Mensch tracht, und Gott lacht

Saturday, February 17, 2024

Power, Confidence, and Authority

 

Edmund Burke, Reflections on the Revolution in France (1790):

 

You would not cure the evil by resolving that there should be no more monarchs, nor ministers of state, nor of the gospel; no interpreters of law; no general officers; no public councils. You might change the names. The things in some shape must remain. A certain quantum of power must always exist in the community in some hands and under some appellation. (emphasis added)

 

 

Federalist No. 26 (Hamilton) (1787):

 

The idea of restraining the legislative authority, in the means of providing for the national defence, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. We have seen, however, that it has not had thus far an extensive prevalency; that even in this country, where it made its first appearance, Pennsylvania and North Carolina are the only two States by which it has been in any degree patronized; and that all the others have refused to give it the least countenance; wisely judging that confidence must be placed somewhere; that the necessity of doing it, is implied in the very act of delegating power; and that it is better to hazard the abuse of that confidence than to embarrass the government and endanger the public safety by impolitic restrictions on the legislative authority. (emphasis added)

 

They [who supported the Glorious Revolution] were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community. (emphasis added)

 

Huang Tsung-hsi, Waiting for Dawn: A Plan for the Prince (1663):

 

Final authority always rests with someone, and the palace menials, seeing the executive functions of the prime minister fall to the ground, undischarged by anyone, have seized the opportunity to establish numerous regulations, [and] extend the scope of their control . . . . (emphasis added)


Seth Barrett Tillman, Power, Confidence, and Authority, New Reform Club (Feb. 17, 2024, 6:59 PM), <https://reformclub.blogspot.com/2024/02/power-authority-and-confidence.html>;





Tuesday, February 06, 2024

Understanding Head-of-Government Succession

 


Chapter 80: Romance of the Three Kingdoms

 

Xu Jing spoke, “The late Emperor of the Hans has been slain by Cao Pi. You, O Prince, will fail both in loyalty and rectitude if you do not assume the succession and destroy the wrong-doers. The whole empire requests you to rule that you may avenge the death of the late Emperor, and the people will be disappointed if you do not accede to their wishes.”

The Prince replied, “Although I am descended from the grandson of Emperor Jing, I have not been of the least advantage. If I assumed the title of ‘Emperor’, how would that act differ from usurpation?”

Zhuge Liang pleaded with him again and again, but the Prince remained obdurate. Then Zhuge Liang bethought that where argument failed a ruse might succeed. So having arranged the parts his several colleagues were to play, he pleaded illness and remained at home. Presently it was told the Prince that his adviser’s condition was becoming serious, wherefore Liu Bei went to see him as he lay on his couch.

“What illness affects you, my Commander-in-Chief?” asked Liu Bei.

“My heart is sad like unto burning, and I shall soon die.”

“What is it that causes you such grief?”

But Zhuge Liang did not reply. And when the question was repeated again and again he said nothing, but just lay with his eyes closed as if he was too ill to speak.

The Prince, however, pressed him to reply, and then with a deep sigh Zhuge Liang said, “Great Prince, from the day I left my humble cottage to follow you, you have always listened to my words and accepted my advice, and now this western domain, the whole of the two River Lands is yours just as I said it would be. But this usurpation of Cao Pi means the annihilation of the Hans and the cessation of their sacrifices, wherefore my colleagues and I desired you to become Emperor in order to crush this upstart Wei and restore the Hans. We all worked for this end, never thinking that you would refuse so obstinately to accede to our wishes. Now the officers are all annoyed, and they will drift away before very long. If you are left alone and Wu and Wei come to attack, it will be difficult for you to hold on to what you have. Do you not think this sufficient reason for me to feel grieved?” 

“Unless I refused, the whole world would blame me. I am afraid,” replied the Prince. 

