The Real Meaning of ‘F Troop’

 

The prime exemplar of McWhiney & McDonald’s celtic hypothesis in popular culture is F-Troop. The dramatic dyad between English and Irish culture found its natural home and classic statement in Somerville & Ross’s The Irish R.M.*—where the local Irish get the edge on the Englishman.

In the United States, the dramatic dyad shifts from literature to television. But the conflict remains much the same in all its essentials. In F-Troop, Sergeant O’Rourke generally outsmarts Captain Parmenter, who has an Anglo-Norman name. The Indian conflict and the American Civil War were only incidental to the plot—the real storyline is O’Rourke’s outsmarting the U.S. army and Parmenter, while remaining loyal, broadly speaking, to American ideals (including making money).

Thus, the real battle of wits is between the Irish and the English—in America—which, in itself, continued the prior established literary tradition. Of course, this made more sense to the public at a time when Hollywood’s writers remained connected to (and, generally, supportive of) the Western literary canon.

Seth Barrett, ‘The Real Meaning of “F Troop”,’ New Reform Club (May 29, 2023, 9:26 AM), <https://reformclub.blogspot.com/2023/05/the-real-meaning-of-f-troop.html>; 

*R.M. is an abbreviation for resident magistrate.

The Ways of the Ancestors

 

“The [American] Civil War began in 1861, when Confederate artillery batteries opened fire on Fort Sumter in Charleston Harbor. That same year, “in the year of the independence of the Confederate States of America,” as the [congregation’s] deed recites, Berith Shalome acquired the land on which its synagogue was located.

“Charleston was besieged and shelled by Union forces during the Civil War, and many people fled the city, Berith Shalome was the only one of Charleston’s three synagogues to keep its doors open during the [American Civil] War, and kosher meat as well as matzo on Passover were provided by the Synagogue during this trying period. A full complement of Berith Shalome’s members served the Confederate cause, and several Confederate veterans are buried in the congregation’s first cemetery.”

See <https://www.bsbisynagogue.org/history> (bold added).

Seth Barrett Tillman, ‘The Ways of the Ancestors,’ New Reform Club (May 29, 2023, 8:53 AM), <https://reformclub.blogspot.com/2023/05/the-ways-of-ancestors.html>; 

How to Read the Text of the Constitution’s Appointments Clause

 

The Appointments Clause states:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [U.S. Const. art. II, § 2, cl. 2]

The Appointments Clause enumerates, or “provides,” four categories of specific positions: “[1] Ambassadors, [2] other public Ministers and [3] Consuls, [and] [4] Judges of the supreme Court.” But that list is not exclusive. The Appointments Clause also generally references “all other Officers of the United States.” This list of positions is subject to two limitations: “whose Appointments are not herein otherwise provided for, and which shall be established by Law.”

That phrase, “whose Appointments are not herein otherwise provided for,” is, admittedly, a mouthful. We think this phrase tells the reader that the appointment of “Officers of the United States” is limited to the processes announced in Article II, Section 2. This sub-clause directs the reader not to scour the remainder of the Constitution for other provisions that provide authority to fill other federal “Officers of the United States” positions—by election or by appointment. In other words, the Appointments Clause’s “not herein otherwise provided for”-language is not an invitation to search for other constitutional provisions providing authority to create or fill federal offices; rather, this language puts the reader on notice that no such constitutional provisions exist beyond the textual bounds of Article II, Section 2. We think any alternative reading that leads readers to look for other constitutional mechanisms to fill “Officers of the United States” positions is mistaken. The “Officers of the United States” are only those positions that are filled by Article II, Section 2 processes.

From: Seth Barrett Tillman and Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 383–84 (2023) (bold added), <https://ssrn.com/abstract=4432164>. 

