Our problems remain epistemological.

Friday, December 24, 2021

What Did Alexander Hamilton Mean?

 


In Federalist No. 77, Alexander Hamilton wrote: “The consent of [the Senate] would be necessary to displace as well as to appoint.” What did Hamilton mean?

Compare Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting) (“In order to prevent arbitrary executive action, the Constitution provided in terms that presidential appointments be made with the consent of the Senate, unless Congress should otherwise provide; and this clause was construed by Alexander Hamilton in The Federalist, No. 77, as requiring like consent to removals.” (emphases added)), Ray Raphael, Constitutional Myths: What We Get Wrong and How To Get It Right 118–119, 277 nn.34 & 36, 278 n.38 (2013) (affirming that Hamilton’s “displace”-language addressed removals, and characterizing the contrary view as “purely legalistic” and “subtle”), <https://tinyurl.com/2p8jhwkc>, and Jeremy D. Bailey, The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge, 33 Harv. J.L. & Pub. Pol’y 169 (2010) (arguing that Federalist No. 77’s “displace”-language was akin to “remove”), <https://ssrn.com/abstract=1473276>, with Reply Brief for the Respondent [Consumer Financial Protection Bureau (“CFPB”)] at 10, Seila Law LLC v. CFPB, No. 19-7, 140 S. Ct. 2183 (2020) (brief filed on Feb. 14, 2020 by Francisco, S.G.), 2020 WL 774433 (“In The Federalist No. 77, Hamilton said only that the Senate’s consent ‘would be necessary to displace’ principal officers . . . not to ‘remove’ them. Replacing an officer would of course require Senate confirmation of the replacement—which is all Hamilton may have meant.”), <https://tinyurl.com/y4fbdh2x>, 3 Joseph Story, Commentaries on the Constitution of the United States §§ 1532–1533, at 390 (Boston, Hilliard, Gray, & Co. 1833) ("§ 1532. [I]n an early stage of the government, [the power of removal] underwent a most elaborate discussion [in Congress]. The language of the constitution is, that the president ‘shall nominate, and, by and with the advice and consent of the senate, appoint,’ &c. The power to nominate does not naturally, or necessarily include the power to remove; and if the power to appoint does include it, then the latter belongs conjointly to the executive and the senate. In short, under such circumstances, the removal takes place in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the [subsequent] appointment itself. § 1533. This was the doctrine maintained with great earnestness by the Federalist [No. 77] . . . ." (emphases added)), <https://tinyurl.com/a5hsn8zr>, Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010) (arguing that Federalist No. 77’s “displace”-language was akin to “replace,” and was not addressing “removal” per se), <https://ssrn.com/abstract=1331664>, Ilan Wurman, The Removal Power: A Critical Guide, 2020 Cato Sup. Ct. Rev. 157, 197 (“Hamilton’s entire paragraph [in Federalist No. 77] is about ‘the business of appointments.’ Thus, he speaks of ‘displacing’ an officer after a new president is elected. This seems most logically to be a reference to the advice and consent of the Senate to a new appointment.”), <https://tinyurl.com/2p9xzn8s>, and Letter from Professor Forrest McDonald to Seth Barrett Tillman (Feb. 14, 2009), <https://tinyurl.com/2ueurpx4> (“Your argument [that is, the view regarding the meaning of Hamilton’s “displace”-language] is, in my opinion, irrefutable.”). See generally, e.g., Removal Power of the President, [16 June] 1789, Founders Online (last accessed Dec. 12, 2021), <https://tinyurl.com/rtvtdccx>:

[James Madison, in the House of Representatives’ Committee of the Whole:] Where the people are disposed to give so great an elevation to one of their fellow citizens, I own that I am not afraid to place my confidence in him; especially when I know he is impeachable for any crime or misdemeanor, before the senate, at all times; and that at all events he is impeachable before the community at large every four years, and liable to be displaced if his conduct shall have given umbrage during the time he has been in office.

Id. (emphasis added).


Seth Barrett Tillman, What Did Alexander Hamilton Mean?, New Reform Club (Dec. 24, 2021, 5:30 AM), <https://reformclub.blogspot.com/2021/12/what-did-hamilton-mean.html>; 


See also Seth Barrett Tillman, Non-Textualism and the Duck Season-Rabbit Season Dramaturgical Dyad: A Response to Professor Cass Sunstein (and others), 20(2) Geo. J.L. & Pub. Pol’y (forth. circa May 2022), <http://ssrn.com/abstract=3910416>.



Wednesday, December 15, 2021

Monday, December 13, 2021

Friday, December 10, 2021

Some Uncomfortable Thoughts About the Smollett Prosecution

 


 

Let the jury consider their verdict,’ the King said, for about the twentieth time that day.

No, no!’ said the Queen. ‘Sentence first—verdict afterwards.’

 —Lewis Carroll, Alice’s Adventures in Wonderland (1865)

Dave Chapelle knows it. See <https://tinyurl.com/4j2wj259>. I know it. And you know it too. There was no hate crime; it was a hoax. And there have been many hoaxes in recent history. It is a long, long list. Smollett’s actions have (inadvertently) exposed the race hoax industry, and its regular accessories across the U.S. news-media-&-entertainment-industry complex. The media will purport to believe anything. The beast has to be fed—copy has to be sold—clicks have to be inflated—even if the ultimate result is racial violence grounded in a hoax.

