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Thursday, October 22, 2020

Rethinking Our Past




Philip S. Foner wrote that Jacob Henry’s 1809 speech in his own defense “made a profound impression on progressive Americans by a brilliant reply to narrow-minded bigots.” Foner, The Jews in American History 1654–1865 (New York: International Publishers Co., Inc., 1945), 34, <https://tinyurl.com/y38nx6xx>. Similarly Attorney General Levi wrote: “In 1809 the North Carolina legislature unsuccessfully tried to exclude Jacob Henry, who, as a Jew, did not subscribe to the Divine authority of the New Testament as required by the state constitution.” The Honorable Edward H. Levi, “Bicentennial Address of the Attorney General at Touro Synagogue,” Rhode Island Jewish Historical Notes, 7 (November 1976): 320, 322, <https://tinyurl.com/t4v2ju3>. One notes Attorney General Levi’s hyperbole: it was not the legislature (as a whole) which was involved, but only the lower house, i.e., the North Carolina House of Commons, and the Commons did not “try” to exclude Henry, it was (as far as we know) only one member—Hugh C. Mills, from Rockingham County. 

Is it just possible that Article XXXII’s religious test, in the 1776 state constitution, was not rooted in parochialism and bigotry directed against non-Protestants? North Carolina Const. of 1776, art. XXXII. One might consider Article XXXII’s constitutional neighbor, Article XXXI, which provided: “That no clergyman, or preacher of the gospels of any denomination, shall be capable of being a member of either the Senate, House of Commons, or Council of State, while he continues in the exercise of the pastoral function.” North Carolina Const. of 1776, art. XXXI. “In 1801 the Reverend John Culpepper and the Reverend William Taylor were declared ineligible and expelled from their seats in the State Senate. In 1820, the Reverend Crudup met the same fate.” James Michael Hurley, “The Political Status of Roman Catholics in North Carolina,” Records of the American Catholic Historical Society of Philadelphia, 38 (September 1927): 237, 271. What we see here is “the peculiar state of affairs [by modern sensibilities] into which political life in North Carolina had drifted.” Ibid. On the record we have, the only people who were actually expelled from the North Carolina legislature based on a religious test were three Protestant ministers. For this reason and others, we should consider the possibility that, in 1776, the higher purpose of Article XXXI and Article XXXII was not essentially exclusionary. Rather, the goal may have been simply to model the newly independent state of North Carolina’s revolutionary-era constitution as closely as possible on the extant British constitution, taking into account the loss of royal officers and different circumstances in the New World. This might explain why men like William Gaston (a Roman Catholic), although they opposed Article XXXII, did not feel aggrieved or moved by it in any strong or deeply personal sense. Compare William S. Powell, North Carolina Through Four Centuries (Chapel Hill, University of North Carolina Press, 1989), 275 (“[M]any able North Carolinians of the time, though not actually guilty of religious bigotry, had no quarrel with the provision.” (emphasis added)), with Henry G. Connor and Joseph B. Cheshire, Jr., The Constitution of the State of North Carolina Annotated (Raleigh: Edwards & Broughton Printing Company, 1911), xxvii (asserting that Article XXXII was an “attempt to discriminate against Christians, other than Protestants”), and Milton Ready, The Tar Heel State: A History of North Carolina (Columbia: University of South Carolina, 2005), 173, <https://tinyurl.com/y2o72lc4> (“At the heart of the issue lay the ancient animosity between Protestants and Catholics.”). 

To put it another way, political disqualification—based on a religious test—is wholly un-American, as we now conceive American identity. But, the constitution of North Carolina, in 1776, with its House of Commons, and its two House members (elected county-wide) for each county (or “shire”?) and its separate representation in the House for each town (or “borough”), and its exclusion of the clergy from the Commons, was modelled, in part, on an older English identity (even if, perhaps, it was only an English-identity of the North Carolinian imagination). Ready, The Tar Heel State, 170 (describing the “borough franchise” as “an ancient English custom kept by North Carolina’s revolutionary founders”). Consider the participants in the Henry proceedings and the names of the counties they hailed from—see how many of these place names were connected with English and wider British transatlantic history: Anson, Carteret, Craven, Cumberland, Duplin (based on “Dublin”), Halifax, Martin, New Hanover, Onslow, Pitt, and Rockingham counties. Still, in North Carolina, in 1776, and even as late as 1809, the transition had not yet been completed from the older English identity to the political mores which we 21st-century Americans now take for granted.


Seth Barrett Tillman, Rethinking Our Past, New Reform Club (Oct. 22, 2020, 12:50 AM), <https://reformclub.blogspot.com/2020/10/rethinking-our-past.html>; 

The passage above is from my forthcoming publication: Seth Barrett Tillman, A Religious Test in America?: The 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat—A Re-Evaluation of the Primary Sources, 98(1) North Carolina Historical Review (forth. circa Jan. 2021) (peer reviewed), <https://ssrn.com/abstract=3498217>. 