Quoting Confucius the Teacher, Zhuge Liang replied, “If names be not correct, language is not in accordance with the truth of things.’ In other words, if one be not really straight, people will not speak of one favorably. O Prince, you are straight, and people speak of you favorably. What more is there to say? You know when Heaven offers and you refuse, you are certainly to blame.”

“When you have recovered, it shall be done,” said the Prince.

Up leapt Zhuge Liang from his bed . . . .


Seth Barrett Tillman, Understanding Head-of-Government Succession,’ New Reform Club (Feb. 6, 2024, 6:12 AM), <https://reformclub.blogspot.com/2024/02/understanding-head-of-government.html>; 



 

 

Sunday, February 04, 2024

Chapter 17: Romance of the Three Kingdoms

 

Romance of the Three Kingdoms

 

Chapter 17

 

The army marched away. In the course of the march they passed through a wheat region, and the grain was ready for harvesting but the peasants had fled for fear, and the corn was uncut. Cao Cao sent proclamations to all villages and towns:

“I am sent on the expedition by command of the Emperor to capture a rebel and save the people. I cannot avoid moving in the harvest season; but if anyone trample down the corn, he shall be put to death. Military law is strict without exception, and the people need fear no damage.”

The people were very pleased and lined the road, wishing success to the expedition. When the soldiers passed wheat fields, they dismounted and pushed aside the stalks so that none were trampled down.

One day, when Cao Cao was riding through the fields, a dove suddenly got up, startling the horse so that it swerved into the standing grain, and a large patch was trampled down. Cao Cao at once called the Provost Marshal and bade him decree the sentence for the crime of trampling down corn.

“How can I deal with your crime?” asked the Provost Marshal.

“I made the rule, and I have broken it. Can I otherwise satisfy public opinion?”

Cao Cao laid hold of the sword by his side and made to take his own life. All hastened to prevent him.

Guo Jia said, “In ancient days, the days of the Spring and Autumn Annals, the laws were not applied to those of the most important. You are the supreme leader of a mighty army and must not wound yourself.”

Cao Cao pondered for a long time. At last he said, “Since there exists the reason just quoted, I may perhaps escape the death penalty.”

Then with his sword he cut off his hair and threw it on the ground, saying, “I cut off the hair as touching the head.”

Then he sent messengers to exhibit the hair throughout the whole army, saying, “The Prime Minister, having trodden down some corn, ought to have lost his head by the terms of the order; now here is his hair cut off as an attack on the head.”

This deed was a stimulus to discipline all through the army so that not a person dared be disobedient.

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


Seth Barrett Tillman, Chapter 17: Romance of the Three Kingdoms, New Reform Club (Feb. 4, 2024, 9:07 AM), <https://reformclub.blogspot.com/2024/02/romance-of-three-kingdoms.html>; 



 

Tuesday, January 30, 2024

Nigel Farage: Well you're not laughing now

 

<(65) Nigel Farage Well you're not laughing now - YouTube>


Seth Barrett Tillman, 'Nigel Farage: Well you're not laughing now,' New Reform Club (Jan. 30, 2024), <https://reformclub.blogspot.com/2024/01/nigel-faragewell-youre-not-laughing-now.html>: 

Extracts from Justice Samour’s Dissent in the Colorado Supreme Court Decision

 


Paragraph 279: The Fourteenth Amendment was designed to address a particular juncture in American history. William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. (forthcoming 2024) (manuscript at 3), https://ssrn.com/abstract=4532751. The postbellum framers were confronted with the unprecedented nexus of historical events that gave rise to and shaped secession, the Civil War, and Reconstruction. Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. (forthcoming 2024) (manuscript at 214–15), https://ssrn.com/abstract=4568771. And their response, in some measure, sounded the clarion call of “a constitutional revolution.” Id. at 99.

