Not Guilty: A Response to Professor Michael Dorf

Some months ago, I had a deeply unpleasant experience with an academic author who had published an article in California Law Review. The author, in a discussion of one of my papers, put certain language in quotation marks. I never wrote that language: the quotation was created out of this air. This is the sort of thing student editors are supposed to catch. I did not demand a retraction; I did not threaten a legal action; I did not promise to rain down fire and brimstone on my opponents. I simply sent a short, crisp response to the law review’s online supplement. It was turned down. Instead of accepting my response, what the student editors did was this: they removed the offending quotation marks from the original article as it appears on the major electronic platforms—albeit, the hard copy, with the quotation marks, had already gone to press—and, they assured me that I had misread the material. The material was intended, not to quote me, but to quote someone else entirely—even though that other person had not made the statement which they now ascribed to her. Furthermore, they maintained that removing the quotation marks substantially solves the problem. No errata sheet was placed online or elsewhere. In my view, it was all a disgraceful sham, and the original author, the student editors, and the faculty advisors missed the mark. If you want to read about it, see Seth Barrett Tillman, The Foreign Emoluments Clause—Where the Bodies are Buried: “Idiosyncratic” Legal Positions, 59 S. Tex. L. Rev. 237, 268–69 (2017), https://ssrn.com/abstract=3096986 (discussing Victoria Nourse, Reclaiming the Constitutional Text from Originalism: The Case of Executive Power, 106 Calif. L. Rev. 1, 28 (2018), http://www.californialawreview.org/wp-content/uploads/2018/02/1Nourse-34.pdf).

Now you might ask: Seth—Why bother? The reason to act with reasonable alacrity in such situations is that misstatements, which go without response, are remembered as true. If truth is on your side, you are expected to respond, and failure to do so, means you accept the mischaracterization. Few things have a greater impression on a young lawyer’s intellectual development than discovering that the party who speaks last has a powerful tool. Likewise, in an academic debate, the last thing heard, even if a gross mischaracterization, may carry the day merely because it was the last thing heard.

All that takes me to this week’s misquotation and mischaracterization. It starts with what I wrote on Conlawprof. Here is what I wrote: 

It strikes me that there are two possibilities: [1] [Professor AAA] really believes what he has written, or [2] [Professor AAA] does not believe what he has written in response to me, and his response is some sort of enterprise in virtue signalling. Hmm. Hmm. Let me think this over.

I’m going to go with door number 2—here is why.

[Professsor BBB] made an analogy to the risks connected with the German election of 1933. When I suggested emigration as a response, among other potential responses, [Professsor AAA] responded by saying that he and [Professsor BBB] were not at particular consequential risk as “affluent white males.” (A fact which was entirely news to me—as I have never met him as far as I know.) Now, if [Professsor AAA] is correct, it means that Trump is not planning to detain and/or exterminate all his political opponents. Right? So Hitler and the risks of 1933 is not entirely on-point. If the argument, is that Trump, like Nazi Germany, might detain and then exterminate people, not based on political opinion, but in connection with race (other than being white) and other such characteristics, then [Professsor BBB] and [Professsor AAA] should build safe rooms (like the Dutch did in WWII) to hide people. Indeed, people on this list who are not white, but who agree with [Professsor AAA] and [Professsor BBB], might consider just buying some stand-by plane tickets or a small cabin abroad. But I have no good reason to believe that [Professsor BBB] or [Professsor AAA] or any person on this list (white or otherwise) has done any such thing. (Now, I could be wrong—feel free to respond off list and do so anonymously in order to keep your secret safe! Walls have ears and all that. And in these dark times, who can one really trust? Secret police are everywhere!)

As to broader based political and economic risk … [Professsor AAA] suggests there is “no refuge” from the consequences of the Trump nightmare. If the risk is an economic one, [Professsor AAA] and others might, at the very least, shift some of their liquid assets into land and/or chattel such as precious metals that will preserve value should Trump’s policies destroy the international economic order (as [Professsor AAA] believes will occur). If the risk is a global military one, then surely some areas are relatively safer than others? Even in WWII, Switzerland and most of South America went largely untouched by the war. And some areas which saw occupation and actual conflict were more damaged than other such areas. Surely if Trump is the concrete danger [Professsor AAA] believes, [Professsor AAA] could implement some concrete life plan to attenuate those risks for himself, and his loved ones, and others in the orbit of his personal influence, right? How could it be that doing nothing is every bit as good as any other potential option? How is that possible?

Like I said: it is all virtue signalling. [Professsor BBB], [Professsor AAA] (and [Professor CCC] too!): if you want more Trump, just continue to do precisely what you are doing. You are (I believe) making and minting Trump voters all the time.

Seth Barrett Tillman, Post, Conlawprof (Oct. 23, 2018, 5:35 PM). Likewise, earlier that same day I wrote:

I am pretty confident that the vast majority of people who supported Trump in the past don’t want to be “forgiv[en]” by you or by anyone else. And, if I had to guess, I’d say, it is the sort of language you have used here (albeit, this sort of language is not entirely unique) that encourages any number of non-ideologically committed voters to vote for Trump.