Wednesday, October 21, 2020

A Pre-Election Update on the Emoluments Clauses Cases

There have been four Emoluments Clauses cases working their way glacially through the federal courts. Three of the four cases were so-called official-capacity claims—the actual defendant was the United States government. Although President Trump was the named defendant, he was only a nominal defendant—a defendant in name-only. In an official-capacity case, because the actual defendant is the United States government, the Department of Justice (“DOJ”) represents the defendant. Blumenthal v. Trump was one such case. The President prevailed before the D.C. Circuit. Plaintiffs filed a petition for certiorari—that is, plaintiffs sought discretionary Supreme Court review. The Supreme Court DENIED certiorari. And so, that case is now over. The President has prevailed. 

There are two other official-capacity cases before the Supreme Court: Trump v. Citizens for Responsibility and Ethics in Washington, which had been heard in the Southern District of New York, and then in the United States Court of Appeals for the Second Circuit, and Trump v. District of Columbia and Maryland, which had been heard in the District of Maryland, and then in the United States Court of Appeals for the Fourth Circuit. In both of these cases, plaintiffs prevailed in the intermediate court of appeals, and the DOJ filed a petition for certiorari. In both of these cases, the plaintiffs had the advantage of having prevailed in the court of appeals. In both of these cases, the plaintiffs’ opposition briefs were due in October. In both of these cases, there was some possibility that the Supreme Court might decide the case before the election. And, in both of these cases, the plaintiffs—not Trump, not the DOJ—sought extensions, which were granted. The plaintiffs’ briefs are now due after the election. Timely resolution before the election is no longer possible. 

The final case, District of Columbia and Maryland v. Trump, is the only individual-capacity claim against the President. The President is being defended by private counsel, apparently, at his own expense. It is being heard in the United States Court of Appeals for the Fourth Circuit. The President’s brief was filed. The plaintiffs’ opposition brief was due in October. There was some possibility of judicial resolution prior to the election. Here too, plaintiffs sought an extension, which was granted. The plaintiffs’ brief is now due after the election. Timely resolution before the election is no longer possible. 

Not only did plaintiffs cause these and other delays, but they complain to the media that Trump has caused the delays. See Josh Gerstein, Trump poised to run out political clock on emoluments suits, Politico (July 9, 2020, 11:34 PM EDT), <https://politico.com/news/2020/07/09/trump-emoluments-suits-355787>. Such claims are simply not true, but the media publishes these allegations, and they are subsequently recirculated on social media. The Plaintiffs—not Trump, not the DOJ—have asked for extensions in each of the still ongoing cases. All the while, plaintiffs complain to the media that Trump is blocking judicial review. 

For nearly four years, Plaintiffs have told the story that Trump’s outside business interests are illegal, unconstitutional, a threat to national security, and put the interests of the plaintiffs and nation at real risk. Yet, at every turn, it is Plaintiffs who seek to delay timely judicial review. 

And the national news media has not a word to say.

Seth Barrett Tillman, A Pre-Election Update on the Emoluments Clauses Cases, New Reform Club (Oct. 21, 2020, 4:53 AM), <https://reformclub.blogspot.com/2020/10/a-pre-election-update-on-emoluments.html>; 

The ‘Alliance for Justice’ Again

Yesterday, I documented how the Alliance for Justice’s (“AFJ”) letter, and its associated press release—are no longer available on the AFJ’s website. That letter, from 350 academics to Senate Majority Leader McConnell, explained that it was the Senate’s “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.”  

One reader has suggested that there was nothing untoward here. It may have been nothing more than “records management.” Now, at the old link, where the AFJ letter had appeared, the AFJ website now states:

With voting already underway, now is not the time to ram through a Supreme Court Justice. Alliance for Justice pledges to fight this nominee with everything we can.


Nothing to see here folks—just move along.



Seth Barrett Tillman, The ‘Alliance for Justice’ Again, New Reform Club (Oct. 21, 2020, 4:01 AM), <https://reformclub.blogspot.com/2020/10/the-alliance-for-justice-again.html>; 

My prior posts on this topic

Seth Barrett Tillman, The Alliance for Justice’s 2016 Letter to McConnell has gone Missing!New Reform Club (Oct. 20, 2020, 3:53 AM), <https://reformclub.blogspot.com/2020/10/the-alliance-for-justices-2016-letter.html>; 

Seth Barrett Tillman, The Two Discourses: How Non-Originalists Popularize Originalism and What that MeansNew Reform Club (Mar. 28, 2016, 9:22 AM), <https://reformclub.blogspot.com/2016/03/the-two-discourses-how-non-originalists.html>. 

Tuesday, October 20, 2020

The Alliance for Justice’s 2016 Letter to McConnell has gone Missing!


