Sunday, January 17, 2021
Thursday, January 14, 2021
In February 2020, "the nation's leading expert" on election law, UC Irvine law professor Rick Hasen, published his book Election Meltdown. Subtitled "Dirty Tricks, Distrust, and the Threat to American Democracy," Prof. Hasen bemoans "Inflammatory rhetoric about 'stolen' elections [that] supercharges distrust." What insight, I wondered, might the nation's leading election law expert's book give on the controversies surrounding the 2020 presidential election?
According to Prof.
Hasen's book, as of early 2020 the only way to repel the "threat to
American democracy" was to push back against not one, not two, not
three, but at least four key dangers threatening the voting
process. You will have to buy the book to learn what they are. But if
the book's digital dust flap is an indication, it appears Prof. Hasen has one
of his fingers pointed pointed squarely at "incompetence in election
administration, often in large cities controlled by Democrats," which
"have created an opening to claims of unfairness." Oh, my!
Also in the docket: "domestic misinformation campaigns via social media." You don't say?
in case you are beginning suspect this is some right-wing book, I
understand from loosely following his work for the past several years
that Prof. Hasen is, shall we say, in no danger of being identified as a
friend of Republican
causes. I also have it on good authority there are no conservative
professors at UC Irvine's law school, unless something has changed
recently. It is my earnest belief Prof. Hasen is a man of the left in
This sounds like real trouble. But it also sounds like a lot of work: "Concrete steps"? That strikes me as more than we can handle.
Thankfully, we found a way to economize. The American corpo-political leadership stumbled upon a simple program to restore confidence in the American voting process in just one easy step. Here is the one-step program to restoring confidence in American elections:
The Democrat wins.
the Democrat wins, Americans stop complaining about the integrity of
our democracy. (Social media is seeing to that.) What could be simpler?
am sorry to have to report, however, that with the advent of this new
one-step system, Prof. Hasen's book sales may experience a slump.
Tuesday, January 12, 2021
The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.”
― H.L. Mencken
I deactivated my Twitter account today. I will never give the enemies of freedom another click, if I can help it. If I may not argue for an idea, then I can only fight for it.
Friday, January 08, 2021
Sunday, January 03, 2021
From: A Reader
To: Seth Barrett Tillman [via Jurist]
January 1, 2021
I read the November 30 post by Seth Tillman with interest. I’d be interested in his view as to whether his conclusion—that Kamala Harris can simultaneously serve as both a Senator and the VP—is undercut by the incongruous prospect of her being able to vote twice on the same measure: once as Senator and, if a tie ensues, a second time as VP/President of the Senate. I’m not aware of any legislative body in which one individual has two votes on the same measure, and I can’t imagine the Founders were either, or would’ve intended such a result.
From: Seth Barrett Tillman
To: A Reader
January 3, 2021
The presiding officer of an Anglo-American legislative house abstains from voting in most circumstances, but has a right to vote as any other member, and is sometimes required to break a tie. Beyond that, practices varied in the past, as they still do across elected and appointed assemblies.
For a discussion of the disparate practice circa 1788 in U.S. states, see: William Smith, A Comparative View of the Constitutions of the Several States with Each Other, and with that of the United States (Philadelphia, John Thompson 1796). For example: ibid. at tbl.1 & n.n (“CONNECTICUT, [Governed under the] Old Colonial Charter of Charles II [of 1662]. unaltered, except where necessary to adapt it to the Independence of the United States . . . . Governor, as Presid[ent] of the council, and the Speaker of the House, have each a vote [as a member], besides a casting vote [as the presiding officer].”). For a more modern resource, see: Margaret A. Banks, The Chair’s Casting Vote: Some Inconsistencies and Problems, 16 U.W. Ont. L. Rev. 197 (1977).
One of the most famous of such famous incidents involved NY’s [royal] Governor Cosby and Councillor/President [Rip] Van Dam. See John F. Burns, Controversies Between Royal Governors and Their Assemblies in the Northern American Colonies 320 (1923) (“[Prior to 1733, Governor] Cosby [of New York] took part in the deliberations of the Council while acting in a legislative capacity. Thus as a member [!] of the Council he had one vote, as executive he had final veto power, and in case of tie he cast the deciding ballot. Always two, and sometimes three, votes were at his command.”). You can find the primary documents on the Cosby-Van Dam dispute, which was the genesis of the celebrated John Peter Zenger trial, here: 6 Documents Relative to the Colonial History of the State of New York 39–45 (E.B. O’Callaghan ed., Albany, Weed, Parsons and Co. 1855). The legal issues you raise were at the heart of the Zenger trial. Zenger was if not the most famous, at least, one of the most significant pre-1763 trials in the British New World colonies. Thus it seems likely that lawyers and the educated lay public circa 1788 would have been aware of Anglo-American legislative bodies permitting multiple voting in, at least, certain specific circumstances.
