Want to think like the Founders? Study Latin!

The study of Latin isn't just for learning about the classical word or theology, it has an essential role to play in understanding 18th century Anglo-American history:

As for grammar, those who work through the writings of Thomas Jefferson, who had a classical education, or George Washington, who did not, or their English contemporaries Samuel Johnson, Edward Gibbon and Edmund Burke, will find that the syntax of Greek and Latin had affected the complexity and clarity of their expression and so of their thought. We need to know Latin if we want to think like the Founders. Forrest MacDonald saw this clearly. 'In thinking in eighteenth-century English...a rudimentary knowledge of Latin is highly useful; after all, every educated Englishman and American knew Latin, English words were generally closer in meaning to their Latin originals than they are today, and sometimes, as with the use of the subjunctive, it is apparent that an author is accustomed to formulating his thoughts in Latin.

-- E. Christian Kopff, Open Shutters on the Past: Rome and the Founders in Vital Remnants: America's Founding and the Western Tradition (ed. by Gary L. Gregg II, ISI: 1999), pg. 74.

Why the Scalia Seat Should Not Be Filled...Ever?

Fascinating argument from poli-sci prof Jeffrey H. Anderson over at The Weekly Standard, Eight is Enough (for Now).  For those of us who oppose judicial activism, an even-numbered court that could stand athwart judicially imposed wheels of "progress" would be quite a welcome innovation.

Indeed, it would be a return to the original historical precedent!

To hear some tell it, the Supreme Court would be hamstrung if it had to function for a year or more without a ninth justice. What to do in the event of a 4-4 tie? This would not have been viewed as a problem, however, by America's Founders, who created a Court with an even number of justices—six. In fact, Marbury v. Madison, arguably the most important case in the Court's 226-year history, was decided by a six-justice Court.

The Constitution, of course, leaves it up to Congress to decide how many justices will serve on the Supreme Court. In 1789, Congress passed, and President Washington signed, the Judiciary Act. That law determined that the number of Supreme Court justices should be six. The Congress of that day was full of men who had been at Independence Hall two years earlier and had participated in the writing of the Constitution, so they presumably knew what they were doing. 

With a six-justice Court, a 3-3 opinion simply meant the Court wouldn't overturn a lower federal court ruling but instead would let it stand (or wouldn't alter the status quo in a case taken up by the Court as a matter of original jurisdiction). One effect of a six-person Court was that it took two-thirds of the Court (4 votes to 2) to declare unconstitutional a law duly passed by Congress or a state legislature. With a nine-person Court, 5-4 rulings are commonplace: In modern times, the trajectory of the nation has changed repeatedly on the personal whims of an Anthony Kennedy or a Sandra Day O'Connor. An even-numbered Court seems to be more conducive to judicial restraint... 

[T]he truth is that the Court worked far better in 1790 or 1806 than it did in 1973 or 2015. Judicial review is meant only to void acts that violate, as Alexander Hamilton put it, the "manifest tenor" (obvious meaning) of the Constitution. Justices are supposed to adhere to the clear-violation standard, which holds that an act must be unconstitutional beyond a reasonable doubt for the Court to be justified in voiding it. Justice Antonin Scalia adhered to the clear-violation standard of constitutional review.

Returning to an even number of justices, if only for a year, would offer an additional level of protection against those justices who are inclined to eschew the clear-violation standard and impose their own wills. With an even number of justices, overturning the actions of the other, more representative branches of government would require at least a two-vote margin. 

Not only will the Court survive just fine with an even number of justices for the next year or so, it may even do the Court some good.

Cologne, Rape, and "Purim & My Bangladeshi Friend"

Seth Barrett Tillman, Purim & My Bangladeshi Friend, Gadfly: Culture that Matters, [Here] and [Here].

Today is Purim, that is, broadly speaking it’s Purim. Actually, it is a little complex.

Today is The Little Purim (Purim Katan); the real Purim is in a month. We have two Purims this year because Purim falls in the month of Adar, and this year—in the Jewish calendar—is a leap year: a year with two Adars. Purim came about in consequence of the events recorded in Esther, the only book of the Hebrew canon written absent any (express) mention of God. 