In 2016, the Alliance for Justice posted, on its website, a letter from 350 academics to Senate Majority Leader McConnell explaining that it was the Senate’s “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” 

The Alliance for Justice’s letter was posted here: <https://afj.org/wp-content/uploads/2016/03/Law-professor-SCOTUS-vacancy-letter.pdf>. But it is no longer there! Why is that? The press release was posted here: <https://www.afj.org/press-room/press-releases/over-350-lawprofessors-urge-senators-to-fulfill-their-constitutional-duty>. It too is no longer there! Why is that?

I discussed the letter here: Seth Barrett Tillman, The Two Discourses: How Non-Originalists Popularize Originalism and What that Means, New Reform Club (Mar. 28, 2016, 9:22 AM), <https://reformclub.blogspot.com/2016/03/the-two-discourses-how-non-originalists.html>. 

I have posted a copy of the original letter here: <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3715342>. It is funny how things disappear from the web.


Seth Barrett Tillman, The Alliance for Justice’s 2016 Letter to McConnell has gone Missing!, New Reform Club (Oct. 20, 2020, 3:53 AM), <https://reformclub.blogspot.com/2020/10/the-alliance-for-justices-2016-letter.html>.

PS: Here is another copy: <https://perma.cc/WY7Y-8JJ4>.

Monday, October 12, 2020

How a Leftist Prof Hijacked History and Christopher Columbus

From “Debunking Howard Zinn: Exposing the Fake History That Turned a Generation against America” by Mary Grabar. This excerpt originally appeared at The College Fix and is reprinted here by permission of the author.

Howard Zinn rode to fame and fortune on the “untold story” of Christopher Columbus—a shocking tale of severed hands, raped women, and gentle, enslaved people worked to death to slake the white Europeans’ lust for gold.

Today, that story is anything but untold. Zinn’s narrative about the genocidal discoverer of America has captured our education system and popular culture. The defacement of statues of Columbus with red paint had already become an annual ritual in many places.

Zinn is the inspiration behind the current campaign to abolish Columbus Day and replace it with “Indigenous Peoples’ Day.” High school teachers cite his book in making the case for the renaming to their local communities. In October 2018, San Francisco, Cincinnati, and Rochester, New York, joined at least sixty other cities in replacing Columbus Day with Indigenous Peoples’ Day. Six states also do not recognize the holiday as Columbus Day. Many articles reporting on this trend cited Howard Zinn’s role in the change in attitude.

Stanford anthropology Professor Carol Delaney, who was quoted in a Courthouse News Service article to provide a counter-narrative, informed reporters that Columbus acted on his Christian faith and instructed his crew to treat the native people with kindness. But such inconvenient facts are inevitably drowned out by the Columbus-hate that Howard Zinn has succeeded in spreading.

Presumably extrapolating from the “many volumes” he had read, Zinn found the inspiration for the dramatic opening sentences of “A People’s History of the United States” [presented in full at the link by the aptly-named historyisaweapon.com—Ed.]:

“Arawak men and women, naked, tawny, and full of wonder, emerged from their villages onto the island’s beaches and swam out to get a closer look at the strange big boat. When Columbus and his sailors came ashore, carrying swords, speaking oddly, the Arawaks ran to greet them, brought them food, water, gifts. He later wrote of this in his log: ‘They . . . brought us parrots and balls of cotton, and spears and many other things, which they exchanged for the glass beads and hawks’ bells. They willingly traded everything they owned. . . . ’”

The quoted passage from Columbus’s log continues with Columbus’s description of the Arawaks. They are “well-built” and handsomely featured. Having never seen iron, they accidentally cut themselves on the Europeans’ swords when they touch them. The passage ends with Columbus’s now infamous words: “They have no iron. Their spears are made out of cane. . . . They would make fine servants. . . . With fifty men we could subjugate them all and make them do whatever we want.”

The ellipses in this passage are Zinn’s, not mine. Those omissions are essential to Zinn’s dishonest retelling of the Columbus story. By leaving crucial words out of the quotation, Zinn makes Columbus say something very different from what he actually said.

It’s unlikely that he even read as much of “Columbus’s journals” or the works of “Las Casas, the great eyewitness” as he claimed. The truth is that Zinn’s description of Columbus’s first encounter with the American Indians is lifted from “Columbus: His Enterprise: Exploding the Myth,” a book for high school students that Zinn’s friend and fellow anti-Vietnam War activist, Hans Koning, first published in 1976.

Zinn perpetuates Koning’s smears. In Koning’s telling and in Zinn’s, Columbus set out to enslave a uniformly gentle people for the sole purpose of enriching himself with gold. In fact, that is far from the truth. European efforts to find a sea route to Asia had been going on for hundreds of years. As William and Carla Phillips point out in “The Worlds of Christopher Columbus,” Columbus’s voyages of discovery were a continuation of Europeans’ ventures of sailing to Asia—at first, around Africa—that had begun in 1291. For centuries before Columbus, Portuguese and Spanish explorers had also ventured farther and farther out into the Atlantic Ocean.

