Mensch tracht, un Gott lacht

Monday, September 21, 2020

This Is What The Great And The Good Were Saying in 2016


This is what the great and the good were saying in 2016 about President Obama’s nominating a successor to the seat held by the late Justice Scalia and about the Senate’s duty to consider the Presidents nominee: 

Chief Judge Peter J. Eckerstrom, The Garland Nomination, the Senate’s Duty, and the Surprising Lessons of Constitutional Text, 21 U. Pa. J. Const. L. 33 (2018); and, Chief Judge Peter J Eckerstrom, Yes, the Senate Elevated Partisan Political Goals Over Constitutional Text When It Refused to Consider President Obama’s Nominee to Replace Justice Scalia, 21(4) U. Pa. J. Const. L. Online 1 (Feb. 2019). 

Eckerstrom asserted that the Senate has an “affirmative constitutional duty” to consider President Obama’s nominee. Elsewhere Eckerstrom used “obligatory” and “mandatory” language in regard to the Senate’s duty to act on a presidential nominee. 

Dean Tacha (Pepperdine) & Dean Minow (Harvard) in The Boston Globe in 2016: affirming that President Obama has a “clear constitutional duty to nominate a successor” to Justice Scalia. See  Martha Minow & Deanell Tacha, Opinion, US Needs a Government of Laws, Not PeopleBoston Globe (Mar. 22, 2016), <>. 

David F. Tavella & Anne Marie Tavella, Advice and Consent for Federal Judges: A New Alternative Based on Contract Law, 3 Drexel L. Rev. 521, 531 (2011) (“[T]he [Appointments] [C]lause places an affirmative obligation on the President and the Senate to fill the described appointments ….”). 

Steven J. Harper, “Let the People Speak”?, Lawyer Bubble (Mar. 9, 2016) (“The President has a duty to nominate and the Senate has a responsibility to act on that nomination.”). 

Some even said if the Senate refuses to act on a presidential nominee, then President can appoint the person absent Senate advice and consent! Gregory L. Diskant, Obama Can Appoint Merrick Garland to the Supreme Court if the Senate Does Nothing, Wash. Post (Apr. 8, 2016).

What are they saying now? 


Seth Barrett Tillman, This Is What The Great And The Good Were Saying in 2016New Reform Club (Sept. 21, 2020, 3:01 AM), <>; 


Tuesday, September 15, 2020

Extracts from Bauer & Goldsmith’s “After Trump”


Bob Bauer & Jack Goldsmith, After Trump: Reconstructing the Presidency (Lawfare Press 2020).

The Foreign Emoluments Clause, found in Article I, Section 9, is written in the passive voice and does not specifically reference the president. Instead, it provides that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” There is disagreement, as yet unresolved by the Supreme Court, whether this provision applies to elected federal officials, including the president. However, Congress assumed that the Foreign Emoluments Clause applies to the president when it exercised its power to “consent” to foreign “emoluments” in the Foreign Gifts and Decorations Act of 1966. That statute specifically applies to the president and supplies congressional consent for gifts of “minimal value” that might be received in the course of hospitality provided by a foreign government or official. 

Id. at 51 (footnotes omitted).

We acknowledge that it is an open question whether the Foreign Emoluments Clause applies to the president and thus whether Congress can regulate the president pursuant to its consent power in that clause. We agree with the weight of lower court and scholarly analysis that concludes that the Foreign Emoluments Clause applies to the president, but the matter is not open and shut. Only the Supreme Court can definitively resolve this issue. But we expect that most if not all future presidents would not challenge the constitutionality of our reform proposal. And the statute could in the interim go a long way in establishing the right norms even if there were eventually litigation over the matter. And in any event, the Supreme Court cannot resolve the issue unless it is presented to it in a challenge to the statute, assuming that one can be crafted. 

Id. at 66.

That said, the application of the anti-bribery statute to the president is not certain, especially since it defines a covered “public official” as a “Member of Congress, Delegate, or Resident Commissioner, … or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof.” In the absence of a plain statement, it is possible that a court might would rule that the president is not an “officer or employee” of the United States. There should be no doubt on this matter. We thus propose that Congress make clear that the president is a “public official” within the meaning of the bribery statute. Congress should also amend the statute’s prohibition on a public official seeking or accepting a bribe “in return for being influenced in the performance of an official act” to make clear that “official act” includes a pardon. These changes are entirely consistent with the Justice Department’s view of presidential prerogative and would clearly criminalize pardons as part of a bribery scheme. The amended bribery statute would not prohibit a president from pardoning a campaign supporter to reward his or her loyalty, without regard to the merits. Such a pardon may well be unworthy or controversial, but it would not be a crime for the president to use the pardon power in this fashion. Under the amended statute (and quite possibly under the current statute), the same pardon of a supporter would give rise to legal jeopardy if evidence surfaced that the president had entered into a corrupt agreement to grant the pardon in return for political contributions.