But we should still take a good, hard look at the Smollett prosecution. The latter has also exposed the seedy underside of the legal world of criminal prosecution. It is not a pretty picture. The prosecutor, Kimberly M. Foxx (the State’s Attorney for Cook County, Illinois) and her office made some mistakes. They started a prosecution of Smollett, and then stopped it—with little explanation or transparency. Foxx also (arguably) made technical or administrative errorswhen she informally recused herself from the Smollett case and then directed one of her subordinates to take over the case.

As a result, the matter was shifted into Judge Toomin’s court. He had discretion to appoint a special prosecutor to take over the Smollett prosecution. His exercising that discretion depended on whether Foxx and her office had violated the law controlling the administration of justice. Toomin’s decision hinged (or should have hinged) on Foxx’s conduct, not Smollett’s. A judicial resolution of Smollett’s guilt or innocence would only follow a jury’s verdict after a trial, should a newly appointed prosecutor choose to bring a prosecution. This is all basic. You don’t have to go to law school, or even watch Matlock reruns, to understand this, right? Actually, no, some people do not understand this most basic principle. And some of these people are our judges. 

In his decision, which granted the motion to appoint a special prosecutor, Judge Toomin wrote:


Rather, in perhaps the most prominent display of [Smollett’s] acting potential, Smollett conceived a fantasy that propelled him from the role of a sympathetic victim of a vicious homophobic attack to that of a charlatan who fomented a hoax the equal of any twisted television intrigue.

[Judge Michael P. Toomin, In re Appointment of Special Prosecutor (Jussie Smollett), No. 19-MR-00014 (Circuit Court of Cook County, Illinois, Criminal Division, June 21, 2019) (slip op. at 2), <https://tinyurl.com/2s37y247>.] Lewis Carroll’s Red Queen would have agreed with Judge Toomin’s sentiment: here, guilt is announced before trial. This sort of pronunciamento does not leave much residual discretion for the prosecutor. With his only having one case to sort out, the prosecutor has every reason: to bring the case to trial; to enjoy the perquisites of his temporary government appointment; and to rack up any concomitant media attention. See Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting). And, here, a judge has already tipped his hand as to the accuseds guilt—so, a decision to prosecute looks unusually safe.

If you believe, as I do, that none of this makes any sense … that is because none of this makes any sense.

Seth

Seth Barrett Tillman, Some Uncomfortable Thoughts About the Smollett Prosecution, New Reform Club (Dec. 10, 2021, 7:19 AM), <https://reformclub.blogspot.com/2021/12/some-uncomfortable-thoughts-about.html>; 



 

Sunday, December 05, 2021

The Teepee and Trump Tower: The Environmentalist Vs. Christendom

Let me tell you about an essay I just read by a friend of mine. The essay is ostensibly about global warming theory. I say the essay is about "global warming" theory because my friend prefers "global warming" over the theory's hazier new name, "climate change." Many of the exponents of "climate change" theory bristle upon being reminded their theory went, until recently, by the more forthright name "global warming." That is probably because the globe has not actually warmed since the '90s, and because in the 4 billion or so years of existence our globe has warmed – and cooled again – rather a lot of times, even before there were humans around emitting carbon or carbon theories. But rest assured, my friend's essay is not partisan, and in fact his essay stipulates to the principal tenets of global warming. Or climate change. Whatever. 

I also said the essay is ostensibly about global warming. I say "ostensibly" because the essay really is about something else. And about that something else I would like to say more, because it is a provocative point. My friend delays gratification about the something else to page twenty-something of his essay. But being a more promiscuous essayist I give it away right up front. Here is the something else: 

Yes, the global-warmists hate what modern human activity is doing to the planet. That is no act. But there is more to it than just the harmful effects of modern human activity. Much more. In fact, the mere effects of human activity is just the entrĂ©e to the real objective. Icebergs are just an icebreaker. Once you probe deeper, some of the global-warmists will admit it to themselves: this is not just about carbon. Carbon is just a crude symbol of what is wrong with modern human activity. Warmist hatred goes deeper than this. No, their war is not against carbon. Deep down, the warmists don't just want to abolish the effects of modern human activity: they want to abolish modern human activity itself, and remake humanity it their own image. The warmists wrestle not against principalities, against powers, against the rulers of the world, but against flesh and blood. 

In other words, climate change theory is not ultimately an engineering quest, but a religious one. This seemed rather fresh when it first dawned on me, but in fact the environment has always been bound up in human religious and magic traditions. In his classic study of religion and magic, The Golden Bough, Sir James George Frazer observed that the "decay and regeneration" of the earth is "a phenomenon so important, so striking, so universal" that it "readily presents itself to men in every stage of savagery and civilisation." And so it has proved among many of the exponents of climate change theory, carrying on the worship tradition. Charles A. Reich prophesied a "revolution" in The Greening of America, a best-seller in 1970 and '71, which revolution would usher in "a new and enduring wholeness and beauty — a renewed relationship of man to himself, to other men, to society, to nature, and to the land.” Other environmentalists like Arne Naess and Murray Bookchin have preached an egalitarianism of people, plants, and animals, a return to a utopia of primitivism. American activist Jerry Mander argued primitive societies were onto something: they were not ignorant of modernity, but scornful of it. And so, Mander argued, should we be. 