Paragraph 299: Certain legal scholars have sought to explain this purported incongruence by surmising that Chief Justice Chase’s application of Section Three in Griffin’s Case was politically motivated. Consequently, they criticize Griffin’s Case as wrongly decided and the result of flawed logic. See Baude & Paulsen, supra (manuscript at 35–49). Other legal scholars, however, question whether the statement quoted above from the Federal Reports accurately represented Chief Justice Chase’s views. They point out that the case reporter, a former confederate general, was the very attorney who represented Judge Sheffey in Griffin’s Case.7 See Blackman & Tillman, supra (manuscript at 15). Even assuming Case of Davis warrants any consideration at all, there is no need to join this affray because these cases can be reconciled in a principled manner by recognizing that there are two distinct senses of self-execution. Id. at 19. I find this distinction both helpful and borne out by the case law.

Footnote 7: Griffin’s Case was decided in 1869 and the statement from the case reporter regarding Case of Davis appeared in the 1894 Federal Reports. Blackman & Tillman, supra (manuscript at 140).

Paragraph 324: Although Section Three was included in Powell among the so-called Qualification Clauses, closer scrutiny reveals that it is unique and deserving of different treatment. Thats because Section Three is the only one that is “qualifie[d]” by the following language: “[C]ongress shall have power to enforce, by appropriate legislation, the provision[s] of this article.” Griffins Case, 11 F. Cas. at 26 (emphasis added) (quoting U.S. Const. amend. XIV, § 5 and stating that “[t]he fifth section qualifies the third”). None of the other Qualification Clauses—even when viewed in the context of the original Articles in toto—contains the “appropriate legislation” modifier. Indeed, that modifier only appears in certain other Amendments, none of which are objectively relevant to the instant matter. I need not contemplate what bearing, if any, this has on the self-executing nature of constitutional provisions more generally. While that might be an open question, see Blackman & Tillman, supra (manuscript at 23) (noting that there appears to be “no deep well of consensus that constitutional provisions are automatically self-executing or even presumptively self-executing”), the demands of the instant matter counsel in favor of limiting my exposition to the Constitutions presidential qualifications, especially those found in Article II, Section One, Clause Five.

Anderson v. Griswold, Sec. of State and Intervenor-Appellee/Cross-Appellant Donald J. Trump, Sup. Ct. Case No. 23SA300, 2023 Colo. LEXIS 1177, 2023 WL 8770111, --- P.3d ---- (Colo. Dec. 19, 2023) (Samour, J., dissenting), slip op. at 5, 13 n.6, 15 & n.7, 29 (citing Blackman & Tillman’s ‘Response to Baude and Paulsen’ in Tex. Rev. L. & Pol.), <https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf>;


Seth Barrett Tillman, Extracts from Justice Samour’s Dissent in the Colorado Supreme Court Decision,’ New Reform Club (Jan. 30, 2024, 2:38 AM), <https://reformclub.blogspot.com/2024/01/extracts-from-justice-samours-dissent.html>; 



Thursday, January 25, 2024

Surprise

                                       Romance of the Three Kingdoms, Chapter 72: 

Yang Xiu was a man of acute and ingenious mind, but inclined to show off. His lack of restraint over his tongue had often wounded Cao Cao’s susceptibilities. Once Cao Cao was having a pleasance laid out, and when it was completed, he went to inspect the work. He uttered no word of praise or blame; he just wrote the word “Alive” on the gate and left. Nobody could guess what he meant till Yang Xiu heard of it.

“‘Gate’ with ‘Alive’ inside it makes the word for ‘wide’,” said he. “The Prime Minister thinks the gates are too wide.”

Thereupon they rebuilt the outer walls on an altered plan. When complete, Cao Cao was asked to go and see it. And he was then delighted.

“But who guessed what I meant?” said he.

“Yang Xiu,” replied his people.

Cao Cao thereafter lauded Yang Xiu’s ingenuity, but in his heart he feared.