Thus, Columbus’s mission was multi-faceted and inspired by several different motivations: “to reach the East Indies, so as to take Islam in the rear, and to effect an alliance with the Great Khan—a mythical personage who was believed to be the sovereign of all that region, and favorable to the Christian religion—and finally . . . to diffuse Christianity throughout that unknown continent and trade with the traditional sources of gold and spices.”

Desires to find new lands for more resources and to escape enemies and persecution are not impulses unique to Europeans. The natives of North America “in prehistoric times” themselves came from Asia and “crossed the land bridge across the Bering Strait to the lands of the Western Hemisphere.”

When he encountered naked natives instead of the Asian merchants he was expecting, Columbus did not jump to thoughts of working them to death for gold as Zinn, following Koning, suggests. For example, in his log entry for October 12, 1492, Columbus wrote, “I warned my men to take nothing from the people without giving something in exchange”—a passage left out by both Koning and Zinn.

But Zinn’s most crucial omissions are in the passage from Columbus’s log that he quotes in the very first paragraph of his People’s History. There he uses ellipses to cover up the fact that he has left out enough of Columbus’s words to deceive his readers about what the discoverer of America actually meant. The omission right before “They would make fine servants” is particularly dishonest. Here’s the nub of what Zinn left out: “I saw some who bore marks of wounds on their bodies, and I made signs to them to ask how this came about, and they indicated to me that people came from other islands, which are near, and wished to capture them, and they defended themselves. And I believed and still believe that they come here from the mainland to take them for slaves.”

In his translation of Columbus’s log, Robert Fuson discusses the context that Zinn deliberately left out:

“The cultural unity of the Taino [the name for this particular tribe, which Zinn labels “Arawaks”] greatly impressed Columbus…. Those who see Columbus as the founder of slavery in the New World are grossly in error. This thought occurred to [Samuel Eliot] Morison (and many others), who misinterpreted a statement made by Columbus on the first day in America, when he said, ‘They (the Indians) ought to be good servants.’ In fact, Columbus offered this observation in explanation of an earlier comment he had made, theorizing that people from the mainland came to the islands to capture these Indians as slaves because they were so docile and obliging.”

Zinn’s next ellipsis between “They would make fine servants” and “With fifty men we could subjugate them all and make them do whatever we want” covers for Zinn’s dishonest pretense that the second statement has anything at all to do with the first. The sentences that Zinn joins here are not only not in the same paragraph—as he dishonestly pretends by printing them that way on the very first page of A People’s History— but they’re not even in the same entry of Columbus’s log. In fact, they’re from two days apart.

Zinn’s highly selective quotations from Columbus’s log are designed to give the impression that Columbus had no concern for the Indians’ spiritual or physical well-being—that the explorer was motivated only by a “frenzy for money.”

But literally the explorer’s first concern—the hope that he expressed in the initial comment about the natives in his log—was for the Indians’ freedom and their eternal salvation: “I want the natives to develop a friendly attitude toward us because I know that they are a people who can be made free and converted to our Holy Faith more by love than by force.”

Zinn just entirely omits the passage in which Columbus expresses his respect and concern for the Indians. Zinn also suppresses—and, where he doesn’t suppress, downplays— the evidence from even the sympathetic Las Casas that the Indians could be violent and cruel. Zinn has to admit that they were “not completely peaceful, because they do battle from time to time with other tribes.” But, like Koning, he is eager to explain their violent behavior away, arguing, “but their casualties seem small, and they fight when they are individually moved to do so because of some grievance, not on the orders of captains or kings.”

In Zinn’s telling, the Arawaks—or black slaves, or Cherokees, or New York Irish, or whoever—must always be persecuted innocents and the condemnation of their sufferings must be absolute. The officially oppressed cannot be blamed even for any crimes they themselves commit, which are inevitably the fault of their oppressors.

According to Zinn, there’s no such thing as objective history, anyway: “the historian’s distortion is more than technical, it is ideological; it is released into a world of contending interests, where any chosen emphasis supports (whether the historian means to or not) some kind of interest, whether economic or political or racial or national or sexual.”

Once ideology has become a moral virtue, Zinn can discount standards of scholarship—such as those of the American Historical Association—as having to do with nothing more important than “technical problems of excellence”—standards of no importance compared to his kind of history, which consists in forging “tools for contending social classes, races, nations.”

Thus it would seem that the noble political purpose behind Zinn’s history justifies him in omitting facts that are inconvenient for his Columbus-bad-Indians-good narrative.

Debunking Howard Zinn is available from Regnery Publishing.

