are you now or have you ever...

Saturday, July 10, 2021

The Wards of Civilization

There is a distinctively Orwellian note in the official slogan, "Build Back Better." This is the slogan that follows on the heels of the state-enforced halting of the economy, the cessation of social interaction, the suspension of schooling. "Building Back Better" is often described laced with racial and sexual tribalism. The slogan also vies for ubiquity with the slogan "Defund the Police," to the extent that one wonders if the two ideas are not part of the same program, so that one wants to know: building back to what?

The White House says it has no intentions "to build back to the way things were." So despite the fact that more Americans than ever are unable to have the American dream of owning a house, restoring that dream would be building back "to the way things were," and thus, seemingly by definition, not "better," but somehow worse.

When one is asked to "reimagine" their world and turn it into something new, one cannot help but to look back, if just for a moment, and reflect on what one is being asked to leave behind. That which is new, after all, is not always better. When the Americans threw off the relatively light yoke of George III, a large number of Americans thought it was rather a step backward. T.H. White had King Arthur grumble to Lancelot in The Once and Future King that "It was no good conquering the Dictator unless you and the others do the civilizing part." 

"What is the use," Arthur went on, "if the whole place is fighting mad?" This, I fear, is an apt question for our time. The fighting spirit is the engine of humanity. But it is usually tuned to the key of destruction, always fighting against something. Do we fight for anything?

One can sense something cyclical, if not rather regressive, in the present mood. For this is not the first time we have been fighting mad. We have gone to war before to vindicate a certain ethos, a way of life for this country. Why did we war: For a political agenda? For economic superiority? For military advantage? No, not for these, but for higher pursuits. John Adams had it that "I must study politics and war that our sons may have liberty to study mathematics and philosophy ... geography, natural history and naval architecture, navigation, commerce and agriculture." 

But even these pursuits are merely instrumental. They are pursuits a government ministry might later be installed to study and regulate – and dominate. Domination can never be the end of civilization. Mere domination is not the end: mastery is the end. For as Adams went on, when his children had attained mastery, then their children, in turn, would gain "a right to study painting, poetry, music, architecture, statuary, tapestry and porcelain." The ends of civilization are not the things we do on weekdays. They are the things we give ourselves to on holidays and, perhaps even more, on holy days.

White's King Arthur sensed this too. His knights of the round table, having no higher pursuits to give themselves to after rooting out all the thieves' dens and spreading peace throughout the land, had turned back to fighting against each other. Just so, one would not be too terribly surprised to learn any day now that a member of Congress had been caned on the House floor. (Weighing most anxious on our minds would be questions of the race and sex of the parties involved.) What was needed, Arthur concluded, was a great spiritual quest. So Lancelot and the other knights of the round table went off on crusades. And so have our modern knights of the board room tables.

I have gotten ahead of myself. What I have overlooked – for it is the privilege of the present to assume its inevitability – is how America got from independence to civilization. That was not inevitable. We look to those who drafted our founding documents, and those who fought in our Revolutionary War and Civil War, as the founders of our country. But more precisely, they are the founders of our government. Our country, our civilization, is something apart from its government. And for our civilization we owe credit to many rough fellows, who subdued the wilderness of this country, and who did many unpleasant things, in order to build a great country. The people who carry out the business of civilizing tend to be uncivilized. I do not volunteer to head any committee to erect statues to these uncivilized individuals (for in the present fighting mood they are liable to be torn down anyway). But those of us who value civilization ought to remember them.

Larry McMurtry's Lonesome Dove has a fine passage remembering the likes of those rough fellows. McMurtry, who just passed away earlier this year, did not think his book a "towering masterpiece" or anything, but merely a "Gone with the Wind of the West," which may help calibrate our standards to his rather higher ones. In the book, Gus and Call, who fought in the Civil War and then as Texas Rangers, are now driving cattle up to Montana. In a short bit of dialogue where the characters recall an old Indian they had known, McMurtry sets up a poignant observation:

"I remember him," Augustus said. "It was always a puzzle to me how such a short-legged Indian could cover so much ground." 
"He claimed to have been all the way from the Columbia to the Rio Grande," Call said. "That's knowing the country, I'd say." 
"Well, he was an Indian," Augustus said. "He didn't have to go along establishing law and order and making it safe for bankers and Sunday-school teachers, like we done. I guess that's why you're ready to head off to Montany. You want to help establish a few more banks. ... Every bank in Texas ought to pay us a commission for the work we done. If we hadn't done it, all the bankers would still be back in Georgia, living on poke salad and turnip greens."

Today, of course, there aren't any more cowboys or Indians than there are Sunday-school teachers. But there is no end of bankers. Gus and Call are fictional men, but they stand for real ones. And I doubt many people today want to take credit for their adventures. Yet we have the benefit of them, those of us who are able to live simple and peaceful lives today, for which most of us are grateful. The bankers and politicians and big corporate enterprises, on the other hand, have the greatest benefit of all. And for this, they are resentful. This is something worth remembering the next time you hear these sorts of people launch into sermonizing at you. The wine served at celebrations and ceremonies is taken joyfully and reverently. It is the wine drunk at every meal that collects critics. 

In the end, if you remember, Gus succumbs to an Indian arrow to the leg. He lost the leg, but the gangrene had spread to the other leg. A sawbones was nearby to take it off, but Gus refused. He could still get about by horse as a one-legged man, he figured, but not as a legless one. He was among the last of his kind, and would not give up his legs: for it is a high calling to be a steward of civilization, but a low thing to be its ward. 

