modern human activity is doing to the planet. That is no act. But there is more to it than just the harmful effects of modern human activity. Much more. In fact, the mere effects of human activity is just the entrĂ©e to the real objective. Icebergs are just an icebreaker. Once you probe deeper, some of the global-warmists will admit it to themselves: this is not just about carbon. Carbon is just a crude symbol of what is wrong with modern human activity. Warmist hatred goes deeper than this. No, their war is not against carbon. Deep down, the warmists don't just want to abolish the effects of modern human activity: they want to abolish modern human activity itself, and remake humanity it their own image. The warmists wrestle not against principalities, against powers, against the rulers of the world, but against flesh and blood. 

In other words, climate change theory is not ultimately an engineering quest, but a religious one. This seemed rather fresh when it first dawned on me, but in fact the environment has always been bound up in human religious and magic traditions. In his classic study of religion and magic, The Golden Bough, Sir James George Frazer observed that the "decay and regeneration" of the earth is "a phenomenon so important, so striking, so universal" that it "readily presents itself to men in every stage of savagery and civilisation." And so it has proved among many of the exponents of climate change theory, carrying on the worship tradition. Charles A. Reich prophesied a "revolution" in The Greening of America, a best-seller in 1970 and '71, which revolution would usher in "a new and enduring wholeness and beauty — a renewed relationship of man to himself, to other men, to society, to nature, and to the land.” Other environmentalists like Arne Naess and Murray Bookchin have preached an egalitarianism of people, plants, and animals, a return to a utopia of primitivism. American activist Jerry Mander argued primitive societies were onto something: they were not ignorant of modernity, but scornful of it. And so, Mander argued, should we be. 

Who are these premillennial mooks, you ask? Why, they don't even have Twitter accounts! On whose authority are we to accept that the modern environmental movement is driven by something like religious impulses? Well, then perhaps you will accept the authority of the man who invented the internet, Mr. Albert Arnold Gore, Jr.? The overarching theme of his The Earth in the Balance is that ours is a "contrived, controlled, and manfactured world," that modernity represents a "moral schism" and "spiritual crisis" that threatens "the loss of our spiritual lives" and "mask[s] our deep loneliness for that communion with the world that can lift our spirits," and that we should instead "walk humbly with nature's God" toward " a larger spiritual purpose." And we should take our cues for life's purpose from the ancients, from the Indians. Gore quotes Chief Seattle, that "man belongs to the earth. All things are connected like the blood that unites us all. Man did not weave the web of life, he is merely a strand in it." Gore offers up the prayer of the Onondaga tribe to the "Great Spirit, whose breath gives life to the world," asking to "help us learn the lessons you have hidden in every leaf and rock," and to "make us always ready to come to you with clean hands and straight eyes, so when life fades, as the fading sunset, our spirits may come to you without shame." (You may think I write this when a sneer. I do not.) 

But I belabor the point. The President himself, taking up Gore's cause, has declared a "battle for the soul of America." Surely we are slow students to have learned, only at this late stage, that environmentalism is not merely a policy proposal but religious evangelization. 

The a-ha moment came for my friend upon reading Mark Lynas's new book, Final Warning. My friend was, at first, confused by Lynas, because Lynas actually is not very supportive of many proposals to reduce carbon emissions. Lynas opposes, for example, “direct human manipulation of the world’s climate and weather systems on a day-to-day basis.” Lynas thinks this a “Faustian bargain.” Why is Lynas, who is deeply committed to climate change toward global unwarming, so dismissive of many of the du jour carbon-cutting proposals? Lynas reveals: "[W]e would gain some version a future, but at the cost of our souls. The planet we would bring into being would not be the earth I love and want to protect.” Yes, says Lynas, maybe we could cut carbon enough to save both the earth and our lifestyle. But don't you see, we would have let the crisis go to waste! For Lynas, we are going about this all wrong thinking of this as an economic and engineering problem. We are treating global warming as the disease, and our lifestyle as the patient to be saved. But this does not ring true for the true believers: global warming is the cure – our lifestyle is the disease. Policies will never be enough. Only prayers and ablutions will ready us to come to the Great Spirit, without shame. 

Again, I say this without a sneer. All those longing for spiritual fulfillment are my brethren. We are on this earth to seek God and honor Him. Always do each of us need improvement and encouragement in this, our highest calling. And often may we find suggestions in other traditions. So let us consider for a moment the Indians. 