Sunday, October 04, 2020

Trump the Grey Has Fallen

"There are three powers, three powers alone, able to conquer and to hold captive forever the conscience of these impotent rebels for their happiness—those forces are miracle, mystery, and authority. Thou hast rejected all three and hast set the example for doing so. When the wise and dread spirit set thee on the pinnacle of the temple and said to thee,“If thou wouldst know whether thou art the Son of God then cast thyself down, for it is written: the angels shall hold him up lest he fall and bruise himself, and thou shalt know then whether thou art the Son of God and shalt prove then how great is thy faith in thy Father.” But thou didst refuse and wouldst not cast thyself down.

 —Fyodor Dostoyevsky, 'The Grand Inquisitor' from The Brothers Karamazov (1880).

 ‘Come, Gandalf,  tell us how you fared with the Balrog!’ 


"We fought far under the living earth, where time is not counted. Ever he clutched me, and ever I hewed him, till at last he fled into dark tunnels. ... In that despair my enemy was my only hope, and I pursued him, clutching at his heel. Thus he brought me back at last ...."

—J.R.R. Tolkien, The Lord of the Rings: The Two Towers (1954).

My own hunch is Trump has in mind for himself a role something like that of Gandalf the Grey: to go away for a while and defeat the Covid Balrog, and to return in our darkest hour, having forced us to consider seriously the prospect of "a Harris administration, together with Joe Biden"; to wander toward ruin; to weep in our despair. 

Trump is beleaguered on the Chinese virus, which has undermined his two great strengths: that he was right all along about our economy, and that he was right all along about China. I think he means to return to us as Trump the White, with renewed authority to fight on our behalf against those who would kill our economy, and against those who would kill our people. He has, after all, and for the first time, aroused sympathy among his enemies. Upon his return, that sympathy will turn into awe -- and, perhaps, even into love. 

The left means to rule by mystery and authority. Through "social justice," "experts," "fact-checkers," and crisis fiat governance, their project is all but achieved. But Trump may have one of the ancient tricks still up his sleeve: to perform a miracle.

Monday, September 21, 2020

This Is What The Great And The Good Were Saying in 2016


This is what the great and the good were saying in 2016 about President Obama’s nominating a successor to the seat held by the late Justice Scalia and about the Senate’s duty to consider the Presidents nominee: 

Chief Judge Peter J. Eckerstrom, The Garland Nomination, the Senate’s Duty, and the Surprising Lessons of Constitutional Text, 21 U. Pa. J. Const. L. 33 (2018); and, Chief Judge Peter J Eckerstrom, Yes, the Senate Elevated Partisan Political Goals Over Constitutional Text When It Refused to Consider President Obama’s Nominee to Replace Justice Scalia, 21(4) U. Pa. J. Const. L. Online 1 (Feb. 2019). 

Eckerstrom asserted that the Senate has an “affirmative constitutional duty” to consider President Obama’s nominee. Elsewhere Eckerstrom used “obligatory” and “mandatory” language in regard to the Senate’s duty to act on a presidential nominee. 

Dean Tacha (Pepperdine) & Dean Minow (Harvard) in The Boston Globe in 2016: affirming that President Obama has a “clear constitutional duty to nominate a successor” to Justice Scalia. See  Martha Minow & Deanell Tacha, Opinion, US Needs a Government of Laws, Not PeopleBoston Globe (Mar. 22, 2016), <https://tinyurl.com/y4962bau>. 

David F. Tavella & Anne Marie Tavella, Advice and Consent for Federal Judges: A New Alternative Based on Contract Law, 3 Drexel L. Rev. 521, 531 (2011) (“[T]he [Appointments] [C]lause places an affirmative obligation on the President and the Senate to fill the described appointments ….”). 

Steven J. Harper, “Let the People Speak”?, Lawyer Bubble (Mar. 9, 2016) (“The President has a duty to nominate and the Senate has a responsibility to act on that nomination.”). 

Some even said if the Senate refuses to act on a presidential nominee, then President can appoint the person absent Senate advice and consent! Gregory L. Diskant, Obama Can Appoint Merrick Garland to the Supreme Court if the Senate Does Nothing, Wash. Post (Apr. 8, 2016).

What are they saying now? 


Seth Barrett Tillman, This Is What The Great And The Good Were Saying in 2016New Reform Club (Sept. 21, 2020, 3:01 AM), <https://reformclub.blogspot.com/2020/09/this-is-what-great-and-good-were-saying.html>; 


Tuesday, September 15, 2020

Extracts from Bauer & Goldsmith’s “After Trump”


Bob Bauer & Jack Goldsmith, After Trump: Reconstructing the Presidency (Lawfare Press 2020).

The Foreign Emoluments Clause, found in Article I, Section 9, is written in the passive voice and does not specifically reference the president. Instead, it provides that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” There is disagreement, as yet unresolved by the Supreme Court, whether this provision applies to elected federal officials, including the president. However, Congress assumed that the Foreign Emoluments Clause applies to the president when it exercised its power to “consent” to foreign “emoluments” in the Foreign Gifts and Decorations Act of 1966. That statute specifically applies to the president and supplies congressional consent for gifts of “minimal value” that might be received in the course of hospitality provided by a foreign government or official. 