Are the stewards of our civilization, like Augustus, who made the world safe for bankers and school teachers, having now discharged the duty for which they were called, passing from the earth? We are the heirs of the bankers and school teachers. But we have become bored. Or like Arthur said, though we could not root out our might, and the desire for conquest, yet we also ran out of things to which to direct our might. John Adams was wrong: painting, poetry, music, architecture, statuary, tapestry and porcelain, did not detain us very long. Adams might have looked to Solomon: Solomon, perhaps because he had seen decay begin to set in even to the great works of Ozymandias, did not ask the Lord for might, but for wisdom. Yet he received might as well, and in the end it defeated his wisdom. Every epoch of human history teaches this: beyond the brief cresting moment upon attaining civilization, when we stand, for a moment, fully upright atop a fleeting domination of the powers of the earth and mastery of its natural forces, in joyful celebration, and having attained stewardship of God's creation, we know naught but the slow but certain bending of our gaze, from up to the heavens, back down to the slime. 

Build back better? I must be permitted to doubt. The builders have nothing but disdain for the stewards of our civilization. They would prefer we settle into the role of their wards, while the new Lords of the earth perfect our souls.

But our new Arthurians are wrong, too: matters of the soul will not detain us either. At least, not in the way we might expect. What finally saved White's Lancelot was neither conquest nor mastery, but ruin, humility, and baptism. Even after he had confessed the sins of his former vainglorious self, Lancelot found he could not return to his old life again. "But if you really were absolved this time!" Guenever cried, to which Lancelot replied: "God was not punishing me by letting the black knight knock me down – he was only withholding the special gift of victory which it had always been within his power to bestow." 

But this is unearthly wisdom: To give up glory? And not get anything back? Lancelot had been victorious as a sinner, so why should he always be beaten when he was heavenly? What then, Guenever wanted to know, did Lancelot do? 

"I knelt down in the water of Mortoise, Jenny, where he had knocked me – and I thanked God for the adventure."

Only God can tame our might, by tipping us over, until we learn: we are not the greatest force in the world – and we kneel in the place where we have been knocked down, and thank God, simply for the adventure. 

And pray that He humble the utopianists.

Friday, July 09, 2021

Banned by the Communist Party of China: A Review of Liu Lianzi’s “Ruyi’s Royal Love in the Palace”

By the way: The Chinese Communist Party sought to ban Ruyis Royal Love in the Palace“The cancelling of ‘Yanxi & ‘Ruyi’ shows that the [Chinese Communist] Party remains unswerving in its vigilance.” Jiayang Fan, “In China, Shows Like ‘Story of Yanxi Palace’ Go Viral, and the [Communist] Party Is Not Amused,” The New Yorker (April 23, 2019), <>. 

Ruyis Royal Love in the Palace is an 87-episode fictional historical drama based on the lives of 18th century Emperor Qianlong, and his consort, and subsequently his empress, Ruyi, of the Ula-Nara clan. Qianlong was the Qing emperor—the Manchu dynasty which succeeded the Ming. Qianlong was the fifth Qing emperor, and the fourth to rule over China. But the plot is not really about Qianlong—it is about Ruyi. The series was shown on Chinese television in 2018. I only came across it a few months ago on Youtube. You can find the first (45-minute long) episode, with English subtitles, here: <>.

If I were pressed to suggest an analogue, only The Tudors or Wolf Hall comes to mind. But the scale of Ruyi is much grander than the two Tudor dramas. That is, in part, because of the vastness of Qianlong’s multi-ethnic Manchurian/Mongolian/Chinese empire: by population and size, in its time, the Qing empire was probably the largest nation in the world. And it was, according to good historical authority, during Qianlong’s reign, 1711-1799, in which that empire reached its zenith—in terms of military security and cultural greatness.

One can only be transfixed by Ruyi’s set design and costumes. The scale of the scenes is reminiscent of Cecil B. DeMille’s films. The musical score was haunting, and the acting—superb, notwithstanding that much is, no doubt, lost through translation and subtitles. Albeit, some of the English subtitles put forward helpful historical explanations or explained references to classic or ancient Chinese literature. There are several points where characters write in Chinese—I am sure that something is lost when their logographs were left unexplained.

I will make a few quick points about this series. First, I cannot remember the last time that I have been moved to tears by film. I cannot remember the last time I saw a film with so much genuine ambiguity about various characters’ conduct, leaving one contemplative, knowing that there is (and can be) no real closure to come. I do not really know if these moral conundrums emanate from Buddhism, or from Confucian or Daoist philosophy—or from the author’s imagination—or, perhaps, should be best understood as universal problems of the human condition, merely set amidst an eighteenth century Chinese historical plot. I cannot remember the last time I saw a film with multiple unexpected plot twists.

Second, this series portrays women as developing close relationships and loyalties with one another, affecting both the development of their personal character, and the political future of their polity. For example, Ruyi and Hailan (another of Qianlong’s consorts) have a complex and intellectual relationship. The truth is: I cannot think of any analogue in Western film, at least, not any analogue about women.