I wrote and published this 8-page short story--Purim & My Bangladeshi Friend--a little while back. As I said, today is Purim, and it’s Purim again in a month. So my short story is, I think, once again, timely, and sadly, once again, all too relevant to life in our shared West, in our shared modernity.

My short story was reviewed (or linked to) on several blogs:

T. Greer, Notes From All Over (3/02/2014): Ghosts, Empire, and Tribal Honor, The Scholar’s Stage (Feb. 3, 2014) (favourable review, but the reviewer gives away a key plot point);

Lexington Green, Seth Barrett Tillman, “Purim & My Bangladeshi Friend,” Chicago Boyz (Jan. 9, 2014) (favourable review);

Fri. Eve. Linkage (abbreviated), Howl at Pluto: History and Theory of International Politics, Etc. (Feb. 7, 2014, 6:38 PM) (with comments) (mixed to unfavourable reviews); 

C. R. Krieger, Purim 2015–A Meditation, Right-Side-Of-Lowell (Mar. 6, 2015, 5:10 AM) (favourable review); 

Jonathan Rowe, Seth Barrett Tillman, Purim & My Bangladeshi Friend, Gadfly: Culture that Matters, American Creation (Jan. 6, 2014, 12:14 PM) (neutral); and, 

Glenn Reynolds, FOR PURIM: Seth Tillman: Purim & My Bangladeshi Friend, Instapundit (Mar. 5, 2015, 8:07 PM) (neutral ... but see comments). 

After reading my short story, you might consider—or reconsider—the meaning of the sad events in Cologne (and across Europe) in a new way. You might also consider or reconsider the meaning of the authorities’ immediate, disgraceful response, or to be more accurate, non-response.

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

Welcome Instapundit, Chicago Boyz, American Creation, Howl at Pluto, Right-Side-of-Lowell, and Scholar’s Stage readers. My co-bloggers have posted a lot of good material here at New Reform Club, so please have a look around. 

My prior post is [here]: Seth Barrett Tillman, “Taney Deserves His Tribute”: Responding to George W. Liebmann’s Opinion Editorial in The Baltimore Sun, The New Reform Club (Feb. 21, 2016, 7:21 AM). 

[end]

"Taney Deserves His Tribute": Responding to George W. Liebmann’s Opinion Editorial in The Baltimore Sun

Seth Barrett Tillman, Letter to the Editor, Taney was no champion of civil liberties: His worst decision was Dred Scott, but there were plenty of others, The Baltimore Sun, Feb. 24, 2016, 3:36 pm.  

Responding to George W. Liebmann’s Taney Deserves His Tribute, The Baltimore Sun, Feb. 17, 2016, 4:37pm

George Liebmann thinks Taney’s statue should remain on public display. Maybe it does; maybe it doesn’t. But the arguments Liebmann puts forward make a very poor defense for his position.

First, Liebmann tells us that Taney “died a poor man.” Taney was Chief Justice of the United States for over 25 years. During that time, he was paid a princely and regular salary of $5,000 per year, and $6,500 per year after 1855. At the time of Taney’s death, his savings, property, and other investments amounted to so little that the Maryland bar took a up a collection for his surviving daughters. Dying poor and leaving your children without means—when you had had many opportunities to do them well—is not a sign of virtue. It is a sign of neglect and irresponsibility.

Second, Liebmann tells us that Taney manumitted his slaves, and that after doing so, Taney stated: “I am glad to say that none of those who I manumitted disappointed my expectations, but have shown by their conduct that they were worthy of freedom and knew how to use it.” Exactly why should we care about Taney’s personal expectations in regard to his former slaves? The measure of a decent post-slave society is not what the former master thinks of what the former slave made of his subsequent life, but what the former slave thinks of the former master and what, if anything, the former master did to help the slave adjust to his new circumstances. If one of Taney’s former slaves thought Taney deserved a statue, then that would be telling. But Liebmann offers no such statement.

