Mensch tracht, un Gott lacht

Wednesday, August 25, 2021

Tillman on Volokh on the Senate President Pro Tempore



On August 23, 2021, on the Volokh Conspiracy, Professor Eugene Volokh wrote:


Now I suppose one could argue that the Senate President pro tempore would be able to cast two votes, when the VP is Acting President of the U.S.: One in his capacity as Senator, and one in his capacity as Vice-Vice-President. But apparently that has never been the understanding.


The issue of multiple voting by a Senate President Pro Tempore has certainly been discussed over the years. The most relevant Constitution text is not entirely clear on this point.


U.S. Const. Article I, Section 3, Clause 4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they [the senators] be equally divided.


U.S. Const. Article I, Section 3, Clause 5: The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.


There are two ways to read Clause 4:


The Vice President of the United States shall be President of the Senate, but [the Vice President] shall have no Vote, unless they [the senators] be equally divided.


The Vice President of the United States shall be President of the Senate, but [the President of the Senate] shall have no Vote, unless they [the senators] be equally divided.


In other words, does the ostensible grant of a vote on equal division apply exclusively to Vice Presidents (or to Vice Presidents when acting as Senate President), or does it apply more generally to all Senate Presidents, including Senate Presidents Pro Tempore?


In debate, on January 7, 1792 on a proposed presidential succession act, in conformity with U.S. Const. Article II, Section 1, Clause 6, William B. Giles, a congressman from Virginia, stated:


[T]he person [the Senate President Pro Tempore] contemplated by the bill [to succeed to the presidency in the event of a double vacancy], will be authorized to vote on all questions as Senator, to take the vote of the Senate as [Senate] President pro tem. (perhaps to give the casting vote on equal division) and to discharge the duties of President of the United States. [House of Representative of the United States / Friday, January 7, The Mail / Claypoole’s Daily Advertiser (Philadelphia, Penn.), Jan. 10, 1792, at 2.]


I think it fair to conclude that the constitutional text is ambiguous. It is certainly true that multiple voting offends modern sensibilities. The more difficult question is whether those modern sensibilities are in tune with how people understood parliamentary chambers to function circa 1788. See generally Margaret A. Banks, The Chair’s Casting Vote: Some Inconsistencies and Problems, 16 U.W. Ont. L. Rev. 197 (1977). Modern uniformity in regard to state and federal legislative practice flows from the fact that as the country expanded westward, state practice followed what became settled federal practice. However, during the colonial period and under the Articles, there was considerable variation in parliamentary practice across the colonies and then the states. See, e.g., John F. Burns, Controversies Between Royal Governors and Their Assemblies in the Northern American Colonies 320 (1923) (“[Prior to 1733, Governor] Cosby [of New York] took part in the deliberations of the Council while acting in a legislative capacity. Thus as a member [!] of the Council he had one vote, as executive he had final veto power, and in case of tie he cast the deciding ballot. Always two, and sometimes three, votes were at his command.”); Mary Patterson Clarke, Parliamentary Privilege in the American Colonies 232 (Leonard W. Levy ed., Da Capo Press 1971) (1943) (explaining that “in some colonies, the governor frequently sat with the council, and there was some difference of opinion as to whether he was or was not a member of it”); Leonard Woods Labaree, Royal Government in America: A Study of the British Colonial System before 1783, at 160 (N.Y., Frederick Ungar Pub. Co. 1958) (1930) (noting that royal governors “not only often attended the legislative council but presided there”); id. (noting that “less commonly” royal governors asserted the right to vote in the legislative council, “either as a regular member, or as the presiding officer in case of a tie”); id. at 164–65 (noting that the law officers of the Board of Trade opposed the claim of New York’s Governor Cosby to a vote in the legislative council, but their advice and recommendation was not put into force by the Privy Council); William Smith, A Comparative View of the Constitutions of the Several States with Each Other and with that of the United States tbl.1 & n.n (Philadelphia, John Thompson 1796) (“Connecticut. [Governed under the] Old Colonial Charter of Charles II [of 1662]. unaltered, except where necessary to adapt it to the Independence of the United States. . . . Governor, as Presid[ent] of the council, and the Speaker of the House, have each a vote, besides a casting vote.”).



Seth Barrett Tillman, Tillman on Volokh on the Senate President Pro Tempore, New Reform Club (Aug. 25, 2021 4:57 AM), <>; 


Wednesday, August 18, 2021

Poll questions we'd like to see

 Science Sez:

  • Vaccines really work.
  • Masks really don't.

Can we get the % of those who agree with both propositions [facts]?  I doubt it. Polls seldom ask probative [definitive] questions. They are conducted and/or PAID for by advocates pushing or pulling one politic or the other. 

I'd like to know. I suspect those who agree with BOTH statements are the American consensus, well into the 60%+ range. If only they'd ask.

