Some Thoughts on Scholarship on Section 3 of the Fourteenth Amendment

 

Dear Professor: 

I will add the following, which largely restates what Professor Josh Blackman has already stated in his e-mail, and what both Josh and I have written (separately and together) in past publications.

“Officers of the United States” (as used in the United States Constitution) had a meaning during 1787–1788. The phase “officers of the United States” extended to appointed federal officers in the Executive and Judicial Branches, but it did not extend to any elected federal positions. That meaning has remained settled from 1788 through the Civil War, into, during, and after Reconstruction—including when Section 3 of the 14th Amendment was drafted, publicized, passed by Congress, and ratified [by the States]. The Supreme Court has adopted this position in any number of cases, including Mouat, Smith, and in its more recent Appointments Clause cases, such as Free Enterprise Fund.

Determining the meaning of “Office ... under the United States” (as used in the United States Constitution) is more difficult. During 1787–1788, “Office ... under the United States” extended to appointed federal officers in all three branches, including the Legislative Branch, e.g., Clerk of the House, Secretary of the Senate, but it did not extend to any elected federal positions. What “Office ... under the United States” meant from 1866, through 1868, that is, from congressional passage of the 14th Amendment, through state ratification, is another issue. It is possible that the meaning of “Office ... under the United States” from 1787 through 1868 remained invariant. There is some evidence for this view. If so, the presidency is NOT among the positions that a Section-3-barred defendant is precluded from holding. On the other hand, there is some evidence that the meaning might have changed and expanded from 1787 to 1868. If so, if in 1868, a reasonable member of Congress, ratifier, and member of the public understood “Office ... under the United States” to include the presidency, then the presidency is a position that a Section-3-barred defendant is precluded from holding.

Josh’s position and my position is that the Constitution’s “Office ... under the United States”-language did not include the presidency circa 1787–1788. But we take no position whether the Constitution’s “Office ... under the United States”-language excluded the presidency circa 1868. That phrase may have had the same meaning in 1868 as it had in 1787, or its meaning may have drifted from its 1787 meaning over the course of some 80 years. I wrote about the possibility of linguistic draft with regard to the Constitution’s “Office ... under the United States”-language as early as 2011. See Seth Barrett Tillman, Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar—Contradictions and Suggested Reconciliation 69 n.119 (posted on SSRN: Dec. 11, 2011), <https://ssrn.com/abstract=1970909>. I took that position in 2011, and I adhered to that precise position consistently during the entirety of the Trump-related ballot-access Section-3 litigation. Whether the meaning of the Constitution’s “Office ... under the United States”-language remained static or drifted, between 1787 and 1868, is an exceedingly difficult interpretive issue, which one could study for a lifetime—only to conclude, at the end of many years’ research, that no definite answer is possible. I will add that during the course of the recent Section-3 litigation, all too many academics, in law and other fields, and some judges, retired and on the bench [albeit, writing extra-judicially], who had never considered this issue and its (small) literature, after an exceedingly short of period of time to conduct research, decided that they were experts with deep knowledge. To put it another way, far too many expressed their conclusions with few reservations and with unusual confidence—of the sort usually reserved for circumstances where we have an extensive body of Supreme Court and other federal decisions and a deep well of scholarship. Additionally, some all too readily asserted, without evidence and without embarassment, that their (21st century) deeply held moral intutions and expectations were the same as those who drafted, framed, and ratified the Fourteenth Amendment (in the 19th century). I do not think these people—independent of which side of the issue they took—set a good example for future scholars and litigators.

You might ask why do I take a (or, indeed, any) position in regard to the meaning of the Constitution’s “officer of the United States”-language in 1868, but not in regard to meaning of the Constitution’s “Office ... under the United States”-language in 1868. The reasons are as simple as they are clear. We have Supreme Court cases, scholarship, and other authorities, across the 19th century, before and after 1868, opining on the Constitution’s “officers of the United States”-language, and also because the meaning of “officers of the United States” was defined by the language of the Appointments Clause. Its meaning was fixed and determined by the document to which the 14th Amendment was added. There was no hard intellectual break or interregnum. There was no Year Zero; the Fourteenth Amendment was no tabula rasa.

