Teaching Others and Learning from Others: A Response to Professor Evan Bernick

 

          Few legal academics write about military law and military government. I have had occasion to think and write about these topics, but they do not occupy the intellectual heartland of most in legal academia. As a result, it can sometimes happen that conversations with others, or responses directed to others, can become somewhat one-sided, as one party to the conversation knows something he believes to be understood by members of his audience, but the other party is (or remains) in the dark. Conversations, like a teacher-student relationship, are a shared enterprise. The active speaker must always consider whether his assumptions about a listener’s knowledge is sufficiently complete to understand the speaker’s meaning. It is the same in the other direction: the listener must always consider whether his knowledge base is sufficiently complete to understand and to criticize the speaker’s meaning.

          When historians discuss the American Civil War, discussions of the political exigencies, the military battles, and contemporaneous international relations take the lead. By contrast, those historians in the weeds have explained that the day-to-day legal character of the war[1] also shaped events. The Union’s law officers followed a dual-track legal theory,[2] in and off the battlefield, to prosecute the war and to punish Civil War era (and Reconstruction Era) wrongdoing.

The first track related to criminal prosecutions under domestic federal law. U.S. citizens and foreigners who engaged in insurrection or rebellion (and also violations of the law of land warfare) could be prosecuted as criminals. Furthermore, U.S. citizens and, in certain circumstances, foreigners who adhered to the (purported) confederacy, and gave that enemy nation “aid and comfort,” could be prosecuted for treason under federal law. E.g., Jefferson Davis was indicted for treason.

The second track relied on military force and military law as controlled by public international law. The Union fought the (purported) southern confederacy as a de facto enemy nation. In doing so, the Union was not recognizing de jure the (purported) confederacy as a matter of public international law, much less recognizing the constitutionality or legality of secession. Rather, the Union recognized the existence of a de facto war between itself and a foreign de facto government. This limited recognition of actual belligerency in the field permitted the Union to take actions in regard to persons and property that were not otherwise permitted in peacetime, but were permitted in war time as a matter of public international law. E.g., internment of enemy prisoners of war, during war time, absent individualized hearings or trials. Authority to take such actions flowed from international law, but it was supplemented by the Lieber Code, which was the military law code that governed the Union armed forces, by constitutionally granted presidential war powers, by extant statutory authorities, such as the Militia Acts and Insurrection Acts, and by acquiescence and affirmative actions by Congress generally.

The dual-track legal theory justifying the Union’s use of force was a messy set of legal theories in a messy war. Indeed, the language of Section 3 of the Fourteenth Amendment follows the dual-track theory.[3]

          In a 2025 Mississippi Law Journal article, I wrote:

It is said that at the negotiations at Appomattox Courthouse—Lee and Grant were both frank and civil during the course of discussing the surrender of Lee’s Army of Northern Virginia. Afterwards, Grant sent food to Lee to feed his (and, then, their) nation’s former enemy soldiers. Celebrations for Grant’s soldiers came only later—not while Lee’s soldiers remained present. Again, in ending active hostilities, the first step towards national reconciliation was frank and civil discourse.

I do not think our present and future is or will be as difficult as was Grant and Lee’s.[4]

 

          Frankly, I believe my statement above is entirely unexceptional. During hostilities, Lee’s soldiers were enemies[5] of the United States as they were the soldiers of a de facto enemy nation during actual hostilities. In other words, as a matter of public international law, the (purported) confederacy was at war with the United States. Once Lee surrendered and Lee’s soldiers were paroled, per the terms of the surrender, then they became former enemy soldiers.

          I was surprised to learn that Professor Evan Bernick, on Bluesky, finds my characterization of these events as anything but factual and commonplace. Indeed, Bernick wrote that my characterization “seems to assume the validity of secessionist claims about the nature of a republic that Lincoln (contra Lee) considered to have existed since the Declaration.”

It strikes me that Bernick may have arrived at his (and, in my opinion, mistaken) opinion, in one of several ways.

My best guess is that he was unaware of the dual-track legal theory underlying and rationalizing the Union’s theory for prosecuting the war (including interning enemy soldiers) and for punishing wrongdoers. If my assumption is correct, that is, that Bernick was unaware of dual-track theory, then you the reader would have to assess where (if anywhere) fault lies. Was it my assuming the reader of a law review would know this? Or, was it Bernick’s willingness to criticize an author having personally made insufficient inquiry to understand the author’s intended meaning?

          Is Bernick’s error (if properly characterized as error) his use of “seems”? Does that justify his comment here, even if not otherwise wholly accurate and complete? I wonder.