Third, I will describe one very affecting scene. Ruyi falls victim to a plot. Essentially, she is framed by two other members of Qianlong’s harem for killing two of Qianlong’s children (by other wives). Qianlong, not quite believing the evidence, sends Ruyi to Cold Palace—a palace in the Forbidden City. Although it is a “palace,” it has been allowed to fall into decrepitude, and so is used as an internal open-air prison for abandoned consorts, concubines, and female servants of the imperial family. Many of the prisoners are mentally ill. Ruyi languishes there, with a faithful servant, for three years. By that time, sufficient evidence emerges which casts doubt on Ruyi’s guilt. As a result, Qianlong permits her to leave Cold Palace, and before returning to her new home, Yikun Palace, she walk along the ramparts of the Forbidden City.

Ruyi looks out over the Forbidden City’s many palaces. Her facial expression is difficult to gauge. When I first saw this scene, and when I first heard its musical score, I saw it as uplifting—as one, short happy moment when virtue and right overcome injustice and evil. But having watched this scene now many times, I am not so sure. Could it be that Ruyi, although glad to be out of Cold Palace, and pleased to have her reputation restored, realizes that she has only traded one prison for a more glorified one? The whole of the Forbidden City is a prison. All the people, from the smallest to the greatest, who live there are trapped by the calculations, schemes, and machinations of others seeking advantage, for themselves, their families, and their clans. Or is the point, that this “trap” is the human condition, and all one can do is endure, while doing as much good as we can until we must leave? See Episode 27, <> (at 25:00 to 34:00ff); see especially at 28:02 (where the logographs on the courtyards gate are translated).

Ruyi’s Royal Love in the Palace gets full marks.


Seth Barrett Tillman, Banned by the Communist Party of China: A Review of Liu Lianzi’s “Ruyi’s Royal Love in the Palace,” New Reform Club (July 9, 2021, 11:17 AM), <>; 

Saturday, May 22, 2021

"You Read What You Want to Read. I Don't Know Why."

"...I think because you never had to see what I have seen." 

The miniseries Centennial, based on James Michener's novel, is excellent. It is one of the few adaptations that, in my humble opinion, surpass the original (you, too, will be grateful to the screenwriter who shaved some 5 billion years and 100 rather ridiculous pages off the beginning of Michener's book). Centennial is a biography of a place, namely, Centennial, Colorado. It begins in 1797, and progresses through the mid-20th century. Watching these mere 12 episodes will give you a sense of the continuity of our country and its people that I have not experienced in any other work.

Michener was a Democrat. He even ran for Congress once (which he regarded a serious career mistake.) He was an FDR Democrat, and a JFK Democrat. For younger readers, that is the kind of Democrat that embraced the principles of Martin Luther King, Jr., and would not readily understand why 21st century Democrats feel the need to distance themselves from those principles. 

Racial tension and reconciliation is a major theme in Centennial. America has had problem with these things. But Michener also offers perspective. For Michener, there were worse things than commonplace racism. Things like brutal tyranny, violence, and war.

I love the following scene about Tranquilino, growing old in the 1930s, but who was once a young man bitter at his uncle Nacho for leaving his home Santa Ynez for Colorado in the years leading up to the Mexican Revolution, living under military occupation, his people forced to work in the mines. Tranquilino even shot a man in a firing squad when demanded of him by the general. But he refused to shoot women, and so he fled. And then found good but friendless Centennial farmer Hans Brumbaugh, and he worked hard for Hans, and they became fast friends, and when Tranquilino left to fight in the Revolution and away from his adopted home of Colorado and his friend Hans, it broke Hans's heart, and when Tranquilino came back to find his friend had just passed away, it broke his heart, too.

And that sets up this moving scene at his son Triunfador's cantina, having returned after a white man harassed Triunfador's sister in town and the sheriff almost arrested Triunfador for stepping in:

Father: "I'll get my money when I finish my work."

S: "A burro's work. And that's the only reason they let us stay here. We make them rich, and the little money they pay us, they steal back from us by raising prices at the stores. Our money is welcome, but we are not."

Mother: "Triunfador, you make it sound so bad."

S: "It is bad."

F: "There is no war." 

S: "There's a war against us." Pulls out newspaper clipping and reads: "Hilario Guttierez, a Mexican farmer, on a farm near Eagle Pass, made approaches to a white woman, and was duly lynched." 

M: "If he hit the woman and threatened her--"

S: "Mama, he didn't hit her. He smiled at her. Maybe he said, 'Ay, ay, ay, muchacha.' Not even as much as the--as the Anglo said to Soledad. And for that--for that, he was lynched." 

F: "In Colorado, he should know not to say nothing like that to Anglo women. " 

S: "The word I'm talking about is 'duly.'"

M: "'Duly.' What does it mean?"

S: "It means, in the natural order of things. Because he was a Mexican, he was naturally lynched. Naturally lynched!" 

F: "I don't know this Guttierez. I don't know what he did to this woman."

S: "Papa--"

F: "Neither do you. You read what you want to read. I don't know why. I think because you never had to see what I have seen."

S: "You don't see what's going on around you."

F: "I have seen women like our sister and mother turned into savages--killing with guns and knives to keep from being killed. I have seen them buried in holes in the ground. 200, 300 who went to war. I have seen your own brother blown up into so many pieces, I don't know how to begin to bury him. They don't blow up the trains in Colorado."

S: "Papa--"

F: "Here, there is no need for war. We do not work like a slave, seven days a week in the darkness in the mines, in the darkness, only to make Don Porfirio more rich...and General Terrazas more powerful. In Colorado, we can see the sun rise, the sun goes down. We do not step in the gutter when the strong man comes around. I don't care, not even for the sheriff. And we get paid. In Colorado, you can have a place like this, a place for all of us in the winter when the work is done in the fields. Good food. Musica. A place to be together and warm when the snow is outside and in the street. A place, Triunfador, to make winter the best time of the year. The best time."

