Peak Conlawprof (I) and (II)

Peak Conlawprof: 

“When the man was drunk, he was a danger to women.”

Peak Conlawprof: 

“Kavanaugh clearly had a drinking problem, and it’s beginning to sound, more and more, like he could be an angry drunk.”

I will refrain from commenting. 

Seth

Seth Barrett Tillman, Peak Conlawprof (I) and (II), New Reform Club (Sept. 27, 2018, 9:37 AM), https://reformclub.blogspot.com/2018/09/peak-conlawprof-i-and-ii.html. 

New Evidence That President Washington, and not Judge Messitte, Was Right about the Domestic Emoluments Clause

President George Washington’s Multiple Purchases Involving Federal Lands

The purpose of this post is to further develop, accentuate, and clarify a point I developed in my 2017 Harvard Journal of Law & Public Policy paper, in my several amicus briefs (filed by Professor Josh Blackman), and in our (Blackman’s and my) recent post on The Volokh Conspiracy.

In his July 25, 2018 opinion denying the Department of Justice’s motion to dismiss in DC & MD v. Trump, Judge Messitte (D. Md.) concluded that the Domestic Emoluments Clause and its “emoluments” language reaches the President’s private commercial transactions with domestic government entities. This understanding of “emoluments” includes all such transactions, even if the President does not have a traditional employment-like relationship with the party on the other side of the transaction. Judge Messitte reached that conclusion only after he rejected as good historical precedent President Washington’s several land transactions in 1793 with the federal government. Messitte rejected the precedential value of these transactions for two reasons.

First, Judge Messitte said the historical record in regard to these transactions was “seriously incomplete.” Slip op. at 46. Specifically, he stated that there was no information as to: [i] what kind of land auction was held; [ii] how it was advertised; and, [iii] how many bidders were involved. The Blackman-Tillman amicus brief put forward good authority answering each of these three questions—[i] it was an open auction with oral bids; [ii] it was advertised in a Philadelphia newspaper 6 months prior; and, [iii] there were some 18 bidders. See Blackman-Tillman Br. at 28–29. 

Judge Messitte also stated that the whole transaction was suspect because “Washington later made clear that he was ‘ready to relinquish’ the property.” Slip op. at 46. Messitte based his conclusion here on representations made by Plaintiffs in their brief. But Plaintiffs erred here, and Messitte erred in relying on their representations—all of which were squarely contrary to the Department of Justice’s brief, to the primary document cited by both parties, and to my prior scholarship on this point. See Tillman, Harvard Journal of Law & Public Policy, 761 & n.7, 762 & n.13. Washington bought four lots of land at public auction on September 18, 1793. That is lots nos. 5, 12, 13, and 14 in square 667 (in the new federal capital), for which Washington was given two separate certificates of purchase.

Washington never expressed, in any way, any desire to relinquish that land—i.e., the land he purchased in 1793. Instead, what Washington did do was to express an interest in making further purchases in the future—in square 21 (again, in the new federal capital). Washington explained in a 1794 letter to his land commissioners: “I should be glad to know what my prospect is; adding, that I am as ready to relinquish, as I was to imbibe the idea, of this [future] purchase.” Founders Online (emphasis added). Again, Professor Josh Blackman and I explained in our prior post on The Volokh Conspiracy that the 1793 land purchases are a substantial public precedent from early Executive Branch practice indicating that the President’s private commercial transactions—even with the federal government—are not “emoluments” and are not subject to the Domestic Emoluments Clause. Moreover, no contemporaneous or subsequent authorities (of which we are aware) have ever suggested that President Washington acted unconstitutionally (or, even, unethically) until litigation began against President Trump. Once the litigation against President Trump began, an Orwellian project of rewriting our national history took shape. Regrettably, Judge Messitte’s recent judicial opinion embraced that revisionism. (Representations of just this sort have been pattern-and-practice by plaintiffs and their supporting amici in each of the three Emoluments Clauses lawsuits: I write from personal experience.) 

Here I clarify what happened subsequent to 1793.

In 1794, President Washington went forward, just as he had suggested he might, and purchased square 21. In other words, what had been an “idea” became a reality. See From George Washington to the Commissioners for the District of Columbia, 14 March 1794, Founders Online (last accessed Sept. 23, 2018), https://founders.archives.gov/documents/Washington/05-15-02-0289 (“GW ultimately purchased square 21.”).