Who are these premillennial mooks, you ask? Why, they don't even have Twitter accounts! On whose authority are we to accept that the modern environmental movement is driven by something like religious impulses? Well, then perhaps you will accept the authority of the man who invented the internet, Mr. Albert Arnold Gore, Jr.? The overarching theme of his The Earth in the Balance is that ours is a "contrived, controlled, and manfactured world," that modernity represents a "moral schism" and "spiritual crisis" that threatens "the loss of our spiritual lives" and "mask[s] our deep loneliness for that communion with the world that can lift our spirits," and that we should instead "walk humbly with nature's God" toward " a larger spiritual purpose." And we should take our cues for life's purpose from the ancients, from the Indians. Gore quotes Chief Seattle, that "man belongs to the earth. All things are connected like the blood that unites us all. Man did not weave the web of life, he is merely a strand in it." Gore offers up the prayer of the Onondaga tribe to the "Great Spirit, whose breath gives life to the world," asking to "help us learn the lessons you have hidden in every leaf and rock," and to "make us always ready to come to you with clean hands and straight eyes, so when life fades, as the fading sunset, our spirits may come to you without shame." (You may think I write this when a sneer. I do not.) 

But I belabor the point. The President himself, taking up Gore's cause, has declared a "battle for the soul of America." Surely we are slow students to have learned, only at this late stage, that environmentalism is not merely a policy proposal but religious evangelization. 

The a-ha moment came for my friend upon reading Mark Lynas's new book, Final Warning. My friend was, at first, confused by Lynas, because Lynas actually is not very supportive of many proposals to reduce carbon emissions. Lynas opposes, for example, “direct human manipulation of the world’s climate and weather systems on a day-to-day basis.” Lynas thinks this a “Faustian bargain.” Why is Lynas, who is deeply committed to climate change toward global unwarming, so dismissive of many of the du jour carbon-cutting proposals? Lynas reveals: "[W]e would gain some version a future, but at the cost of our souls. The planet we would bring into being would not be the earth I love and want to protect.” Yes, says Lynas, maybe we could cut carbon enough to save both the earth and our lifestyle. But don't you see, we would have let the crisis go to waste! For Lynas, we are going about this all wrong thinking of this as an economic and engineering problem. We are treating global warming as the disease, and our lifestyle as the patient to be saved. But this does not ring true for the true believers: global warming is the cure – our lifestyle is the disease. Policies will never be enough. Only prayers and ablutions will ready us to come to the Great Spirit, without shame. 

Again, I say this without a sneer. All those longing for spiritual fulfillment are my brethren. We are on this earth to seek God and honor Him. Always do each of us need improvement and encouragement in this, our highest calling. And often may we find suggestions in other traditions. So let us consider for a moment the Indians. 

I still call them Indians, by the way. The Indian was America's unique moral problem. The term Indian evokes the surprise that the first Europeans must have felt to find the Native Americans on this continent, and not literal Indians. They were not even prepared enough to give them their own name. And throughout our history we never did become prepared to treat them decently. Those Europeans who became Americans might have been forced to acquiesce in co-existing with another way of life had they reached Asia instead of a new continent. This is a project the British mastered through colonialism. We Americans pride ourselves on not being colonialists. But we also cannot claim any credit for peacefully coexisting with any other way of life. The Native American never had greater standing in the eyes of Westerners than when they were thought to be Indians. And we still cannot abide other ways of life. In my own profession, lawyers vex and prod for greater "diversity" on the bench. Yet no one ever means by this that we should look for judges who rent their homes, or who made a living among the trades: our jurists are almost uniformly cosmopolitan. American cosmopolitans have never had greater self-esteem as diverse and tolerant, yet they still don't know what to make of a person who doesn't want a desk job, an iPhone, a stock portfolio, and a vaccine passport. 

So the Indian way of life obviously is romanticized. Al Gore and global warmists and other cosmopolitans do not actually want to live like Indians. (I suspect Mark Lynas wants to want to.) But even the most earnest warmist knows he'll come no closer than maybe re-watch A Man Called Horse. So what he lacks in the way of Indian customs he makes up for with an anti-modern mood. He admires the teepee – it represents a way of life connected to nature, and not aspiring to surpass or dominate it. And if he will not deign to live in a teepee, at least he can fulminate against the gaudier manifestations of modernity. Trump Tower will do nicely. What is Trump Tower but the same glass and steel in which the cosmopolitans and their climate change think tanks are housed, with some gauche ornamentation bolted on for show? The climate, of course, cannot distinguish Trump Tower from the UN building. But the climate activist sees Trump Tower as a trophy awarded to nature's conqueror. And that is the difference: Gore and Trump have both conquered nature, and neither want to give up their lifestyle, but Gore expresses remorse about that, and Trump does not. 

By the way, penitence also drives the approach to other modern problems in recent years. As Shelby Steel and Orlando Patterson have noted, for two generations cosmopolitans have supported Great Society and social justice programs to help blacks but which, by many metrics, actually hurt blacks. The latest and strangest installment of this program is "Defund the Police" and no-cash-bail programs. Telling a cosmopolitan that his program has not made things better tends to baffle him: "But it has worked – I do feel better." 

Again, there is something of the religious about revering nature, and dumping on modernity. It is near the heart of Lucretius's poem "No Single Thing Abides": 

Lo, how the terraced towers, and monstrous round
Of league-long ramparts rise from out the ground,
With gardens in the clouds. Then all is gone,
And Babylon is a memory and a mound.