By contrast, “Office ... under the United States” was a legal, genealogical descendant of “Office ... under the Crown.” That language and its meaning was known to the drafters of the Constitution of 1788 because it was in British statutes, and coordinate colonial era charters, early state constitutions, and colonial and state statutes, as well as in the Articles of Confederation. The Framers of 1787–1788 grew up with this phrase, and they well understood its meaning. But by 1868, after political disunion with Great Britain, after our appeals were no longer taken to the Privy Council, after we established independent bars and independent law schools [in lieu of the Inns of Court in London], after about 80 years had passed, the public and those who drafted, passed in Congress, and ratified the Fourteenth Amendment in the States, during 1866 through 1868, would no longer have had the same prior, formative experiences as those who had Framed the original United States Constitution. Those latter-day Reconstruction era Americans might have understood the same “Office ... under the United States”-language differently from those who had framed the original Constitution of 1788. Perhaps you may remember that when we met for the first time, I was holding a book? See Mary Patterson Clarke, Parliamentary Privilege in the American Colonies (Leonard W. Levy ed., Da Capo Press 1971) (1943). Now you know why.

Let me give you but one example of how difficult it is to find, discover, or rediscover the original public meaning of language akin to the Constitution’s “Office ... under the United States”-language as used in Section 3. Professors Baude and Paulsen (posted on SSRN: Aug. 14, 2023) affirmed that the list of positions a Section-3-barred defendant is precluded from holding extends to membership in a state legislature. See <https://ssrn.com/abstract=4532751>. Baude and Paulsen said the Constitution’s “Office … under any State”-language extends to being a member of a state legislature. In 1995, in Stanford Law Review, Professors Akhil and Vikram Amar said a Section-3-barred defendant can hold a state legislative seat. In my opinion, neither pair of scholars offered much (if any) substantive support for their contrary positions. And yet, throughout the Section-3 litigation, Akhil Amar cited Baude and Paulsen’s paper favourably, and vice versa. Do they even realize that they are contradicting one another? If so, that realization is not reflected in their podcasts or scholarship. I wonder why?

What do you think: Is a Section-3 barred defendant precluded from holding a state legislative seat? Is a state legislative seat an “Office … under any State” as used in Section 3? The Amars said no; Baude and Paulsen said yes. They cannot both be correct. State legislatures were the driving force initiating secession and the political engine which funded the (purported) confederacy’s armies in the field. It is far more likely that this issue regarding state legislative seats had and has a determinate answer, and it is far more like that this issue was on the mind of Section 3’s drafters, framers, and ratifiers, than today’s questions: “Is the President a Section-3 ‘officer of the United States’?” and “Is the presidency a Section-3 ‘Office ... under the United States’?”. Some sources in the no camp include: See, e.g., Editor, ‘Interesting Decision as to Disqualification Under the Fourteenth Amendment,’ [Richmond, Virginia] Daily Dispatch, Mar. 5, 1869, at 3 (answering “no”); ‘Does the Fourteenth Amendment Exclude the Disqualified from a State Legislature,’ [Richmond, Virginia] Daily Dispatch, Aug. 28, 1871, at 3 (same); ‘Does the Fourteenth Amendment Exclude the Disqualified from a State Legislature,’ Wheeling [West Virginia] Daily Register, Aug. 30, 1871, at 4 (same); John Randolph Tucker, General Amnesty, 126 N. Am. Rev. 53, 55 (1878) (same), https://www.jstor.org/stable/i25110155.  

Seth

Seth Barrett Tillman, Some Thoughts on Scholarship on Section 3 of the Fourteenth Amendment, New Reform Club (Sept. 3, 2024, 4:38 PM), <https://reformclub.blogspot.com/2024/09/some-thoughts-on-scholarship-on-section.html>;

Letter to the Spectator (U.K.) on the American Civil War

Letter to the Editor

The Spectator

22 Old Queen Street

London, SW1H 9HP

England

 

RE: Amanda Foreman, ‘Towards Zero: the gruesome countdown to the American Civil War’ The Spectator (10 August 2024), https://www.spectator.co.uk/article/towards-zero-the-gruesome-countdown-to-the-american-civil-war/

 

     Foreman wrote “South Carolina senator Preston Brooks beat[] the abolitionist campaigner Charles Sumner unconscious.” This is plainly error. Brooks was a member of the United States House of Representatives, not the Senate. Sumner, by contrast, was a United States Senator.