All these facts—both the original purchases at the 1793 government auction and the subsequent purchase in 1794—are supported by a pellucidly clear documentary record. Yet, Judge Messitte characterizes all these transactions as a “single example” involving the President’s purchasing federal lands. Slip op. at 46 (emphasis added). The historical reality is quite different: there were, at the very least, two such transactions: one in 1793 and one in 1794. There may even have been as many as five Washington land transactions: four separate purchases in 1793, and a fifth in 1794. (In other words, a separate purchase for each of the 4 lots purchased in 1793 and a fifth purchase for square 21 in 1794.) More importantly, the evidence of the 1794 land transaction confirms Blackman’s and my interpretation (and the DOJ’s interpretation) of Washington’s 1794 letter to his land commissioners. When Washington wrote: “I should be glad to know what my prospect is; adding, that I am as ready to relinquish, as I was to imbibe the idea, of this purchase,” he was writing about an idea—that is, an idea for a future land purchase. He ultimately consummated that future land purchase in 1794. It was square 21.

What does all this mean? It means notwithstanding titanic efforts by Plaintiffs (which misled the court) to impeach the 1793 land transaction(s) as on-point, that view cannot withstand genuine historical scrutiny. Washington’s 1793 land purchases are an on-point precedent showing that early Executive Branch practice permitted the President to do business with the federal government, notwithstanding the Domestic Emoluments Clause and its “emoluments” language. (Indeed, one of President Washington’s land commissioners served on the Supreme Court of the United States and had also been Chief Judge of the General Court of Maryland.) 

The choice then is a simple one: either Judge Messitte was right in 2018, and President Washington (and the American public) was wrong in 1793 and 1794; or, President Washington was right, and Judge Messitte is wrong. They cannot both be right. Then-Justice Rehnquist stated the appropriate rule in Wallace v. Jaffree: “[N]o amount of repetition of historical errors in judicial opinions can make the errors true.” 472 U.S. 38, 107 (1985) (Rehnquist, J., dissenting). 

Pending before the District of Maryland is the DOJ’s motion to certify an interlocutory appeal. DOJ asserts that Judge Messitte’s “reasoning” about Washington’s participation in the 1793 land auction “is premised on a factual error introduced by Plaintiffs.” The DOJ adds that this historical error warrants certification so the Fourth Circuit can assess the proper scope of the term “emoluments”:

This historical example is significant not only because it involved the conduct of President Washington, but also because one of the three D.C. Commissioners had attended the Constitutional Convention, and the other two had voted in the state ratification conventions. See MTD at 43–44. And yet, no concern was raised about a possible violation of the Domestic Emoluments Clause. Reasonable jurists thus could disagree about whether this example should tip the scale in favor of the narrower interpretation of “Emolument.”

I agree. I would urge Judge Messitte to do the right thing: he should either retract his error, or grant the DOJ’s motion so another court can consider this well-documented historical record.

Seth Barrett Tillman, New Evidence That President Washington, and not Judge Messitte, Was Right about the Domestic Emoluments Clause, New Reform Club (Sept. 23, 2018, 11:29 AM), 

https://reformclub.blogspot.com/2018/09/new-evidence-that-president-washington.html. 

My Post on CONLAWPROF: on Kavanaugh (II)

[Dear Professor ____________,]

You wrote: "Therefore, by taking this position you prove yourself unworthy of being a Supreme Court Justice -- or even a magistrate judge." (emphasis Tillman's) 

I clerked for several judges, including a federal Magistrate Judge in Pennsylvania. He is now an Article III judge. We stay in touch. My own view is that there is something wrong with this "even a ...." language. Perhaps, you might agree?

Notice I say "something wrong," not "something deeply wrong," as, I suppose, we all get to choose our own adverbs (or, more accurately, lack thereof).

Seth

Seth Barrett Tillman, My Post on CONLAWPROF: on Kavanaugh (II), New Reform Club (Sept. 20, 2018, 3:47 AM), https://reformclub.blogspot.com/2018/09/my-post-on-conlawprof-Kavanaugh.html. 