But what have we learned about living in harmony with nature? After reading James Michener's Centennial and then watching the excellent miniseries based on it (a screenplay that, in several ways, surpassed the novel), it occurred to me that we still haven't learned a fundamental lesson from the United States' shabby treatment of the American Indian. During one of the treaty negotiations, Michener puts these words into the mouth of an Indian chief: 
"We must be permitted to ride the open prairie without the white man’s trails cutting us off from old grounds, for without freedom our spirits will perish." 
And that is why no treaty ever held up. The fundamental assumption of the United States was that the Indians eventually would relent and adopt the Americans' way of life – i.e., modernity, progress. The Americans would never accept coexistence with a way of life fundamentally opposed to progress. (Could they be expected to?) The Americans had a second chance at coexistence, this time with the Mexican. The Mexican, in Michener's telling, was happy to coexist: he settled down and worked as an excellent farmer – hard-working, good instincts. But like the Indian, the Mexican would not be cut off from their "old grounds": they did not prize landownership and enterprise, and instead they followed one crop after another, going wherever the work was good, working in warm weather, spending the winter months in cantinas with their friends and their own music and language. American cosmopolitans never could understand this, and still cannot. Though they claim to be "multiculturalists," the cosmopolitans seem not to actually believe there are different cultures. Once the foreigners receive government benefits and a mail-in ballot, think the cosmopolitans, they will prove they like all the same things we do. And their religion and values? They shan't need those any longer, say the cosmopolitans, for they shall have ours.

Indians had their teepees, in which they lived lives close to nature, and not above it. Westerners had the Garden of Eden, by which they became alienated from nature, and the Tower of Babel, by which they rivaled its Creator, and cathedrals, by which they praised Him. Some, like Jerry Mander in In the Absence of the Sacred, have theorized that primitive societies were not ignorant of modernity: they purposely rejected it. This might suggest that, if the Garden of Eden was a real place, only Westerners were cast out of it, and the Indians remained to live in harmony with nature. (Except for those Indians who piled towers of skulls from human sacrifices.) Or perhaps Eden was never a place, but a way of life, and modern man had been cast out of that way of life, so that even if he should stumble upon that way of life again, it should look so foreign to him that he would do all within his power to destroy it. In fact, the ignorant among the modern men did destroy much of it. It was the sophisticated among the moderns who did much worse to it: they corrupted it, by giving them welfare and casinos.

I don't know if Eden was a real place. But it is worthy of thought. The teepee makes a fine archetype of the life in harmony with nature. The teepee represents a way of life connected to nature, and not in rivalry with it. Trump tower is the opposite of the teepee: it spikes the football in nature's face. That is its sin. 
 
And yet: is it not better to award harmless trophies than to raise up utopianists? The right-winger in his F150 who belches a triumphant blast of exhaust into the ether surely cannot be worse than the left-winger in his Tesla, who keeps children in slavery to mine the minerals needed for his car battery. Can he? No, not as a practical matter. But as a religious matter? The Tesla slave driver's intentions are good. His heart is pure. For the political-religious impusle, that is what matters. 

As in all things, some balance is required. Did the Indians strike the right balance with their teepee? Why should they have built even teepees if nature wanted them to be cold, or to be wet, then oughtn't they be cold, or wet? Or suppose the Indian would have built Trump tower if only he could have done, but they simply had not yet advanced enough to build more than teepees? After all, they built teepees – they did seek to avoid nature to some extent – so why assume they would not have built houses if they could, with electricity and plumbing? If they were truly one with nature, why shelter themselves at all, even in teepees? If God or nature wants you to be cold or wet, does a teepee mock less than a log cabin, or a single family house, or a tenement, or Trump tower, or Al Gore's mansion?

Yet there is a difference. One thing is closer to nature than another. And that itself is significant. Maybe the answer is: laborare est orare – work is prayer. All things are permissible if done reverently. To the Pharisees, Jesus sinned by healing on the Sabbath, the Gentiles sinned by eating unclean meats. To the Indians – and to the modern cosmopolitans who sneer at Trump tower yet live in functionally equivalent modern abominations with only their cold sterility to atone for them – the white man sinned by overbuilding, overpopulating. But Jesus taught that it is what comes out of a man that makes him unclean. Build, or do not build, but do all things prayerfully

What a pitiful lot, we moderns, sniping at each other from our penthouses in our new Tower of Babel. We object to adding another story atop the Tower, each for different reasons, but who among us has standing to object? That is the moral of the teepee – to flee temptation: you cannot add another story on a teepee.

And so we come back to the religious global warmist, the climate change activist who would purge our modern souls of sin by knocking down our towers erected against nature, who would send us back to the teepee. To whom we might respond that, in many ways, we come to the same prescriptions, but by different religions. Christendom taught that man's world will be put, in the end, under God's dominion. The warmists teach that it will be put under nature's dominion. There are lessons to be shared in both religions, such as humility, and good stewardship. But that, I fear, is not enough to avoid a holy war. For a man may give up his heart's desire to do the will of his God, but not to do the will of some other bloke's god. For if all things are permitted so long as they are done prayerfully, what is relevant is not our actions, but our intentions. Not what we do, but who we worship. I confess I am not willing to consent to my world becoming an offering up to whatever gods Gore and Lynas and their adherents serve. No, the warm-mongers will have to give me reasons, not a sermon.

What was supposed to be preferred to immanenting the eschaton – bringing about utopia and moral perfection – was liberalism: that by respecting individual rights and opinions, and limiting government to things like filling potholes and stopping bad guys with guns, government would be kept out of the business of saving souls. I am eager to join those with concern for our souls at an interfaith council. But establishing a national religion out of it only invites a holy war.

How Is This Success?