Id. at 113 (footnotes omitted) (emphasis added). 

Query: What does the word “corrupt” add? What did the authors think it added? If the word “corrupt” had been dropped, how would the effect of their proposed statute change? Would it be possible for the President to agree to exchange a pardon for campaign contributions and the transaction not be corrupt and, therefore, lawful? 

It is a puzzle.


Seth Barrett Tillman, Extracts from Bauer & GoldsmithAfter Trump,New Reform Club (Sept. 15, 2020, 5:30 AM), <>;

Saturday, September 12, 2020

Is America's "soul" up for election? What if it loses?

Politics used to be about things like tax cuts. When politics was about tax cuts and subsidies and spending on projects and putting a stop sign at the end of the street, Americans could bear to get a little more or a little less from election to election. An election result could be disappointing. But it was not catastrophic. Quality of life is very important to Americans. But quality of life is not all-important. Americans will argue with each other over quality-of-life issues. But they will not kill each other over them. Settling things like tax cuts through elections worked out just fine.

But politics is not about things like tax cuts anymore. Now politics is all about causes. Causes like Black Lives Matter. Causes like LGBTQ+. Causes like Climate Change. Causes like Defunding the Police. Causes like Systemic Racism, and Open Borders, and Reproductive Rights, and Trans Rights, and Dismantling the Cis-Normative Patriarchy. And on. And on.

You cannot settle causes like these by vote. For one thing, they are indivisibles. They will not bear compromise. To suggest compromise may be considered a form of "violence." Nor may you watch, in silence, as the issues unfold -- for silence, too, may be considered a form of "violence." Besides, many of the issues are simply unsolvable. Politics has no answer to them. 

Which leads to the larger reason causes like these cannot be settled by vote: Causes like these bear too great a resemblance to religion -- the nature of man, his original sin, his fallenness, and his salvation from it. Politics cannot settle disputes over dogma. They are neither soluble nor dissoluble.

Elections cannot decide causes like these. Yet these causes dominate 2020 election journalism. The 2020 election is not about quality of life. In fact, it is not about life at all. In 2020, the election is about our "soul." Democratic presidential nominee Joe Biden says this election is a "battle for the soul of the nation." He has said it repeatedly and prominently. Senator Kamala Harris independently has said the same thing, even before receiving the nod for vice-presidential nominee: "The task is to fight for the soul of our country." 

Supposing Joe's instincts are slipping? Supposing Kamala is making up for her lack of substance? Think again. Spencer Critchley, a consultant on the successful 2008 and 2012 Obama campaigns agrees that treating politics in the traditional way, as a way to solve problems, is for suckers. "There is more to life than reason, and people are not motivated by data," says Critchley. "They are motivated by matters of the heart and the soul." 

So do not bother asking a Biden/Harris supporter what policies they support. Do not bother asking what solutions they offer. They will answer only with causes. Because in 2020 America, the Biden/Harris team is betting that voters are driven in elections by nothing less than the salvation of their souls.

But supposing the Biden/Harris team is right: If America's very soul is indeed up for election, what if it loses? 

Contests over souls, history tells us, are not very nice. The Romans' persecution of the early Christians "was a natural response," wrote Rowan A. Greer, because "[t]he Roman world rightly saw that one possible implication of Christianity was a rejection of the social order." And centuries later, after the Roman world gave way to the Christian world, many Christians, such as King St. Louis IX, still saw the matter much the way their former persecutors had:

St. Louis advised his people not to discuss religion with Jews; “the layman,” he told Joinville, “when he hears any speak ill of the Christian faith, should defend it not with words but with the sword, which he should thrust into the other’s belly as far as it will go.”

(To those with the spittle for it, Chesterton had it that the pious king's counsel was to argue with infidels "on the reasons of the philosophers themselves," as a real philosopher can argue. But failing that, Louis concluded, all that remained was to "thrust a sword through his body as far as it will go.")

Even by the 18th century, the great English man of letters Samuel Johnson thought matters of the soul were worth dying for. "In short, Sir, I have got no further than this: Every man has a right to utter what he thinks truth, and every other man has a right to knock him down for it. Martyrdom is the test." Johnson believed the state had a right to regulate the religion of the people, for the upbringing of children. Johnson was reminding a clergyman supportive of this right that he may not so readily agree with it should he travel in a state committed to exercising the same right, but on behalf of a different religion.