S: "I don't see how you can see the good in everything." 

F: "I'm always looking. You will see, mijito, you will see. It is good here, and it will be even better. This place, your place--this will make it better. You will see."


You may choose to see the bad in anything. It is easy if you try. But if we wish to find anything good, we must first cultivate the desire and skill to look for it. The younger generations will always give us vigorous and angry Triunfadors, who scour the news looking for injustices, and struggling against those they perceive to stand against a more perfect world, which we can achieve if only we had a little imagination. But the Triunfadors depend on an older generation of Tranquilinos, who have learned that those who think things can't get any worse, have no imagination at all.

Tuesday, April 20, 2021

Chauvin: A jury of his peers?

NPR, March 11:  Several members of the jury pool in the Derek Chauvin case have said they fear retribution if they were to render an unpopular verdict

Regardless of the merits of the case against Derek Chauvin, there is certainly reasonable doubt about the makeup of the jury: The smart ones begged off--only those already disposed to convict would have readily agreed to serve in the Trial of the Century:

PROSPECTIVE JUROR 1: "The case itself is just very - this whole thing is just very divisive, and I'm not a divisive person. I don't - I just feel like - I'd just rather not be a part of something that's so two-sided."

And I certainly wouldn't risk myself and my family because my name got out that I voted not guilty. 

PROSPECTIVE JUROR 2: "With a high-profile case, I know everything becomes public. So depending on what's ruled, that could be the problem later on down the line or even in the process."



LATE ADD [Denouement]:

Alt. juror in Chauvin trial on mob: ‘I was concerned they would come to my house’

KARE-TV 11’s Lou Raguse shared online that the jurors were so intimidated that they didn’t even share their real names with each other.

He tweeted: “This was shocking to me, but Christensen told me she and the other jurors didn’t even share their real names and occupations with each other. Just called each other by juror number. Got along but mostly made small talk. Concerned about saying too much.'”

“I had mixed feelings,” she said. “I did not want to go through rioting and destruction again, and I was concerned about people coming to my house if they were not happy with the verdict.”

Monday, April 19, 2021

A modest proposal re: our Constitution's flaws

Yes, by all means--

It may take a century or two, but tat-for-tat, eventually a 435-member Supreme Court. Pack the HELL out of it.

And in the meantime, let's admit DC and PR and Guam and Samoa and then split up the rest of the states and get a 435-member Senate. 

Then let's elect 435 presidents.  It's only fair.

Although then we might have to expand to 870 of each to keep it fair.  That would be even more democratic. But first things first.  One constitutional miracle at a time.

Friday, April 16, 2021

Tweets that Aged Well, and Tweets that did not Age Well


Seth Barrett Tillman, Tweets that Aged Well, and Tweets that did not Age Well, New Reform Club (Apr. 16, 2021, 4:29 AM), <>;

Monday, April 05, 2021

Is it Believable?


Natsu Taylor Saito, Indefinite Detention, Colonialism, and Settler Prerogative in the United States, in Special Issue: Genealogies of Indefinite Detention, 30(1) Social & Legal Studies 32–65 (February 2021):

Tens of thousands of civilians in northern and border states were interned and many more banished without any specific showing of disloyalty. In one Missouri county, for example, by late 1863 only 600 people remained out of a population of 10,000 (Brownlie, 1958: 126, 163). Congress subsequently authorized suspension of the writ in 1871 to help suppress the Ku Klux Klan in the Reconstruction South, in 1902 to facilitate the colonial conquest of the Philippines, and in 1900 to preclude threats to the annexation of Hawai‘i (Klein and Wittes, 2011: 120–122). 

Why tell us that the population was reduced from 10,000 to 600 unless the bulk of that decrease arose in connection with habeas-related, internment-related, and/or banishment-related policies? And if this meaning was intended by the author, is it believable?


Seth Barrett Tillman, Is it Believable, New Reform Club (April 5, 2021, 2:23 AM), <>; 

Friday, March 26, 2021

A Letter to Politico


re: Karl Racine, Brian Frosh, and Norman Eisen, We Sued Trump for Emoluments Violations. That Fight's Just Getting Started, Politico (February 8, 2021, 04:30 AM EST), <> 

The most significant claim made in Karl Racine, Brian Frosh, and Norman Eisen's article is now hopelessly out of date. And your readers should be made aware of this. Their article repeatedly states that Judge Messitte's trial court decisions, for the United States District Court for the District of Maryland, established the "law of the case" in regard to the Foreign Emoluments Clause, and that Judge Messitte's decisions are "still in force." Those trial court decisions were implicitly set aside by the Supreme Court on January 25, 2021, and they were expressly vacated by the Fourth Circuit on March 9, 2021. It is all there in black-and-white in the Fourth Circuit's order. See Order, App. No. 20-1839, 2021 U.S. App. LEXIS 6888, 2021 WL 913925 (4th Cir. Mar. 9, 2021), ECF No. 28 (4th Cir.), ECF No. 196 (D. Md.). On March 17, 2021, lawyers for Frosh, the Attorney General of Maryland, and for Racine, the Attorney General of the District of Columbia, sent a letter to the clerk of the Fourth Circuit seeking "guidance" in regard to the court's March 9 order. The clerk of the Fourth Circuit responded on March 25, 2021. The clerk's response, without any equivocation, stated: "[T]he [C]ourt [of Appeals] has asked me to advise you that the court has received your correspondence and that the orders entered March 9, 2021, will remain as written.”