I would also add (as I have in the past on Conlawprof and elsewhere) that if you genuinely believed that the Republican’s retaining Congress would lead Trump to further an “authoritarian” or “fascistic” agenda, you could point to concrete plans you have made and are ready to implement (should the Republican’s retain Congress) in regard to protecting yourself, your family, and others in your personal orbit of influence. You could point to plans to emigrate—or, at least, to leave temporarily until the worst has passed. You would be ready to diversity your liquid assets into non-dollar-denominated instruments and into investments abroad. But if you have no such plans, then the natural conclusion is that this sort of language is all just political hyperbole and that you don’t genuinely believe what you are writing here.

Seth Barrett Tillman, Post, Conlawprof (Oct. 23, 2018, 3:47 PM) (bold and italics added).

Then, on Monday, October 29, 2018, Michael C. Dorf, on Dorf on Law, wrote:

Moreover, many of the conservatives on the list are never-Trumpers. Consequently, the small number of pro-Trump or pro-Trump-adjacent list members tend to be defensive, with the defensiveness sometimes turning into aggressiveness.

One list member has expressed his aggression by repeatedly doubting the sincerity of the most Trump-critical list members. The doubt takes the following form: You don’t really think Trump is the threat you claim he is, because if you really thought he was a fascist you would be taking active steps to emigrate or go into hiding or self-censor; the fact that you’re not doing any of that shows that your expressions of condemnation are mere self-serving virtue signaling.

This charge is unfair. One can think that Trump poses an existential threat to republican government but that the nature of the threat is of the sort that will take some time to fully materialize and metastasize, so that even if one thinks one eventually might need to emigrate, one might not want to start packing just yet. Moreover, the threat is unevenly distributed, so that one can think that one is not personally in peril, even as there is a threat to others.

Michael C. Dorf, Between Healthcare and Fascism: Chaos, Dorf on Law (Oct. 29, 2018, 7:00 AM), http://www.dorfonlaw.org/2018/10/between-healthcare-and-fascism-chaos.html (italics in Professor Dorf’s original). 

Now I am going to go out on a limb here—as best as I can tell, Professor Dorf was referring to—me. I encourage him to amend his online post accordingly. There is no good reason to deny this information to his readers. (N/B: 2Rs and 2Ts in Barrett, and 2Ls in Tillman)

So now you have what I wrote, and what Professor Dorf says I wrote. They are not quite the same—at least that is my position.

First, I don’t see where Professor Dorf can point to any language where I suggest that people believing Trump is a threat should (even as a prudential matter) “self-censor.” Where I mention that people might want to e-mail me their response off-list that was a joke—the two exclamation points are a giveaway. j-o-k-e spells “joke.”

Second, my primary point is that if you believe Trump is an existential threat, you should be doing something other than your normal routine. Something. Professor Dorf’s response is that the threat has not emerged yet, and, in the alternative, that others (as opposed to oneself) may be in peril. That justifies inaction now. But that was precisely the point I made. What I said was that if you were white, and you sincerely believe persons who were not white faced an existential threat, you could make a safe room in your house—like (some of) the Dutch in WWII did for Jews.

Moreover, even if the threat has not yet emerged, a person who genuinely believes it will emerge, or that there is a meaningful likelihood that it will emerge, that person could plan now for that dystopic future. As I explained, even if you have not bought a plane ticket to emigrate or to move abroad temporarily, you might investigate your options now (like where one could get a sabbatical) and have a plan ready to implement should the worst happen. The key word: plan. Again, my point was—in part—if you have not done any investigation, if you have no plan ready to go, if you have nothing ready to implement should it be needed, then the natural conclusion is not that you are waiting for the threat to emerge; rather, the natural conclusions is that you do not actually believe there is any meaningful threat.

Adults plan for the future.

So I posit the alternative. Much of what is written on Conlawprof and in other similar fora is hyperbole. The speakers do not mean what they are writing or saying. It is all virtue signalling. A cultural artefact of a traditional elite (including Democrats and Republicans) that saw itself and its worldview displaced in the 2016 election, and they fear it may happen again in 2018. Instead of serious introspection in regard to why their 2016 candidate, the Democratic Party’s candidate, lost, they attack the candidate who plainly announced what he thought (even to the extent of producing a Supreme Court short-list), who prevailed under the rules that existed at the time, and who has, by and large, except for that wall, done what he told the voters he would do. You would almost—I say “almost”—think some people have a problem with everyday democracy & normal politics. 

Finally, there is Professor Dorf’s characterization of my writing as exhibiting “defensiveness” and “aggressiveness.” Please—Michael—point out—and feel free to quote—what in my writing led you to make that characterization. Your conclusions seem (to me, at least) kind of strained: The quality of mercy and all that. 

Seth

Seth Barrett Tillman, Not Guilty: A Response to Professor Michael Dorf, New Reform Club (Oct. 31, 2018, 2:51 PM), 
https://reformclub.blogspot.com/2018/10/not-guilty-response-to-professor.html.