The Tragedy of the Moot Point

 The exchange below is adapted from a scene in T.H. White's The Once and Future King, Book IV: The Candle in the Wind, as a commentary on the recent sexual-misconduct accusations against President Donald Trump's nominee to the U.S. Supreme Court, Judge Brett Kavanaugh, which accusations, initially anonymous and confidential, have now become a national scandal through the efforts of Congressional Democrats. 

______________________

 

The Orkney brothers Agravaine, Gawaine, and Mordred, having plotted to overthrow King Arthur by removing the Queen and defeating his chief knight, Lancelot, enter the King's court.

MORDRED: We came to tell you of a treason of which we have learned. Queen Guenever is Sir Lancelot's mistress.  

ARTHUR: Are you ready to prove this accusation? 

MORDRED: We are. 

ARTHUR: You know that the Queen and Sir Lancelot deny it. 

MORDRED: It would be extraordinary if they did not. 

ARTHUR: And that such an accusation, on your standing alone, would supply the accused no possibility of their own defense or the public of any possibility of forming a reasonable belief of the facts by which justice may be dispensed through the courts. Indeed it is for such very reasons that the courts of law do not countenance claims of this nature -- claims as are not susceptible to being either proved or disproved.

MORDRED: We know all that. But the charge is now made, and neither the King nor the courts may deny standing to its maker or the possibility of its credibility. To remain silent on the claim would be no different than to deny it, and would stir a feeling of great unfairness in the public. 

ARTHUR: You are still very young, Mordred. You have yet to learn that nearly all the ways of giving justice are unfair. If you can suggest another way of settling moot points, except by evidence in a court of law, I will be glad to try it.

MORDRED: Because the standards of evidence require greater proof than we possess to overcome the innocence of the accused, does not mean that the accused is always in the right. 

ARTHUR: I am sure it doesn't. But then, you see, moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody. It is not as if you would have to argue against the accused in your own person. You could hire the greatest arguer you knew to argue your case. And the accused would, of course, get the best arguer he knew to argue theirs. It would be much the same thing if you each hired the strongest man you knew to fight for you. In the last resort it is usually the richest person who wins, whether he hires the most expensive arguer or the most expensive fighter, so it is no good pretending that this is simply a matter of brute force. 

MORDRED: Proved or no, the claim is now asserted in full view of the King's court. Neither the King nor his courts of law may deny the public its privilege of forming its opinion against the accused and of having its justice upon it. 

ARTHUR: An opinion, Mordred, is not a fact. And justice against a person must rest upon established facts. 

MORDRED: The law's justice rests on facts. We do not seek that kind of justice. 

ARTHUR: What is it you seek? 

AGRAVAINE: Justice for the House of Orkney. 

MORDRED [muttering]: I don't care a damn about my House. 

AGRAVAINE [ignoring Mordred]: To establish the standing in the realm to which our House is entitled.

ARTHUR: You tell me that my wife is the mistress of my best friend, and apparently you are to prove this by demonstration, so let us stick to that. I take it that you understand the implications of the charge? The implications are these. If you insist on a civil proof, instead of an appeal to the Court of Honour, the matter will go forward along the lines of civil proof. Should you establish your case, the man who saved you both from Sir Turquine will have his head cut off, and my wife, whom I love very much, will have to be burned alive, for treason.

AGRAVAINE: if you will excuse me, uncle, what I was going to say was this. We intend to settle the matter without civil proof or any appeal to the Court of Honour at all. The standards of proof as you said are designed to satisfy the public mind as to the truth of a claim. But what do we care about the contents of the public's mind when their excited passions will produce that which is needful? 

ARTHUR: Passion alone cannot support the execution of justice under the laws, particularly when it means condemnation to death. 

AGRAVAINE: Uncle, we are in no pursuit of any result offered by justice and the requirements of law to establish true facts; we pursue not that condemnation be carried out, merely that condemnation be declared, in whatever way it might. By this means we shall have justice for our House. We will not be denied this by any more general or public pursuit of truth established by law, in which we do not share besides. Let the public call for their heads, and the Queen and Lancelot will be forced into exile, and justice for our House will be achieved. 