The rest is emotion and politics.  Not science. The "science community" is now so politicized that even if you advocate vaccinating as perhaps a public duty but you reject masks as little more than a useless [and terribly annoying] virtue signal you are still one of the Great Unwashed.

It is THEY who have destroyed the public trust.  Not only has the medico-industrial complex reaped what they have sewn, but they are STILL sowing it with this mask BS.

Stop lying to us for "our own good."  Only then might we discuss the perennial liberty vs. security question, which is always in the end merely a prudential one--in the olden days we called it 'risk management.'

Tuesday, August 17, 2021

What I Learned About the United States After Ten Years in Ireland (UPDATED)



This is an anniversary, of sorts, for me. I have now lived in Ireland for ten years. They were ten good years. During that time, I made some friends and worked with colleagues, who later became friends, and befriended some students, who later befriended me. During this time, I made one good decision, and one bad mis-judgment—and the two were related.


One Good Decision


Before moving to Ireland and taking up my post as a law lecturer, I consciously decided that I would make my best effort not to be judgmental regarding differences between home and abroad, between the U.S. and Ireland. It is particularly easy to fall into that intellectual trap, not just because there is a little bit of an ugly American or overweening patriot in most of us, but because there is a large influential, domestic (that is, Irish) crowd in Ireland that exults in complaining about most aspects of Irish (and Western) life, and their having a foreigner adding to the roster of domestic complaints positively confirms their worldview.


There are other reasons making it overly easy to complain about Irish life.


Ireland is a small country—a population of just under 5 million (excluding Northern Ireland). There are problems with life in a small country that are not the making of its individual inhabitants—they are problems which inhere in the country’s size. The most important hardship associated with small-country life is that some (not all) prices are seriously out-of-whack because the entity lacks economies of scale. In a small country, sharing and pooling resources and risk can be difficult and, therefore, costly—for example, the availability and prices for cutting edge medical services and insurance are frequent sources of complaint here. This is the reason Ireland’s initial decision to join the European Economic Community (now the European Union) made so much sense. By moving into a continent-wide no-tariff zone, Ireland escaped many of the economic shackles inherent in small-country life.


Another aspect of small country life is that if you have a profession or specialty, you will have a fairly small number of colleagues. Your reputation will stick. If you make any sort of notable mistake, there are few opportunities for second acts. If you want a second act, you may have to choose another profession—or migrate to a foreign country.


Larger countries are likely to have, and are commonly believed to have, deeper wells of expertise. Irish appellate judges are slow to overturn their own precedents unless the new proposed path forward has first been adopted by foreign courts. Irish regulators are much the same. It works much the same way in reverse too. A great many Irish find validation only when the Irish position is adopted in EU or international fora, or where an Irish athlete takes a medal at the Olympics or some other international competition. There are a surprising number of people (including young people) in this country who don’t believe what happens here matters—unless what is done here follows what the wider international community has done or unless what is done here is adopted abroad. More than a few of those born here to ethnically Irish parents will say, proudly, that they do not think of themselves as Irish, but as European.  


All this can take a psychological toll on the inhabitants of a small country. They constantly look abroad for validation, and only sometimes find it. It lowers the esteem they have for their own country and countrymen. That effect is doubled when the small country is right alongside a large country. The bigger country will tend to set the standard, and its culture is more likely to dominate conversation and news. It is easy to see the larger country’s virtues—e.g., its museums, stadiums, and universities are bigger and brighter—and so, by contrast, one’s own chief cultural institutions seem almost shabby by contrast. This pattern will appear again and again, and sometimes in the most unexpected ways. In my own small Dublin Jewish community, we use American printed prayer books—the prayer for the state speaks to the President and Vice President of the United States. A generation ago, the Irish Jewish community used prayer books printed in the United Kingdom—with a prayer for the British royal family. Of course, in Ireland, these prayers were modified by custom, locally-made inserts, and stickers covering the original printed text. There is nothing terrible about this. But if everything you have was made abroad, or made with others in mind, and you have to modify it to make it right, it takes a toll. I expect that some Canadians feel this way about the United States. But for the Irish the effect of being alongside a large country is not merely doubled, it is quadrupled, because their neighbour is not just a large country speaking the same language, but (according to the received Irish historical narrative) the former colonial power.


So it is easy to fall into the anti-Irish trap. And doing so will have personal consequences. In 2011, I started at my university with a small cohort of foreign academics. Each one of them is now gone. One reason they are gone is every time they saw some defect in Irish life, it became a gripe when compared to life back home. But it never worked that way in reverse. Whenever they received some benefit here that was different or better than what was the standard back home, that was just pocketed as the natural order of things, and there was little or no effort to balance the gripes against the benefits.