Foreman also wrote: Lincoln “insist[ed] he would defend the Union to his last breath while promising that slavery was safe in his hands.” In 1860, Lincoln’s and the Republican Party’s political programme was to contain slavery in the states where it already existed and, concomitantly, to preclude slavery from expanding into any of the federal territories (which were not then yet states which had congressional representation). Slavery was in no sense “safe in his hands.” And this policy, contra Foreman, was not “negotiable.” Likewise, Lincoln’s policy was grounded in his widely proclaimed belief that slavery was a moral wrong, and he believed that if slavery were contained it would be abandoned even in the slave states because their export market for slaves (that is, the federal territories) would have dried up.

          Two lesser points. Foreman wrote: “Only two naval fortifications were still in Union hands by the time [Lincoln] took office.” That should have read “Only two naval fortifications in the South were still in Union hands.” Likewise, Foreman wrote: “[G]iven the four-year conflict’s impact on society, and not just because of the immense death toll, which new estimates put as high as 750,000—[was] more than the losses from all other wars combined.” That should have read “more than the losses from all other United States wars combined.” And of course, you only reach the 750,000 estimate if you count confederate war dead. In estimating U.S losses in wars, other than the American Civil War, such estimates only include those fighting for the United States, and not those fighting against it.

 

Is mise, le meas,

 

Letter to the Editor, Responding to Amanda Foreman’s Towards Zero: the gruesome countdown to the American Civil War, The Spectator (U.K.) (submitted circa August 2024) (Sept. 3, 2024, 9:04 AM), <https://reformclub.blogspot.com/2024/09/letter-to-spectator-uk-on-american.html>;

An Irish Member of the European Parliament’s Response to Alternative for Germany’s recent state election victory

 

What will this Member of the European Parliament (and, perhaps, other MEPs?) say should the wrong candidate win in the United States? 

Seth Barrett Tillman, ‘An Irish Member of the European Parliament’s Response to Alternative for Germany’s recent state election victory,’ New Reform Club (Sept. 2, 2024, 10:53 AM), <https://reformclub.blogspot.com/2024/09/an-irish-member-of-european-parliaments.html>; 

The Birth of An Academic Religion

 

 

Under the U.K.’s Research Excellence Framework, “each individual academic must generate something groundbreaking, paradigm-shifting and world-leading at least once every 15 months. The simplest method for doing that are either to criticise the most recent judgments to emit from the courts, or [to] subscribe to one of the academic cults which advance a particular worldview (autopoietic theory, legal positivism and restitutionism are examples). A good academic, on this model, should never praise judgments—because there is no research glory in simply repeating what other people have said. There is no evidence of an acute intellect in simply acknowledging that someone else has done a perfectly reasonable job in resolving a dispute. To be a top-flight academic, it is said by some, you must criticise, critique and carp. And when you have reached the top of the pile you may choose to lose your head and advance a model or try to establish a religion of your own.

Just such a thing happened at the University of Oxford during the 1980s and thereafter. A new religion was born: the law of restitution. Its prophet was [the late] Professor Peter Birks . . . .

This new theory about the organisation of English private law gave birth to a forest of doctoral theses, to a range of new textbooks, and even to an academic journal, the Restitution Law Review. This was perfect for academics because it gave them a belief system with which to attack every judgment which had ever been delivered in a court of equity and it also gave them a seed bed in which they could grow their precious, career-cultivating research projects. It allowed them to criticise judgments and to subscribe to an academic religion. The ‘restitutionists’—that is, the acolytes of this new religion at the University of Oxford—were iconoclastically dismissive of the old ways of doing law and equity, they were evangelical, and they were passionate.

The above is an extract from: Alastair Hudson, Equity and Trusts (10th edn, Routledge 2022) 1094–95.

Seth Barrett Tillman, ‘The Birth of an Academic Religion,’ New Reform Club (Aug. 29, 2024, 5:00 PM), <https://reformclub.blogspot.com/2024/08/the-birth-of-academic-religion.html>;

 

Tillman Randos

Liz Dye, ‘Take A Wild Guess Which Federal Judge Is Hosting Amici At A Motions Hearing?,’ Above the Law (June 5, 2024, 2:43 PM), <https://abovethelaw.com/2024/06/take-a-wild-guess-which-federal-judge-is-hosting-amici-at-a-motions-hearing/>:

“The Meese randos will be represented at the hearing by Gene Schaerr, of Schaerr Jaffe. The Tillman randos will be represented by Prof. Josh Blackman, of the South Texas College of Law. And Team WTF will be represented by Matthew Seligman, from Stanford and Stris & Maher LLP.”