Finally, Liebmann tells us that Dred Scott was not the sum total of Taney’s judicial achievement. Instead, Liebmann asks us to focus on Taney’s opinion in Ex parte Merryman (1861). But Merryman does not help Liebmann’s or Taney’s cause, and this is not surprising because very few commentators understand the case: including Liebmann.

In 1861, after Fort Sumter fell, the U.S. Army seized John Merryman, a Maryland citizen and state militia officer, and detained him in Fort McHenry, in Baltimore, Maryland. Merryman’s lawyers sought a writ of habeas corpus. After a hearing, Taney determined that the Army had violated the Constitution by seizing and detaining Merryman absent due process. Taney offered much flowing language—the sort which endears him to do-gooders and starry-eyed civil libertarians. But that is all that Taney did: He offered pieties in a judicial opinion. The reality is that Taney did not grant Merryman habeas corpus. In other words, Taney did not order the Army, or the commander at Fort McHenry (the named defendant in Ex parte Merryman), or the President, or anyone else to release Merryman from the Army’s prison. Now, perhaps the Army would not have obeyed any such a judicial order, but we will never know because Taney never issued one.

This reading of Merryman is not my idiosyncratic reading; rather, it is the position of several prominent modern commentators, including: Brian McGinty (2011), Bruce A. Ragsdale (2007), and Jack Stark (2002). Likewise, during the Civil War itself, several courts refused to order the Army to release civilians detained by the Army absent traditional due process. For example, Judge Betts, for the United States District Court for the Southern District of New York (1861), and Chief Justice Dixon, for the Supreme Court of Wisconsin (1863), offered detained Americans only civil-libertarian pieties in gracefully written opinions, but these judges granted detainees no actual concrete relief. None. Moreover, in order to justify their inaction, Betts and Dixon relied upon Taney’s Merryman opinion! In short, Merryman was a precedent for leaving those detained by the Army in jail; it was not grounds for any relief.

The bottom line is that those who value civil liberties during war time will find nothing of substance in Ex parte Merryman. Taney lived a long life and held a variety of state and federal offices. Perhaps he is deserving of a statue, and perhaps that statue deserves a public venue. Perhaps. But it is difficult to see how Ex parte Merryman makes that case.

Seth

Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 223(4) Military Law Review 941 (forthcoming 2015) (peer reviewed)

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

Welcome Instapundit and Chicago Boyz readers. My co-bloggers have posted a lot of good material, so please have a look around.

My prior post is [Here]: Seth Barrett Tillman, Seth Barrett Tillman responding to President Adam Falk, Williams College: the Allure of Forbidden Fruit, The New Reform Club (Feb. 19, 2016, 11:45 AM). 

re: Seth Barrett Tillman responding to President Adam Falk, Williams College: the Allure of Forbidden Fruit

This is what President Falk, Williams College, Massachusetts, wrote:

To the Williams Community,

Today I am taking the extraordinary step of canceling a speech by John Derbyshire, who was to have presented his views here on Monday night. The college didn’t invite Derbyshire, but I have made it clear to the students who did that the college will not provide a platform for him.

Free speech is a value I hold in extremely high regard. The college has a very long history of encouraging the expression of a range of viewpoints and giving voice to widely differing opinions. We have said we wouldn’t cancel speakers or prevent the expression of views except in the most extreme circumstances. In other words: There’s a line somewhere, but in our history of hosting events and speeches of all kinds, we hadn’t yet found it.

We’ve found the line. Derbyshire, in my opinion, is on the other side of it. Many of his expressions clearly constitute hate speech, and we will not promote such speech on this campus or in our community.

We respect—and expect—our students’ exploration of ideas, including ones that are very challenging, and we encourage individual choice and decision-making by students. But at times it’s our role as educators and administrators to step in and make decisions that are in the best interest of students and our community. This is one of those times.

Sincerely,

Adam Falk
President

This is my response to President Falk:

Dear President Falk,


I read your February 18, 2016 letter to the Williams Community. I do not understand it. You don't quote, link to, point to, or even summarize anything Derbyshire said or wrote. So the reader has no way to understand precisely what he said or wrote that crossed any "line" or even, when he said or wrote you allege constitutes hate speech. How is the reader supposed to understand your letter? 