          Does Bernick’s error (if properly characterized as error) arise in connection with my use of “his,” as in “his (and, then, their) nation’s former enemy soldiers”? Does Bernick believe I was referring to Lee, as opposed to Grant? But even if that were so, that interpretation would make the sentence a nonsense, and it does not in any way obviously link up to my supporting the legality of secession or the permanent lawfulness of two separate nations. And if that interpretation were on one’s mind … is not that interpretation of my writing inconsistent with my last sentence. “I do not think our present and future is or will be as difficult as was Grant and Lee’s.” The single apostrophe indicates that Grant and Lee had a common future. Is Bernick taking exception to my correct use of an apostrophe?

          There is another possibility that could explain Bernick’s interpretation of my writing. Bernick is still fighting the Civil War, Reconstruction, and the Dunning School. And If I (Tillman) fail to engage (as he would) in the remaining remnants of what is now only an intellectual war, then it follows that any ambiguity in my writing indicates a quiet support for the secessions of 1860 and 1861. I do not suggest that this “seems” to be correct. I would hope that my hypothesis is not correct as any such position is tantamount to abandoning all aspirational efforts towards neutrality and fair play. Academics should always strive (if we can do so reasonably) to adopt the most charitable view of others’ writings. And for that reason, among others, I would be hesitant to put forward the Bernick is still fighting the Civil War as the best explanation for his Bluesky statements. But I would also like to see some reciprocity if only because the most charitable view is frequently the better or best interpretation of disputed text.

How we communicate our views to others, how we do so calmly and rationally, and how we attempt to accommodate different members of our audience sincerely, reflects on who we are as teachers. How we receive such ideas and information, how we react, how critically and how charitably, reflects on who we are as audience members, as students, and, sometimes, as colleagues.

Seth Barrett Tillman, ‘Teaching Others and Learning from Others: A Response to Professor Evan Bernick,’ New Reform Club (Sept. 11, 2026, 8:04 AM), <https://reformclub.blogspot.com/2026/09/teaching-others-and-learning-from.html>; 

See also Professor Evan Bernick’s original post and thread: <https://bsky.app/profile/evanbernick.bsky.social/post/3loivs2tzzc2b>;

 

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[1] This essay draws freely from: Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350, 539–41 (2024), https://ssrn.com/abstract=4568771.

[2] See, e.g., James G. Randall, Constitutional Problems Under Lincoln 59–73 (rev. ed. 1951) (1926) (outlining the dual character of the U.S. government’s approach to legal issues arising during the American Civil War); see also, e.g., Andrew C. McLaughlin A Constitutional History of the United States 617 (1935) (“[T]he [American Civil] [W]ar was of a dual character: in strict theory it was an insurrection; but in the conduct of the war the insurgents were treated as forces of an independent government.”).

[3] U.S. Const. amend XIV, § 3: “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two‑thirds of each House, remove such disability.” (emphases added). The meaning of this language was litigated in: Anderson v. Griswold, Case No. 2023CV32577, 2023 WL 8006216 (Dist. Ct., City and County of Denver, Colo., Nov. 17, 2023) (Wallace, J.), rev’d, 543 P.3d 283 (Colo. Dec. 19, 2023) (per curiam), rev’d Trump v. Anderson, 601 U.S. 100 (2024) (per curiam).

[4] Seth Barrett Tillman, Some Personal Reflections on the Recent Litigation involving Section 3 of the Fourteenth Amendment, 94 Miss. L.J. 1375 (2025) (emphasis added).

[5] E.g., The Brig Amy Warwick (The Prize Cases), 67 U.S. (2 Black) 635, 644 (1863) (referring to “alien enemies”); id. (referring to “the enemy”—as in an enemy nation or sovereign (emphasis added)); id. at 674 (explaining that “enemies’ property” is a “technical phrase peculiar to prize courts, and depends upon principles of public policy, as distinguished from the common law.” (emphases added)). 

American-English and British-English

Many people know that American-English and British-English are not entirely the same. Some words are spelled differently: e.g., labor vs labour, practice (noun or verb) vs. practise (verb). Some verb tenses and grammatical points are also different: e.g., shall and may. The collective plural is used in British-English, but not in American-English. E.g., Congress has raised questions. Or, Parliament have raised questions. 

But the most significant distinction between American-English and British-English is that in the former modifiers are placed near the words they modify, as opposed to any place in the sentence. Likewise, American-English does not favor/favour the passive voice. Consider this sentence:

“At the same time Parliament’s attitude towards frequent instances of disregard of appropriation by the Executive hardened considerably.” Paul Einzig, The Control of the Purse (London, 1959), page 174. 

A naive reader might quite reasonably read this sentence as stating that some unstated entity disregarded appropriations fixed or made by the Executive. Of course, that interpretation would be a misreading of what the author was trying to communicate. 