My response:

Seth Barrett Tillman, ‘Tillman Randos,’ New Reform Club (Aug 28, 2024, 8:19 AM), <https://reformclub.blogspot.com/2024/08/tillman-randos.html>; 

A Year’s Changes to the Intellectual Landscape Governing Federal Litigation

   In our American constitutional tradition, there are two distinct senses of self-execution:first, as a shield—or a defense—and second, as a sword—or a theory of liability or cause of action supporting affirmative relief. The former is customarily asserted as a defense in an action brought by others; the latter is asserted offensively by an applicant seeking affirmative relief. 

   For example, when the government sues or prosecutes a person, the defendant can argue that the Constitution prohibits the government’s action. In other words, the Constitution is raised defensively. In this first sense, the Constitution does not require any further legislation or action by Congress. In these circumstances, the Constitution’s provisions, as [Professors] Baude and Paulsen write, are “self-executing.”

   In the second sense, the Constitution is used offensively—as a theory of liability or a cause of action supporting affirmative relief. For example, a person goes to court and sues the government, or its officers, for damages in relation to a breach of contract or in response to a constitutional tort committed by government actors. As a general matter, to sue the federal government or its officers, a private individual litigant must invoke a federal statutory cause of action. It is not enough to merely allege some unconstitutional state action in the abstract.

Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. 350 (forth. 2024) (posted on SSRN: Sept. 19, 2023), <https://ssrn.com/abstract=4568771>. See generally Seth Barrett Tillman, Letter from Seth Barrett Tillman to the Honorable Clarence Thomas on Suggested Sources for a Future Citation (May 31, 2024), <https://ssrn.com/abstract=4833465> (collecting other on-point 2023 & 2024 Blackman and Tillman publications and amicus briefs—all prior to the Supreme Court’s April 2024 decision in DeVillier v. Texas).

                                                                          ---

Similarly, notwithstanding resuscitating the “self-execution” objection, Blackmail and Tillman recognize Section 3 has force of law without enabling legislation. See Blackman & Tillman, supra at 29 (“[T]he Fourteenth Amendment can be raised as a defense, even in the absence of enforcement legislation”). The idea that Section 3 was enacted to serve as a “shield” to protect insurrectionists and not a “sword” to disqualify them absent further legislation runs headlong into history.

Brief of Amicus Curiae Citizens for Responsibility and Ethics in Washington at 13 n.8, Growe v. Simon, Secretary of State, and Republican Party of Minnesota, Civ. A. No. A23-1354, 2023 WL 6883478 (Minn. Oct. 6, 2023) (emphases added to shield and sword).

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Professors Blackman and Tillman are thus wrong to suggest that the Fourteenth Amendment somehow distinguished or was meant to distinguish between ‘positive’ (using the Amendment as a ‘sword’) and ‘negative’ (using it as a ‘shield’) uses. Calling this an ‘American constitutional tradition’ and claiming that the Fourteenth Amendment was meant to ‘be wielded as a shield without legislation’ but ‘not self-executing in court [for] … affirmative relief unless Congress provides for its enforcement’ is far-fetched to say the least. It is not a tradition and has no basis in the many cases that were directly raised under the Fourteenth Amendment throughout the late nineteenth and early twentieth centuries. The Fourteenth Amendment was directly used as a sword and a shield for more than eighty years without need of a congressional enforcement mechanism. The generation that framed the Fourteenth Amendment must have known all this. It would not have expected the Fourteenth Amendment’s terms to lie moribund until Congress took action.

Mark Brown, Trump and Section 3 of the Fourteenth Amendment: An Exploration of Constitutional Eligibility, Jurist, Oct. 12, 2023, 10:05:50 PM, <https://www.jurist.org/features/2023/10/12/trump-and-section-3-of-the-fourteenth-amendment-an-exploration-of-constitutional-eligibility/> (emphasis added); id. (citing, e.g., Ann Woolhandler, The Common Law Origins of Constitutionally Compelled Remedies, 107 Yale L.J. 77 (1997)). 