You also noted that Derbyshire wasn't invited by the College. So who brought this matter to your attention? And was Derbyshire given any opportunity to respond or to address their or your concerns or to contest the truth of what he is alleged to have said or done? Perhaps, his offensive comments are moribund? Or, perhaps, he has even changed his mind? It has happened: people do change their minds. I hope you do. A fair-minded person reading your letter -- absent context which your letter fails to provide -- sees only a star-chamber procedure where disfavoured points of view are banned. Banned without a hearing, or even any explanation. 


I won't say what you did is un-American. Because it is all too common in America and Europe. 


Seth

Tillman's NRC Addendum: I do not know John Derbyshire. I am not familiar with his writings, some of which I may or may not agree with. And for my purposes here what Derbyshire may or may not have said or written does not matter; what matters is how President Falk reacted when faced with ideas with which he strongly disagrees. Ideas which he condemns, although offering no explanation in regard to why he condemns them, how he arrived at his conclusion, or what other ideas in the future he will condemn. Even witch trials were trials, of a sort, but what procedure--if any--was used here? 

The way to contest bad ideas -- at least those bad ideas which do not call for violence -- is to debate them fairly in the marketplace of ideas. Not to ban them or their spokespersons. If this is not the West's great truth, then universities serve no purpose at all. Banning bad ideas makes such ideas more marketable; indeed, it gives them undeserved good will in the form of the allure of forbidden fruit. The way to drive out bad ideas . . . is with good ones.

Seth

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

Welcome Instapundit and Chicago Boyz readers. My co-bloggers have posted a lot of good material, so please have a look around.

My prior post is [Here]: Seth Barrett Tillman, A Quick Thought on Presidential Recess Appointments, The New Reform Club (Feb. 14, 2016, 2:31 PM). 

Scalia in Heaven

Trump and Sanders: Entitlement populists

In the early 1930s, American politics was in the thrall of a populist. Huey Long, a US Senator from Louisiana was preaching a successful socialist message to America. During the Great Depression his call to “Share the Wealth” and “Every Man a King” resonated with the public. He offered a social welfare system for a public facing brutal fate of unemployment, sickness, and hunger. 


Long never achieved his vision, though, he was assassinated in 1938. His ideas lived on as Franklin Roosevelt borrowed them for his own. Lyndon Johnson continued that trend as the Great Society programs used government social welfare to addressed historical inequalities. The cost, though, was to make the people depend on the government for help. The federal government, it appeared, would replace self-government.

What are Trump and Sanders offering?

Trump and Sanders are in their own way populists,[1] America is different. It is wealthier, healthier, better educated and more deeply involved in the world. Their populism appeals to something created by Long, a social welfare culture of entitlement. They preach entitlement populism to a public who want what they believe they are entitled to have. 



They are not campaigning on clean water, Flint, or better education, Chicago’s failed public school system, but on the resentment born from the belief that the entitlements reserved to the few are to be enjoyed by the many. 

However, this sense of entitlement is not found in the working class, the people being nickel and dimed to death by the globalization. Instead, the sense of entitlement is greatest among the elite.

The Harvard Grade vs the Mansfield grade.

The entitlement resentment seeping out from America’s elites trickling into the public is what Trump and Sanders have preached. We have defined entitlement downward. Consider the average grade at Harvard University is now an A. Every student is not only above average they are superior. No one ever fails a course. Moreover, it is not so much that the students are smarter, work harder, or have better resources, it is that they lobby, cajole, if not coerce professors for their grades. The students are not the main lobbyists, it is their parents who place this pressure on professors and the institution. Consider the case of Harvey Mansfield, who one would expect as a staunch defender of virtue. 