After nearly 4 years of their repeated dilatory conduct over the course of this case, the two Attorneys General have nothing to show for their titanic waste of government and private resources, including federal judicial resources--all done for raw political purposes. They accomplished nothing. They never succeeded in getting a final judgement against former President Trump. They never succeeded even in getting any discovery against the former president. 

Interestingly, the Attorneys General brought two claims against former President Trump: an "official capacity" claim and an "individual capacity" claim. The former was moot once Trump was out of office. But the status of the latter claim was unclear. For reasons they have never explained the Attorneys General dropped both claims. They could have continued to litigate the individual capacity claim, but they chose not to do so. And, now, after nearly 4 years of litigation, they have nothing to show their fellow citizens, voters, and taxpayers for all the money, effort, and resources their offices used in this litigation. Their article in 'Politico' argued that their victory was establishing the law of the case as a precedent for future use. But ALL the binding appellate precedent has been vacated. And ALL the District Court decisions--which are only persuasive precedent--were expressly vacated on March 9, 2021. If this counts as victory, what would be defeat? 

The two Attorneys General achieved nothing substantive. What they did achieve relates only to photo opportunities and political fund raising. They occupied the time of four courts and, in doing so, delayed the meritorious litigation of countless citizens and taxpayers while they went after their great white whale: former President Trump. But the fact is: Attorney General Frosh and Attorney General Racine should have taken a lesson from Captain Ahab.


Seth Barrett Tillman, A Letter to Politico, New Reform Club (Mar. 26, 2021, 10:05 AM), <>; 

Monday, March 22, 2021

The Future of U.S. News and World Report’s Law School Rankings: A Letter from A Friend (UPDATE)


I would definitely recommend that you include your HeinOnline ScholarRank [in your materials]…. [T]he most important thing to know is that each faculty member’s ScholarRank score is like golf. The lower the better. Cass Sunstein is currently at the top with a ScholarRank of #1. The ScholarRank scores go as high as #45,000.

Your ScholarRank score is #4492 …. You’ve been cited 238 times [in the last 12 months] in HeinOnline journals….

And the ScholarRank score is about to become the single most important metric in American legal academia. Starting next year, 40% of each American law school’s U.S. News [and World Report] ranking will be based on HeinOnline’s cumulative ScholarRank of the school’s faculty (which apparently will consist of the combined faculty score divided by the number of tenured and tenure-track faculty). It’s going to have a huge impact on our field. Interestingly, however, most law school faculty (at least in my neck of the woods) seem unaware of ScholarRank.

Interestingly, 20% of the ScholarRank score is based on HeinOnline downloads in the past 12 months. Accordingly, I think ScholarRank is going to kill SSRN, at least as a platform for legal scholarship. People are soon going to realize that posting on SSRN is counterproductive because SSRN downloads don’t count toward a scholar’s ScholarRank score, whereas HeinOnline downloads directly factor into your ScholarRank score.

Seth Barrett Tillman, The Future of U.S. News and Wold Reports Law School Rankings: A Letter from A Friend (UPDATE), New Reform Club (Mar. 22, 2021, 9:44 AM), <>; 

UPDATE: Paul Caron, at Tax Prof Blog, was in contact with U.S. News & World Report. His correspondence indicates that my information above is not correct. 

Monday, March 08, 2021

Footnote From my Next Paper

 “Y Dyn Na Fu Erioed,” in Aberbargoed, Borough of Caerphilly, Wales, United Kingdom War Memorial, <>. See generally Ewen Montagu, C.B.E., K.C., The Man Who Never Was (Philadelphia, Penn.: Lippincott, 1954) (publicizing the details of Operation Mincemeat: including the story of Glyndwr Michael, who posthumously served as Major William Martin, RM); Ronald Neame, director, The Man Who Never Was (Sumar Productions, 1956); Operation Mincemeat Documentary, Youtube, <>. Montagu was elected president of the Anglo-Jewish Association in 1949, and he became president of the United Synagogue in 1954. Year Book of the Anglo-Jewish Association 1951, 5711/5712 (London: Office of the Anglo-Jewish Association, n.d.), 93-94; “VE Day 8 May 1945 Commemorations,” Gazette 2020/Wadham College, University of Oxford, 53, 55, <>. After the war, Montagu served as Judge Advocate of the Fleet, recorder, and judge. See R v Long, Queen’s Bench [1960] 1 (Court of Criminal Appeal 1959) 681, 682 (Lord Parker, CJ) (reporting Montagu as recorder during trial proceedings in Southampton Borough Quarter Sessions); Lord David Hacking, “From Cambridge into the Law and the World of Arbitration,” Arbitration 82(3) (2016): 281, 286 (noting that Ewen Montagu was the presiding judge at Middlesex Quarter Sessions in Parliament Square, and “to us at the Bar, [Montagu] was ‘The Judge who Bloody Well Is’.”); “Hon. Ewen Edward Samuel Samuel-Montagu,” The Peerage, <>.