 Available: <here> (at 8:16ff)

Spielberg’s Lincoln

Thaddeus Stevens to a Asa Vintner Litton (a fictional Radical Republican Representative): “Nothing surprises you, Asa, therefore nothing about you is surprising. Perhaps that is why your constituents did not re-elect you to the coming term.”

Available: <here> (at 00:55ff), or <here>


Seth Barrett Tillman, ‘Surprise,’ New Reform Club (Jan. 25, 2024, 9:00 AM), <https://reformclub.blogspot.com/2024/01/surprise.html>; 


 

Tuesday, January 23, 2024

Is the President an Amendment XIV, Section 3 “Officer of the United States”? Answer: What People Said Before Trump

 


 

George Washington Paschal, The Constitution of the United States Defined and Carefully Annotated (W.H. & O.H. Morrison, Law Booksellers 1868). Id. at xxxviii (opining that the Article VI oath and Section 3 apply to “precisely the same class of officers” (emphases added)); id. at 250 n.242 (Section 3 is “based upon the higher obligation to obey th[e] [Article VI] oath”); id. at 494 (noting that the “persons included in this [Section 3] disability are the same who had taken an official oath under clause 3 of Article VI” (emphasis added)); 

Garrett Epps, Reading the U.S. Constitution 177–78 (2013) (“And political power, beyond the mere act of voting, would be withheld from that group of people who had sworn an individual oath before secession to support the Constitution and had then violated that oath by joining the Confederacy. There were three classes of such people: (1) former members of the United States Congress; (2) appointed federal officials and US military officers (both were ‘officer[s] of the United States’); and (3) state officials, whether judges, legislators, or executive officials, who had taken the oath prescribed for all state officials in Article VI, Section Two, to regard the Constitution as ‘the supreme law of the land.’ If anyone meeting this description had joined the Confederate cause by ‘engag[ing] in insurrection or rebellion against the same, or giv[ing] aid or comfort to the enemies thereof,’ he was barred from certain political offices. These forbidden offices are, in order, (1) member of Congress; (2) presidential elector; (3) officer of the United States, meaning an appointed official either in the military or in the civil government; and (4) state officer of any kind.” (emphases added));

Christopher R. Green, Our Bipartisan Due Process Clause, 26 Geo. Mason L. Rev. 1202 (2019) (noting that “section 3 of the Fourteenth Amendment is limited to those rebels who broke Article VI oaths” (emphasis added)); 

Seth adds: Presidents take Article II oaths, not Article VI oaths. And Presidents are elected, not appointed


Seth Barrett Tillman, Is the President an Amendment XIV, Section 3 “Officer of the United States”? Answer: What People Said Before Trump,New Reform Club (Jan. 23, 2024, 10:13 AM), <https://reformclub.blogspot.com/2024/01/is-president-amendment-xiv-section-3.html>; 

Monday, January 22, 2024

Are Section-3 Disqualified Defendants Barred From State Legislative Service?


Are Section-3 disqualified defendants barred from state legislative service? These sources ask the question, and their answer is no.

John Randolph Tucker, General Amnesty, 126 N. Am. Rev. 53, 55 (1878), https://www.jstor.org/stable/i25110155;

‘Does the Fourteenth Amendment Exclude the Disqualified from a State Legislature,’ Wheeling [West Virginia] Daily Register, Aug. 30, 1871, at 4;

‘Does the Fourteenth Amendment Exclude the Disqualified from a State Legislature,’ [Richmond, VirginiaDaily Dispatch, Aug. 28, 1871, at 3.

Editor, ‘Interesting Decision as to Disqualification Under the Fourteenth Amendment,’ [Richmond, Virginia] Daily Dispatch, Mar. 5, 1869, at 3;


Seth Barrett Tillman, Are Section-3 Disqualified Defendants Barred From State Legislative Service?,’ New Reform Club (Jan. 22, 2024, 10:34 AM), <https://reformclub.blogspot.com/2024/01/are-section-3-disqualified-defendants.html>; 

More On Those Bayards

 

 

There is a story of the apocryphal Irish defamation case where the jury determined that the defendant’s words amounted to defamation. When it came to damages, the court granted a remittitur, and reduced what had been a hefty jury award to one Irish Punt (Ireland’s pre-Euro currency). The judge’s rationale was that for defendant to have injured or harmed the plaintiff’s reputation, the plaintiff had to have had a reputation to be injured or harmed. And as he had none ….