 



On September 18, 2021: Mexico and U.S. had the same deaths per million rate (2072). This is well after COVID-19 vaccinations were widely available in the U.S.

How is this success? How?

Seth Barrett Tillman, How Is This Success, New Reform Club (Dec. 5, 2021, 6:43 AM), <https://reformclub.blogspot.com/2021/12/how-is-this-success.html>; 

Twitter: <https://twitter.com/SethBTillman/status/1467459827387486213>; 




Friday, December 03, 2021

Sunday, November 28, 2021

One of my Favourite Footnotes

 


See eg Blau (ed) (n 1) 89 (“It was, of course, impossible for Mr. [Jacob] Henry to affirm the divine authority of the New Testament.”); Brown (n 23) 46 (suggesting that, in 1809, “Gaston, Henry, and others proposed to eliminate the Protestant test oath from the Constitution” and “failed” in their efforts); Frederic Cople Jaher, A Scapegoat in the New Wilderness: The Origins and Rise of Anti-semitism in America (Cambridge, Mass, Harvard University Press 1994) 138 (noting that Henry was not “forced to take the prescribed test oath”); Seymour Martin Lipset and Earl Raab, Jews and the New American Scene (Cambridge, Mass, Harvard University Press 1995) 39 (asserting that the “North Carolina Constitution require[ed] that all officeholders swear a Protestant oath”); Mark Douglas McGarvie, Law and Religion in American History: Public Values and Private Conscience (NY, Cambridge University Press 2016) 10 (characterizing the debate on Mills’s motion to vacate Henry’s seat as involving a “Protestant test oath”); Roy G Saltman, The History and Politics of Voting Technology (NY, Palgrave Macmillan 2006) 60 (asserting that Henry refused to take “the sectarian oath of office”); Jonathan D Sarna, Coming to Terms with America: Essays on Jewish History, Religion, and Culture (Lincoln, NE, University of Nebraska Press 2021) 265 (describing efforts in 1809 “to deny [Henry] his seat in the state legislature for refusing to subscribe to a Christian test oath”); John E Semonche, Religions & Constitutional Government in the United States: A Historical Overview with Sources (Carrboro, NC, Signal Books 1985) 23 (characterizing Article 32 as a “test oath”); Denise A Spellberg, Thomas Jefferson’s Qur’an: Islam and the Founders (NY, Alfred A Knopf 2013) (characterizing Article 32 as “an oath to affirm ‘the truth of the Protestant religion’”); ‘Errata’ (2011) 14 Southern Jewish History 237 (clarifying Vann Newkirk’s 2010 publication, and stating that Article 32 involved a “religious test oath”); Faber (n 7) 40-41 (asserting that Henry was “challenged . . . on the grounds that the state’s constitution required that he take an oath affirming the New Testament’s divinity”); Oscar Handlin and Mary F Handlin, ‘The Acquisition of Political and Social Rights by the Jews in the United States’ (1955) 56 The American Jewish Year Book 43, 59 (explaining that Henry’s seat was “challenged because he . . . would not take an oath affirming the divine character of the New Testament”), <https://tinyurl.com/wt78devf>; Samuel Rabinove, ‘How—And Why—American Jews Have Contended for Religious Freedom: The Requirements and Limits of Civility’ (1990) 8 Journal of Law and Religion 131, 137 (Henry’s “seat was challenged on the ground that ‘he denie[d] the divine authority of the New Testament’ and failed to take the required oath concerning ‘the truth of the Protestant religion,’ as required by the state constitution.”); Jay Michael Eidelman, ‘“In the Wilds of America”: The Early American Origins of American Judaism, 1790–1830’ (PhD thesis, Yale University Department of Judaic Studies 1997) 107 (“[Henry] was initially not allowed to take his seat due to the requirement of a Christian oath . . . .”); see also Dershowitz (n 18) 78 (asserting that Henry “was blocked from taking his seat by a law requiring him to accept the divinity of the New Testament”); Melvin J Konner, ‘Jewish Diaspora in Europe and the Americas’ in Melvin Ember, Carol R Ember, and Ian A Skoggard (eds) Encyclopedia of Diasporas, vol 1 (NY, Springer Science+Business Media, Inc 2005) 164, 170 (explaining that “a colleague proposed that [Henry] be barred for not swearing allegiance to the New as well as the Old Testament”); A James Rudin, ‘Mr. President, leave your Bibles at home’ (The Washington Post, 17 January 2013) <https://tinyurl.com/rkjk2zd5> accessed 22 October 2021 (Henry’s “opponents tried to prevent him from serving a second term because a law demanded that legislators affirm the divinity of the New Testament”); cf Hasia R Diner, The Jews of the United States 1654–2000 (Berkeley, Calif, University of California Press 2004) 50 (asserting that Henry “could not, in good conscience, take the oath”); Jon Meacham, ‘A New American Holy War’ (Newsweek, 8 December 2007) <https://tinyurl.com/3yahyseb> accessed 22 October 2021. 


The footnote above appears at note 50 in: Seth Barrett Tillman, What Oath (if any) did Jacob Henry take in 1809?: Deconstructing the Historical Myths, American Journal of Legal History (forth. circa 2022) (peer review) (manuscript 1–36), <https://ssrn.com/abstract=3790115>; 


Seth Barrett Tillman, One of my Favourite FootnotesNew Reform Club (Nov. 28, 2021, 5:23 AM),<https://reformclub.blogspot.com/2021/11/one-of-my-favourite-footnotes.html>;




Friday, November 26, 2021

Letter to the Editor responding to David Frum’s ‘It Wasn’t a Hoax’


Seth Barrett Tillman, Associate Professor

Maynooth University Department of Law


26 November 2021


The Atlantic

letters@theatlantic.com


RE: David Frum, ‘It Wasn’t a Hoax’ The Atlantic (25 November 2021, 7:00 AM ET), <https://tinyurl.com/ymsjzx7j>.