In American-English, we would add a comma for the introductory clause, we would clarify what entity determined or fixed the appropriation (thereby avoiding the passive voice), and we would move and modify several modifiers and modifying clauses. 

In American-English, this sentence would be written as:

“At the same time, Parliament’s attitude hardened considerably towards the Executive’s frequent instances of disregard of its [that is, Parliament’s] appropriations.”

This change in American-English came about with the publication of Strunk’s The Elements of Style (1920), and republished as Strunk and White’s The Elements of Style (1959). All this illustrates that: ‘England and America are two countries divided by a common language’—sometimes attributed to Shaw, Wilde, and Churchill.

Seth Barrett Tillman, ‘American-English and British-English,’ New Reform Club (Sept. 10, 2026, 6:39 AM), <https://reformclub.blogspot.com/2026/09/american-english-and-british-english.html>; 

Why Conservatives on this Side of the Atlantic Lose

 

 

 

Why Conservatives on this Side of the Atlantic Lose

 

I am an expat U.S. citizen writing to you from Ireland. I doubt it will surprise you that here, in Ireland, and across the nearby islands of the East Atlantic archipelago (a/k/a the British Isles), there are few conservative newspapers, podcasters, and other pundits. Amongst the handful of conservative commentators is nothing like a spirit of cooperation. The larger number of them are prima donnas who will bad mouth other conservatives for no apparent reason at all. And for the crumbs of popularity and social media engagement, they are all too willing to engage in random anti-Americanism and TDS-driven commentary.

          Enter Laura Perrins—an Irish commentator, educated in University College Dublin & Cambridge University, member of the Irish and English bars, who had made a career in London, but who, now back in Ireland, writes a Substack: The West Brit. It is a daring title. ‘West Brit’ is a commonly used slur—directed by Irish nationalists against other Irish perceived as pro-British, or, at the very least, insufficiently Irish, politically or culturally, or both.

          On August 24, 2026, on her Substack, Ms Perrins entered the Lindsay Clancy culture war—firmly on side-Clancy. And she wants you to know that. Perrins wrote:

It was Ms Clancy’s deep, deep misfortunate to suffer serious side-effects from the cocktail of drugs she was prescribed by two practitioners who were not communicating with each other and never met her in person. Lindsay Clancy did not choose to suffer from serious side-effects that included 48 hours without sleep, the triggering of bi-polar disorder and perhaps hallucinations and psychosis.

No, I do not believe Lindsay Clancy chose, in a rational sense, to murder her three children, one by one, by her own hands.

I will make it simple. If Clancy was actually insane at the time she killed her three children, then under settled state law and consistent with prevailing law across the common law world, she should escape criminal punishment (although she might have to be committed until her sanity is (re)established). But if she was not insane, then she is a criminal, subject to the rigours of the law, as would be any other parent who killed their children. Perrins wrote: “Lindsay Clancy did not choose to suffer from serious side-effects that included 48 hours without sleep, the triggering of bi-polar disorder and perhaps hallucinations and psychosis.” Suffering from post-partum depression (assuming Clancy so suffered) does not amount to insanity. Drug-induced side-effects (assuming Clancy so suffered) does not amount to insanity. 48 hours without sleep (assuming Clancy so suffered) does not amount to insanity. And 100s of 1000s of persons (if not millions) suffer from bi-polar disorder—that, without more, does not amount to insanity. Hallucinations and psychosis—they do amount to insanity, but here, Perrins does not affirm that Clancy so suffered; instead, Perrins merely says “perhaps” Clancy was afflicted in that way. That’s a problem for Perrins. If Clancy was not suffering from hallucinations or a psychotic break, or both, then her killing her (and her husband’s) children amounts to murder, and as such, she should be prosecuted.

          I do not want to be overly harsh. There are so few journalists and commentators in these islands and in wider-Europe who hold anything akin to conservative sentiments, and for that reason, I would eschew making negative comments based on a single word. But … later in her Substack article, Perrins goes on to say:

 

Do you think this [case against Clancy] is likely or logical?

Or do you think that her postpartum depression, followed by the cocktail of drugs and negligent care, her declining mental state, a psychiatric emergency, her insomnia, anxiety, bi-polar, and perhaps mania, that she was having hallucinations and on that terrible day she did indeed hear a ‘male commanding voice’ telling her to kill her children and herself. That this was her only way out. (emphasis added)

Again, “perhaps” rears its ugly head—why? Everything that comes before “perhaps” is unfortunate—but those conditions do not, without more, support a finding of “insanity.” What follows Perrins’ use of “perhaps” if established to a jury could reasonably support an insanity defence—if and only if it happened. So why the “perhaps”?