One Bad Misjudgment


When traveling in the Irish countryside, I came across a lonely plinth. It was a memorial to a long dead Irish soldier—one of Wellington’s officers, who served during the Napoleonic Wars in the United Kingdom’s armed forces. The plinth’s inscription was eroded; its base was not maintained. The path to it was in disorder. There was no modern historic marker directing road traffic to the location. This was a bit of rejected history. The received view here is that this isn’t proper Irish history; rather, it is British history, whose artifacts remain in independent Ireland. Yes, this soldier was ethnically Irish, but he was a soldier for a foreign power, and not just a foreign power, but for the occupying colonial power.


It struck me that this approach was wrong. All wrong. The way I saw it was … the plinth is part of Irish history, and it is a memorial to an accomplished Irish person. Moreover, excising one’s history has real costs. It can often leave one with no history at all, or, what can be worse, it can leave one with a history that is all a story of woe and oppression. If that is a nation’s whole history, its children will seek to escape their identity. Maybe it is no wonder that so many young Irish identify as European?


I might add that this particular monument is not the only bit of abandoned and contested Irish history. There are graves in Ireland where rest Irish soldiers who had served in Britain’s armed forces during World War I—before, during, and after the time of the 1916 Irish Rising. How to memorialize and remember such men is a continuing source of friction here. It is a problem of history and identity. In a certain sense, one might argue that the circumstances of the Irish WWI veterans and war dead is more clear cut—in this case, there was a hard conflict between the political worldview of Irish revolutionaries and those continuing to identify with the United Kingdom. Whether one agrees or not, one can understand why today’s Irish nation and society might not want to memorialize such men. But if the circumstances of the Irish WWI veterans is more clear, then the lonely plinth and remembering Wellington’s Irish officers becomes less clear. The Napoleonic Wars were a long time ago. The hard, long bloody conflict, which would lead to Irish independence, remained in the distant future. Surely, I thought, the generous approach should be to maintain the monument, and to do so as bona fide Irish history.


Anyway, those were my thoughts at the time. But I have come to reconsider my position. This is why. I asked the question: How did early post-independence Americans memorialize and remember the military service of loyal Americans who had served in the British armed forces in the French and Indian War (a/k/a Seven Years’ War a/k/a War of the Conquest)? The obvious place to look was Major General Henry Lee’s 1799 funeral oration for President George Washington, who had reached the rank of colonel in the provincial/colonial Virginia militia during the French and Indian War. All Lee does—all he can do—is to point to Washington’s valour.

Will you go with me to the Banks of the Monongahela [in 1755], to see your youthful WASHINGTON supporting, in the dismal hour of Indian victory, the ill-fated Braddock, and saving, by his judgment and by his valor, the remains of a defeated army, pressed by the conquering savage foe?

Washington’s martial skill can be recorded, but not his loyalty—which was then in service to what became a foreign nation—and not just a foreign nation—but the enemy from which national independence was won. It may be that our American forefathers believed (and, perhaps, rightly) that such loyalties cannot be divided. And if Washington was correct to direct his loyalties to the crown in 1755, then that renders suspect his and our break with the Britain in 1776. The human heart may not be big enough to accommodate two such loyalties, at least where political disunion is accomplished through violence.


Moving forward in our history, one might ask who (if anyone) maintains the graves of Mexican soldiers, buried in the United States, who fell in the War of Texas Independence and, later, in the Mexican-American War? I don’t doubt that a generous people—even if they had been enemies—would have given them a proper burial. But I wonder, in the aftermath of those two wars, were those graves maintained at public expense by the sons and daughters, sometimes the orphans, of the Texan and American people who had opposed the Mexican war dead?


And then, there were WWII Axis soldiers interned on American territory, who died as POWs. Not all their bodies were repatriated to their homelands at the end of WWII. Are those graves maintained at public expense? I have never seen any roadside markers—This way to the Axis Soldiers’ graves.


In recent times, we have seen crazed violence across the United States destroying graves, plinths, and other memorials. Some of these memorials should have never been built. None of them should have been taken down by vigilante violence, absent democratic authority from today’s municipal authorities (in regard to public monuments). And although I believe that no one should be taxed to build or maintain public monuments and memorials to traitors and the nation’s enemies, I also believe that todays lawless violence is a greater threat to our society than contested monuments and memorials, which, in any event, might be taken down by lawful and democratic means.


There is a solution to dealing with such monuments. Let them erode. Let the land around them grow unkempt. Then time will displace them, and they will be forgotten. Ten years in Ireland, and this is what I learned here. I suspect it is what Major General Henry Lee knew all along.