Id. at 51 (footnotes omitted).

We acknowledge that it is an open question whether the Foreign Emoluments Clause applies to the president and thus whether Congress can regulate the president pursuant to its consent power in that clause. We agree with the weight of lower court and scholarly analysis that concludes that the Foreign Emoluments Clause applies to the president, but the matter is not open and shut. Only the Supreme Court can definitively resolve this issue. But we expect that most if not all future presidents would not challenge the constitutionality of our reform proposal. And the statute could in the interim go a long way in establishing the right norms even if there were eventually litigation over the matter. And in any event, the Supreme Court cannot resolve the issue unless it is presented to it in a challenge to the statute, assuming that one can be crafted. 

Id. at 66.

That said, the application of the anti-bribery statute to the president is not certain, especially since it defines a covered “public official” as a “Member of Congress, Delegate, or Resident Commissioner, … or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof.” In the absence of a plain statement, it is possible that a court might would rule that the president is not an “officer or employee” of the United States. There should be no doubt on this matter. We thus propose that Congress make clear that the president is a “public official” within the meaning of the bribery statute. Congress should also amend the statute’s prohibition on a public official seeking or accepting a bribe “in return for being influenced in the performance of an official act” to make clear that “official act” includes a pardon. These changes are entirely consistent with the Justice Department’s view of presidential prerogative and would clearly criminalize pardons as part of a bribery scheme. The amended bribery statute would not prohibit a president from pardoning a campaign supporter to reward his or her loyalty, without regard to the merits. Such a pardon may well be unworthy or controversial, but it would not be a crime for the president to use the pardon power in this fashion. Under the amended statute (and quite possibly under the current statute), the same pardon of a supporter would give rise to legal jeopardy if evidence surfaced that the president had entered into a corrupt agreement to grant the pardon in return for political contributions.

Id. at 113 (footnotes omitted) (emphasis added). 

Query: What does the word “corrupt” add? What did the authors think it added? If the word “corrupt” had been dropped, how would the effect of their proposed statute change? Would it be possible for the President to agree to exchange a pardon for campaign contributions and the transaction not be corrupt and, therefore, lawful? 

It is a puzzle.


Seth Barrett Tillman, Extracts from Bauer & GoldsmithAfter Trump,New Reform Club (Sept. 15, 2020, 5:30 AM), <https://reformclub.blogspot.com/2020/09/extracts-from-bauer-goldsmiths-after.html>;

Saturday, September 12, 2020

Is America's "soul" up for election? What if it loses?

Politics used to be about things like tax cuts. When politics was about tax cuts and subsidies and spending on projects and putting a stop sign at the end of the street, Americans could bear to get a little more or a little less from election to election. An election result could be disappointing. But it was not catastrophic. Quality of life is very important to Americans. But quality of life is not all-important. Americans will argue with each other over quality-of-life issues. But they will not kill each other over them. Settling things like tax cuts through elections worked out just fine.

But politics is not about things like tax cuts anymore. Now politics is all about causes. Causes like Black Lives Matter. Causes like LGBTQ+. Causes like Climate Change. Causes like Defunding the Police. Causes like Systemic Racism, and Open Borders, and Reproductive Rights, and Trans Rights, and Dismantling the Cis-Normative Patriarchy. And on. And on.

You cannot settle causes like these by vote. For one thing, they are indivisibles. They will not bear compromise. To suggest compromise may be considered a form of "violence." Nor may you watch, in silence, as the issues unfold -- for silence, too, may be considered a form of "violence." Besides, many of the issues are simply unsolvable. Politics has no answer to them. 

Which leads to the larger reason causes like these cannot be settled by vote: Causes like these bear too great a resemblance to religion -- the nature of man, his original sin, his fallenness, and his salvation from it. Politics cannot settle disputes over dogma. They are neither soluble nor dissoluble.

Elections cannot decide causes like these. Yet these causes dominate 2020 election journalism. The 2020 election is not about quality of life. In fact, it is not about life at all. In 2020, the election is about our "soul." Democratic presidential nominee Joe Biden says this election is a "battle for the soul of the nation." He has said it repeatedly and prominently. Senator Kamala Harris independently has said the same thing, even before receiving the nod for vice-presidential nominee: "The task is to fight for the soul of our country." 

Supposing Joe's instincts are slipping? Supposing Kamala is making up for her lack of substance? Think again. Spencer Critchley, a consultant on the successful 2008 and 2012 Obama campaigns agrees that treating politics in the traditional way, as a way to solve problems, is for suckers. "There is more to life than reason, and people are not motivated by data," says Critchley. "They are motivated by matters of the heart and the soul." 

