Our problems remain epistemological.

Sunday, November 28, 2021

One of my Favourite Footnotes


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

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

The footnote above appears at note 50 in:

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

Friday, November 26, 2021

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

Seth Barrett Tillman, Associate Professor

Maynooth University Department of Law

26 November 2021

The Atlantic


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

Dear Editors,

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

Frum’s answer is yes. Frum writes:

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

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


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


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


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





Seth Barrett Tillman


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

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

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

Sunday, November 21, 2021

Rittenhouse, Murder, and the Use of “See” as Direct Support in Legal Writing

I.                   Rittenhouse “murdered two people”.

In St. Mary’s Law Review on Race and Social Justice, Aglae Eufracio wrote:



You can find the entire article here: Aglae Eufracio, A Human Rights Crisis Under Our Roof, 23 St. Mary’s L. Rev. on Race and Social Justice 201, 229 (2021), <https://tinyurl.com/2yzaecrw>. Eufracio’s citation to Haley Willis’s New York Times article, at footnote 215, is preceded by a “See”. That means the cited material lends (or, is supposed to lend) direct support for the material in the main text—that is, Rittenhouse “murdered two people.” Have a look yourself: you decide if Haley Willis’s article (or any of the other source material in nearby footnotes) lends direct support for the proposition that Rittenhouse “murdered two people.” 

It is possible that the author, attorney Aglae Eufracio, believes that the prosecutors’ charges were strong presumptive evidence of Rittenhouse’s guilt. Eufracio is an “immigration and human rights attorney.” Id. at 201 n.*. Does one imagine that when Eufracio walks into court representing aliens who the federal government seeks to deport, Eufracio tells the judge: Your honor, the government’s charges are strong presumptive evidence of my client’s guilt and deportability. Is this Eufracio’s customary position?

Alternatively, perhaps, Eufracio’s use of “murdered” (and “murdering”) was colloquial language—i.e., a murderer is someone who kills another. Is that what Eufracio meant? Still, I think law reviews usually reserve the term murder, and its close textual variants, for unlawful killings, in conjunction with some measure of meaningful deliberation.

II.                Rittenhouse was a “heavily-armed murderer”.

Here is another use of “See”. Professor Jon D. Michaels and Associate Dean/Professor David L. Noll wrote:



You can find the entire article here: Jon D. Michaels & David L. Noll, Legal Vigilantes and the Institutionalization of Anti-Democratic Politics 23 (posted Oct. 22, 2021), <https://ssrn.com/abstract=3915944>. Here the authors characterize Rittenhouse as a “murderer.” Michaels and Noll’s support is a New Yorker article by Paige Williams. That citation is preceded by a “See”. That means the cited material lends (or, is supposed to lend) direct support for the material in the main text—that is, Rittenhouse was a “murderer.” Again, have a look yourself: you decide if the Paige Williams article (or any of the other source material in nearby footnotes) lends direct support for the proposition that Rittenhouse is a “murderer”. 

Is this where we are now in regard to the use of See”?

Seth Barrett Tillman, ‘Rittenhouse, Murder, and the Use of “See” as Direct Support in Legal Writing,’ New Reform Club (Nov. 21, 2021, 7:47 AM), <https://reformclub.blogspot.com/2021/11/rittenhouse-murder-and-use-of-see-as.html>; 

Thursday, November 18, 2021

Sarah Jeong: Journalist Seeking Walter Duranty Award


Seth Barrett Tillman, Sarah Jeong: Journalist Seeking Walter Duranty Award, New Reform Club (Nov. 18, 2021, 3:42 AM), <https://reformclub.blogspot.com/2021/11/sarah-jeong-journalist-seeking-walter.html>; 

Saturday, November 13, 2021

High Noon News from Hadleyville


Seth Barrett Tillman, High Noon News from Hadleyville, New Reform Club (Nov. 13, 2021, 5:03 PM), <https://reformclub.blogspot.com/2021/11/high-noon-news-from-hadleyville.html>; 

Friday, November 05, 2021

Virtue: An Exemplar

Letter from Empress Wende to Emperor Taizong (Tang Dynasty) (circa 636 CE):

[Chancellor] Fang Xuanling has served Your Imperial Majesty for a long time. He is careful, and all of his wonderful strategies and secret plans were not revealed to anyone. Unless there is a particularly good reason, I hope that you will not abandon him. As to my Zhangsun clan, many of them enjoy high salaries and high positions on account of our marriage, not because of their great virtues, and therefore they can crumble easily. In order to preserve the Zhangsuns, I hope that you will not put them in powerful positions, and that they would be satisfied with seeing you at imperial gatherings the first and 15th day of each month. 