Seth Barrett Tillman, Footnote From my Next Paper, New Reform Club (Mar. 8, 2021, 7:42 PM), <>; 

Monday, February 22, 2021

Courts and Qualifications for Elected Federal Positions


Walker v United States, 800 F.3d 720, 723–24 (6th Cir. 2020) (Roger, J.) (“Walker’s right to seek and hold public office has not been restored, because he was never deprived of that right to begin with. Neither Congress nor the states can add to the constitutional qualifications for holding federal elective office. Powell v. McCormack, 395 U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S. (1995). Because the constitutional qualifications make no mention of convictions, under federal law, Walker could always run for and hold federal public office.” (emphasis added)); 

Gordon v. Secretary of State of N.J., 460 F. Supp. 1026, 1027 (D.N.J. 1978) (Biunno, J.) (“As a consequence, whether in jail or not, nothing prevented Gordon from seeking to gain the votes of enough electors to have been elected President of the United States . . . . Eugene V. Debs ran for President four times and was a candidate while in jail. Gordon was free to do the same.”); 

United State v. Richmond, 550 F. Supp. 605, 606 (E.D.N.Y. 1982) (Weinstein, C.J.) (holding that “plea agreement pertaining to resignation from Congress and withdrawal as a candidate for re-election are void.”); id. at 608 (“Just as Congress and the states are prohibited from interfering with the choice of the people for congressional office, federal prosecutors may not, directly or indirectly, subvert the people’s choice or deny them the opportunity to vote for any candidate.”); 

Seth Barrett Tillman, Courts and Qualifications for Elected Federal Positions, New Reform Club (Feb. 22, 2021, 8:54 AM), <>; 

Saturday, February 13, 2021

America Is a Christian Nation

A friend asked me to defend the claim in a prior post that American is a Christian nation. This was my response:  

* * * 

What is America? A few months back I asked this question, and answered: it depends. It depends on us. It depends on the choices we make at defining moments. 

It was not a real answer, of course. It was just a lot of throat clearing, working my way up to an answer. But here I will give you my answer to what America is. And I will answer it by first asking: 

What's left of it? 

In a very short space of time, we have lost much of the essence of the American political order. We have lost the presumption of the freedom of assembly, which is now subject to public health czars. We have lost the presumption of free speech, which is now subject to Silicon Valley algorithms. We have lost the presumption of a free press for the same reason (and because the press no longer sells news, it sells ads). 

We have lost the presumption of equal treatment of the laws, where endless federal investigations put outsiders in jail for "process crimes" and give insiders community service, and protect Wall Street insiders from Reddit outsiders. We have lost the presumption of warrantless searches, as our banks partner up with the government and offer up our papers voluntarily. 

We have lost the American value equality, and now find the president of the new order choking on it and replacing it in real time with a curious new word, equity; the contents of this replacement for one of our founding values to be supplied at a later time. 

We have lost the presumption of democratically administered elections, whose rules are now decided by people who never stand for election. The party who spent the last four years disputing the outcome of the prior election, having regained power in the most recent election, now promotes silencing those who doubt the outcome of elections – which amounts to some 47% of the country. Joe Biden's own party does not even recognize his leadership: to his call for "unity," the Democrats in Congress are pressing ahead with an unprecedented second impeachment of a private citizen already gone from office and returned to the outside world. Rather obvious to all is that the object of this spectacle is not one American citizen, but 74 million of them, pour encourager les autres. To all the other outsiders out there: don't challenge our power ever again. 

This is a grim state for America's political order. But what does it say about America? Because America is not the same thing as its political order. America is more than its government. We tend to overlook this because our government is such an extraordinary experiment, and so when asked what it means to be American, we often begin by talking about our political rights. Yes, the American government is extraordinary because it wrote down its own limits, and wrote down our rights. That government is (or, was) a very fine government. But a government is not a country. And the American political order is not America. 

I say again, the upheaval we are now witnessing is of America's political order. America itself, the American people, I mean, changed some time ago. Having deferred to experts and professional lawmakers and executives and bureaucrats for several generations now, we have been long out of practice of the habits of self-government. Those habits are, as we are now learning, a use-it-or-lose-it proposition. 

And it is habits that are decisive, not government, which is merely a set of tools, a piece of social technology. It was the habits of the English, whose children were trained as archers from a young age, that proved decisive in battles during the Hundred Years' War. The French knew of archery, of course. It was not a deficit of technology from which the French suffered but a deficit of habits: their boys did not grow up training as archers, building the skill and immense upper-body strength over more than a decade to harness the power and accuracy of the longbow. Instead, the French relied on the technological shortcut of the Italian crossbow, which proved far less effective than an English archer. 

Americans have lost the habits of democracy. We talk a good game about speech, but we have long since stopped having anything to say. We have long since stopped believing our press was on the level. I myself have wondered, for example, why other countries would not insist on having a First Amendment. But perhaps my counterparts in other countries may be asking: what do the Americans have to tell us, other than that they have the right to say it? 

But while the American political order is not America, the political order reflects America. We may not know what we think of ourselves, but we know what the political establishment thinks of us. This is why Americans are so fond of offering up the Constitution as their autobiography: the Constitution, in describing a deferential government, tells of a vigorous and determined American people. What does our vigorous and determined new political order tell us, but that it sees the American people as having become deferential? The story of the last quarter millennium in America is one of a reversal of roles. A people with nothing to say and no God to serve might not notice the sun setting on the First Amendment. 

I've no doubt that describes a large portion of America. But not all. No, not all Americans will snuff out their lights. Not all Americans will give up their vermilion ink. These Americans cannot find themselves reflected in a political order accommodated to a supine people. 