Dear Editors,

David Frum is dead wrong. The issue is not now and never has been: Did Trump have contacts with Russians?” Of course he did: this was known by one-and-all during the campaign. The issue was whether Trump’s contacts were criminal—or otherwise sufficiently suspicious that they should have resulted in the FBI and the U.S. security services’ investigating candidate Trump. The answer to that question is no.

Frum’s answer is yes. Frum writes:

At crucial moments in the 2016 election, Trump publicly took positions that broke with past Republican policy and served no apparent domestic political purpose, but that supported Putin’s foreign-policy goals: scoffing at NATO support for Estonia, denigrating allies such as Germany, and endorsing Britain’s exit from the European Union. (emphases added)

First, “scoffing at NATO,” “denigrating allies such as Germany” and “endorsing Britain’s exit from” the EU—all are First Amendment protected speech. Indeed, they are core First Amendment protected political speech. Such expressions of opinion can never form a permissible basis for investigating a citizen. To allow the expression of political opinion form a basis for investigating a citizen chills speech, drives policy-making discussions out of the public realm, and most importantly, empowers the security apparatus, in effect, to put its thumb on the scale of our elections. It is telling that Frum faults Trump for “publicly” expressing his views.

 

Second, a candidate’s breaking with past policy choices is precisely why new candidates come forward and why we have elections. A candidate’s having a public position at variance from prior policy can never form a permissible basis for investigating a citizen. To allow the expression of novel political opinion form a basis for investigating a citizen ends meaningful democracy. That’s why we have elections: to choose between competing, different policies.

 

Finally, Trump’s views were quite mainstream among rank-and-file Republicans. [i] “Scoffing at NATO.” Ambassador Jean Kirkpatrick expressed the view—years and years ago—that should the Soviet Union’s occupation of Eastern Europe end, then NATO and its Atlantic-focused mission would end with it. The United States’ traditional goal for NATO (and our other international security commitments) was to help democracies, and nations on their way to establishing democracy, oppose world communism. It was not to oppose Russia as a mere regional power. [ii] “Denigrating allies.” Many mainstream Republicans took and continue to take the view that Germany and other NATO members free ride on our defense establishment. Germany has consistently failed to meet its 2% GDP defense spending target. [iii] “Brexit.” As to the United States’ position in regard Brexit: U.K. voters voted for it. So Americans, including Trump, get to support it too. It is called standing with democracy.

 

Frum’s position amounts to this: If you express the wrong political views in public—by which he means, political views he disagrees with—that is a reason for the government to investigate you. Frum is not embarrassed by his position. Millions of Americans agree with Frum. He and they are entirely wrong. And the continuing viability of American and Western democracy depends on changing the hearts and minds of those millions.

 

Sincerely,

 


 

Seth Barrett Tillman


<https://twitter.com/SethBTillman/status/1464164144601616402>;


Seth Barrett Tillman, Letter to the Editor, Responding to David Frum’s ‘It Wasn’t a Hoax,’ New Reform Club (Nov. 26, 2021, 4:21 AM), <https://reformclub.blogspot.com/2021/11/letter-to-editor-responding-to-david.html>; 


See also Seth Barrett Tillman, Bob Bauer’s Free Speech Problem and OursNew Reform Club (July 23, 2017, 10:36 AM), <http://tinyurl.com/y7ahouep>; 


Seth Barrett Tillman, This Is What Is Wrong with the American JudiciaryNew Reform Club (Mar. 16, 2017, 4:23 AM), <http://tinyurl.com/z4q9f8v>; 



Sunday, November 21, 2021

Rittenhouse, Murder, and the Use of “See” as Direct Support in Legal Writing


I.                   Rittenhouse “murdered two people”.

In St. Mary’s Law Review on Race and Social Justice, Aglae Eufracio wrote:

 

 



You can find the entire article here: Aglae Eufracio, A Human Rights Crisis Under Our Roof, 23 St. Mary’s L. Rev. on Race and Social Justice 201, 229 (2021), <https://tinyurl.com/2yzaecrw>. Eufracio’s citation to Haley Willis’s New York Times article, at footnote 215, is preceded by a “See”. That means the cited material lends (or, is supposed to lend) direct support for the material in the main text—that is, Rittenhouse “murdered two people.” Have a look yourself: you decide if Haley Willis’s article (or any of the other source material in nearby footnotes) lends direct support for the proposition that Rittenhouse “murdered two people.” 

It is possible that the author, attorney Aglae Eufracio, believes that the prosecutors’ charges were strong presumptive evidence of Rittenhouse’s guilt. Eufracio is an “immigration and human rights attorney.” Id. at 201 n.*. Does one imagine that when Eufracio walks into court representing aliens who the federal government seeks to deport, Eufracio tells the judge: Your honor, the government’s charges are strong presumptive evidence of my client’s guilt and deportability. Is this Eufracio’s customary position?