Instead of standing up to this system and grading his students as they deserve, Mansfield provides two grades. The first is the Harvard grade, an A, he gives to students so they are not disadvantaged relative to the other students. The second is the Mansfield grade. This is the grade they deserved. Aside from the honesty, which is laudable, one has to ask where is the courage of such behavior or the public defense of virtue? If a man as powerful and experienced as Harvey Mansfield cannot stop this entitlement, who will? The elite institutions no longer defend the academic standards for they know they are in a business. The American university, that produces the elites, no longer shapes their character to virtue or service. Instead, they shape their students to a life of entitlement.

Trump and Sanders make entitlement populism available to everyone.

We can see that Trump and Sanders appeal in such a system. They offer an answer to the public. Who will pay for this unfairness? Someone else, preferably foreigners. Trump and Sanders offer the “truth” to the American public. They will “tell it like it is.” Yet, they only preach entitlement. They succeed in this because they know that the establishment candidates cannot offer anything new. The establishment candidates cannot even appeal to populism for they are part of the entitlement establishment. They are part of the problem, just a different version of the same issue. They cannot reform the entitlement system for that is why they exist. They have succeeded to the extent that they have captured, exploited, and profited from it. Trump and Sanders do not require the voter to demonstrate self-governance, one is only required to show entitlement.

Can any candidate reassert America’s belief in self-government?

We yearn for a candidate who can help the public understand that responsibility, service, and duty can renew America. We need a president who will reassert the proper relationship between we the people and the government. In the choice between self-government or entitlement, what will you choose? What have you chosen?

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[1] http://freebeacon.com/politics/wfbs-liz-harrington-discusses-similarities-between-huey-long-and-donald-trump/

http://www.vdare.com/posts/is-donald-trump-the-new-huey-long-will-the-immigration-answer-be-moratorium

http://thehill.com/blogs/pundits-blog/presidential-campaign/252598-trump-is-latest-in-long-line-of-demagogues

http://lancasteronline.com/opinion/letters_to_editor/trump-resembles-the-late-huey-long/article_b67e1662-9f58-11e5-86b7-f3c4e8a3e3ec.html

http://www.newyorker.com/news/john-cassidy/bernie-sanders-and-the-new-populism

http://www.newyorker.com/magazine/2015/10/12/the-populist-prophet

Will Obama go to recess war?

Below, NRC's Seth Barrett Tillman raises the specter of President Obama using the Senate's brief recess to make a recess appointment to the Supreme Court.  This shows why, especially in times of divided government, the Senate should always remain at least in pro forma session.

"Recess" appointments once served a real purpose, with the Senate scattered to all corners of the nation, and return to the capital sometimes weeks away. Today, with every senator mere hours away by air, there is no spirit of that law to keep: To exercise the recess appointment power in contentious cases is mere political chicanery.



Will Barack Obama demagogue and perhaps even racialize a controversy that should not even exist? In 2009, President Obama smothered GOP objections to his programs with a simple and smug "I won."

But in 2014, the people gave back control of the Senate to the GOP, less out of merit than to stop Barack Obama, and stop him they will. "You lost."

The only question now is how much Obama is willing to further divide the country over an issue he cannot and should not win.  His record indicates he is ready, willing and able.

A Quick Thought on Presidential Recess Appointments

Nothing lasts forever. Even the longest, the most glittering reign must come to an end someday.

—Prime Minister Francis Urquhart, House of Cards (1990)

The unexpected death of Associate Justice Antonin Scalia leaves a great gulf in the intellectual life of the nation. I know he will be missed by many. He was a giant, and a force for good in our country. That is an epitaph many strive for, but few deserve. I had some personal correspondence with him over the years, including on the “office” and “officers” issue—perhaps more on that later.

He is not buried yet, but already there is talk of a replacement (as if he could be replaced!). There is even some scattered discussion of a unilateral presidential recess appointment, notwithstanding NLRB v. Noel Canning (2013).

I would urge those advocating bypassing the Senate cool reflection:

If the President makes a recess appointment against the will of a determined Senate majority, the Senate majority is not without recourse. Such a recess appointment—assuming it is constitutionally valid—is only good until the end of the Senate’s next session.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

U.S. Const. art. II, § 3. But the Senate controls the start, length, and termination of its own sessions.