I still call them Indians, by the way. The Indian was America's unique moral problem. The term Indian evokes the surprise that the first Europeans must have felt to find the Native Americans on this continent, and not literal Indians. They were not even prepared enough to give them their own name. And throughout our history we never did become prepared to treat them decently. Those Europeans who became Americans might have been forced to acquiesce in co-existing with another way of life had they reached Asia instead of a new continent. This is a project the British mastered through colonialism. We Americans pride ourselves on not being colonialists. But we also cannot claim any credit for peacefully coexisting with any other way of life. The Native American never had greater standing in the eyes of Westerners than when they were thought to be Indians. And we still cannot abide other ways of life. In my own profession, lawyers vex and prod for greater "diversity" on the bench. Yet no one ever means by this that we should look for judges who rent their homes, or who made a living among the trades: our jurists are almost uniformly cosmopolitan. American cosmopolitans have never had greater self-esteem as diverse and tolerant, yet they still don't know what to make of a person who doesn't want a desk job, an iPhone, a stock portfolio, and a vaccine passport. 

So the Indian way of life obviously is romanticized. Al Gore and global warmists and other cosmopolitans do not actually want to live like Indians. (I suspect Mark Lynas wants to want to.) But even the most earnest warmist knows he'll come no closer than maybe re-watch A Man Called Horse. So what he lacks in the way of Indian customs he makes up for with an anti-modern mood. He admires the teepee – it represents a way of life connected to nature, and not aspiring to surpass or dominate it. And if he will not deign to live in a teepee, at least he can fulminate against the gaudier manifestations of modernity. Trump Tower will do nicely. What is Trump Tower but the same glass and steel in which the cosmopolitans and their climate change think tanks are housed, with some gauche ornamentation bolted on for show? The climate, of course, cannot distinguish Trump Tower from the UN building. But the climate activist sees Trump Tower as a trophy awarded to nature's conqueror. And that is the difference: Gore and Trump have both conquered nature, and neither want to give up their lifestyle, but Gore expresses remorse about that, and Trump does not. 

By the way, penitence also drives the approach to other modern problems in recent years. As Shelby Steel and Orlando Patterson have noted, for two generations cosmopolitans have supported Great Society and social justice programs to help blacks but which, by many metrics, actually hurt blacks. The latest and strangest installment of this program is "Defund the Police" and no-cash-bail programs. Telling a cosmopolitan that his program has not made things better tends to baffle him: "But it has worked – I do feel better." 

Again, there is something of the religious about revering nature, and dumping on modernity. It is near the heart of Lucretius's poem "No Single Thing Abides": 

Lo, how the terraced towers, and monstrous round
Of league-long ramparts rise from out the ground,
With gardens in the clouds. Then all is gone,
And Babylon is a memory and a mound.

But what have we learned about living in harmony with nature? After reading James Michener's Centennial and then watching the excellent miniseries based on it (a screenplay that, in several ways, surpassed the novel), it occurred to me that we still haven't learned a fundamental lesson from the United States' shabby treatment of the American Indian. During one of the treaty negotiations, Michener puts these words into the mouth of an Indian chief: 
"We must be permitted to ride the open prairie without the white man’s trails cutting us off from old grounds, for without freedom our spirits will perish." 
And that is why no treaty ever held up. The fundamental assumption of the United States was that the Indians eventually would relent and adopt the Americans' way of life – i.e., modernity, progress. The Americans would never accept coexistence with a way of life fundamentally opposed to progress. (Could they be expected to?) The Americans had a second chance at coexistence, this time with the Mexican. The Mexican, in Michener's telling, was happy to coexist: he settled down and worked as an excellent farmer – hard-working, good instincts. But like the Indian, the Mexican would not be cut off from their "old grounds": they did not prize landownership and enterprise, and instead they followed one crop after another, going wherever the work was good, working in warm weather, spending the winter months in cantinas with their friends and their own music and language. American cosmopolitans never could understand this, and still cannot. Though they claim to be "multiculturalists," the cosmopolitans seem not to actually believe there are different cultures. Once the foreigners receive government benefits and a mail-in ballot, think the cosmopolitans, they will prove they like all the same things we do. And their religion and values? They shan't need those any longer, say the cosmopolitans, for they shall have ours.