Seth Barrett Tillman, ‘How to Read the Text of the Constitution’s Appointments Clause,’ New Reform Club (May 24, 2023, 8:29 AM), <https://reformclub.blogspot.com/2023/05/how-to-read-text-of-constitutions.html>; 

Un-Lawful Laws

 

“If [the prince] employs a man, he is immediately afraid that the man will act in his own interest, and so another man is employed to keep a check on the other’s selfishness. If one measure is adopted, there are immediate fears of its being abused or evaded, and so another measure must be adopted to guard against abuses or evasions. All men know where the treasure-chest lies, and so the prince is constantly fretting and fidgeting out of anxiety for its security. Consequently, the laws have to be made tight ad as they become tighter they become the very source of disorder. These are what one calls ‘un-Lawful laws.’

            . . . .

“Should it be said that ‘There is only governance by men, not governance by law,’ my reply is that only if there is governance by law can there be governance by men. Since un-Lawful laws fetter men hand and foot, even a man capable of governing cannot overcome inhibiting restraints and suspicions. When there is something to be done, men do no more than their share, content themselves with the easiest slapdash methods, and can accomplish nothing that goes beyond a circumscribed sphere. If the Law of the early kings were still in effect, there would be spirit among men that went beyond the letter of the law. If men were of the right kind, all of their intentions could be realized; and even if they were not of this kind, they could not slash deep or do widespread damage, thus harming the people instead of benefiting them. Therefore I say that only when we have governance by law can we have governance by men.”

Huang Tsung-hsi, Waiting for the Dawn: A Plan for the Prince (Wm. Theodore de Bary trans., New York, Columbia University Press 1993) (1663) 98–99.

Seth Barrett Tillman, ‘Un-Lawful Laws,’ New Reform Club (May 23, 2023, 5:10 AM), <https://reformclub.blogspot.com/2023/05/un-lawful-laws.html>;

A Comment on Noah A. Rosenblum & Andrea Scosera Katz’s “Removal Rehashed”

 

Professors Rosenblum and Katz wrote:

 

Our own attempts to reconstruct Fish’s data reveal many cases of officers who were not removed, but simply superseded when the President nominated their replacement. Thus, for example, Fish noted that there were four removals of “Consuls, etc.” under President Adams. One was presumably Edward Church, Consul General in Portugal, who was displaced on July 6, 1797. But Adams does not seem to have removed Church, at least not in the way Bamzai and Prakash use the term in their Article. Rather, he nominated Thomas Bulkely to succeed Church, and Church in turn was “superseded.” There are many other such examples, involving Consuls as well as other officers who, like Consuls, required Senate confirmation.

Fish included such removals in his aggregate counts. But these “removals” do not show an indefeasible executive power of removal. They show, at most, that the President could displace a duly appointed officer by appointing his successor.

136 Harv. L. Rev. F 404, 421–22 (2023) (footnotes omitted) (emphases added), <https://harvardlawreview.org/forum/vol-136/removal-rehashed/>.

Perhaps, the two modern authors use of “displace” is coextensive with how Hamilton used “displace” in Federalist No. 77? In Federalist No. 77, Hamilton stated: 

It has been mentioned as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. (emphasis added)

This understanding of Hamilton’s “displace” language, used in Federalist No. 77, was put forward by Justice Story in his Commentaries on the Constitution and also later supported by Professor Forrest McDonald. See, e.g., Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010) (quoting Story and linking to McDonald), <https://ssrn.com/abstract=1331664>.

My regular co-author, Josh Blackman, makes some similar points here: Josh Blackman, ‘Justice Kagan on Hamilton in Federalist No. 77,’ Reason-Volokh Conspiracy (July 1, 2020, 2:09 PM), <https://reason.com/2020/07/01/justice-kagan-on-hamilton-in-federalist-no-77/>.

Seth Barrett Tillman,   ‘A Comment on Noah A Rosenblum & Andrea Scosera Katz’s “Removal Rehashed”,’ New Reform Club (May 21, 2023, 11:19 AM), <https://reformclub.blogspot.com/2023/05/a-comment-on-noah-rosenblum-andrea.html>; 

Part II, P.J. O’Rourke Lives Again (at The Spectator)

 

I think I have never enjoyed a more pleasant time [than during the COVID lockdown]. The weather was beautiful, and out in the Kent countryside, where I then lived, one could enjoy it to its full. Wildlife was less shy than usual, perhaps a consequence of the state-imposed quietude. Occasionally city dwellers would infest our country lanes and I had great pleasure in yelling at them to return to their filthy tenements, taking their vile diseases with them.