PS: A former Irish student wrote me as follows: On the grounds of Leinster House [the building housing the Irish national parliament], is a statue commemorating Prince Albert [18191861] and there’s been several attempts by Irish Republicans to remove it from the grounds of Leinster House. Fine Gael [one of the two primary national parties which have regularly formed Irish governments] have successfully vetoed the proposal on a number of occasions, but [Irish] Republicans found a way around it . . . by stopping the hedges around the statue being cutenveloping the statue more and more. If you cant tear it down, cover it in bushes apparently.

Seth Barrett Tillman, What I Learned About the United States After Ten Years in Ireland, New Reform Club (Aug. 17, 2021, 6:23 AM), <>; 

Monday, August 16, 2021

The Natural Born Citizen Clause as a Limited Policy Response to International Dangers and American Weakness

Consider the following hypotheticals. Imagine a long-enduing rivalry between two world-wide empires: Empire A and Empire B. Each has its capital in Europe. The two empires go to war against one another from time to time. There is no long-term optimism for world peace. The consequences of such wars are devastating. The United States tries to stay neutral, but U.S. merchant ships are attacked. The United States offers to mediate. 

The President will choose one of two senior State Department candidates to act as chief mediator. Both candidates are U.S. citizens; both are equally loyal to the United States; and both are equally good choices in terms of traditional “merits” or “qualifications.” 

One candidate was born in the United States, and he is able to trace his American heritage back six generations through both his father and mother. His ancestors served in the active U.S. military during the American Civil War and both world wars. 

By contrast, the other candidate was born in Empire A, grew up in Empire A until the age of 16, was educated there, which is where his extended family remains, and then, at the age of 16, immigrated to the United States with his immediate family after they and he had been bombed by Empire B’s military (in a prior conflict). The second candidate subsequently became a naturalized U.S. citizen, albeit, he has never formally given up his Empire-A citizenship. Arguably, he is a dual national. Culturally, he retains some “connections” with Empire A. 

If you were the President, which candidate would you choose? 

Which candidate is more likely to mediate the dispute successfully? 

If you think it reasonably clear that the second candidate would be the lesser choice—despite that candidate’s loyalty, allegiance, and trustworthiness, then you are admitting that reasonable judgments relating to “merits” and “qualifications” are not entirely co-extensive with traditional prudential judgments involving the candidate’s policy approach, education, skills, and experience. The candidate’s actual merits do not relate in toto either to the individual candidate’s abstract qualifications or to intramural (American-focused) distributional consequences among competing (American) pools of candidates in connection with their group status, ethnicity, national origin, etc. Instead, the better choice is connected with the function of the position and the candidate’s likelihood of success in that position. The latter might turn on how foreigners react to the American candidate. How the foreigners react to the American candidate for chief mediator might be rooted in their own reasonable prudential judgments, or it might arise in consequence of bigotry, prejudice, and other irrational preconceptions. In any event, the foreigners’ reaction(s) might define the possibility for a successful mediation, where the stakes are large. The President’s choosing a chief mediator based upon what he believes will be Empire B’s reaction might work an unfairness vis-à-vis the individual candidate. In some instances, that unfairness might be so great that the United States might (and should) walk away from the process or simply tell Empire B that the United States chooses its functionaries as it sees fit. But the President might not take that approach. The President might tell the second candidate.

You hold and have held high positions of trust in the State, and will hold others in the future. The success of this diplomatic mission will raise all boats—the prestige of the United States and my administration, the condition of the people in the warring states and neutrals, and the safety of all our people living abroad, along with the commercial interests of our people engaged in foreign trade. It might be unfair to you individually, but the stakes are too large for me to allow that admitted, individualized unfairness to determine my choice.

Contra Professor Kennedy (characterizing the Natural Born Citizen Clause as an “unjustified inequality”),[1] Professor Post (characterizing the Natural Born Citizen Clause as a “vestigial excrescence” and an “instance of rank superstition”),[2] and Professor Tribe (characterizing the Natural Born Citizen Clause as “offensively discriminatory, nativist, and xenophobic”),[3] is not the president’s approach in this hypothetical a reasonably fair or good one—at least in some circumstances? 

Now take a step back. Assume there is no Natural Born Citizen Clause. Here, the hypothetical is not that the President is choosing between two candidates for chief mediator. Instead, you, the voter, are choosing between two otherwise similarly placed presidential candidates—one foreign born (but now a naturalized citizen) and one native born. It is understood that the President will personally attend and chair the peace conference at the head of the American diplomatic delegation. Would it be entirely wrong for a voter to vote for the native-born presidential candidate, and against the foreign born one based on their different life stories? In such circumstances, the former candidate benefits from the fortuity of birth, blood, time, and place. If your answer is yes—that a voter could reasonably cast his vote on such a basis, then one might argue that the Natural Born Citizen Clause is but one short step removed from that choice. The Natural Born Citizen Clause constitutionalizes the choice of the hypothetical president (appointing the chief mediator) and the hypothetical voter (electing a President), discussed above. 