Indians had their teepees, in which they lived lives close to nature, and not above it. Westerners had the Garden of Eden, by which they became alienated from nature, and the Tower of Babel, by which they rivaled its Creator, and cathedrals, by which they praised Him. Some, like Jerry Mander in In the Absence of the Sacred, have theorized that primitive societies were not ignorant of modernity: they purposely rejected it. This might suggest that, if the Garden of Eden was a real place, only Westerners were cast out of it, and the Indians remained to live in harmony with nature. (Except for those Indians who piled towers of skulls from human sacrifices.) Or perhaps Eden was never a place, but a way of life, and modern man had been cast out of that way of life, so that even if he should stumble upon that way of life again, it should look so foreign to him that he would do all within his power to destroy it. In fact, the ignorant among the modern men did destroy much of it. It was the sophisticated among the moderns who did much worse to it: they corrupted it, by giving them welfare and casinos.

I don't know if Eden was a real place. But it is worthy of thought. The teepee makes a fine archetype of the life in harmony with nature. The teepee represents a way of life connected to nature, and not in rivalry with it. Trump tower is the opposite of the teepee: it spikes the football in nature's face. That is its sin. 
And yet: is it not better to award harmless trophies than to raise up utopianists? The right-winger in his F150 who belches a triumphant blast of exhaust into the ether surely cannot be worse than the left-winger in his Tesla, who keeps children in slavery to mine the minerals needed for his car battery. Can he? No, not as a practical matter. But as a religious matter? The Tesla slave driver's intentions are good. His heart is pure. For the political-religious impusle, that is what matters. 

As in all things, some balance is required. Did the Indians strike the right balance with their teepee? Why should they have built even teepees if nature wanted them to be cold, or to be wet, then oughtn't they be cold, or wet? Or suppose the Indian would have built Trump tower if only he could have done, but they simply had not yet advanced enough to build more than teepees? After all, they built teepees – they did seek to avoid nature to some extent – so why assume they would not have built houses if they could, with electricity and plumbing? If they were truly one with nature, why shelter themselves at all, even in teepees? If God or nature wants you to be cold or wet, does a teepee mock less than a log cabin, or a single family house, or a tenement, or Trump tower, or Al Gore's mansion?

Yet there is a difference. One thing is closer to nature than another. And that itself is significant. Maybe the answer is: laborare est orare – work is prayer. All things are permissible if done reverently. To the Pharisees, Jesus sinned by healing on the Sabbath, the Gentiles sinned by eating unclean meats. To the Indians – and to the modern cosmopolitans who sneer at Trump tower yet live in functionally equivalent modern abominations with only their cold sterility to atone for them – the white man sinned by overbuilding, overpopulating. But Jesus taught that it is what comes out of a man that makes him unclean. Build, or do not build, but do all things prayerfully

What a pitiful lot, we moderns, sniping at each other from our penthouses in our new Tower of Babel. We object to adding another story atop the Tower, each for different reasons, but who among us has standing to object? That is the moral of the teepee – to flee temptation: you cannot add another story on a teepee.

And so we come back to the religious global warmist, the climate change activist who would purge our modern souls of sin by knocking down our towers erected against nature, who would send us back to the teepee. To whom we might respond that, in many ways, we come to the same prescriptions, but by different religions. Christendom taught that man's world will be put, in the end, under God's dominion. The warmists teach that it will be put under nature's dominion. There are lessons to be shared in both religions, such as humility, and good stewardship. But that, I fear, is not enough to avoid a holy war. For a man may give up his heart's desire to do the will of his God, but not to do the will of some other bloke's god. For if all things are permitted so long as they are done prayerfully, what is relevant is not our actions, but our intentions. Not what we do, but who we worship. I confess I am not willing to consent to my world becoming an offering up to whatever gods Gore and Lynas and their adherents serve. No, the warm-mongers will have to give me reasons, not a sermon.

What was supposed to be preferred to immanenting the eschaton – bringing about utopia and moral perfection – was liberalism: that by respecting individual rights and opinions, and limiting government to things like filling potholes and stopping bad guys with guns, government would be kept out of the business of saving souls. I am eager to join those with concern for our souls at an interfaith council. But establishing a national religion out of it only invites a holy war.

How Is This Success?


On September 18, 2021: Mexico and U.S. had the same deaths per million rate (2072). This is well after COVID-19 vaccinations were widely available in the U.S.

How is this success? How?