---

[T]here is self-execution as a shield, allowing individuals to raise the Constitution defensively, in response to an action brought by a third party. Second, there is self-execution as a sword—such as when individuals invoke the Constitution in advancing a theory of liability or cause of action that supports affirmative relief. When acting as a shield, the Fourteenth Amendment is self-executing. The Fourteenth Amendment, however, cannot act as a self-executing sword; rather, an individual seeking affirmative relief under the Amendment must rely on legislation from Congress.

Anderson v. Griswold, 543 P.3d 283, 351 (Colo. Dec. 19, 2023) (Samour, J., dissenting) (citation omitted) (bold added). See generally Trump v. Anderson, 601 U.S. 100 (Mar. 4, 2024) (per curiam), rev’g Anderson v. Griswold (Colo. 2023) (per curiam).

---

Whether Section Three creates a federal cause of action is irrelevant in this case because the electors are using Colorado state election law as their procedural vehicle. The sword/shield metaphor may be evocative, but here it simply confuses the issue. The Constitution is neither weapon nor armor. It is law.

Brief of Amicus Curiae Professor Kermit Roosevelt in Support of Respondents at 4, Trump v. Anderson, 601 U.S. 100 (brief filed: Jan. 30, 2024) (No. 23-719), 2024 WL 399941 (emphases added), <http://tinyurl.com/2zrujc89>.

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In DeVillier v. Texas, the Court stated:

   Constitutional rights do not typically come with a built in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983.

DeVillier v. Texas, 601 U.S. 285, 291 (Apr. 16, 2024) (Thomas, J., for a unanimous Court) (emphases added), <https://tinyurl.com/bdj8a9du>.

All this happened in a span of about seven months. I find it striking that the DeVillier Court put forward its position absent any prior Supreme Court authority, other judicial authority, or, even, any scholarly authority. Is it possible that the unanimous Court believed its position entirely obvious? 

---------------------

Seth Barrett Tillman, A Year’s Changes to the Intellectual Landscape Governing Federal Litigation, New Reform Club (Aug. 15, 2024, 4:38 AM), <https://reformclub.blogspot.com/2024/08/a-years-changes-to-intellectual.html>.

See also Seth Barrett Tillman, Letter from Seth Barrett Tillman to the Honorable Clarence Thomas on Suggested Sources for a Future Citation (May 31, 2024), <https://ssrn.com/abstract=4833465>. 

Compare Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. 350 (forth. circa Sept. 2024) (originally posted, on SSRN, on Sept. 19, 2023), <Sweeping and Forcing the President into Section 3>, with William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. 605 (2024).  

Tillman on Today’s Speech Monitors: A Letter to the Editor in ‘The Irish Times’

 

 

Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

(academic title & affiliation for identification purposes only)

 

13 August 2024

 

The Irish Times

Letters to the Editor

lettersed@irishtimes.com

 

RE: Fintan O’Toole, ‘Musk is the Pablo Escobar of toxic disinformation’ The Irish Times (Dublin, 13 August 2024) 12.

Fintan O’Toole’s solution for what ails these islands is that Elon Musk be “held personally to the same standards of criminal justice” as others. Here, O’Toole recommends state imposed criminal sanctions for Musk’s speech and for Musk’s permitting others to speak on Twitter (now X). But O’Toole never explains what specific speech by Musk is at issue, and more importantly, what specific Irish or EU law was violated by that speech.

          Orwell’s 1984 was a period piece. It was fiction describing a dystopic future. For O’Toole, and other speech monitors, 1984 is a how-to guide for running today’s society. Perhaps, the greater danger is elsewhere?

Is mise, le meas, 

Seth Barrett Tillman

Seth Barrett Tillman, ‘Tillman on Today’s Speech Monitors: A Letter to the Editor in The Irish Times,’ New Reform Club (Aug. 13, 2024, 8:35 AM), [https://reformclub.blogspot.com/2024/08/tillman-on-todays-speech-monitors.html], in The Irish Times (Aug. 15, 2024, 12:05 AM), [https://www.irishtimes.com/opinion/letters/2024/08/15/elon-musk-and-free-speech/]. 

Never Strike the Stone

 

By and bye, strolling out of the banquet room into the temple grounds, Liu Bei came to a boulder. Drawing his sword he looked up to heaven and prayed, saying, “If I am to Jingzhou and achieve my intent to become a chief ruler, then may I cleave this boulder asunder with my sword. But if I am to meet my doom in this place, then may the sword fail to cut this stone.”

Raising his sword he smote the boulder. Sparks flew in all directions, and the boulder lay split in twain.