          Perrins repeated use of “perhaps” undercuts all her efforts to persuade the reasonable reader that Clancy is innocent. And that is as it should be. Because the real question is a difficult one. There are two possibilities. One possibility is that Clancy was insane at the time she did the deed. The other possibility is that she was not insane at that time, and at that time and since, she pretended to be insane to escape punishment. That’s essentially going to be a determination for the jury, under guidance from a judge, after hearing from witnesses and experts and arguments from the state’s counsel and her own. In regard to the jury’s making that determination, Clancy will have all the traditional legal protections, including: a unanimous jury, the presumption of innocence, the burden of persuasion placed on the prosecution, and every element of the charge must be proven beyond a reasonable doubt.

Today is August 26, 2026—the presentation of evidence and argument is yet to conclude. So why is Perrins convinced of Clancy’s evidence? Perrins makes several arguments, but they are each thoroughly unconvincing. In saying that, I am not asserting Clancy’s guilt—I’ll leave that question to the jury charged with hearing all the evidence. What I am criticising is Perrins’ putting forward arguments and evidence in her Substack that have little persuasive force.

First, Perrins reports that Clancy’s killing her children was a complete break from her prior conduct, and that she had no recognized priors. That’s true, but that is equally true for every mass murderer’s first murder. We all have good records until we are caught doing something wrong. Until a wrongdoer is caught, many will continue to believe the wrongdoer is virtuous. Second, Perrins reports that Clancy’s family, including in-laws, saw her as a good, dedicated mother. And that’s true too, but it is not convincing. The question is: Were these people on notice of red flags? And having reached this juncture, are these people now afraid to report and to admit what (if anything) they had noticed in the past but chose not to act upon? Third, Perrins points to the fact that Clancy injured herself in her failed suicide attempt and is now partially paralyzed. Perrins sees this as evidence of a psychotic break. And it could be. It could also be the outcome of a crime that failed to play out as planned. Our jails are full of people who miscalculated being caught and who miscalculated the injuries they’d cause and suffer from during the commission of their crimes. Poor planning is not evidence of insanity or innocence. Finally, Perrins reports that Clancy worked in a hospital as a labour and delivery nurse. That’s all true too. Hospitals are full of patients who are totally dependent on staff—to be educated and to be moral. But not all staff are. For those committed to do wrong, hospitals are places where the dependent can be murdered almost with impunity, and the skills taught to save lives can be misused to accomplish evil ends that terminate lives. All know this—at least all know this who remember the trials of Lucy Letby, a British neonatal nurse, which ended in 2023 and in 2024—not so long ago. Perrins’ article is devoid of any reference to Letby, and that’s a tell.

And that’s also the heart of the dispute here. Perrins cannot bring herself to imagine the possibility that some persons, and in particular some women and some nurses, may actively choose to do evil. And the many, many men who have heard the sorts of arguments advanced by Perrins and others on behalf of Clancy know—we know—to a 100% certainty, that those types of arguments are not likely to be advanced (and, concomitantly, much less likely to be advanced successfully) in defence of a man with an arguably similar (alleged) psychotic break. In comparable circumstances, a man (or father) would be seen by a jury (even if composed entirely of men) as just as a stone-cold killer. More importantly, neither would men’s organisations nor male-focused media nor men’s marches cry, scream, or carry placards on behalf of such male defendants. For better or worse, Clancy’s case is part of the culture war. Ms Perrins’ not seeing what many, many men do see comes across as, at best, ill informed, and at worst, as cowardly.

There are far too many conservative politicians and commentators who lack spines. They are afraid to stand tall, and they will retreat even before being criticized. Their worst nightmare is an accusation directed against them for being racists, and then, a close number two—being called misogynists, and finally, being characterised as heartless, compassionless conservatives. Surrender is their only true creed. Here, on this side of the Atlantic, all too many conservatives have all these defects, supplemented with additional helpings of Anti-Americanism and TDS. Remember Roger Scruton and The New Statesman? In these islands, to be a conservative, is not so much a refusal to die on this or any hill, as it is a continuing refusal to take any stand, on any issue, at any time. Surrender is not put forward as a pragmatic response to a public beyond persuasion, or even as a recognition of the political realities of a fallen (political) world, but embraced as a (if not the only) guiding (political) principle. This is why conservatives lose—even, here, in the land of Burke. 

Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad

(academic affiliation for identification purposes only)

Seth Barrett Tillman, ‘Why Conservatives on this Side of the Atlantic Lose,’ New Reform Club (2026), <https://reformclub.blogspot.com/2026/08/why-conservatives-on-this-side-of.html>; 

Seth Barrett Tillman, ‘Different Rules for Women who Kill,’ Quadrant Online (Aug. 31, 2026) (Australia), <https://quadrant.org.au/news-opinions/qed/different-rules-for-women-who-kill/>. 