So do not bother asking a Biden/Harris supporter what policies they support. Do not bother asking what solutions they offer. They will answer only with causes. Because in 2020 America, the Biden/Harris team is betting that voters are driven in elections by nothing less than the salvation of their souls.

But supposing the Biden/Harris team is right: If America's very soul is indeed up for election, what if it loses? 

Contests over souls, history tells us, are not very nice. The Romans' persecution of the early Christians "was a natural response," wrote Rowan A. Greer, because "[t]he Roman world rightly saw that one possible implication of Christianity was a rejection of the social order." And centuries later, after the Roman world gave way to the Christian world, many Christians, such as King St. Louis IX, still saw the matter much the way their former persecutors had:

St. Louis advised his people not to discuss religion with Jews; “the layman,” he told Joinville, “when he hears any speak ill of the Christian faith, should defend it not with words but with the sword, which he should thrust into the other’s belly as far as it will go.”

(To those with the spittle for it, Chesterton had it that the pious king's counsel was to argue with infidels "on the reasons of the philosophers themselves," as a real philosopher can argue. But failing that, Louis concluded, all that remained was to "thrust a sword through his body as far as it will go.")

Even by the 18th century, the great English man of letters Samuel Johnson thought matters of the soul were worth dying for. "In short, Sir, I have got no further than this: Every man has a right to utter what he thinks truth, and every other man has a right to knock him down for it. Martyrdom is the test." Johnson believed the state had a right to regulate the religion of the people, for the upbringing of children. Johnson was reminding a clergyman supportive of this right that he may not so readily agree with it should he travel in a state committed to exercising the same right, but on behalf of a different religion.

Which we may take to mean: all causes are not equal. Some causes are sensible. Some causes are bosh. Some are merely useful. Some are profound. And some hold the key to everlasting life. Johnson thought the state had a role to play in ordering ideas and causes, prioritizing them, and as to those responsible for holding the social order intact, ensuring their survival. But: so does the individual have a role. Some ideas are worth dying for. But how would we ever know which ones, if no one volunteers for the demonstration?  Anyone may be willing to kill for their ideas. But how many are willing to die for them? 

Awaiting us at the end of argument is sometimes agreement, though rarely. More commonly we may try to reach compromise; or failing that, tolerance. But lest we forget: also awaiting us may be intolerance: our fellow may choose to knock us down for our beliefs. We might well give a thought to what we are prepared to do then.

Margaret Thatcher and Enoch Powell debated this on the eve of Argentina's invasion of the Falklands. The Prime Minister is reported to have spoken about the Christian concept of the just war and Western values. To which Powell responded, "We do not fight for values," and "I would fight for this country even if it had a Communist government." Thatcher disagreed: "If I send British troops abroad, it will be to defend our values." The last word recorded of this exchange is Powell's: "No, Prime Minister, values exist in a transcendental realm, beyond space and time. They can neither be fought for, nor destroyed." 

Now, to fight for something requires a loyalty to it. I do not know on what loyalty depends. But it is not dependent upon something so abstract as values, is what Powell was telling Thatcher. Powell was saying that, when a man is called to fight for his country, he does not ask for a moment to consider what values are espoused in the nation's party platforms of the most recent election, or in the nation's high court decisions of the most recent term, or in the newspapers of that very morning. He does not consider who won the last election. He fights for his country for the same reason he fights for his family. 

There are some things -- religion, perhaps little else -- that are so wrapped up in a man's being that he cannot be expected to suffer undue challenge to his practice and belief. As St. Louis suggested, if religion is to be put to the test, parley is reserved for the philosopher and the saint; for the rest, however, for those who grasp the eternal weight of the stakes, he must evade, seek refuge, and, if pursued and cornered into the last redoubt, then, at the last, to turn, and to fight, to the mortal death. The words Robert Bolt placed in the mouth of Sir Thomas More on this subject, in his 1960 play A Man for All Seasons, were these:
MORE Now listen, Will. And, Meg, you listen, too, you know I know you well. God made the angels to show him splendor -- as he made animals for innocence and plants for their simplicity. But Man he made to serve him wittily, in the tangle of his mind! If he suffers us to fall to such a case that there is no escaping, then we may stand to our tackle as best we can, and yes, Will, then we may clamor like champions . . . if we have the spittle for it. And no doubt it delights God to see splendor where He only looked for complexity. But it's God's part, not our own, to bring ourselves to that extremity! Our natural business lies in escaping, so let's get home and study this Bill.

Thomas More was expected to swear an oath to support the marriage of King Henry to Anne Boleyn. This, More knew, he could not do without violence to his allegiance to his faith, which he held higher than his allegiance to earthly authority. In the end, More was willing to suffer death for his loyalty. Yet, he did not relish it, and sought to avoid the ultimate decision, if he could. 