These Americans, I said – and now I am nearly finished clearing my throat – see the purpose of the American polity as guaranteeing "a space where we each could serve our neighbors, our families, and our God." For these Americans, I said, "America is a Christian nation, in its best and broadest sense of allowing every American the freedom and opportunity to serve God, or at a minimum not to interfere with their neighbors' freedom and opportunity to serve God." For these Americans, a people "must serve something higher than themselves, for there is no surer way to wreck our world than to put it under our own feet." 

America is a Christian nation, I said. 

And you ask me: Prove it. (More specifically, you asked, "[w]hat evidence/arguments do you propose to establish this?")

Asking me to prove America is a Christian nation is a good example of how our public discourse is wrecked. Your question suggests you are habituated to expect me to marshal citations to historians, sociologists, legal constitutional scholars, or such other experts as support for the claim. And no doubt such authorities may have interesting and probative things to say on the subject. (Mark David Hall and Daniel Dreisbach come to mind.) 

But your expectation is maligned. Not, I rush to clarify, that I would suggest your intentions are malign. But you have been trained to seek discord rather than understanding. This I say with regret, because through our correspondence I can see a light in you that does seek truth. But the evil of our time would extinguish such light under torrents of mere information, drowning all meaningful inquiry. 

Let me posit this: Citing experts and authoritative sources back and forth to each other is not debate. It is not even discussion. Rushing to put every claim to the proof is rather the problem with discourse in America today, for we rush to "debunk" and "fact check" every claim without ever first asking: What do you mean? 

For if you would take a moment to ponder what it means that I would claim that America is a Christian nation, it might have occurred to you that it is not the sort of claim I would presume to defend by citation, or by anything less than by my own example. My life will serve as my citation. And I will pray to God for the courage to prove it.  

This is a habit of liberal society that has been lost for a generation at least. And it will take a generation to get it back, assuming we still have a taste for it. 

One of the habits of a liberal society was captured in the great line, uttered by a not-so-great man, that we should ask not what your country can do for you, but what you can do for your country. In the ensuing half-century, sadly, a culture of consumption continued consuming America. And so when we ask what kind of country America is, we must first look out, dismally, as from Ozymandias' pedestal amid an expanse of waste, and ask, what is left?

When I said that America is a Christian nation, I was not making a historical claim (though there are historical authorities to support it). Nor a sociological claim (though such a claim also could fairly easily be supported). I was not even quite making a religious, certainly not a theological, claim. When I said America is a Christian nation, I was making something like a teleological claim: a claim about our purpose as a people. Here was my immediately preceding sentence: "The purpose of the American polity was to have a space where we each could serve our neighbors, our families, and our God." 

Experts try their best to answer such "why" questions. They can give social, political, economic, legal, demographic, and various and sundry other types of academic explanations why early settlers established American colonies, why the Americans fought for independence, etc. But I am not interested in those kinds of explanations. People may have come to America because it offered economic opportunity. Or tolerance. Or diversity. But these things were never the essence of America, or of any other nation: if a person loves a country because of its economic opportunity, or tolerance, or diversity, that person will betray that country for the next one comes along offering more opportunity, or tolerance, or diversity. 

What I am talking about are primary loyalties. Why would a person fight and die for America? Not, certainly, for any mere practical reasons. A merely rational man, said Chesterton, will not marry. A merely rational man will not fight. 

So my claim does not really depend on things like polls of how many Americans identify as Christians, which numbers continue to decline. Sadly, a growing number of Americans do not believe in anything, or they give nary a thought to what they believe, so occupied are they with cakes and bubbles of bliss that, if ever they do tire of their superficial luxuries, they are more prone to lash out and do something nasty, for we are habituated never to think of a loyalty higher than consumption. We as a nation may come to be defined by our ruined people, if indeed we persist in the endeavor, for it is never merely on the surface that we exist: either we soar into the heavens, or burrow into the depths. 

You see, the question might be turned round on you: if America is not a Christian nation, whatever else might it be? A merely industrious and wealthy nation? A merely powerful nation? A merely diverse nation? You cannot (Chesterton again) go clad in crimson and gold for this. 

We are told we are a nation founded on an idea. Probably I myself have repeated that at some point in the past. But on reflection, it is confusing, empty, and dangerous. Whatever those ideas are, we have not lived up to those ideas. No other nation has set up such a standard, after all. No other nation has crucified itself on a cross of its own ideals like America has. And yet we are told we still have not lived up to our ideals. Though no nation has bled itself for its ideals more than America has, our blood has not slaked the thirst of the idealists. 

And what may we call a nation founded on ideals who cannot achieve them? The ideals themselves appear as so much shifting sand. Having neared equality, the ideal in recent weeks has evanesced, and in its place, we find a new ideal: equity, a word without limits, without an object, without an end. A perfectly violent word. A word that will drain our blood to the last drop.  

This is because ideas are not transmissible. They exist only in the mind. They are solipsistic. Orwell's conclusion in 1984 is that a mere idea cannot live without flesh. That is why Christ made the Word flesh. Through himself he brought the Word into the world. What is a nation? A nation is an idea made flesh in its people, its land, its homes, its communities. It is Chesterton's response to what is civilization: why, we would not know where to begin, for it is everywhere we look. 

We become patriots by having compatriots. Hugh Hewitt said he asked Mark Zuckerberg if he was a patriot, and he scoffed, indignant, and boasted of all the help Facebook had given to the Department of Defense. The Department of Defense? Becoming a defense contractor does not make one a patriot. I am sure Zuckerberg thinks himself a patriot. Like many, he probably measures his patriotism by his commitment to a set of ideals. But a patriot is not measured by his own ideals. A patriot in his own mind is a maniac. One cannot be a patriot without compatriots. And a patriotism that takes checks from his compatriots has rather lost the thread.  