***

In what is apparently intended to be a rebuke for poor research in the Professor-Calabresi-led amicus brief in Trump v. Anderson, Michael Stern, the blogger at Point of Order, wrote:


 

So what is the originalist evidence that supports Calabresi’s remarkable evolution? Well, see it all starts with a speech given “during the impeachment trial of U.S. Senator William Blount in 1799 by Senator Bayard, one of Blount’s defenders.” See Amicus Br. at 10.


Wait, you say, “I didn’t know that there was a Senator Bayard who defended Blount during his impeachment trial.” Sure, that’s because you are just a rando who reads blog posts and not a famous legal scholar who gets cited by the Supreme Court. Well, also because there was in fact no Senator Bayard in the Blount impeachment trial. There was (as you know from reading my last post) a Representative Bayard, but he was a House manager who was prosecuting, not defending, Blount.


. . . .


[T]here was a Senator Bayard (actually, there were a number of them, but only one that matters here) who is relevant to the argument the amicus brief is making, but he was not involved in the Blount trial. Senator Bayard, the grandson of the Bayard who served as a House manager during the Blount impeachment, was the leading opponent of a controversial oath requirement that the Senate sought to impose on its members during the Civil War.

 

and,

 

This resulted in retorts from his colleagues who pointed out that Bayard’s grandfather had taken the opposite position in the Blount case.

 

and,

 

[A]nother senator, like Bayard an opponent of the [Civil War Era] oath requirement, took it upon himself to show that the elder Bayard had been more consistent with his grandson’s views than the opposition allowed.

 

These quotations are from: Michael Stern, ‘The One Where They Mix Up the Bayards,’ Point of Order (Jan. 21, 2024), <https://www.pointoforder.com/2024/01/21/the-one-where-they-mix-up-the-bayards/> (emphases added) (authors bold removed).

You can find a short biography of Representative James Asheton Bayard, Sr. here: <Bioguide Search (congress.gov)>. Representative Bayard was a House manager during the Blount impeachment. He later became a U.S. Senator. So Calabresi was not entirely wrong in describing House manager Bayard as a Senator.

You can also find a short biography of Senator James Asheton Bayard, Jr. here: <Bioguide Search (congress.gov)>.

These congressional biographies report the two Bayards as father and son, not grandfather and grandson. See generally Harold M. Hyman & Morton Borden, ‘Two Generations of Bayards Debate the Question: Are Congressmen Civil Officers?’ 5 Delaware History 225 (1953) (that is two, not three, generations). 

As to the substantive point under discussion, see Attorney General ex rel. Bashford v. Barstow, 4 Wisc. 567, 652, 1855 WL 1929 (Wisc. Sup. Ct. 1855) (argument of counsel) (explaining that Blount held that the controlling “office”-language in the United States Constitution “did not embrace members of the senate, but only the subordinate civil officers of the government who were appointed and commissioned by the president” (emphasis added)); Harold M. Hyman & Morton Borden, ‘Two Generations of Bayards Debate the Question: Are Congressmen Civil Officers?’ 5 Delaware History 225, 229 n.18 (1953) (“Since the Blount impeachment decided that any elected official is not a civil officer, Bayard was wrong in defining the presidential office as a civil office” (emphasis added)). 

I suppose anyone can make a mistakeI am sure I have. 