A Model For Us All

Bellesiles was cited in a state court (appellate) opinion from 2001. That case, Oregon v. Hirsch, 34 P.3d 1209, 1211 (Ct. App. Ore. Oct. 31, 2001) (Landau, P.J.), is apparently the only judicial opinion—state or federal—to cite Bellesiles’ Arming America. 

Judge Landau (later Justice Landau) would go on to cite Bellesiles’ Arming America on two further occasions. See Jack L. Landau, The Unfinished Revolution: Interpreting the Oregon Constitution, 62 Oregon St. Bar Bul. 9, 16 & n.42 (Nov. 2001) (“Experts have disagreed—sometimes quite acrimoniously—about what the framers intended that provision of the federal constitution [i.e., the Second Amendment] to mean, while new evidence and explanations emerge almost constantly.” (citing to Arming America)); Jack L. Landau, A Judge’s Perspective on the Use and Misuse of History in State Constitutional Interpretation, 38 Valpo. U. L. Rev. 451, 472 n.92 (2004) (illustrating that Oregon v. Hirsch cites to Arming America); id. at 472 (“Fortunately, I had cited [Bellesiles’] work for a fairly uncontroversial point, but I nevertheless found unsettling the fact that the reliability of an award-winning work of history could be so quickly called into question.” (footnote omitted) (emphasis added)). “Called into question”— how very judicious. A model for us all.

Seth Barrett Tillman, ‘A Model For Us All,’ New Reform Club (Aug. 17, 2026, 6:34 AM), <https://reformclub.blogspot.com/2026/08/a-model-for-us-all.html>; 

SISTRUNK SEEDS v. TRUMP: The Docket

 

Complaint, Sistrunk Seeds Inc. v. Donald J. Trump in his official capacity, Civ. A. No. 1:26-cv-23365-RAR-LFL (S.D. Fla. filed May 13, 2026) (filed by the Constitutional Accountability Center), ECF No. 1, 2026 WL 1351543, <https://www.theusconstitution.org/litigation/sistrunk-seeds-v-trump/>; [Tillman’s comment: There is no request for a preliminary injunction or any expedited briefing schedule.]

Memorandum of Law in Support of Defendants’ Motion to Dismiss at 17, Sistrunk Seeds Inc. v. Donald J. Trump in his official capacity, Civ. A. No. 1:26-cv-23365-RAR-LFL (S.D. Fla. brief filed: Aug. 11, 2026) (filed by U.S. DOJ) (citing Tillman’s ‘Trump’s “Emoluments” Problem’ in ‘Harv. J.L. & Pub. Pol’y’), ECF No. 37, 2026 WL 2366865; 

State Defendants’ and the Donald J. Trump Presidential Library Foundation’s Motion to Dismiss Plaintiffs’ Complaint at 22, Sistrunk Seeds Inc. v. Donald J. Trump in his official capacity, Civ. A. No. 1:26-cv-23365-RAR-LFL (S.D. Fla. brief filed: Aug. 11, 2026) (filed by the Attorney General and Solicitor General of Florida) (citing: [i] Tillman’s ‘Trump’s “Emoluments” Problem’ in ‘Harv. J.L. & Pub. Pol’y’; and, [ii] Blackman & Tillman’s ‘Domestic Emoluments Clause’ entry in ‘Heritage Guide 3d’), ECF No. 38, 2026 WL 2366866; 

Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendants, Sistrunk Seeds Inc. v. Donald J. Trump in his official capacity, Civ. A. No. 1:26-cv-23365-RAR-LFL (S.D. Fla. brief filed Aug. 13, 2026) (filed by local counsel: Michael Adam Sasso, Esq) (Rodolfo A. Ruiz II, District Judge), ECF No. 41, 2026 WL 2367429; 

Opposition Brief due: Tuesday, September 15, 2026. This due date is a result of an extension sought by motion by Plaintiffs (and unopposed), extending the time to oppose from August 25, 2026, to September 15, 2026. See ECF No. 31.

Reply Brief due: Thursday, October 1, 2026; 

Oral argument (t/b/d);

Seth Barrett Tillman, ‘SISTRUNK SEEDS v. TRUMP: The Docket,’ New Reform Club (Aug. 17, 2026, 4:33 AM), <https://reformclub.blogspot.com/2026/08/sistrunk-seeds-v-trump-docket.html>; 

The Better Way To Think About

 

Plaintiffs’ position is that a State (such as Florida) by conveying property to the President has granted an “emolument.” That’s entirely wrong. The only body which can grant an emolument to a position is the institution which created the position or the institution which is charged with fixing the position’s compensation. As for the Presidency—the only body which can fix its compensation (or grant “emoluments”) is Congress.