Besides, even having a lofty set of ideals, like the principle of equality, and principles of due process, and democracy, and natural rights, does not tell us anything. These are mere bylaws. They do not amount to an ethos. They do not tell us what kind of a people America is. They only tell us what kind of government America has. We do not fight and die for a government. We do not build monuments to ideas, but to people.

As a still young nation, it is not self-evident what kind of nation America is. "Everybody knows in their bones," wrote Thornton Wilder in his famous play Our Town, "that something is eternal, and that something has to do with human beings." What is eternal about America? Other nations and peoples have defined themselves over the course of centuries and even millennia. We can speak of traits being quintessentially Greek, or Persian, or English, or Chinese. America has not had enough epochs to demonstrate which of its traits will stand the test of time. 

"Patriotism," Enoch Powell said, "is to have a nation to die for; and to be glad to die for it – all the days of one's life." A quarter millennium ago, Americans found they had something to die for. What was it? Do we still have it?

This is our present struggle, and why I boast "we are a Christian nation": my boast is not historical, it is a battle cry: that there is something left to fight and die for. I mean by it what the English meant when they cried, "For Saint George!" A people must have something it will die for. The lack of something to die for is a vacuum that human nature abhors. And our country has been falling under the shadow of that void for some time, so that more and more Americans will not fight for their country, will not even leave their homes for their country (except, perhaps, on occasion, to set part of it on fire). 

How long have we lacked something to die for? Did Americans forget who they are, and are only just now recognizing it? No, I don't think so. I think people like me, effete desk-worker types, people who think the world needs to know their opinions, those people are the first to lose sense of who we are. But regular Americans never forget. Orwell said, our hope lies in the proles. They are the repository of our soul as a people, precisely because they never lost their old habits. So what roused our proles? Trump, of course, which is why he roused the hatred of the elites whose project it was to keep the proles sated and sedated. So more statues would have to come down. More buildings would have to be renamed. More books burned. More songs silenced. More speech censored. More thoughts criminalized. For the statists will not teach history, but they know history: they know the British had made a mistake by respecting the colonists' rights of Englishmen, and that this liberal impulse allowed the Americans' ideas to take flight and soar and assume among the powers of the earth the separate and equal station to which the laws of nature and of nature's God ... you know the thing. 

Or maybe you don't. There was no school last year, after all, at which to learn it. There was no Fourth of July last year at which to remember it. And there will be none this year. No, our modern elites will not make such a mistake as the 18th century British by letting ordinary people go around learning about things, and talking about things, and thinking about things, things that are worth living and dying for. Their model is not the British liberal response in the colonies. Their model is the Chinese Communist response in Tiananmen. 

Yet, there were different people facing those responses. Americans fought fiercely for independence against liberals. There are still some of those kinds of Americans left. And we have no reason to doubt they will fight vulgar 21st century statists any less fiercely than they fought genteel 18th century liberals.

Speaking of Independence Day, my wife and I help put on the annual Fourth of July Parade in Huntington Beach. (She puts it on: I get to drive her around on official business in the city golf cart.) It is the largest parade west of the Mississippi: that is what we tell people, and that is how we treat it. No one has called Guinness to report it as such. No one has bothered to definitively establish the accuracy of the statement. That is because it is not just another mere factoid, the kind journalists and experts vomit into the atmosphere already black with factoids, choking off all discussion. When we say our parade is the largest in the west, it is not a mere fact, it is a boast: we dare you to gainsay it. A mere fact you challenge by putting your sport jacket on and looking into the camera and blathering. A boast you challenge by taking your jacket off and stepping outside. This is a boast. Come at me, bro. 

That is what I mean when I say America is a Christian nation. My house will serve the Lord. My church will serve the Lord. I will not suffer anyone to gainsay it. And my country, well, what is my country but the curtilage of my home and my church? A country is merely the name for the space where our families and our compatriots move about, raise our children, worship God, and serve one another. There may be those who regard this country instead as the space where they move between their mixed-use zoning flat and their dance club, as the curtilage of their local mega-corpo-sponsored sports stadium, or of their local Planned Parenthood. 

But as the past year has shown, most of these sorts of people gave up their curtilage without a fight: they stayed in their homes, and still stay in their homes, indefinitely. They did not even insist on a discussion. Do you think I would let such people decide the fate of my country? 

So yes, America is a Christian nation. Come at me, bro. 

For Christ's sake, Kowal, but you are calling for a religious war! Let it not be so. Lord knows, as an effete desk-worker type, I do not want war at all. Surely not a sectarian war, for I mean my claim in the most ecumenical sense, desirous of the chance to fellowship with others who seek God's perfection in the beyond, if only we might avoid those flogging us to attain perfection here on earth. But our race has never quit of war. And if we must war, I do not regard religious causes as the worst of reasons. Surely there are worse things to die for. Surely it is worse to float along, Camus-like, held aloft on a wing of mere sensation. There is something worse than a bloody existence, and that is a bloodless one. Not that we are without a choice, but that none of our choices should be worth dying for. That we have already taken up an underground existence, where there is no fighting or dying except for survival. That we should have left behind the days of glory on the surface world, where we bled to reach the heavens. 

That is why I boast that America is a Christian nation. I will not submit to interrogatories on the point. A man will not be put to the proof on matters on which he would be put to the death.