Now consider a second hypothetical. Assume, again, there is no Natural Born Citizen Clause. Empire A and Empire B are at war. The United States is holding a presidential election. The two candidates for President of the United States have similar party manifestos, etc. But their vitas are those of the two hypothetical chief mediators described above. If you were a citizen of Empire B and an advisor to its government, how (if at all) would you advise your government to react to this situation? Would you do nothing at all? Would your citizens (and posterity) think such conduct responsible? What would your citizens think if you chose not to respond or interfere in the U.S. election? Is it obvious what counts as lawful speech or unlawful interference—under the standards of public international law and domestic U.S. law? Would not your advice, given during the exigencies of war-time, and with less than perfect information, depend on many contingencies and imponderables relating to military developments and the likelihood of your successfully affecting the outcome of the U.S. election? 

Now consider a third hypothetical. You are now a delegate to your country’s constitutional convention. Your independent country is relatively new, not particularly wealthy, and not especially powerful. But you know there will be wars, and the great powers have an interest, if not in moving your nation onto “their” side, at least in keeping your nation from allying with the “other” side. Naturally, you fear such entanglements, and you fear interference by these foreign nations in your decision-making. You fear such interference because if it is successful, it means you will not be the master in your own home. You fear it because the actions of one foreign power might lead to counter-efforts by their foreign opponents. And you fear it because the result may not just be loss of control in elections, but domestic disputes about fair-play during contested elections which could lead to civil strife and, perhaps, to civil war amongst rival domestic personalities and factions. You have no clear idea how far the great powers will go to keep your country from upsetting their plans. 

In these circumstances, one way to think about the Natural Born Citizen Clause is that it was an effort by the Constitution’s Framers to pacify the United States’ relationship with foreign powers. It was a unilateral effort to indicate that the new nation wanted peace with the world’s great powers—its cost was that it bound the hands of the public when choosing some of their future leaders. It was an attempt to take the circumstances of all the hypotheticals posed above off the policy-making table by assuring foreign powers that the new and relatively weak American Republic intended to stay out of Europe’s wars. Thus, it is really no surprise that the Constitution’s “natural born citizen” language was promoted by John Jay—Jay was the nation’s Secretary of Foreign Affairs, as opposed to a cabinet member having purely domestic responsibilities. The Natural Born Citizen Clause was never about us (Americans)—native born or foreign born; it was always about them (foreign powers). 

The efforts of the modern commentators to explain the Natural Born Citizen Clause as one rooted in bigotry and prejudice directed at naturalized citizens is the product of an intellectual milieu of large, powerful countries, where there is no memory of bombs falling on the nation’s core territory or any existential fear of conquest by foreign powers. The concern of these authors is merely the fair, intramural distribution of society’s benefits and opportunities, between citizens and immigrants, and between native-born and foreign-born citizens. The “other,” to the extent he exists at all, is just a person who has not yet become or who has not yet been allowed to become an American. 

Modern theories of separation of powers and constitutional design have little or nothing to do with the Framers’ and Founders’ world of revolutions and imperial wars—where oceans and frontiers pose dangers—as you yourself pose dangers to others—where others may burn down your capital as you may burn down theirs. The Natural Born Citizen Clause was the limited policy response of a People who believed that beyond one’s national frontier was a dangerous world. That the clause’s purpose is no longer widely understood indicates that much has changed since 1787. 


[1] Randall Kennedy, A Natural Aristocracy? (1995) 12 Constitutional Commentary 175.

[2] Robert Post, What is the Constitution’s Worst Provision? (1995) 12 Constitutional Commentary 191.

[3] Laurence H. Tribe, “Natural Born Citizen” as Illuminated by the Cruz Candidacy (2017) 161(2) Proceedings of the American Philosophical Society 111; Laurence H. Tribe, Reflections on the “Natural Born Citizen” Clause as Illuminated by the Cruz Candidacy, Harvard Civil Rights-Civil Liberties Law Review Blog (15 September 2016), <>. 

Seth Barrett Tillman, The Natural Born Citizen Clause as a Limited Policy Response to International Dangers and American Weakness, New Reform Club (Aug. 16, 2021, 12:37 PM), <>; 

Sunday, August 15, 2021

Academics’ Criticizing Third-Parties


A few years ago, Joshua Matz, a Washington, DC litigator, criticized my professional competence and personal integrity in a blog post on Take Care Blog. Matz wrote: “It’s hardly an impressive defense [by Tillman] to mislead so dramatically in the NYT . . . .” Josh Matz, Foreign Emoluments, Alexander Hamilton & A Twitter KerfuffleTake Care Blog (July 12, 2017), <>. At the time, it seemed to me that Matz was just trying to gin up support for his briefs in the Emoluments Clauses cases. So I did not take his criticism to heart. Litigation can drive lawyers to say and write hyperbolic things. In any event, I had cause to address his points from other quarters.[1]