You wrote that you cannot “imagine” that the Founders were aware of legislatures where “one individual has two [or more] votes on the same measure”. You might reconsider your position—or, read my publications touching on the subject. They are all on Westlaw and posted on SSRN (for free and easy access). [See, e.g., Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285 (2013).]
Seth Barrett Tillman, Lecturer*
*Seth Barrett Tillman, One Hidden Cost of Lockdown: How Some Spent New Year’s Day, New Reform Club (Jan. 3, 2021, 7:17 PM), <https://reformclub.blogspot.com/2021/01/one-hidden-cost-of-lockdown-how-some.html>;
Seth Barrett Tillman, Senator and Vice President of the United States: Can Kamala Harris Hold Both Positions at the Same Time?, Jurist–Academic Commentary, Nov. 30, 2020, 5:46:13 PM, <https://www.jurist.org/commentary/2020/11/seth-barrett-tillman-kamala-harris-vp-senator/>, <http://ssrn.com/abstract=3737188>;
See also Seth Barrett Tillman, Member of the House of Representatives and Vice President of the US: Can Paul Ryan Hold Both Positions at the Same Time?, Jurist–Forum, Aug. 23, 2012, <http://jurist.org/forum/2012/08/seth-barrett-tillman-vice-presidency.php>; <https://www.jurist.org/commentary/2012/08/seth-barrett-tillman-vice-presidency/>, <http://ssrn.com/abstract=2129812>;
Cf. Cosby v. Van Dam, 1733, Historical Society of the NY Courts (last visited Jan. 7, 2021), <https://history.nycourts.gov/case/cosby-v-van-dam/>;
Last week, a man lost his livelihood after a short video clip of of his altercation with a Chinese woman in a parking lot went viral. He angrily told the woman to "go back to China," while the woman, filming the exchange with her phone, told him to "keep going, keep going." He then called her a racial epithet, got out of his car and began walking toward her (for a purpose that was not clear in the video), and, just before leaving, sneered, "thanks for giving my country COVID."
The man was a personal trainer. After the viral video was picked up on many media outlets, it is likely that he will not be able to continue his business. Angry people on social media doxxed the man, sharing not only his name but his home address, presumably so that more personal and violent punishments may be exacted.
Thursday, December 24, 2020
It was on Christmas Eve 1968 that the astronauts of Apollo 8, Frank Borman, Jim Lovell, and Bill Anders, became the first of mankind to see an earthrise from the orbit of the moon, and looking back on us, they spoke these words:
Anders: "We are now approaching lunar sunrise. And, for all the people back on earth, the crew of Apollo 8 have a message that we would like to send to you...
"In the beginning, God created the Heaven and the Earth. And the Earth was without form, and void; and darkness was upon the face of the deep. And the Spirit of God moved upon the face of the waters. And God said, Let there be light; and there was light. And God saw the light, that it was good; and God divided the light from the darkness."
Lovell: "And God called the light Day, and the darkness He called Night. And the evening and the morning were the first day. And God said, Let there be a firmament in the midst of the waters, and let it divide the waters from the waters. And God made the firmament, and divided the waters which were under the firmament from the waters which were above the firmament; and it was so. And God called the firmament Heaven. And the evening and the morning were the second day."
Borman: "And God said, Let the waters under the Heaven be gathered together unto one place, and let the dry land appear; and it was so. And God called the dry land Earth; and the gathering together of the waters He called Seas: and God saw that it was good."
And from the crew of Apollo 8, we close with good night, good luck, a Merry Christmas, and God bless all of you, all of you on the good earth."
It is good. God bless us, every one.
Sunday, December 20, 2020
Americans do not want in their politics the endless series of declarations given them by today's "fact check" journalism. Ordinary men, Thucydides observed, usually manage public affairs better than their more gifted fellows. Benjamin Franklin similarly noted that good governance depends not only upon the wisdom and integrity of its governors, but also "on the general opinion of the goodness of the Government." There is wisdom in the opinion of ordinary citizens.
But even if Americans' opinion is wrong, it deserves a hearing, not mere scoffing. After Donald Trump won the Republican nomination in 2016, Jonah Goldberg took aim at Trump's ideas as nothing but empty populism, comparing him to the early 20th century populist William Jennings Bryan. Goldberg scoffed at Bryan who, when confronted with the question of whether to add silver to support the currency to support the farmers of his state, admitted he knew nothing about the issue. Yet Bryan had gone on to advocate the policy merely on the grounds it was supported by the opinion of the ordinary people of his state: “The people of Nebraska are for free silver and I am for free silver. I will look up the arguments later.”