ARTHUR: That may be, Agravaine: you are a keen advocate, and you are determined to have your result. But you underestimate that the public, once its passions have subsided, will once more take an interest in truth, and in justice. I suppose it is no good reminding you that, in the mind of a man not of Orkney, justice is a thing done to a man, not for a House. And that it rests upon truth revealed to a candid mind through facts revealed to be of sound quality and probity as the laws ensure. 

MORDRED: What need has the public of truth after justice is done? Why, an entire people must be convinced of a fact in your courts before it may do justice to a single person! Yet a lightning bolt may dispense justice though it knows not a single fact. 

ARTHUR: Then it is not justice. 

MORDRED: We do not want justice, we want the storm. 

ARTHUR: I understand the situation. 

My Post on CONLAWPROF on Professor Christine Blasey's Allegations Against Judge Kavanaugh

[Dear Professor _____]

Could you explain what specific details pushed you to conclude that the Professor Blasey's ( https://www.paloaltou.edu/faculty/christine-blasey ) allegations are not merely "detailed," but "highly detailed," and not merely "credible," but "extremely credible"? 

Thanks,

Seth

Seth Barrett Tillman, My Post on CONLAWPROF on Professor Christine Blasey's Allegations Against Judge Kavanaugh, New Reform Club (Sept. 18, 2018, 3:51 AM), https://reformclub.blogspot.com/2018/09/my-post-on-conlawprof-on-professor.html. 

Tillman Interview

Demography—it’s an important issue. It may very well be the defining issue of our time. The demographic implosion of the Western world—people just aren’t having kids.

I remember when PD James’ novel, Children of Men, came out: we laughed. It was sci-fi, a dystopian future with no real implications, but the truth is we are now living in such a culture.

The whole social welfare system—especially Social Security in the U.S.—was built on the presumption there would be a pyramid in terms of workers—fewer people going into retirement than coming into the working world.

The pensions (or quasi-pensions) that the state created would be supported by an ever growing population. That presumption has been proved wrong. That will put a strain on or perhaps cause the collapse of the budgets of Western governments or the implosion of many local authorities. There just aren’t the taxpayers.

What the governments are quietly doing is embracing open immigration to bring new people in to replace the people that they thought they’d have, but don’t have. I think it’s the driving force why the elites want so much immigration. It’s not that they care about the newcomers or dislike their own citizens, it’s that they don’t have enough people.

That’s one reason why we’re not seeing children of prominent politicians. Politicians are reflecting wider society, which is not to have children. One of the reasons so many women are actively getting IVF and other procedures is because they’re waiting late in life.

Just a few decades ago, by the time women were 40, the kids were grown up. Now people are delaying having children until the woman is 40. But it is difficult to conceive then and the state puts up the cost of the IVF and they have only one kid. The idea of having two children—and being at replacement level—or three or four children—is lost on wider society.

There are even greater incentives on politicians: they get no credit for having children in that whatever fault of the child is ascribed to the parent. That can hurt them politically. The only way to get away with having children as a politician is to have an infant—so the child can’t screw up.

That’s why Cameron got away with it: his children were really young. God forbid you have a kid who uses marijuana or commits a crime: it’s the end of your career. I’m not surprised in the strong competition for political office, the advantage goes to the person without children. One of the interesting things about Trump is he has got a lot of kids. That didn’t hurt him at all with the sort of people who live in the key states he was trying to win.

Not having children is reflecting a large part of wider society delaying marriage, delaying having children, or not having children at all or putting it off until you’re infertile. It’s not where Western society was even a short time ago.

Seth

Seth Barrett Tillman, Tillman Interview, New Reform Club (Sept. 16, 2018, 1:49 PM), https://reformclub.blogspot.com/2018/09/tillman-interview.html

Unpolitical Animals

Harvard's Robert Putnam, in his famous work of political science Bowling Alone, observed Americans have transitioned (progressed?) from true "democratic deliberation" through actual, human contact among communities, to the more symbolic, impersonal political engagement of the last several decades:

"'Nationalization and professionalization have redefined the role of citizen activist as, increasingly, a writer of checks and letters,'..."

But if you're not a man of letters, or if the checking account is a little lean, don't feel left out! Just tell us to what address shall we deliver your democratic deliberation uniform?