What did strike me as distinctly odd about Matz’s post was his casual willingness to attack third-parties who were wholly unconnected to the Emoluments Clauses dispute, that is, non-parties who had nothing to say about the merits of the arguments which had divided us (Matz and me). For example, Matz wrote: “even if [the Tillman-authored texts] actually offered any meaningful analysis (which they don’t), all three [Tillman-authored] texts that [Professor] Blackman cites are low-profile academic articles, read by a small and specialized audience.” Now, as Matz understood, one of my publications was a British peer-reviewed law journal. See Josh Matz, Foreign Emoluments, Alexander Hamilton & A Twitter Kerfuffle, Take Care Blog (July 12, 2017), <> (at note 1, Matz cites to my 2016 peer reviewed law publication). But see, e.g., Joshua Matz et al., [Plaintiffs’] Brief in Opposition to Petition for Writ of Certiorari, Trump v. District of Columbia, Supreme Court of the United States Case No. 20-330 (Dec. 14, 2020) (citing, in 2020, to a paper authored by Professor John Mikhail, which appeared on the Social Science Research Network in 2017, and was not in 2017, or at any time since, published in a traditional journal), <>. If Matz had said, Tillman’s article was not any good, and this is the reason why it is not any good …, then I would have no reason to complain, and my proper recourse would have been to write a response (which is something I have done from time to time). But Matz was not really attacking (or, better, not just attacking) my scholarship, he was attacking the venue I had published in—a British peer-reviewed law journal, which had published my article well prior to Trump’s surprising 2016 election. Here, Matz was characterizing the venue as “low profile” and as one having only “a small and specialized audience.” Why attack the journal?

I had thought that this sort of mean-spiritedness directed to strangers and third-parties was the exception, not the rule. But maybe I was wrong. Maybe I only first noticed this sort of criticism in 2017 because it had been directed at me? Consider Professor Mark Graber’s post on Balkinization. See Mark Graber, A “Review” of Justice Breyer’s “Manuscript,” Balkinization (Aug. 14, 2021, 6:06 PM), <>. This post leaves me deeply uneasy, and I say this fully cognizant that I have consistently criticized Justice Breyer’s judicial opinions and scholarship over many years.[2] 

Apparently, Breyer’s manuscript will appear as a Harvard University Press (“HUP”) publication. Professor Graber thinks that HUP ought not publish Breyer’s manuscript in its current form. Graber’s chief criticism is that Justice Breyer’s citations are too few and insufficiently developed, which shows that he failed to engage the most relevant political science literature. That is a fair merits-based criticism. Still, Graber wrote:

[G]iven that almost every sentence of the text has been subject to scholarly investigation, it would be nice if Harvard University Press as opposed to, say Regent, actually demanded some evidence of engagement with the literature.

Could you imagine being a principal, editor, or other employee at Regent Press? (Or, is this, possibly, Regent University Press? What did Regent do to deserve Graber’s aside?) If Graber had merely stated that, given HUP’s mission and its traditional standards, Breyer’s manuscript was a poor fit, that would have been the sort of criticism within everyday academic norms. But adding in “as opposed to, say, Regent,” comes across as harsh—an unnecessary attack on a stranger to the publication which Graber is reviewing. The fact that Graber might have done this inadvertently does not exactly make the situation more acceptable—arguably, it makes it worse.

Then there is this:

Breyer as is his wont, engages with none of this literature. Instead, without citing any evidence he states, the court “played an essential role in ending legal segregation,” that the Court [with other political actors] . . . won a majority [sic?] victory for constitutional law, for equality, and above all for justice itself,” and that the decision “helped to promote respect for the Court and increased its authority.” Breyer concludes “I cannot prove this assertion. But I fervently believe it.” “Credo absurdum,” Latin scholars might observe.

. . . .

In fairness to Justice Breyer, I note that he has a day job that may take up a good deal of his time, even though that day job comes with more research assistance than any academic could ever dream of. The main lesson to take from the problems with The Authority of the Court is that one cannot successfully perform the function of Supreme Court Justice and publish a major university press book that scholars ought to take seriously. Still, the book does demonstrate a good deal of native talent. If submitted as part of an application, I believe any major graduate program in political science would be happy to take Justice Breyer on as a student. The University of Texas comes to mind, as does Princeton. Julie Novkov runs an underappreciated program in SUNY, Albany. Justice Amy Coney Barrett, who I fear has a book of similar quality forthcoming, might consider joining Justice Breyer.

(emphasis added) (citations omitted). 