Which we may take to mean: all causes are not equal. Some causes are sensible. Some causes are bosh. Some are merely useful. Some are profound. And some hold the key to everlasting life. Johnson thought the state had a role to play in ordering ideas and causes, prioritizing them, and as to those responsible for holding the social order intact, ensuring their survival. But: so does the individual have a role. Some ideas are worth dying for. But how would we ever know which ones, if no one volunteers for the demonstration?  Anyone may be willing to kill for their ideas. But how many are willing to die for them? 

Awaiting us at the end of argument is sometimes agreement, though rarely. More commonly we may try to reach compromise; or failing that, tolerance. But lest we forget: also awaiting us may be intolerance: our fellow may choose to knock us down for our beliefs. We might well give a thought to what we are prepared to do then.

Margaret Thatcher and Enoch Powell debated this on the eve of Argentina's invasion of the Falklands. The Prime Minister is reported to have spoken about the Christian concept of the just war and Western values. To which Powell responded, "We do not fight for values," and "I would fight for this country even if it had a Communist government." Thatcher disagreed: "If I send British troops abroad, it will be to defend our values." The last word recorded of this exchange is Powell's: "No, Prime Minister, values exist in a transcendental realm, beyond space and time. They can neither be fought for, nor destroyed." 

Now, to fight for something requires a loyalty to it. I do not know on what loyalty depends. But it is not dependent upon something so abstract as values, is what Powell was telling Thatcher. Powell was saying that, when a man is called to fight for his country, he does not ask for a moment to consider what values are espoused in the nation's party platforms of the most recent election, or in the nation's high court decisions of the most recent term, or in the newspapers of that very morning. He does not consider who won the last election. He fights for his country for the same reason he fights for his family. 

There are some things -- religion, perhaps little else -- that are so wrapped up in a man's being that he cannot be expected to suffer undue challenge to his practice and belief. As St. Louis suggested, if religion is to be put to the test, parley is reserved for the philosopher and the saint; for the rest, however, for those who grasp the eternal weight of the stakes, he must evade, seek refuge, and, if pursued and cornered into the last redoubt, then, at the last, to turn, and to fight, to the mortal death. The words Robert Bolt placed in the mouth of Sir Thomas More on this subject, in his 1960 play A Man for All Seasons, were these:
MORE Now listen, Will. And, Meg, you listen, too, you know I know you well. God made the angels to show him splendor -- as he made animals for innocence and plants for their simplicity. But Man he made to serve him wittily, in the tangle of his mind! If he suffers us to fall to such a case that there is no escaping, then we may stand to our tackle as best we can, and yes, Will, then we may clamor like champions . . . if we have the spittle for it. And no doubt it delights God to see splendor where He only looked for complexity. But it's God's part, not our own, to bring ourselves to that extremity! Our natural business lies in escaping, so let's get home and study this Bill.

Thomas More was expected to swear an oath to support the marriage of King Henry to Anne Boleyn. This, More knew, he could not do without violence to his allegiance to his faith, which he held higher than his allegiance to earthly authority. In the end, More was willing to suffer death for his loyalty. Yet, he did not relish it, and sought to avoid the ultimate decision, if he could. 

Joe Biden and Kamala Harris sound as though they are ready to put Americans to a similar decision. Perhaps, in some ways, even a more terrible decision. For St. Louis, and Dr. Johnson, and King Henry all presumed that a man who withheld his loyalty from the state for the sake of his soul, though his life be lost, may still keep his soul for God. That, at least, was beyond the reach of any earthly sovereign. 

But for a godless state, no such respite exists. Since Nietzche, the state is not limited to having men's lives only. The consummate statesman may now command his very soul. His ultimate arbiter is History, whose judgment rolls, inscribed by newsroom priests and university monks, record severe judgments and odium theologicum against apostates and infidels. History, the Biden/Harris ticket will have you know, shall condemn the souls of those who do not vote Democrat. 

Their eyes have seen the coming of electoral reward;
They will trample out the vintage where the grapes of wrath are stored;
They will loose the fateful lightnings of their terrible swift sword;
Their truth is marching on.

Glory, glory, hallelujah?

Monday, September 07, 2020

We have no Colosseum, so we must make do...

"Intellectuals perennially grumbled about the amount of time the Roman people wasted watching sports, but the stadium offered the only place a citizen regularly saw their ruler."  

Douglas Boin, Alaric the Goth: An Outsider's History of the Fall of Rome (W.W. Norton & Co. June 2020).

If you cannot afford a $10,000 a plate dinner at your local elite campaign fundraiser, you can still order a pizza and peruse "Donald Trump's Best Tweets of the Decade, Ranked." Number 18:

The food is better, too.