Seth Barrett Tillman, How Is This Success, New Reform Club (Dec. 5, 2021, 6:43 AM), <https://reformclub.blogspot.com/2021/12/how-is-this-success.html>; 

Twitter: <https://twitter.com/SethBTillman/status/1467459827387486213>; 

Friday, December 03, 2021

Sunday, November 28, 2021

One of my Favourite Footnotes


See eg Blau (ed) (n 1) 89 (“It was, of course, impossible for Mr. [Jacob] Henry to affirm the divine authority of the New Testament.”); Brown (n 23) 46 (suggesting that, in 1809, “Gaston, Henry, and others proposed to eliminate the Protestant test oath from the Constitution” and “failed” in their efforts); Frederic Cople Jaher, A Scapegoat in the New Wilderness: The Origins and Rise of Anti-semitism in America (Cambridge, Mass, Harvard University Press 1994) 138 (noting that Henry was not “forced to take the prescribed test oath”); Seymour Martin Lipset and Earl Raab, Jews and the New American Scene (Cambridge, Mass, Harvard University Press 1995) 39 (asserting that the “North Carolina Constitution require[ed] that all officeholders swear a Protestant oath”); Mark Douglas McGarvie, Law and Religion in American History: Public Values and Private Conscience (NY, Cambridge University Press 2016) 10 (characterizing the debate on Mills’s motion to vacate Henry’s seat as involving a “Protestant test oath”); Roy G Saltman, The History and Politics of Voting Technology (NY, Palgrave Macmillan 2006) 60 (asserting that Henry refused to take “the sectarian oath of office”); Jonathan D Sarna, Coming to Terms with America: Essays on Jewish History, Religion, and Culture (Lincoln, NE, University of Nebraska Press 2021) 265 (describing efforts in 1809 “to deny [Henry] his seat in the state legislature for refusing to subscribe to a Christian test oath”); John E Semonche, Religions & Constitutional Government in the United States: A Historical Overview with Sources (Carrboro, NC, Signal Books 1985) 23 (characterizing Article 32 as a “test oath”); Denise A Spellberg, Thomas Jefferson’s Qur’an: Islam and the Founders (NY, Alfred A Knopf 2013) (characterizing Article 32 as “an oath to affirm ‘the truth of the Protestant religion’”); ‘Errata’ (2011) 14 Southern Jewish History 237 (clarifying Vann Newkirk’s 2010 publication, and stating that Article 32 involved a “religious test oath”); Faber (n 7) 40-41 (asserting that Henry was “challenged . . . on the grounds that the state’s constitution required that he take an oath affirming the New Testament’s divinity”); Oscar Handlin and Mary F Handlin, ‘The Acquisition of Political and Social Rights by the Jews in the United States’ (1955) 56 The American Jewish Year Book 43, 59 (explaining that Henry’s seat was “challenged because he . . . would not take an oath affirming the divine character of the New Testament”), <https://tinyurl.com/wt78devf>; Samuel Rabinove, ‘How—And Why—American Jews Have Contended for Religious Freedom: The Requirements and Limits of Civility’ (1990) 8 Journal of Law and Religion 131, 137 (Henry’s “seat was challenged on the ground that ‘he denie[d] the divine authority of the New Testament’ and failed to take the required oath concerning ‘the truth of the Protestant religion,’ as required by the state constitution.”); Jay Michael Eidelman, ‘“In the Wilds of America”: The Early American Origins of American Judaism, 1790–1830’ (PhD thesis, Yale University Department of Judaic Studies 1997) 107 (“[Henry] was initially not allowed to take his seat due to the requirement of a Christian oath . . . .”); see also Dershowitz (n 18) 78 (asserting that Henry “was blocked from taking his seat by a law requiring him to accept the divinity of the New Testament”); Melvin J Konner, ‘Jewish Diaspora in Europe and the Americas’ in Melvin Ember, Carol R Ember, and Ian A Skoggard (eds) Encyclopedia of Diasporas, vol 1 (NY, Springer Science+Business Media, Inc 2005) 164, 170 (explaining that “a colleague proposed that [Henry] be barred for not swearing allegiance to the New as well as the Old Testament”); A James Rudin, ‘Mr. President, leave your Bibles at home’ (The Washington Post, 17 January 2013) <https://tinyurl.com/rkjk2zd5> accessed 22 October 2021 (Henry’s “opponents tried to prevent him from serving a second term because a law demanded that legislators affirm the divinity of the New Testament”); cf Hasia R Diner, The Jews of the United States 1654–2000 (Berkeley, Calif, University of California Press 2004) 50 (asserting that Henry “could not, in good conscience, take the oath”); Jon Meacham, ‘A New American Holy War’ (Newsweek, 8 December 2007) <https://tinyurl.com/3yahyseb> accessed 22 October 2021. 