Graber criticizes HUP and Justice Breyer for publishing his (that is, Breyer’s) honestly held views, albeit absent “evidence.” Then Graber criticizes Barrett based on his (that is, Graber’s) “fears” in regard to a forthcoming Barrett publication which Graber has not yet seen? What happened to the “evidence” standard?

Can I be the only person who sees a problem here? If this is a good thing, I am missing it.


[1] Declaration of Seth Barrett Tillman, Lecturer (Exhibit D), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae Judicial Education Project’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017) (Daniels, J.) (filed by Professor Josh Blackman et al.), ECF No. 85-5, 2017 WL 7795997, <>.

[2] Compare Julian Ku, More on Breyer v. ScaliaOpinio Juris (Jan. 23, 2005, 6:07 PM), <> (quoting Tillman on Breyer)with Josh Blackman & Seth Barrett Tillman, Justice Breyer made it impossible for Congress to impeach territorial officers for accepting bribesBalkinization (July 14, 2020, 1:45 PM), <>. 

See generally Seth Barrett Tillman, “Karl Popper’s Falsifiability: The Foreign Emoluments Clause,” South Texas College Law Review Symposium: The Foreign Emoluments Clause: From President Washington to President Trump (Sept. 8, 2017) <> (at 35:45ff).

Seth Barrett Tillman,  Academics’ Criticizing Third-PartiesNew Reform Club (Aug. 15, 2021, 8:38 AM), <>.

Wednesday, August 11, 2021

President Buchanan, Governor Cuomo, the Failure to Enforce the Law, and Impeachment (Updated)



            President Buchanan is usually rated the worst or among the very worst of our presidents. That view is not an entirely modern one. He was not well loved by the largest part of northern Unionist sentiment during the American Civil War. Yet, there was no serious move to impeach him while he was president or after Lincoln succeeded to the presidency. (Albeit, one reason for the latter is that the issue of late impeachment always would complicate the analysis.) With the departure of all southern Democrats from the House and all southern Democrats (Senator Andrew Johnson excepted) from the Senate, impeachment by the House should have been a snap, even if securing a Senate conviction would not have been entirely certain. One wonders: Why was Buchanan not impeached?

            What did President Buchanan do wrong? One thing: during secession, he did next to nothing. Buchanan was unwilling to use force—particularly the U.S. Army and Navy—to enforce U.S. law in states which had seceded, to protect federal judges and other U.S. officers in carrying out their lawful duties in states which had seceded, to protect federal enclaves and property in states which had seceded, and to stop the formation of the confederate government in violation of U.S. law.

So why was President Buchanan not impeached for failing to enforce the law, and for failing to defend the country, etc, etc?

  • Because at each step, there was the hope that there would be a change of political opinion in the confederate states (albeit, a forlorn hope) …
  • Because at each step, there was the fear that moves by the U.S. military to compel obedience to the law would be perceived as an invasion, and consequently push the border states towards secession (which is what happened) …
  • Because at each step, there was the view that a civil war would be costly in treasure and lives (resulting, according to modern estimates, in over 600,000 Union dead and wounded, and in over 400,000 confederate dead and wounded) …
  • Because at each step, many believed that Union/Northern victory was not assured (and, is there any doubt of that point?) … and,
  • Because at each step, it was believed that if disunion came, if it came amicably, then in the future, partial or total, reunification remained a real possibility (and, who can say if this position was an unreasonable one to take?).

I do not suggest that Buchanan was right and that Lincoln was wrong. But one reason we think Lincoln was right is because by 1865, he and the armed might of the United States prevailed. But in 1861, after Fort Sumterbut prior to Gettysburg, prior to Sherman’s taking Atlanta, and prior to the election of 1864it was hardly clear that the Union would prevail.

Buchanan’s efforts, such as they were, were grounded in a moral vision and policy choice. It may be a policy choice that you and I disagree with. But that sort of choice is part of normal politics—albeit, normal politics (including wartime politics) where the issue on the table is the continued existence of the nation itself.* That is what elections are meant to decide. Buchanan’s inaction violated no statute (nor any other positive law). Buchanan did not take a bribe or act for self-interested ends. Here the President had lawful discretion if and when to use force. He acted in a disinterested manner (i.e., akin to complying with a fiduciary duty of loyalty); he was fully informed (i.e., akin to complying with a fiduciary duty of care). His actions were transparent—albeit, objectionable to many (including me and, maybe, to you too). If a retrospective inquest on a disputed policy matter can convert inactivity into a constitutional “high crime and misdemeanor,” then the latter language is emptied of all substantive content.

Indeed, all law enforcement officers face Buchanan’s choice. In every law enforcement action, there is always a question of if, and when, and how much lawful force should be used, and how long (if at all) enforcement can and should be delayed. It is precisely because that question is always a judgment call (where not guided by statute or other positive law) that we have no history of impeaching officers based upon a retrospective investigation and trial—conducted by subsequently elected officials seeking to vindicate different values and goals—which reaches a different conclusion than that which had been reached by the original officeholder as to what precisely was best policy ab initio.