It happened that Sun Quan had seen the blow, and he said, “Why do you thus hate that stone?”

Liu Bei replied, “I am near my fifth decade and have so far failed to rid the state of evil. I greatly regret my failure. Now I have been accepted by the Dowager as her son-inlaw, and this is a critical moment in my life. So I implored of Heaven a portent that I might destroy Cao Cao as I would that boulder and restore the dynasty. You saw what happened.”

“That is only to deceive me,” thought Sun Quan. Drawing his own sword, he said, “And I also ask of Heaven an omen, that if I am to destroy Cao Cao, I may also cut this rock.”

So he spoke. But in his secret heart he prayed, “If I am to recover Jingzhou and extend my borders, may the stone be cut in twain.”

He smote the stone and it split in twain. And to this day there are cross cuts in the stone, which is still preserved.

One who saw this relic wrote a poem:

 

The shining blades fell and the rock was shorn through,

The metal rang clear and the sparks widely flew.

Thus fate then declared for the dynasties two

And the tripartite rule there began.

From: Luo Guanzhong, Romance of the Three Kingdoms 257–59 (Charles Henry Brewitt-Taylor, trans., 1925) (first printed version circa 1522).

I wonder if this passage from Three Kingdoms was in some fashion influenced by the Bible?

Seth Barrett Tillman, ‘Never Strike the Stone,’ New Reform Club (Aug. 2, 2024, 4:25 AM), <https://reformclub.blogspot.com/2024/08/never-strike-stone.html>; 

Fact or Fiction?: Thinking Outside the Box

U.S. Department of Justice Prosecutor Hur: Biden will appear to a jury as an “elderly man with a poor memory.”

Biden: My memory is fine.

Biden’s White House staff: You are behind in the polls.

Biden’s Counsel: If Trump is elected, the next Attorney General may prosecute you for absconding with government documents.

Biden in Public: I have decided not to run again.

Biden among his lawyers and counsellors: My memory is poor—meaning: the Government cannot prosecute me—I have no memory, so I cannot meaningfully participate in my own criminal defense.

The Press: In giving up a second term in office, Biden’s motives are entirely laudatory, publicly spirited, altruistic, and patriotic. Nothing like self-interest involved here. 

Chief Wiggum: Nothing to see, move along.

Seth Barrett Tillman, ‘Fact or Fiction?: Thinking Outside the Box,’ New Reform Club (July 22, 2024, 3:15 PM), <https://reformclub.blogspot.com/2024/07/thinking-outside-box.html>;

“By Unlawful Means” and Jury Instructions

 

 

In State v. Purcell, 884 S.E.2d 181 (N.C. App. 2023) (Zachary, J.),[1] in a discussion about jury instructions, the North Carolina Court of Appeals explained:

 

Finally, Defendant maintains that the trial court erred in its conspiracy instruction because the “instruction allowed the jury to convict [Defendant] of conspiracy based on one of two different victims, in violation of the unanimity requirement” for jury verdicts. This argument is also inapt.

Our State Constitution provides that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court[.]” N.C. Const. art. I, § 24. “To convict a defendant, the jurors must unanimously agree that the State has proven beyond a reasonable doubt each and every essential element of the crime charged.” State v. Jordan, 305 N.C. 274, 279, 287 S.E.2d 827, 831 (1982). A “disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense.” State v. Lyons, 330 N.C. 298, 302–03, 412 S.E.2d 308, 312 (1991). However, “if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.” Id. at 303, 412 S.E.2d at 312.

Here, the trial court’s instructions allowed the jury to find Defendant guilty of conspiracy to commit robbery with a dangerous weapon if it found that he conspired to rob either Mr. Locklear or Mr. Strong with a dangerous weapon. Because either of these alternative acts established the elements of a conspiracy—that is, “an agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful way or by unlawful means[,]” Cox, 375 N.C. at 169, 846 S.E.2d at 485—the requirement of jury unanimity was satisfied, see Lyons, 330 N.C. at 303, 412 S.E.2d at 312. In that the jury was able to return a unanimous guilty verdict regarding “each and every essential element of the [conspiracy] charged[,]” Jordan, 305 N.C. at 279, 287 S.E.2d at 831, this argument is overruled.

 Id (bold added) (italics in the original). 