Joe Biden and Kamala Harris sound as though they are ready to put Americans to a similar decision. Perhaps, in some ways, even a more terrible decision. For St. Louis, and Dr. Johnson, and King Henry all presumed that a man who withheld his loyalty from the state for the sake of his soul, though his life be lost, may still keep his soul for God. That, at least, was beyond the reach of any earthly sovereign. 

But for a godless state, no such respite exists. Since Nietzche, the state is not limited to having men's lives only. The consummate statesman may now command his very soul. His ultimate arbiter is History, whose judgment rolls, inscribed by newsroom priests and university monks, record severe judgments and odium theologicum against apostates and infidels. History, the Biden/Harris ticket will have you know, shall condemn the souls of those who do not vote Democrat. 

Their eyes have seen the coming of electoral reward;
They will trample out the vintage where the grapes of wrath are stored;
They will loose the fateful lightnings of their terrible swift sword;
Their truth is marching on.

Glory, glory, hallelujah?

Monday, September 07, 2020

We have no Colosseum, so we must make do...

"Intellectuals perennially grumbled about the amount of time the Roman people wasted watching sports, but the stadium offered the only place a citizen regularly saw their ruler."  

Douglas Boin, Alaric the Goth: An Outsider's History of the Fall of Rome (W.W. Norton & Co. June 2020).

If you cannot afford a $10,000 a plate dinner at your local elite campaign fundraiser, you can still order a pizza and peruse "Donald Trump's Best Tweets of the Decade, Ranked." Number 18:

The food is better, too.

Sunday, August 30, 2020

Speak your mind, as though ready to be exiled for it

Lord, give us the courage to stand openly against a rebellious world: 

during the day while they are looking on,
prepare your baggage as though for exile, 
migrate from where you live to another place;
perhaps they will see that they are a rebellious house.
Ezekiel 12:3.

But, Lord, also give us the wisdom to know when we should evade detection: 

In the town of Elvira, Spain, in the year 309 AD, a council of early Christians convened to discuss their brothers and sisters who had been killed for openly defying Roman gods. The council decided they were not martyrs

"If someone smashes an idol and is then punished by death, he or she may not be placed in the list of martyrs, since such action is not sanctioned by the Scriptures or by the apostles." 

The courage of God compels us to witness to the truth, even unto exile. 

Yet the wisdom of God instructs we make an effort to avoid detection, when circumstances require. 
When living in the land of bloody pagans, spitting on their idols isn't martyrdom -- it's stupidity.

Speak your mind, as though ready to be exiled for it. 

Monday, August 24, 2020

‘Lawfare’ does not post corrections: A Response to McKinney, Sagan, and Weiner


Seth Barrett Tillman, A Response to McKinney, Sagan, and Weiner’s ‘Hiroshima and the Myths of Military Targets and Unconditional Surrender’ (submitted to Lawfare on Aug. 24, 2020).


In their August 21, 2020 article on Lawfare, Hiroshima and the Myths of Military Targets and Unconditional Surrender, Katie McKinney, Scott D. Sagan, and Allen S. Weiner wrote:

Evaluating the military advantage of an attack under jus in bello [rules for conduct during war] principles must be assessed in light of a state’s overall war aims, which are themselves subject to legal and moral constraints. Admittedly, the principles governing the terms that states may impose as conditions for ending war—whether under the framework of jus ad bellum [rules regarding the resort to force] proportionality or jus post bellum [rules regarding justice after war]—make up one of the least well-developed areas of the law of armed conflict. But there are limits on the ends states may seek in terminating wars. As the Defense Department Law of War Manual notes, “the overall goal of the State in resorting to war should not be outweighed by the harm that the war is expected to produce.” This principle applies at the end of a war as well. Because it would have entailed the awful human costs of an invasion, Truman’s demand for Japan’s unconditional surrender to end the war was indefensible. Seeking to avoid the larger losses that would flow from an unjust demand for unconditional surrender cannot justify the Hiroshima attack. (bold and underscore added.)

The passage marked in bold is used to support the prior proposition, which was “that there are limits on the ends states may seek in terminating wars.” But the specific quote extracted from the Law of War Manual, I suggest, means exactly the opposite of what the authors think it supports. As such, perhaps, some reconsideration may be in order?

For a view of the wider subject-matter different from the three authors, the careful reader might consider my 1-page 2015 article which appeared in the Claremont Review of Books.


Seth Barrett Tillman, ‘Lawfare’ does not post corrections: A Response to McKinney, Sagan, and WeinerNew Reform Club (Aug. 24, 2020, 8:53 PM), <https://reformclub.blogspot.com/2020/08/lawfare-does-not-post-corrections.html>; 

Seth Barrett Tillman, Advice to the Allies—1945, 15(2) Claremont Review of Books 13, Spring 2015, <http://ssrn.com/abstract=2478600>, <http://tinyurl.com/pbhmrox/>;