During my lifetime, I made no contributions to the people, and I should not harm them in my death. I hope that you will not build a tomb to cause the people to labour and the empire to waste resources. Make a hill my tomb, and only use brick or wooden implements in the tomb. I hope that Your Imperial Majesty will continue to be close to honest men and stay away from those lacking virtues; that you will accept faithful words and reject wicked flattery; that you will decrease [your personal] labours and stop [your personal] hunting. Even as I go into the underworld, if these things happen, I will have no regrets. It is not necessary to summon the sons and daughters back here; if I see them mourn and cry, I will only be saddened.


Wende was also the author of a 30-volume treatise: Examples for Women.

Seth Barrett Tillman, Virtue: An Exemplar, New Reform Club (Nov. 5, 2021, 4:38 AM), <https://reformclub.blogspot.com/2021/11/virtue-exemplar.html>;

Monday, November 01, 2021

This is CNN

 COP26 is being held in Glasgow.

Seth Barrett Tillman, This is CNN, New Reform Club (Nov. 1, 2021, 7:02 AM), <https://reformclub.blogspot.com/2021/11/this-is-cnn.html>; 

Friday, October 22, 2021

The BBC’s Passive Voice and the Protected Class


Seth Barrett Tillman, The BBCs Passive Voice and the Protected Class, New Reform Club (Oct. 22, 2021, 4;22 AM), <https://reformclub.blogspot.com/2021/10/the-bbcs-passive-voice-and-protected.html>; 

See also: <https://tinyurl.com/3xtwbakr>;

Sunday, October 17, 2021

Tillman on Biden, DOJ, and the Media


Seth Barrett Tillman, Tillman on Biden, DOJ, and the Media, New Reform Club (Oct. 17, 2021, 3:47 PM), <https://reformclub.blogspot.com/2021/10/tillman-on-biden-doj-and-media.html>;

Friday, October 15, 2021

The Federal Vaccine Mandate, State Derivative Actions, and Federal Securities Laws


Seth Barrett Tillman, Federal Vaccine Mandate, Derivative Actions, Securities Laws, New Reform Club (Oct. 15, 2022, 6:25 AM), <https://reformclub.blogspot.com/2021/10/federal-vaccine-mandate-derivative.html>; 

Friday, September 24, 2021

Letter to the Editor, Responding to ‘Why the Term “JEDI” Is Problematic for Describing Programs That Promote Justice, Equity, Diversity and Inclusion’ in Scientific American

Seth Barrett Tillman, Lecturer

Maynooth University Department of Law

September 24, 2021

Scientific American

Letters to the Editor

1 New York Plaza

Suite 4500

New York, NY 10004

RE:    J. W. Hammond and others, ‘Why the Term ‘JEDI’ Is Problematic for Describing Programs That Promote Justice, Equity, Diversity and Inclusion,’ Scientific American (Sept. 23, 2021), <https://tinyurl.com/m8mfy972>.

Dear Editors,

Hammond and others wrote: “What’s more, the bodies and voices centered in Star Wars have, with few exceptions, historically been those of white men.” (emphasis added) The most iconic voice from Star Wars was undoubtedly that of Darth Vader, and Vader was voiced by James Earl Jones. Everyone knows this. Indeed, when people do Star Wars impressions, almost invariably, they turn to Yoda (who was a green alien) and Darth Vader (voiced by a black actor). Everyone knows this too. Hammond and his co-authors are whiting-out (no pun intended) accomplished and loved actors.

Hammond and others assert that: the “‘Slave Leia’ costume [was] infamous for stripping down and chaining up the movie series’ first leading woman as part of an Orientalist subplot.” “Infamous”? Their only evidence for this understanding of the Princess Leia-Jabba the Hutt sequence is … a link to a book suggesting that this sequence “might” be an “orientalist trope.” Their shift from “might” to “infamous” indicates that their argument lacks any established support in the literature.