The footnote above appears at note 50 in: Seth Barrett Tillman, What Oath (if any) did Jacob Henry take in 1809?: Deconstructing the Historical Myths, American Journal of Legal History (forth. circa 2022) (peer review) (manuscript 1–36), <https://ssrn.com/abstract=3790115>; 

Seth Barrett Tillman, One of my Favourite FootnotesNew Reform Club (Nov. 28, 2021, 5:23 AM),<https://reformclub.blogspot.com/2021/11/one-of-my-favourite-footnotes.html>;

Friday, November 26, 2021

Letter to the Editor responding to David Frum’s ‘It Wasn’t a Hoax’

Seth Barrett Tillman, Associate Professor

Maynooth University Department of Law

26 November 2021

The Atlantic


RE: David Frum, ‘It Wasn’t a Hoax’ The Atlantic (25 November 2021, 7:00 AM ET), <https://tinyurl.com/ymsjzx7j>.

Dear Editors,

David Frum is dead wrong. The issue is not now and never has been: Did Trump have contacts with Russians?” Of course he did: this was known by one-and-all during the campaign. The issue was whether Trump’s contacts were criminal—or otherwise sufficiently suspicious that they should have resulted in the FBI and the U.S. security services’ investigating candidate Trump. The answer to that question is no.

Frum’s answer is yes. Frum writes:

At crucial moments in the 2016 election, Trump publicly took positions that broke with past Republican policy and served no apparent domestic political purpose, but that supported Putin’s foreign-policy goals: scoffing at NATO support for Estonia, denigrating allies such as Germany, and endorsing Britain’s exit from the European Union. (emphases added)

First, “scoffing at NATO,” “denigrating allies such as Germany” and “endorsing Britain’s exit from” the EU—all are First Amendment protected speech. Indeed, they are core First Amendment protected political speech. Such expressions of opinion can never form a permissible basis for investigating a citizen. To allow the expression of political opinion form a basis for investigating a citizen chills speech, drives policy-making discussions out of the public realm, and most importantly, empowers the security apparatus, in effect, to put its thumb on the scale of our elections. It is telling that Frum faults Trump for “publicly” expressing his views.


Second, a candidate’s breaking with past policy choices is precisely why new candidates come forward and why we have elections. A candidate’s having a public position at variance from prior policy can never form a permissible basis for investigating a citizen. To allow the expression of novel political opinion form a basis for investigating a citizen ends meaningful democracy. That’s why we have elections: to choose between competing, different policies.


Finally, Trump’s views were quite mainstream among rank-and-file Republicans. [i] “Scoffing at NATO.” Ambassador Jean Kirkpatrick expressed the view—years and years ago—that should the Soviet Union’s occupation of Eastern Europe end, then NATO and its Atlantic-focused mission would end with it. The United States’ traditional goal for NATO (and our other international security commitments) was to help democracies, and nations on their way to establishing democracy, oppose world communism. It was not to oppose Russia as a mere regional power. [ii] “Denigrating allies.” Many mainstream Republicans took and continue to take the view that Germany and other NATO members free ride on our defense establishment. Germany has consistently failed to meet its 2% GDP defense spending target. [iii] “Brexit.” As to the United States’ position in regard Brexit: U.K. voters voted for it. So Americans, including Trump, get to support it too. It is called standing with democracy.


Frum’s position amounts to this: If you express the wrong political views in public—by which he means, political views he disagrees with—that is a reason for the government to investigate you. Frum is not embarrassed by his position. Millions of Americans agree with Frum. He and they are entirely wrong. And the continuing viability of American and Western democracy depends on changing the hearts and minds of those millions.





Seth Barrett Tillman


Seth Barrett Tillman, Letter to the Editor, Responding to David Frum’s ‘It Wasn’t a Hoax,’ New Reform Club (Nov. 26, 2021, 4:21 AM), <https://reformclub.blogspot.com/2021/11/letter-to-editor-responding-to-david.html>; 

See also Seth Barrett Tillman, Bob Bauer’s Free Speech Problem and OursNew Reform Club (July 23, 2017, 10:36 AM), <http://tinyurl.com/y7ahouep>; 

Seth Barrett Tillman, This Is What Is Wrong with the American JudiciaryNew Reform Club (Mar. 16, 2017, 4:23 AM), <http://tinyurl.com/z4q9f8v>;