Friday, December 11, 2020
A conspiracy, in other words, is unnecessary. Election fraud simply is. The real question is how much.
If there were nothing to that question, the media would cover it. But, the media are silent. More than silent: they are censorious, even to the point of threatening lawyers for engaging in protected petitioning activity (my, but there is a lot of casual destruction of livelihoods this year). I find the silence and the silencing probative. Probative of what, exactly, I cannot say. But silence testifies against the censor.
The censorship is, of course, for the sake of democracy itself. That is what they tell us. Democracy, they tell us, cannot abide questioning the integrity of our elections – except, as we know, when the election produces a win for candidates named Trump. In such cases, as determined by the media, the integrity of our elections must be questioned – for the sake of democracy.
If the left did not have double standards, they would not have any standards at all.
And of course Dominion and the computer voting phenomenon is an entirely new and different animal, with established problems. A year ago, before questioning the integrity of electronic voting systems was deemed not licit, their integrity was questioned even by Democrats – for the sake of democracy:
The websites where states post election results are even more susceptible. The event had 40 child hackers between the ages of 6 and 17 attempt to break into a mock version of the sites. Most were able to alter vote tallies and even change the candidates' names to things like “Bob Da Builder,” CNN reported.
"Unfortunately, it's so easy to hack the websites that report election results that we couldn't do it in this room because [adult hackers] would find it boring," event organizer Jake Braun told CNN. ...
But now that the software produced a Trump defeat, assenting to the legitimacy of the stupid software is vital – for the sake of democracy. That stupid software tells us that Biden is more popular than Obama. That is what this stupid election requires us to believe, for the sake of democracy. But that is contrary to the common sense of every American of voting age.
"It’s stupid to have the view that states have the right to have poor election security,” [Democratic Congressman Ted] Lieu said.
Someone is going to have to come up with an explanation how we can accept election results that are so contrary to common sense. I could accept that there was a lot of fraud yet not enough to change the outcome. That, at least, would not be so insulting. But when statists tell me there is not a smidgen of corruption, as a rule I tend to believe the opposite. That seldom leads me wrong.
But, I expect we will not get an explanation. Those who ask for an explanation will only be scolded. And those who persist, will, for the sake of democracy, be punished.
Tuesday, December 08, 2020
In 1809, Jacob Henry was elected and qualified for a second, consecutive annual term in North Carolina’s lower legislative house: the House of Commons. He was one of two members for Carteret County. According to the standard narrative, Henry was Jewish. On December 5, 1809, another member, Hugh C. Mills, put forward a motion to declare Henry’s seat vacant based on the 1776 North Carolina Constitution’s religious test. (N.C. Const. of 1776, Article XXXII.) The next day, the Commons adjudicated the motion, and the motion failed. Henry kept his seat.
Much of what has been written about these events has been quite odd. My critique of the prior historiography and legal analyses can be found here: Seth Barrett Tillman, A Religious Test in America?: The 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat—A Re-Evaluation of the Primary Sources, 98(1) North Carolina Historical Review (forth. circa Jan. 2021) (peer reviewed), <https://ssrn.com/abstract=3498217>.
Here I want to flag how two historians characterized these events.
Jacob Rader Marcus, United States Jewry 1776–1985, multiple vols. (Detroit: Wayne State University Press, 1989), volume 1, page 507:
It must have been quite a shock to [Henry], after he had served for a year in the state legislature and had been reelected for another term, to see one of his colleagues rise and, without warning, ask for his expulsion because Henry, as a Jew, was not entitled to a seat in the Assembly. He had refused to take the prescribed oath affirming a belief in the divine authority of the New Testament. Naturally, as a Jew, he could not and would not take such an oath. On the following day, the 6th of December, 1809, after consulting with eminent Christian jurists, Henry [responded] to his colleagues in the House of Commons. It is a proud justification of his refusal to take the test oath. Tradition has it that his letter was framed, if not actually written, for him by Chief Judge John Louis Taylor of the State Supreme Court, a Catholic. [https://tinyurl.com/y2prjud4]
Jon Meacham, American Gospel: God, the Founding Fathers, and the Making of a Nation (New York: Random House Trade Paperbacks, 2007), page 107:
Jacob Henry, a Jew, was elected to the state house in 1808 but he was blocked the following year because the law required him to be a Protestant and to accept the divine authority of the Old and New Testaments. A standoff ensued, with Christian lawmakers refusing to seat [Henry]. [https://tinyurl.com/y2cwxmkx]
Published in 1989 and 2007, these writings are exemplars of today’s Two Americas.
Seth Barrett Tillman,
Seth Barrett Tillman,American History and Today’s Two Americas, New Reform Club (Dec. 8, 2020, 6:56 AM), <https://reformclub.blogspot.com/2020/12/american-history-and-todays-two-americas.html>;