John,
In Showdown:John Yoo on Trump, Kavanaugh, and Constitutional Crisis, you were quoted as
stating:
There’s
only been one time in the history of the United States that a president defied
an order from the Supreme Court. That was Ex Parte Merryman, at the beginning of the
Civil War. Lincoln refused an order from the court to release a Confederate
prisoner because the military had exceeded its constitutional authority.
Glen Martin, Showdown: John Yoo on Trump, Kavanaugh, and Constitutional Crisis, California Magazine (Sept. 24, 2018, 4:33 PM), https://alumni.berkeley.edu/california-magazine/just-in/2018-09-24/showdown-john-yoo-trump-kavanaugh-and-constitutional-crisis.
By now,
you must know that I have consistently written against the standard narrative
on Merryman since 2015, and in print, since 2016. I wrote an article
opposing this point of view in Chapman Law Review. You were
offered an opportunity to respond—which (I believe) you declined. Isn’t it time—long
past time—to give up on the standard narrative on Merryman—or, to
address my criticism of that narrative. I find your continued willingness to promote
the standard narrative—absent any explanation defending it—anti-intellectual.
Even at
this late juncture, I am reasonably confident that if you approached the
student editors at Chapman, they would offer you pages to address
my critique of the standard narrative and my critique of your prior
publications.
For your convenience, I note that I have 3
publications on Merryman. They include:
[1] Seth Barrett Tillman, Ex parte Merryman:
Myth, History, and Scholarship, 224 Mil. L. Rev. 481 (2016) (peer
reviewed), http://ssrn.com/abstract=2646888;
[2] Seth
Barrett Tillman, Merryman Redux: A Response to Professor John Yoo, 22(1)
Chap. L. Rev. ___ (forthcoming circa Mar. 2019), https://ssrn.com/abstract=3213353;
and,
[3] Seth
Barrett Tillman, Canonical Cases and Other Quodlibets: A Response to
Professor Fallon, 97 Tex. L. Rev. Online ___ (forthcoming circa Nov.-Dec. 2018), http://ssrn.com/abstract=3246598.
Sincerely,
Seth
Seth Barrett Tillman, An Open Letter to Professor John Yoo, New Reform Club (Nov. 21, 2018, 5:45 AM),
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