What Hammond and others’ article shows is that a professional class in search of societal wrongs lacks real, actual (in this galaxy) targets for their ire, and now they must destroy children’s fantasy, theatre, and movies—and their creators. I would give your authors credit, if their views were original. But this was all done years ago, by those who objected to Tolkien’s orcs as embracing racial tropes.




Seth Barrett Tillman, Letter to the Editor, Responding to ‘Why the Term JEDI Is Problematic for Describing Programs That Promote Justice, Equity, Diversity and Inclusion’ in Scientific AmericanNew Reform Club (Sept. 24, 2021, 8:02 AM), <https://reformclub.blogspot.com/2021/09/letter-to-editor-responding-to-why-term.html>; 

Friday, September 17, 2021

How To Get Cited



Dear Professor,

I have attached a copy of my article on Merryman. Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Military Law Review 481 (2016) (peer review), <http://ssrn.com/abstract=2646888>. I take issue with the standard narrative on Merryman. My findings are inline with the recent treatments of the Merryman case by Bruce Ragsdale for the Federal Judicial Center, and also inline with the two full-length books on Merryman by McGinty (2011) and White (2011). Both books were published for the 150th anniversary of the case. See Brian McGinty, The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus (2011); Jonathan W. White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (2011); Bruce A. Ragsdale, Ex parte Merryman and Debates on Civil Liberties During the Civil War (Federal Judicial History Office 2007), <https://www.fjc.gov/history/cases/famous-federal-trials/ex-parte-merryman-habeas-corpus-during-civil-war>.

In your book, you make several factual and procedural claims about the Merryman case.

You state that “[o]n May 26, 1861, when Taney arrived in Baltimore ... he learned that Merryman had been charged with ... treason.” May 26 was a Sunday, and the hearings took place on May 27 and 28. It was on the 27th that the Army explained its “charges,” such as they were. As for Merryman’s attorneys, they filed their petition on the 26th, when Taney was still in DC, and perhaps they indicated what the Army’s charges might be. But, again, that was in DC, not Baltimore, Maryland. So your chronology and/or locations here seem wrong.

You state that Merryman was one of the “troublemakers” in the “local mobs” that attacked federal troops on their way to defend DC. I don’t think there is any evidence of this. You state that Merryman was or had been a member of the state legislature prior to his arrest. (In fact, according to most records, he became a member of the legislature only after the war ended.) You state that Merryman was a colonel in the militia. (In fact, according to most records, he was a lieutenant.) You state that he was an “ardent secessionist.” I know of no statements from Merryman—by spoken or written word—indicating his political leanings. And, you state that Merryman was “trying to organize troops to fight for the Confederacy.” What possible source do you have for this?—other than the Army’s charges, which were never asserted in a criminal trial, much less proven, in any actual trial?

On the procedure side, you state that Merryman’s attorneys filed their petition with Taney because Judge Giles’s habeas orders had been ignored in prior habeas cases. That’s a sensible inference—but I know of no actual records bearing out that what you suggest was actually what motivated Merryman’s attorneys to bring their petition to Taney. Maybe Merryman’s attorneys thought Taney, as Chief Justice, would get their case more headlines? You wrote that Merryman sat as “circuit judge.” That’s not quite right. Taney decided Merryman under special authority granted to Article III judges by the 1789 Judiciary Act. He was not sitting as circuit judge on the Circuit Court for Maryland—albeit, his Merryman opinion and orders were put on file with the circuit court’s records. It would be more proper to say that Taney was “on circuit” (in the sense that he was away from his DC chambers) when he decided Merryman, and not that he was acting as a “circuit judge.” Finally, you state that Taney delivered his opinion when in DC. But contemporaneous accounts say he give it over orally in the courtroom in Maryland.

If you should publish a new edition or supplement to your book, or return to Merryman in another publication, please consider amending your Merryman narrative, and please consider citing my paper.

Thank you,


Seth Barrett Tillman, How To Get Cited, New Reform Club (Sept. 17, 2021, 3:56 AM), <https://reformclub.blogspot.com/2021/09/how-to-get-cited.html>;