The more Putnam-spirited local activist group in my city used to be quite active, but presented with modern options many residents have chosen to send their business to Facebook, who serves the public's grousing needs with more slickness and facility, but, in my view, with the approximate effectiveness of a giant protest condom. Our mayor confirmed for me this feckless politics of digital pecking and clicking suited politicians' preferences just fine when I met with him about a program our group was urging, but which I knew the mayor did not support. "How about," he scoffed, "you just do a SurveyMonkey?" 

Surveys, Facebook comments, petitions, none of these are probative of any real political engagement, or of any real social capital, or of any shared interest in finding answers to the problems that face us. "Neither force, nor argument, nor opinion...are thinking," wrote T.H. White, speaking through Merlyn in the Arthurian epic The Once and Future King. "At present, however, Homo impoliticus is content either to argue with opinions or to fight with his fists, instead of waiting for the truth in his head. It will take a million years, before the mass of men can be called political animals."

There was a fine example of how the modern protest culture forebodes the end of thought in 1993 when a feminist in Maryland raised a fuss over the motto on the official stationery: "Fatti maschii, parole femme," which translates as, "Manly deeds, womanly words." The crisis was neatly averted, however, by simply changing, by legal fiat, the official translation to "Strong deeds, gentle words." No need for democratic deliberation, historical analysis, etymological exegesis, or indeed any thought of any kind whatever. Protesters created a problem, such as it was, and government, without the need to bother the general public with it, simply legislated it out of existence.

Rather a nice cottage industry, that. Might look for more ways, you may be tempted to think if you are in government, to avoid democratic deliberation, all due respect to Bob Putnam.

Some Reflections on Trump and his North Korean Condominiums

For the last seven years, my family and I have lived in Ireland. So for the most part, my children have grown up abroad. That has had some lasting effects. The history they study at school is Irish history, European history, and Western history—it is not focused on American history, except insofar as American history impinges on the greater world. The French & Indian War (as I learned it) is taught as the Seven Years War, or the Pomeranian War, or the Third Silesian War, and occasionally as the First “World” War. Likewise, when I was their age, my family vacations—along the East Coast (of the U.S.)—was peppered with visits to Revolutionary War and Civil War battlefields, cemeteries, museums, and re-enactments. Not so for my children—America is too far away. We take our modest vacations in nearby Great Britain and Europe. But still we do what we can. This year we visited Bayeux. We saw the tapestry—not quite American history. We also visited Normandy—its museums, cemeteries, and, of course, its beaches.

On Omaha Beach, the French have put up two monuments—one traditional and one more modern. The beach itself is open and used. People traverse the beach and dip their feet in its cold water. Small children play in the sand. There is ample parking for tourists. There are places to buy souvenirs. And not so distant from the epicentre of the beach and its monuments—people have private homes. Maybe some of those homes are condominiums—I don’t know. What this means is that at some point, temporally and geographically, the mourning and the monuments must run out. Yes, the dead are buried. But the earth belongs in usufruct to the living.

At the outbreak of the Korean conflict, MacArthur believed the U.S. should engage in total war and defeat North Korea and its communist allies. For better or worse, his advice was rejected by the political authorities. Since then, more than half a century of containment has failed—miserably. The only path that remains open to us to wean the North Korean state off totalitarianism is peace. That could mean (among other possibilities) that North Koreans will need attractive homes (like the French at Normandy) and tourists (like the French at Normandy)—and that they should exploit that bit of the earth that is (North) Korea’s. For all the sacrifice of the Americans and others who fell at Normandy, I would not sneer at the French for living in attractive homes in their own country and doing business with tourists. For the very same reasons, we should not sneer at North Koreans should they choose to abandon barb wire and making instruments of war in order to build condominiums. Not only should we not sneer, we should applaud their doing so.

People sneered at Trump for telling Kim Jung-un to build condominiums on North Korea’s beaches. They were wrong; Trump was right.

Seth

Seth Barrett Tillman, Some Reflections on Trump and his North Korean Condominiums, New Reform Club (Sept. 4, 2018, 4:15 AM), https://reformclub.blogspot.com/2018/09/some-reflections-on-trump-and-his-north.html.