Judge Merchan’s jury instructions are not consistent with the Purcell standard. Judge Merchan has permitted the jury to convict based on a violation of N.Y. Election Law Section 17-152. See Judge Merchan, Jury Instructions at 43, <https://tinyurl.com/3c923hsb>. Conviction under Section 17-152 requires a predicate violation: a violation of other law, that is, so-called “unlawful means.” Merchan’s jury instructions state:

 

Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.

In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following unlawful means: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.

 

Judge Merchan, Jury Instructions at 44. It seems: Merchan’s jury instructions do exactly what the North Carolina appellate court forbade. Here, the disjunctive elements are themselves individual legal violations, and so, each such alleged violation separately requires unanimity. 

Does anyone know any positive law or case law, controlling or persuasive, supporting Merchan’s jury instructions? See generally U.S. v. Gipson, 553 F.2d 453 (5th Cir. 1977); State v. Edwards, 10 Conn. App. 503, 512–13 (Conn. App. 1987) (“The defendant claims that this situation required the court specifically to instruct the jurors that they had to agree unanimously on which, if either, of the acts was committed by the defendant. . . . Such a charge is required if (1) a jury is instructed that the commission of any one of several alternative actions would subject the defendant to criminal liability, (2) the actions are conceptually different and (3) the state has presented evidence on each of the alternatives.” (citing Gipson, supra) (footnote omitted) (bold and italics added).

 

Seth Barrett Tillman, ‘“By Unlawful Means” and Jury Instructions,’ New Reform Club (May 30, 2024, 6:02 AM), <https://reformclub.blogspot.com/2024/05/by-unlawful-means-and-jury-instructions.html>.

Glenn Reynolds, ‘SETH BARRETT TILLMAN: “By Unlawful Means” and Jury Instructions,’ Instapundit (May 30, 2024, 8:58 AM), <https://instapundit.com/650592/>. 

 

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[1] See N.C. R.A.P Rule 30(e)(3).

A Twitter Post from the Political and Communications Director of a Political Party in Ireland

 

Colette Browne: “In the latest evidence of this hellsite being a racist sewer, the vast majority of posts about Newtownmountkennedy [in Ireland] are coming from…. the United States.” What did that poet say: If someone tells you who they are ... believe them.

Colette Browne: <https://twitter.com/colettebrowne/status/1785976025978970182>.

Seth Barrett Tillman, ‘A Twitter Post from the Political and Communications Director of a Political Party in Ireland,’ New Reform Club (May 2, 2024, 10:13 AM), <https://reformclub.blogspot.com/2024/05/a-twitter-post-from-political-and.html>; 

Jurisdiction Stripping in Revolutionary France According to Edmund Burke’s Reflections (1790)

 

Jurisdiction Stripping in Revolutionary France According to Edmund Burke’s Reflections on the Revolution in France (1790):

It is curious to observe that the administrative bodies are carefully exempted from the jurisdiction of these new [revolutionary] tribunals. That is, those persons are exempted from the power of the laws who ought to be the most entirely submitted to them. Those who execute public pecuniary trusts ought of all men to be the most strictly held to their duty. One would have thought that it must have been among your earliest cares, if you did not mean that those administrative bodies should be real, sovereign, independent states, to form an awful tribunal, like your late parliaments, or like our king’s bench, where all corporate officers might obtain protection in the legal exercise of their functions, and would find coercion if they trespassed against their legal duty. But the cause of the exemption is plain. These administrative bodies are the great instruments of the present leaders in their progress through democracy to oligarchy. They must, therefore, be put above the law. It will be said that the legal [revolutionary] tribunals which you have made are unfit to coerce them [that is, the administrative bodies]. They are, undoubtedly. They are unfit for any rational purpose. It will be said, too, that the administrative bodies will be accountable to the General Assembly. This I fear is talking without much consideration of the nature of that Assembly, or of these corporations. However, to be subject to the pleasure of that Assembly is not to be subject to law either for protection or for constraint.

Id. (emphasis added).

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Seth Barrett Tillman, ‘Jurisdiction Stripping in Revolutionary France According to Edmund Burke’s Reflections (1790),’ New Reform Club (Mar. 27, 2024, 2:57 PM), <https://reformclub.blogspot.com/2024/03/jurisdiction-stripping-in-revolutionary.html>;

[N/B: Outside the United States, jurisdiction-stripping provisions in statutes are known as ouster clauses or privative clauses.]