This is the fundamental danger of all the recent loose discussion about “abuse of office.” It is a vague standard which, when misapplied, converts normal democratic disagreement, where elected officials must make decisions in real-time based upon imperfect information, into trials and then seeks to disqualify political opponents.

Let’s apply this standard to Cuomo.

If Cuomo broke positive law by retaliating against women who had lodged complaints about his behavior, then those retaliation-related allegations (if true) could supply a good basis for impeachment. The COVID19 allegations are entirely different. If Cuomo chose poorly (as we now understand it) in sending elderly patients with COVID19 into nursing homes, but did so acting on the information before him and for disinterested ends (i.e., in the narrow sense of not taking any bribes), then that is a reason for voters (if they so choose) to boot him out of office and not to re-elect him to future office, but it is not a reason for the legislature to impeach. Otherwise, you are converting impeachment into an ongoing legislative vote of no confidence. This might be an arguable possibility under the New York Constitutions impeachment provision because it lacks any express “high crimes and misdemeanors”-language limiting legislative discretion in the impeachment context. On the other hand, it is precisely for this reason that any such vote of no confidence (masking as an impeachment vote) would make no sense under the United States Constitution . . . because under the federal constitution impeachment is limited to “high crimes and misdemeanors.”

Seth Barrett Tillman, President Buchanan, Governor Cuomo, the Failure to Enforce the Law, and Impeachment (Updated), New Reform Club (Aug. 11, 2021, 12:42 PM), <>; 

*Consider the United Kingdoms 2016 Brexit referendum and Scotlands 2014 independence referendum—both normal democratic politics.

Tuesday, August 10, 2021

Cuomo and Disqualification


Twitter <>; 

Letter to the Editor at Bloomberg, Responding to Keshia Clukey's “What to Know About the Bid to Impeach New York Governor Andrew Cuomo”

Seth Barrett Tillman, Lecturer



August 10, 2021


Letters Editor



Re:      Keshia Clukey, “What to Know About the Bid to Impeach New York Governor Andrew Cuomo,” Bloomberg—QuickTake, 9 August 2021, 22:23 GMT+1 (Update).


Dear Letters Editor,


Ms Clukey wrote that: “A conviction [by the state senate] would require approval by two-thirds of the senators and judges in attendance. They could also take the further step of disqualifying [Governor] Cuomo from further public service.” But that is not quite correct.


There is no doubt that conviction and disqualification in state senate impeachment proceedings would leave Cuomo eligible to hold all federal positions: including both [i] any elected federal position, e.g., President, Vice President, member of the U.S. Senate and U.S. House of Representatives, from New York or from any other state, and [ii] any appointed federal position. It is unclear if disqualification in state senate impeachment proceedings extends to municipal posts—elected or appointed—or if it extends to state civil service positions.


More importantly, it is not clear that conviction and disqualification in state senate impeachment proceedings would bar Cuomo from subsequently holding elected state positions, including the governor’s office. Under Article VI, Section 24 of the New York state constitution (1894), disqualification extends to “any public office of honor, trust, or profit under this state.” This language first appeared in the New York Constitution of 1821. The state provision is based on analogous language in the United States Constitution (1787). Under Article I, Section 3, Clause 7 of the U.S. Constitution, disqualification extends to “any Office of honor, Trust or Profit under the United States.” Unfortunately, neither the state courts of New York, nor the federal courts have meaningfully opined on the scope of either the state constitution’s or the federal constitution’s disqualification provision. Nor are there any New York state or federal historical precedents where a disqualified former officer sought post-disqualification to hold an elected position. So contra Keshia Clukey, one cannot say with any certainty that a state senate conviction and disqualification would bar Governor Cuomo from subsequently holding state elective positions.


What is clear is that disqualification would act as a bar in regard to holding appointed state positions. This language of “office … under the United States” and “office … under the state” is successor terminology to a pre-revolutionary era British statutory drafting convention, which used “office … under the crown”-language. Such language did not reach elected positions (eg, Members of Parliament) or other apex positions (eg, the King), but only reached appointed positions. That is some good reason to believe that the very similar language appearing in the New York Constitution’s and in the U.S. Constitution’s disqualification provisions did not extend to any elected positions, but only barred the defendant from subsequently holding state appointed positions.



Seth Barrett Tillman, Submitted as a Letter to the Editor at Bloomberg, Responding to Keshia Clukey's “What to Know About the Bid to Impeach New York Governor Andrew Cuomo,” New Reform Club (Aug. 10, 2021, 6:44 AM), <>;