 

There was a pleasure, too, in the Ballardian scenes at the local supermarket, as the chavs wheeled out their thousands of loo rolls and sacks of pasta. And at the local farm shop, a couple of assistants wore plastic bags over their shoes because of a theory then prevalent that the virus was heavy, fell to the floor with a kind of awkward clunking sound and then got picked up inadvertently by the nearest pair of Nikes. It was, I would concede, a time of government-enforced mass idiocy and I enjoyed it immensely.

 

From: Rod Liddle, ‘Who gets to decide what is “harmful”?’ The Spectator (13 May 2023, 9:00 AM), <https://www.spectator.com.au/2023/05/wrong-but-not-harmful/>;

 

Seth Barrett Tillman, Part II, P.J. O’Rourke Lives Again (at The Spectator), New Reform Club (May 21, 2023, 8:29 AM), <https://reformclub.blogspot.com/2023/05/part-ii-pj-orourke-lives-again-at.html>;

A Distinct Point of View

 

“If [the prince] employs a man, he is immediately afraid that the man will act in his own interest, and so another man is employed to keep a check on the other’s selfishness. If one measure is adopted, there are immediate fears of its being abused or evaded, and so another measure must be adopted to guard against abuses or evasions. All men know where the treasure-chest lies, and so the prince is constantly fretting and fidgeting out of anxiety for its security. Consequently, the laws have to be made tight ad as they become tighter they become the very source of disorder. These are what one calls ‘un-Lawful laws.’

            . . . .

“Should it be said that ‘There is only governance by men, not governance by law,’ my reply is that only if there is governance by law can there be governance by men. Since un-Lawful laws fetter men hand and foot, even a man capable of governing cannot overcome inhibiting restraints and suspicions. When there is something to be done, men do no more than their share, content themselves with the easiest slapdash methods, and can accomplish nothing that goes beyond a circumscribed sphere. If the Law of the early kings were still in effect, there would be spirit among men that went beyond the letter of the law. If men were of the right kind, all of their intentions could be realized; and even if they were not of this kind, they could not slash deep or do widespread damage, thus harming the people instead of benefiting them. Therefore I say that only when we have governance by law can we have governance by men.”

Huang Tsung-hsi, Waiting for the Dawn: A Plan for the Prince (Wm. Theodore de Bary trans., New York, Columbia University Press 1993) (1663) 98–99.

Seth Barrett Tillman, ‘A Distinct Point of View,’ New Reform Club (May 16, 2023, 1:01 PM), <https://reformclub.blogspot.com/2023/05/a-distinct-point-of-view.html>; 

Are Directors “Officers”?

 

Compare Monroe v. Scofield, 135 F.2d 725, 726 (10th Cir. 1943) (Huxman, J.) (explaining that “[a] director is an officer of a corporation”), In re Walt Disney Co. Derivative Litig., 907 A.2d 693, 777 n.588 (Del. Ch. 2005) (Chandler, C.) (referring to “non-director corporate officers”), and Bruch v. Nat’l Guar. Credit Corp., 116 A. 738, 741 (Del. Ch. 1922) (Wolcott, C.) (“A director is an officer chosen by the stockholders.”), with Jackson v. County Trust Co. of Md., 6 A.2d 380, 382 (Md. 1939) (Sloan, J.) (holding “[a] director is not an officer of a corporation”), and In re Walt Disney Co. Derivative Litig., 906 A.2d 27, 46 n.38 (Del. 2006) (Jacobs, J.) (“To the extent [plaintiff’s] argument is advanced against [director] Russell, it also is not grounded in fact, because Russell was not an officer of Disney.”). Compare, e.g., Del. Code Ann. tit. 8, § 211(b) (2008) (providing for the election of directors by stockholders), with Del. Code Ann. tit. 8, § 142(b) (2008) (providing that officers are chosen by the board or as prescribed by the by-laws). See generally 18b Am. Jur. 2d Classification as officer or employee § 1171 (2004) (“Directors have, at times, been regarded as corporate officers . . . .” (emphasis added)); 2 Carol A. Jones, Fletcher Cyclopedia of the Law of Private Corporations § 271, at 35 (perm. ed., rev. vol. 2006) (“[W]hile a director is ordinarily considered an officer, the director is not always such an officer as is contemplated by certain statutes or bylaws.”) (collecting authority); A. Gilchrist Sparks, III & Lawrence A. Hamermesh, Common Law Duties of Non-Director Corporate Officers, 48 Bus. Law. 215, 216 (1992) (“Even a director is not ordinarily an officer for the corporation.”).