Alternatively, perhaps, Eufracio’s use of “murdered” (and “murdering”) was colloquial language—i.e., a murderer is someone who kills another. Is that what Eufracio meant? Still, I think law reviews usually reserve the term murder, and its close textual variants, for unlawful killings, in conjunction with some measure of meaningful deliberation.


II.                Rittenhouse was a “heavily-armed murderer”.

Here is another use of “See”. Professor Jon D. Michaels and Associate Dean/Professor David L. Noll wrote:

 



 





You can find the entire article here: Jon D. Michaels & David L. Noll, Legal Vigilantes and the Institutionalization of Anti-Democratic Politics 23 (posted Oct. 22, 2021), <https://ssrn.com/abstract=3915944>. Here the authors characterize Rittenhouse as a “murderer.” Michaels and Noll’s support is a New Yorker article by Paige Williams. That citation is preceded by a “See”. That means the cited material lends (or, is supposed to lend) direct support for the material in the main text—that is, Rittenhouse was a “murderer.” Again, have a look yourself: you decide if the Paige Williams article (or any of the other source material in nearby footnotes) lends direct support for the proposition that Rittenhouse is a “murderer”. 


Is this where we are now in regard to the use of See”?


Seth Barrett Tillman, ‘Rittenhouse, Murder, and the Use of “See” as Direct Support in Legal Writing,’ New Reform Club (Nov. 21, 2021, 7:47 AM), <https://reformclub.blogspot.com/2021/11/rittenhouse-murder-and-use-of-see-as.html>; 


Thursday, November 18, 2021

Sarah Jeong: Journalist Seeking Walter Duranty Award

 





Seth Barrett Tillman, Sarah Jeong: Journalist Seeking Walter Duranty Award, New Reform Club (Nov. 18, 2021, 3:42 AM), <https://reformclub.blogspot.com/2021/11/sarah-jeong-journalist-seeking-walter.html>; 

Saturday, November 13, 2021

High Noon News from Hadleyville

 


Seth Barrett Tillman, High Noon News from Hadleyville, New Reform Club (Nov. 13, 2021, 5:03 PM), <https://reformclub.blogspot.com/2021/11/high-noon-news-from-hadleyville.html>; 

Friday, November 05, 2021

Virtue: An Exemplar

Letter from Empress Wende to Emperor Taizong (Tang Dynasty) (circa 636 CE):


[Chancellor] Fang Xuanling has served Your Imperial Majesty for a long time. He is careful, and all of his wonderful strategies and secret plans were not revealed to anyone. Unless there is a particularly good reason, I hope that you will not abandon him. As to my Zhangsun clan, many of them enjoy high salaries and high positions on account of our marriage, not because of their great virtues, and therefore they can crumble easily. In order to preserve the Zhangsuns, I hope that you will not put them in powerful positions, and that they would be satisfied with seeing you at imperial gatherings the first and 15th day of each month. 

During my lifetime, I made no contributions to the people, and I should not harm them in my death. I hope that you will not build a tomb to cause the people to labour and the empire to waste resources. Make a hill my tomb, and only use brick or wooden implements in the tomb. I hope that Your Imperial Majesty will continue to be close to honest men and stay away from those lacking virtues; that you will accept faithful words and reject wicked flattery; that you will decrease [your personal] labours and stop [your personal] hunting. Even as I go into the underworld, if these things happen, I will have no regrets. It is not necessary to summon the sons and daughters back here; if I see them mourn and cry, I will only be saddened.

[end]

Wende was also the author of a 30-volume treatise: Examples for Women.

Seth Barrett Tillman, Virtue: An Exemplar, New Reform Club (Nov. 5, 2021, 4:38 AM), <https://reformclub.blogspot.com/2021/11/virtue-exemplar.html>;






Monday, November 01, 2021

This is CNN

 COP26 is being held in Glasgow.





Seth Barrett Tillman, This is CNN, New Reform Club (Nov. 1, 2021, 7:02 AM), <https://reformclub.blogspot.com/2021/11/this-is-cnn.html>; 


Friday, October 22, 2021

The BBC’s Passive Voice and the Protected Class

 






Seth Barrett Tillman, The BBCs Passive Voice and the Protected Class, New Reform Club (Oct. 22, 2021, 4;22 AM), <https://reformclub.blogspot.com/2021/10/the-bbcs-passive-voice-and-protected.html>; 

See also: <https://tinyurl.com/3xtwbakr>;


Sunday, October 17, 2021

Tillman on Biden, DOJ, and the Media

 




Seth Barrett Tillman, Tillman on Biden, DOJ, and the Media, New Reform Club (Oct. 17, 2021, 3:47 PM), <https://reformclub.blogspot.com/2021/10/tillman-on-biden-doj-and-media.html>;




Friday, October 15, 2021

The Federal Vaccine Mandate, State Derivative Actions, and Federal Securities Laws

 








Seth Barrett Tillman, Federal Vaccine Mandate, Derivative Actions, Securities Laws, New Reform Club (Oct. 15, 2022, 6:25 AM), <https://reformclub.blogspot.com/2021/10/federal-vaccine-mandate-derivative.html>; 





Friday, September 24, 2021

Letter to the Editor, Responding to ‘Why the Term “JEDI” Is Problematic for Describing Programs That Promote Justice, Equity, Diversity and Inclusion’ in Scientific American

Seth Barrett Tillman, Lecturer

Maynooth University Department of Law


September 24, 2021


Scientific American

Letters to the Editor

1 New York Plaza

Suite 4500

New York, NY 10004


RE:    J. W. Hammond and others, ‘Why the Term ‘JEDI’ Is Problematic for Describing Programs That Promote Justice, Equity, Diversity and Inclusion,’ Scientific American (Sept. 23, 2021), <https://tinyurl.com/m8mfy972>.