Consider the untoward consequences of Plaintiffs’ contrary position. The Constitution’s Ineligibility Clause also speaks to “emoluments.” That clause states: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time.” U.S. Const. art. I, § 6, cl. 2 (emphasis added). Now let’s say there was a Democratic President and a Democratic Congress, and the President sought to appoint a sitting senator to a cabinet post, whose federal compensation had not been increased for more than six years. Under Plaintiffs’ position, where an “emolument” is any benefit, then any single Republican state legislature could grant that cabinet position further “compensation” or further “emoluments,” say $10 annually, and voilà, the Ineligibility Clause would bar the senator’s appointment to a federal position. Not only would the senator be barred, under Plaintiffs’ position, but the federal Congress could not roll back the state legislature’s salary increase—so, no Saxbe Fix[1] would be possible either. What this shows is that although a State can give a gift or “present” to a federal official, that is, a benefit absent consideration, a State cannot increase the federal official’s compensation or “emoluments” attached to any particular federal position, including the presidency. It follows that Florida’s conveying the MDC Parcel [purportedly to President Trump] amounts to granting a gift or present, but not an “emolument.” This structural consideration is some reason to reject Plaintiffs’ position as to the scope of the Domestic Emoluments Clause’s “emoluments”-language.

The better way to think about the Domestic Emoluments Clause, U.S. Const. art. II, § 1, cl. 7, is that it works a limited restriction on state-federal dual office-holding. The U.S. Constitution does not expressly bar federal officials from concurrently holding state positions. The Domestic Emoluments Clause does not bar the President from holding any state position; rather, it bars a President who also concurrently holds a state position from receiving the emoluments of the state position. In other words, the President must receive his regular compensation exclusively as determined by Congress. For example, in the event that the federal electors elect a sitting governor to be President, it may happen that the governor’s State might be in disarray (e.g., an insurrection). The Domestic Emoluments Clause would allow the governor to hold both positions concurrently, leaving to his discretion to withdraw from the state position only once the emergency in his home State has ended, and without forcing him to delay his becoming President. Fortunately, such disarray, at the state level has been rare, and has not impinged on presidents or presidents-elect. Thus, we have few sources focusing on the original public meaning of this constitutional provision. Between 2017 and 2021, several inferior courts discussed the meaning(s) of “emoluments” in connection with lawsuits allegedly arising under the Foreign and Domestic Emoluments Clauses. All those decisions were reversed or otherwise vacated by the U.S. Supreme Court under Munsingwear Doctrine. None of those cases were from the Southern District of Florida or the Eleventh Circuit. 

[1] Where the compensation or emoluments of a federal statutory position is increased during a senator’s term, the President may still seek to appoint a senator who is not otherwise eligible to hold that position under the Ineligibility Clause. In such circumstances, as once applied to Senator Saxbe, Congress may choose to roll back the compensation of the federal statutory position to what it had been prior to its emoluments having been increased. This is the so-called “Saxbe Fix.” At that point, the practice has been to permit the President to make the appointment. Still the practice is a contested one. See generally John F. O’Connor, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89, 122–56 (1995).

The above is an extract from: Brief of Professor Seth Barrett Tillman and Landmark Legal Foundation as Amici Curiae in Support of Defendants, Sistrunk Seeds Inc. v. Donald J. Trump in his official capacity, Civ. A. No. 1:26-cv-23365-RAR-LFL (S.D. Fla. brief filed Aug. 13, 2026), ECF No. 41, 2026 WL -------. 

Seth Barrett Tillman, ‘The Better Way To Think About,’ New Reform Club (Aug. 14, 2026, 2:33 AM), <https://reformclub.blogspot.com/2026/08/the-better-way-to-think-about.html>; 

Welcome Instapundit Readers!

You’re Not Laughing Now

 

During 2017 to 2021, I do not remember many U.S. DOJ citations to my publications touching on the Foreign and Domestic Emoluments Clauses. At that time, DOJ’s briefs went their own way. But now, in Sistrunk, a new [Domestic] Emoluments Clause case (filed in 2026), I detect a new openness. See generally <https://www.youtube.com/watch?v=rc8lCqdigEs>. 