Seth Barrett Tillman, ‘Are Directors “Officers”?,’ New Reform Club (May 16, 2023, 3:09 AM), <https://reformclub.blogspot.com/2023/05/are-directors-officers.html>; 

An “Absurd” View

 

Dear Professor,

I noticed that you cite Joseph Story in more than a 1/2 dozen of your publications—and sometimes, you cite Story’s position favorably. For that reason, I have attached an extract from: 2 Joseph Story, Commentaries on the Constitution of the United States § 791, at 260 (Boston, Hilliard, Gray, & Co. 1833). You will notice that Story takes the view that the Constitution’s “officers of the United States”-language in the Impeachment Clause (art. II, S. 4) and, apparently, in the Commissions Clause (art. II, S. 3) does not reach the president.

Story takes a similar view with regard to the Constitution’s “Office ... under the United States”-language in the Incompatibility Clause (art. I, S. 6, cl. 2) and the Elector Incompatibility Clause (art. II, S. 1, cl. 2). Id. § 791. The Impeachment Disqualification Clause (art. I, S. 3, cl. 7) also uses the same “Office ... under the United States”-language. Given the linguistic similarity, I do not think it is a reach to say that Story’s position was that the presidency does not fall under the scope of that clause. Likewise, McKnight—a mid-century commentator—said that: “[I]t is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.’” David A. McKnight, The Electoral System of the United States 346 (Philadelphia, J.B. Lippincott & Co. 1878) (emphases added).

As to the normative basis for excluding a disqualified defendant exclusively from appointed federal positions, but not from elected federal positions, that too can be explained:

The disqualification clause of punishment was evidently put in for the purpose of making the power of removal by impeachment effectual. After providing that the officers of the United States might be removed on impeachment, although the President could not pardon the offender convicted and removed, yet if he could reinstate him the next morning he would have substantially the power of pardon. To prevent this was the object of the disqualifying clause; which Story says is not a necessary part of the judgment. You might impose it where you had removed an officer appointed by the President whom the President could reinstate. You could stop that by fixing disability upon the officer; and that I take to have been the sole purpose of this clause.

3 Asher C. Hinds, Hinds’ Precedents of the House 318 (1907) (quoting Mr Carpenter, counsel for Belknap—a defendant in impeachment proceedings before the Senate).

I do not suggest that the authorities above conclusively settle the issue. And, I suppose you disagree with my view, with Carpenter’s view, with McKnight’s view, and with Story’s view. But is their (and my) view as to the scope of the Impeachment Disqualification Clause’s “Office ... under the United States”-language really an “absurd” view?

Sincerely,

Seth Tillman

Seth Barrett Tillman, An “Absurd” View, New Reform Club (May 12, 2023, 4:45 AM), <https://reformclub.blogspot.com/2023/05/an-absurd-view.html>; 

P.J. O’Rourke Lives Again (at The Spectator)

 

“I thought I had forgotten about Diane Abbott, but in fact there has been a Diane-sized hole in my life and I only properly realised this when she came back, gloriously, to fill it again. Hitherto I had been going about my business, writing columns, cooking for my family and so on, and perhaps to other people I seemed to be getting along normally enough—but in truth I was hollow inside, devoid of a sense of purpose. How uplifting it was to see her back in the headlines.”