Seth

Seth Barrett Tillman, ‘More On Those Bayards,’ New Reform Club (Jan. 22, 2024, 8:59 AM), <https://reformclub.blogspot.com/2024/01/more-on-those-bayards.html>;

Thursday, January 18, 2024

A Response to a Journalist’s Question

 

 

Dear Journalist,


You asked: “Another question comes to mind, and apologies if you’ve already answered it in writings I missed: If the president is not an officer under the U.S. for the purposes of the 14th amendment, wouldn’t that mean that he cannot be disqualified from future office even by impeachment and conviction? Article II refers to disqualification from ‘any office of honor, trust or profit under the United States.’ So a Supreme Court of the United States ruling that President is not an officer for 14th amendment purposes would also mean an impeached and convicted President cannot be disqualified from seeking another term?


This is not a single question. It is multiple questions. 


I have not taken any position on the meaning of Section 3’s “office ... under the U.S.”-language. I have repeatedly written on the meaning of “Office ... under the U.S.” as it appears in several clauses of the (original) Constitution of 1788. In 1788, that language did NOT, in my opinion, extend to any elected federal positions. Furthermore, I have been on the record since 2011, that that meaning may or may not have been the original public meaning in 1868. Why? There may have been linguistic drift between 1788 and 1868. My brief (with Josh Blackman) has not taken any position on the 1868 meaning of the phrase. We have not asked the Court to reach that issue. If the Court does reach this issue, and does adopt a limited construction of that phrase as used in Section 3, then that determination may or may not extend to the same language as used in provisions of the Constitution of 1788. We will have to wait and see what the Supreme Court decides and how it rationalizes its decision. 


As for the Impeachment Disqualification Clause in the Constitution of 1788 ... there was a special issue on the scope of that clause in Quinnipiac Law Review in 2014. I contributed to that symposium here: Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2484377>. I maintained, then and now, that a defendant impeached by the House, and tried, convicted, and disqualified by the Senate cannot serve in appointed federal positions in all 3 branches of the federal government, but such a party may be elected to either house, to the vice presidency, to the presidency, and elected or appointed to any state position. 


As to “office ... under the U.S.” in Section 3, Professor Lash has taken the position, as I understand it, that the weight of evidence does not support any inference that that language extends to the presidency (as used in Section 3). That is his position, not mine. I am still studying this issue—as I have been since 2011. 


My amicus brief (with Josh Blackman) takes the position that in 1788, 1868, and now—that “officer of the United States” only extends to appointed positions in the Executive Branch and in the Judicial Branch of the federal government. I do not see any good evidence of linguistic draft between 1788 and 1868. See, e.g.United States v. Germaine99 U.S. 508 (1878); United States v. Mouat, 124 U.S. 303 (1888).


Finally, in United States v. Smith, 124 U.S. 525, 532 (1888) (Field, J.), the Court held: 



An officer of the United States can only be appointed by the president, by and with the advice and consent of the senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the constitution. This subject was considered and determined in U.S. v. Germaine, 99 U.S. 508 [(1878)], and in the recent case of U.S. v. Mouat, 124 U.S. --, ante, 505 [(1888)]. What we have here said is but a repetition of what was there authoritatively declared.


 

Id. at 532 (bold added).


In Smith, the Supreme Court’s use of “authoritatively declared” is quite exceptional. And, because the language of “officer of the United States” is used in the Constitution as a defined term, much (if not most) of the evidence collected by Heilpern and Worley, Professor Graber, and others, which only reflects popular usage, is (in my view) substantially irrelevant to the issue at hand.


I hope that answers your questions.