Memorandum of Law in Support of Defendants’ Motion to Dismiss, Sistrunk Seeds Inc. v. Donald J. Trump in his official capacity at 17, Civ. A. No. 1:26-cv-23365-RAR-LFL (S.D. Fla. brief filed: Aug. 11, 2026) (filed by U.S. DOJ) (citing Tillman’s ‘Trump’s “Emoluments” Problem’ in ‘Harv. J.L. & Pub. Pol’y’), ECF No. 37, 2026 WL -------; 

State Defendants’ and the Donald J. Trump Presidential Library Foundation’s Motion to Dismiss Plaintiffs’ Complaint at 22, Sistrunk Seeds Inc. v. Donald J. Trump in his official capacity at 17, Civ. A. No. 1:26-cv-23365-RAR-LFL (S.D. Fla. brief filed: Aug. 11, 2026) (filed by the Solicitor General of Florida) (citing: [i] Tillman’s ‘Trump’s “Emoluments” Problem’ in ‘Harv. J.L. & Pub. Pol’y’; and, [ii] Blackman & Tillman’s ‘Domestic Emoluments Clause’ entry in ‘Heritage Guide to the Constitution 3d’), ECF No. 38, 2026 WL -------;

Seth Barrett Tillman, ‘You’re Not Laughing Now,’ New Reform Club (Aug. 12, 2026, 12:42 PM), <https://reformclub.blogspot.com/2026/08/a-three-citation-day.html>; 

 

Pathological

 

Christina S. Ho, ‘Care-Forward Jurisprudence and the Task of Health Law in Biopolitical-Necropolitical Times’ (posted: Aug. 10, 2026) (manuscript at 21 n.118) (citing Tillman’s ‘Reply to Teachout’ in ‘Nw. U. L. Rev. Colloquy’), <https://ssrn.com/abstract=7248420>:

“As an example of this pathological abstention from substantive judgment, keeping us from acting against even the blatant sale of Presidential favor under Trump, see Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. Colloquy 180 (2013) (denying that ‘the scope of [a constitutional] anticorruption principle…to the extent it is reliant on the Foreign Emoluments Clause’ would reach key elected officials).”

Seth Barrett Tillman, ‘Pathological,’ New Reform Club (Aug. 11, 2026, 3:16 AM), <https://reformclub.blogspot.com/2026/08/pathological.html>; 

 

BBC’s Passive Voice

 

‘A van drove into a crowd ....’ 

‘What we know about the Berlin Pride attack,’ BBC News,  <https://www.youtube.com/shorts/VRQRIYZ2tNU>;

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

Seth Barrett Tillman, ‘BBC’s Passive Voice,’ New Reform Club (July 27, 2026, 5:05 AM), <https://reformclub.blogspot.com/2026/07/bbcs-passive-voice.html>; 

A Letter to The New Republic on Epistemic Closure

 

re: Jess Coleman, The Supreme Court’s Originalists Are Cracking Up, TNR (July 7, 2026), <https://newrepublic.com/article/212556/supreme-court-originalism-trump-barbara>. 

In Trump v. Slaughter (2026), the U.S. Supreme Court’s majority opinion announced: “[I]n Federalist No. 77, Hamilton said that the Senate’s consent ‘would be necessary to displace as well as to appoint,’ but it remains a subject of scholarly debate whether Hamilton meant ‘displace’ in the sense of ‘remove’ or ‘replace.’” Jess Coleman objects. Coleman affirms the correctness of the ‘displace’-means-‘remove’ position, and he announces that the contrary position is ‘bizarre.’ 

I have argued in academic journals since 2010, that is, long before Trump entered politics, that Hamilton’s ‘displace’-language means ‘replace’ and not ‘remove.’ Those who argue that ‘displace’ means ‘remove’ tend to clip only one sentence from Federalist No. 77, but if you read the entire paragraph in which that sentence appears, you will see that the discussion is better understood as involving replacing officers, as opposed to simply removing them. See <The Avalon Project : Federalist No 77>. 

Furthermore, in his celebrated Commentaries on the Constitution, Joseph Story affirmed that Hamilton’s ‘displace’-language was about replacing, as opposed to removing, officers. See <THE NEW REFORM CLUB: Strained (and Sloppy) Readings of the Constitution and Strained (and Sloppy) Readings of Hamilton’s Federalist No. 77 (Updated)>. More recently, it has come to light that, in his private correspondence to Senator Webster, Chancellor James Kent affirmed that Hamilton’s ‘displace’-language was speaking to replacing, as opposed to removing, officers. See <https://reason.com/volokh/2025/11/20/chancellor-james-kent-on-hamiltons-federalist-no-77-and-modern-academic-commentary/>. 

Whether Hamilton’s ‘displace’-language was speaking to replacing officers or to removing officers is a matter about which reasonable persons have and can disagree. Jess Coleman’s suggesting that one of these two views is ‘bizarre’ speaks to an unfortunate epistemic closure prevalent among far too many who would seek to guide and explain the world to others. By contrast, when the Slaughter Court cautiously recognized the long-standing historical dispute about the meaning of Federalist No. 77 and the Court’s majority actively chose not to inject itself into that debate, the Court acted in the sort of cautious manner that we should applaud, and not object. 