From Rod Liddle, ‘The Delicious Doublethink of Diane Abbott,’ The Spectator , 29 April 2023, at 15, <https://www.spectator.co.uk/article/ive-missed-you-diane-abbott/>; 

------

“On the morning of the 26th, the day after Violeta Chamorro’s victory over Danny Ortega, I walked into the Inter-Continental Hotel in Managua and Bianca Jagger was sitting alone in the lobby. Bianca had been ubiquitous during the election campaign: There was Bianca looking smart in an unreconstructed linen jacket and yellow socks to match, Bianca looking serious with press pass and camera, Bianca looking thoughtful listening to Jimmy Carter, Bianca looking concerned conferring with Senator Christopher Dodd, Bianca looking committed in simple tennis shoes and neatly mussed hair, Bianca looking important wearing sunglasses after dark. But this morning Bianca looked ... her age. Here we had ... [a] discarded rock-star wife, trapped in the lonely hell of the formerly cute—one bummed-out show-biz lefty. I was feeling great myself, ready to turn somersaults over the Ortega defeat, full of good cheer and pleased with all the world. But then the forlorn, sagging little shape of Bianca caughy my eye and, all of a sudden, I felt even better.”

P.J. O’Rourke, ‘Return of the Death of Communism, Nicaragua, 1990,’ in Give War a Chance: Eyewitness Accounts of Mankind’s Struggle Against Tyranny, Injustice and Alcohol-Free Beer 55 (1992). 

------

Seth Barrett Tillman, ‘P.J. O’Rourke Lives Again (at The Spectator),’ New Reform Club (May 8, 2023, 1:27 AM), <https://reformclub.blogspot.com/2023/05/pj-orourke-lives-again-at-spectator.html>; 

Courtesy (II)

 

            The rapid approach of Sukkos, so close on the heels of Yom Kippur, took us [a Jewish couple in Taiwan on a Fulbright scholarship] by surprise. We had not yet developed a routine for sukkah-building and now we were confronted with the realization that we had only a few days for our construction project. Fortunately, there was no shortage of materials since an abundant supply of bamboo poles was available, and I immediately began to erect the frame for the sukkah.

            Each day as I worked on the structure, Chinese passerby would stop to watch, scratch their heads and move on. As the sukkah grew more complete, the number of onlookers increased. I constructed a roof of small bamboo branches and leaves, making sure that there was enough open space among them to see the stars at night. On erev Sukkos I moved the kitchen table and chairs outside and set them up in the bamboo shack. Devorah [the couple’s daughter] helped with the decorations and, like Jewish children the world over, had a great time tying fruit to the overhanging limbs.

            About an hour before candlelighting [time] and the onset of the festival, Mei-Mei [the family’s Chinese housekeeper] informed us that we had a visitor. A very serious looking university official was waiting at the front door. After exchanging courtesies, the official stated that he had been sent by the Dean of Studies who wished to know what aspects of our assigned accommodations displeased us. The university would do everything in its power, he said, to oblige us.

            We stared at the official in confusion. Several times we had expressed our gratitude to our [academic] hosts for the truly delightful accommodations. How could they possibly have gotten the impression that we were dissatisfied? We assured our visitor that the cottage was ideal and that we were very pleased and appreciative.

            Now it was the official’s turn to look perplexed. “If that is the case,” he stammered, “why are you moving out of this house and building a new one outside?”

            Mei-Mei, as usual, was listening from the wings. Before we could reply, she inserted herself into the conversation and calmly explained. “Tomorrow is the fifteenth day of [the] eighth lunar month. Chinese celebrate mid-autumn Moon Festival. Chinese eat mooncakes and walk in the light of the moon. [Mr and Mrs Schwartzbaum] are yoh-tai-ren. They celebrate festival by eating and living outside, like old Chinese saying ‘to wear moon on your head and use stars as your cloak’.”

            “Oh, now I understand,” the official said with a smile. “I did not realize that our customs were so similar! Gung Hsi! Gung Hsi!”

            “Chag sameach!” we replied.

Abraham Schwartzbaum, The Bamboo Cradle: A Jewish Father’s Story 120–21 (2d ed. 1989) (emphasis added).