If the Senate majority is determined (filibuster considerations aside), the Senate majority can terminate the President’s recess appointment. The Senate need only reassemble at its regularly scheduled time (or earlier if permitted under its last adjournment order), and then—by simple majority vote—order:

(1)                   the termination of its current session;

(2)                   its reconvening immediately in a new (or second) session

(i.e., its “next session” under Article II, Section 3);

(3)                   the termination of its new (or second) session; and,

(4)                   it reconvening immediately in a further (or third) session.

In other words, two swings of the presiding officer’s gavel, and the Senate can turn out all the President’s recess appointees.

Prior to Noel Canning, the President could have pushed back against this Senate-centered strategy. Prior to Noel Canning, the President could have made further or new recess appointments during the instantaneous breaks between any two back-to-back Senate sessions. (Theodore Roosevelt did this circa 1905.) But post-Noel Canning, such a presidential response is now forbidden: both intra-session and inter-session breaks must be at least 10 days long to permit a constitutionally valid presidential recess appointment. In regard to the Senate strategy proposed here, the recess between two back-to-back Senate sessions is instantaneous. Thus, the President cannot push back against a determined Senate majority.

So if you are advising the President ... before urging the President to install a U.S. Supreme Court Justice via a unilateral recess appointment ... before urging the President to act against the will of the Senate majority, think carefully, think dispassionately, think coolly. You may end up, not empowering the President, but energizing the long moribund United States Senate. A fitting further epitaph for Antonin Scalia?

These ideas were developed in full in a 2007 four-part exchange between Professor Kalt and myself. See Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007); Brian C. Kalt, Response, Keeping Recess Appointments in Their Place, 101 Nw. U. L. Rev. Colloquy 88 (2007); Seth Barrett Tillman, Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt, 101 Nw. U. L. Rev. Colloquy 94 (2007); Brian C. Kalt, Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman, 101 Nw. U. L. Rev. Colloquy 108 (2007). 

The Kalt-Tillman exchange has been cited here and there.[1] It was also republished on Colloquy in 2009. Subsequently, Colloquy was renamed Northwestern University Law Review Online. 

My prior post was: Seth Barrett Tillman, Miscellaneous Americana (Part III): Washington’s Cabinet—their vitae—and who was well paid in the early Republic, The New Reform Club (Feb. 12, 2016, 2:36 AM). 

Twitter: https://twitter.com/SethBTillman ( @SethBTillman )

Welcome Instapundit blog readers.

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[1] Vivian S. Chu, Cong. Research Serv., RL 33009, Recess Appointments: A Legal Overview CRS-11 n.78 (Jan. 6, 2012); T.J. Halstead, Cong. Research Serv., RL 33009, Recess Appointments: A Legal Overview CRS-11 n.74 (updated July 11, 2007); 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 9.8(a) n.5 (4th ed. 2007); Jay Wexler, The Odd Clauses: Understanding the Constitution through Ten of Its Most Curious Provisions 52–53, 201 (2011); Blake Denton, While the Senate Sleeps: Do Contemporary Events Warrant a New Interpretation of the Recess Appointments Clause?, 58 Cath. U. L. Rev. 751, 754 n.19 (2009); Mike McNerney, The Limits of Presidential Recess Appointment Power, 1 Leg. & Pol’y Roundtable 68, 83 & n.82 (2009); David S. Rubinstein, Self-Help Structuralism, 95 B.U. L. Rev. 1619, 1619 n.*, 1629 n.43 (2015); David Frisof, Note, Plausible Absurdities and Practical Formalities: The Recess Appointments Clause in Theory and Practice, 112 Mich. L. Rev. 627, 630 n.17, 642 & nn.82–83, 643 & nn.84–85 (2014); James M. Hobbs, Note, The Future of Recess Appointments After the Decision of the D.C. Circuit in Noel Canning v. NLRB, 162 U. Pa. L. Rev. Online 1, 8 n.46 (2013); United States Code Annotated § Article II, Section 2, Clause 3 (West 2008); United States Code Service § Article II, Section 2, Clause 3 (LexisNexis 2009).