Dear Editors,


Hammond and others wrote: “What’s more, the bodies and voices centered in Star Wars have, with few exceptions, historically been those of white men.” (emphasis added) The most iconic voice from Star Wars was undoubtedly that of Darth Vader, and Vader was voiced by James Earl Jones. Everyone knows this. Indeed, when people do Star Wars impressions, almost invariably, they turn to Yoda (who was a green alien) and Darth Vader (voiced by a black actor). Everyone knows this too. Hammond and his co-authors are whiting-out (no pun intended) accomplished and loved actors.


Hammond and others assert that: the “‘Slave Leia’ costume [was] infamous for stripping down and chaining up the movie series’ first leading woman as part of an Orientalist subplot.” “Infamous”? Their only evidence for this understanding of the Princess Leia-Jabba the Hutt sequence is … a link to a book suggesting that this sequence “might” be an “orientalist trope.” Their shift from “might” to “infamous” indicates that their argument lacks any established support in the literature.


What Hammond and others’ article shows is that a professional class in search of societal wrongs lacks real, actual (in this galaxy) targets for their ire, and now they must destroy children’s fantasy, theatre, and movies—and their creators. I would give your authors credit, if their views were original. But this was all done years ago, by those who objected to Tolkien’s orcs as embracing racial tropes.


Sincerely,


/s/


Seth


Seth Barrett Tillman, Letter to the Editor, Responding to ‘Why the Term JEDI Is Problematic for Describing Programs That Promote Justice, Equity, Diversity and Inclusion’ in Scientific AmericanNew Reform Club (Sept. 24, 2021, 8:02 AM), <https://reformclub.blogspot.com/2021/09/letter-to-editor-responding-to-why-term.html>; 


Friday, September 17, 2021

How To Get Cited

 

 

Dear Professor,

I have attached a copy of my article on Merryman. Seth Barrett Tillman, Ex parte Merryman: Myth, History, and Scholarship, 224 Military Law Review 481 (2016) (peer review), <http://ssrn.com/abstract=2646888>. I take issue with the standard narrative on Merryman. My findings are inline with the recent treatments of the Merryman case by Bruce Ragsdale for the Federal Judicial Center, and also inline with the two full-length books on Merryman by McGinty (2011) and White (2011). Both books were published for the 150th anniversary of the case. See Brian McGinty, The Body of John Merryman: Abraham Lincoln and the Suspension of Habeas Corpus (2011); Jonathan W. White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman (2011); Bruce A. Ragsdale, Ex parte Merryman and Debates on Civil Liberties During the Civil War (Federal Judicial History Office 2007), <https://www.fjc.gov/history/cases/famous-federal-trials/ex-parte-merryman-habeas-corpus-during-civil-war>.

In your book, you make several factual and procedural claims about the Merryman case.

You state that “[o]n May 26, 1861, when Taney arrived in Baltimore ... he learned that Merryman had been charged with ... treason.” May 26 was a Sunday, and the hearings took place on May 27 and 28. It was on the 27th that the Army explained its “charges,” such as they were. As for Merryman’s attorneys, they filed their petition on the 26th, when Taney was still in DC, and perhaps they indicated what the Army’s charges might be. But, again, that was in DC, not Baltimore, Maryland. So your chronology and/or locations here seem wrong.

You state that Merryman was one of the “troublemakers” in the “local mobs” that attacked federal troops on their way to defend DC. I don’t think there is any evidence of this. You state that Merryman was or had been a member of the state legislature prior to his arrest. (In fact, according to most records, he became a member of the legislature only after the war ended.) You state that Merryman was a colonel in the militia. (In fact, according to most records, he was a lieutenant.) You state that he was an “ardent secessionist.” I know of no statements from Merryman—by spoken or written word—indicating his political leanings. And, you state that Merryman was “trying to organize troops to fight for the Confederacy.” What possible source do you have for this?—other than the Army’s charges, which were never asserted in a criminal trial, much less proven, in any actual trial?

On the procedure side, you state that Merryman’s attorneys filed their petition with Taney because Judge Giles’s habeas orders had been ignored in prior habeas cases. That’s a sensible inference—but I know of no actual records bearing out that what you suggest was actually what motivated Merryman’s attorneys to bring their petition to Taney. Maybe Merryman’s attorneys thought Taney, as Chief Justice, would get their case more headlines? You wrote that Merryman sat as “circuit judge.” That’s not quite right. Taney decided Merryman under special authority granted to Article III judges by the 1789 Judiciary Act. He was not sitting as circuit judge on the Circuit Court for Maryland—albeit, his Merryman opinion and orders were put on file with the circuit court’s records. It would be more proper to say that Taney was “on circuit” (in the sense that he was away from his DC chambers) when he decided Merryman, and not that he was acting as a “circuit judge.” Finally, you state that Taney delivered his opinion when in DC. But contemporaneous accounts say he give it over orally in the courtroom in Maryland.

If you should publish a new edition or supplement to your book, or return to Merryman in another publication, please consider amending your Merryman narrative, and please consider citing my paper.

Thank you,

Seth

Seth Barrett Tillman, How To Get Cited, New Reform Club (Sept. 17, 2021, 3:56 AM), <https://reformclub.blogspot.com/2021/09/how-to-get-cited.html>;