Seth Barrett Tillman, ‘Courtesy (II),’ New Reform Club (Apr. 27, 2023, 3:06 PM), <https://reformclub.blogspot.com/2023/04/courtesy-ii.html>;

Courtesy

 

Three Kingdoms

 

Chapter 120: Courtesy

 

One day [General] Yang Hu* [of the Sima-Jin Dynasty] and his officers went out to hunt, and it happened that [General] Lu Kang** [of the Sun-Wu Dynasty] had chosen the same day to hunt. Yang Hu gave strict orders not to cross the boundary [between the two armies], and so each hunted only on his own side. Lu Kang was astonished at the enemy’s scrupulous propriety.

He sighed, “The soldiers of Yang Hu have so high a discipline that I may not make any invasion now.”

In the evening, after both parties had returned, Yang Hu ordered an inspection of the slaughtered game and sent over to the other side any that seemed to have been first struck by the soldiers of Wu.

Lu Kang was greatly pleased and sent for the bearers of the game.

“Does your leader drink wine?” asked he.

They replied, “Only fine wines does he drink.”

“I have some very old wine,” replied Lu Kang, smiling, “and I will give of it to you to bear to your general as a gift. It is the wine I myself brew and drink on ceremonial occasions, and he shall have half in return for today’s courtesy.”

They took the wine and left.

“Why do you give him wine?” asked Lu Kang’s officers.

“Because he has shown kindness, and I must return courtesy for courtesy.”

When the gift of wine arrived and the bearers told Yang Hu the story of their reception, he laughed.

“So he knows I can drink,” said Yang Hu.

He had the jar opened, and the wine was poured out. One of his generals, Chen Yuan, begged him to drink moderately lest there should be some harm come of it.

“Lu Kang is no poisoner,” replied Yang Hu.

And he drank. The friendly intercourse thus continued, and messengers frequently passed from one camp to the other.

One day the messengers said that Lu Kang was unwell and had been ailing for several days.

“I think he suffers from the same complaint as I,” said Yang Hu. “I have some remedies ready prepared and will send him some.”

The drugs were taken over to the Wu camp.

But the sick man’s officers were suspicious and said, “This medicine is surely harmful: It comes from the enemy.”

However, Lu Kang said, “No; old Uncle Yang Hu would not poison a person. Do not doubt.”

He drank the decoction. Next day he was much better.

When his staff came to congratulate him, he said, “If our opponents take their stand upon virtue and we take ours upon violence, they will drag us after them without fighting. See to it that the boundaries be well kept and that we seek not to gain any unfair advantage.

Luo Guanzhong, Romance of the Three Kingdoms (translated Charles Henry Brewitt-Taylor, 1925) (first printed version circa 1522).

Seth Barrett Tillman, ‘Courtesy,’ New Reform Club (Apr. 26, 2023, 7:37 AM), <https://tinyurl.com/yssf4eae>; 

*Yang Hu (courtesy name: Shuzi) was the Marquis of Juping. Sima Yan offered him a dukedom, but he turned it down. I suppose the reason he turned it down was that had he accepted he would have had to give up his military field command. 

**Lu Kang (courtesy name: Youjie) was Lu Xun’s (courtesy name: Boyan) son. General Lu Xun defeated (Shu-Han) Emperor Liu Bei (courtesy name: Xuande) at the Battle of Yiling and Xiaoting Hill circa 221–222 CE. Lu Xun served (Wu) Emperor Sun Quan (courtesy name: Zhongmou). And Lu Kang served Sun Quan’s grandson (Wu) Emperor Sun Hua (courtesy name: Yuanzong). Sun Hua was the fourth and last emperor of Wu. The conquest of Wu by (Jin) Emperor Sima Yan (courtesy name: Anshi) circa 280 CE marked the end of the Three Kingdoms period. As the nameless poet proclaimed: “All down the ages rings the note of change, For fate so rules it; none escapes its sway. The three kingdoms have vanished as a dream, The useless misery is ours to grieve.”