Sincerely, 

Seth Barrett Tillman, Associate Professor

Seth Barrett Tillman, ‘A Letter to The New Republic on Epistemic Closure,’ New Reform Club (July 17, 2026, 5:36 AM), <https://reformclub.blogspot.com/2026/07/a-letter-to-new-republic-on-epistemic.html>.

A Death in Ireland

A friend of mine, Terence, was buried today. My wife, my two youngest children, and I attended the funeral. We were all close to Terence, who is survived by his wife, two children, one grandchild, and several siblings, who also have children. Terence was a sincere friend, a highly educated man, who spoke several languages, including Irish and Biblical Hebrew. He was born circa 1943. Until he retired, he was the head of the examinations office at University College Dublin (“UCD”). His grandfather was the first Irish ambassador to Spain. At his funeral, I met the local aristocracy. I met a granddaughter of Eamon de Valera. Her mother died when she was four, and she was raised by her grandparents. I also met a granddaughter Sean T O’Kelly. This is sort of like meeting a grandchild of President Washington or President Van Buren. My children went to a primary school here in Ireland. That school’s retired principal, from around the time my children attended, was also at the funeral. He is a Manx speaker, and would be visiting the Isle of Man in consequence of the death of a friend there. Who knew?

Seth Barrett Tillman, ‘A Death in Ireland,’ New Reform Club (July 9, 2026, 5:26 PM), <https://reformclub.blogspot.com/2026/07/a-death-in-ireland.html>; 

 

Old Man Yells at Cloud (UPDATED)

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Letters to the Editor

Lawfare

June 18, 2026 

RE: George Croner, Presidential Discretion and the Insurrection Act, Lawfare (June 16, 2026, 10:02 AM), <https://www.lawfaremedia.org/article/presidential-discretion-and-the-insurrection-act>.

Croner ends his article with: “In Ex parte Merryman, the Supreme Court ruled ….” That is not correct. Merryman was a decision by Chief Justice Taney at chambers, sitting alone, acting under a special authority granted to all Article III Justices and judges by the 1789 Judiciary Act.

Merryman was not a decision of the United States Supreme Court.

It was not a decision of the United States Court of Appeals for the Fourth Circuit (which had not yet then come into existence).

It was not a decision of the United States Circuit Court for the District of Maryland.

It was not a decision of the United States District Court for the District of Maryland.

It was neither a decision of the Maryland Supreme Court nor of any other Maryland state court.

 

Indeed Merryman was not a decision of any court of record.

 

Today, “chambers” opinions by Justices of the Supreme Court are primarily “dispos[itions] of an application by a party for interim relief, e.g., for a stay of the judgment of the court below, for vacation of a stay, or for a temporary injunction” as part of a wider, prior, imminent, and/or ongoing appeal to the Supreme Court. See <https://www.supremecourt.gov/opinions/in-chambers.aspx>. In such circumstances, the individual Justice is acting on behalf of the Court as a whole, and as such, a decision of a single Justice is a decision of the Supreme Court of the United States. By contrast, Merryman—a decision from a much earlier time—was not such a decision. Not only was Merryman not a decision in the process of being appealed to the United States Supreme Court, it was not even possible, for either of the parties, to appeal Taney’s final order in Merryman to the Supreme Court! See also In re Metzger, 46 United States Reports (5 Howard’s Reports) 176, 191 (1847) (McLean, J.) (“This Court can exercise no power in an appellate form over decisions made at his chambers by a Justice of this Court or a judge of the district court.” (emphasis added)). See generally Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13(1) British Journal of American Legal Studies 43 (2024) (peer review), <http://ssrn.com/abstract=4157572>, <https://sciendo.com/article/10.2478/bjals-2023-0007>.

 

Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

(academic title & affiliation for identification purposes only)

UPDATED ARTICLE (JUNE 18, 2026)

In Ex parte Merryman, Supreme Court Chief Justice Roger B. Taney wrote that only Congress—not the president—has the authority to suspend the writ. But absent careful and probing judicial review, is there any reason to believe this Congress will countermand this president’s suspension of the Great Writ?

Editor's note: This article has been updated to correct an earlier error regarding Ex Parte Merryman.  

Seth Barrett Tillman, ‘Old Man Yells at Cloud (UPDATED),’ New Reform Club (June 18, 2026, 3:59 AM), <https://reformclub.blogspot.com/2026/06/old-man-yells-at-cloud.html>;