Seth


Seth Barrett Tillman, A Response to a Journalists Question,’ New Reform Club (Jan. 18, 2024, 5:17 AM), <https://reformclub.blogspot.com/2024/01/a-response-to-journalists-question.html>;



 

Wednesday, January 17, 2024

The Self-Executing Nature of the Takings Clause is Nothing New

 


 

What follows is an extract from Blackman and Tillman’s Response to Baude & Paulsen

 

In our view, Griffin invoked Section 3 in an offensive posture, that is, as a cause of action in support of affirmative relief, but he lacked a federal statute authorizing his doing so. We do not put this view forward as an after-the-fact invention or ahistorical gimmick which merely accommodates otherwise inconsistent or difficult to explain prior case law. Our position is that this is what Chase was saying in 1869, how he was understood, and how courts and commentators understood the Fourteenth Amendment until . . . until about 2020, and more recently, by Baude and Paulsen. For example, in Cale v. Covington (1978), the U.S. Court of Appeals for the Fourth Circuit, held

 

It is true that in [T]he Civil Rights Cases [(1883)] the [Supreme] Court referred to the Fourteenth Amendment as self-executing, [and] when discussing the Fifteenth, but it is also true that earlier in the opinion, discussing s 1 of the Fourteenth Amendment, the [Supreme] [C]ourt stated: “in order that the national will, thus declared, may not be a mere Brutum fulmen [a mere warning without effect], the last section of the amendment invests Congress with power to enforce it by appropriate legislation.” The Civil Rights Cases did not overrule Ex parte Virginia, and any apparent inconsistency between the two just quoted statements in [T]he Civil Rights Cases may be resolved, we think, by reference to the protection the Fourteenth Amendment provided of its own force as a shield under the doctrine of judicial review. See the dissent of Mr. Justice Harlan in the Civil Rights Cases quoted infra. See also the Slaughter-House Cases, 16 Wall. at 81, where the Court, referring to the equal protection clause of the Fourteenth Amendment, had stated that when it is a State dealt with and not alone the validity of a State law, the matter should be left until Congress should has exercised its power or some case of State oppression by denial of equal justice in its courts claims a decision at the hands of the Supreme Court. Another early opinion, not by the Supreme Court but by Chief Justice Chase sitting as a Circuit Justice, is Griffin’s Case, 11 Fed. Cases 7 (C.C.D. Va. 1869), which held that the third section of the Fourteenth Amendment, concerning disqualifications to hold office, was not self-executing absent congressional action . . . With this understanding in mind, we believe that the Congress and Supreme Court of the time were in agreement that affirmative relief under the amendment should come from Congress.

 

And what authority did the Fourth Circuit look to and cite: Griffin’s Case. Former Fourth Circuit Judge Michael Luttig, who recently wrote that Griffin’s Case was “poorly reasoned,” seems unaware of his former court’s precedents.

We don’t doubt that there are some exceptions to the sword-and-shield framework which we have put forward. Bivens is one exception; Takings Clause cases and inverse condemnation proceedings, another. Contracts Clause cases, which also turn on government abridgment of a form of property, may be another. We suspect other exceptions may exist where concrete property rights are in dispute under Article III’s equity prong, as opposed to the law prong. There may be other exceptions too. But they are individually and collectively exceptionsoften of recent judicial creation. The historically dominant view is what was put forward by Chase in Griffin’s Case. Our view is that this sword-and-shield framework undermines Baude and Paulsen’s core position: they believe that the Fourteenth Amendment is self-executing. If Baude and Paulsen believe all constitutional provisions are self-executing in both sensesas a sword and shield, we think they are in error. If they believe that Section 3 is distinguishable from other constitutional provisions, and yet Section 3 is self-executing in both senses, as a sword and shield, even if other constitutional provisions are not, then we fail to see how they distinguish Section 3 from other constitutional provisions.

 

Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. 350, 483–84 (forth. 2024) (footnotes omitted) (underscore added) (bold and italics in the original) (posted on: Sept. 19, 2023), <https://ssrn.com/abstract=4568771>.


Seth Barrett Tillman, The Self-Executing Nature of the Takings Clause is Nothing New,’ New Reform Club (Jan. 17, 2024, 7:39 AM), <https://reformclub.blogspot.com/2024/01/the-self-executing-nature-of-takings.html>;