Mensch tracht, un Gott lacht

Friday, December 23, 2022

Today’s Global Warming Insight

Here is a United Press International (UPI) article on global warming: Matt Bernardini, More than half of Antarctica’s plant and animals could disappear due to climate change,United Press International (Dec. 22, 2022, 7:00 PM), <>. 

This article was labelled “Science News.” Subsequently, it was picked up on MSN <>, across Twitter, and elsewhere.

The UPI story leads with a picture. You can see the (licensed) photograph at the link to the original UPI article above and also here: <>. The label under the picture in the original UPI article states: “A new study shows that Antarctica is at risk of losing 65% of its plant and animal life by the end of the century if fossil fuel emissions are not reigned [sic] in. Photo from NASA/UPI | License Photo”. (bold added)

The photograph has two problems. 

First, it is a plain ice sheet. It shows no obvious signs of lifeanimal or vegetable. There is not a lot there—at least, not a lot visible to the human eye—for global warming to harm or destroy. Second, it is—apparently—a picture from the Arctic region of the Norwegian archipelago Svalbard, not Antarctica. The picture is from the wrong continent. 

Why do these people think it is their role to educate us? Why?

Seth Barrett Tillman, Today’s Global Warming Insight,New Reform Club (Dec. 23, 2022, 3:35 AM), <>; 

Roger & Me (responding to Beschloss)


Roger & Me (responding to Beschloss),’ New Reform Club (Dec. 23, 2022, 2:43 AM), <>; 

Twitter: <>

Tuesday, December 13, 2022

On Afghanistan


Seth Barrett Tillman, 'On Afghanistan,' New Reform Club (Dec. 13,2022, 1:53 AM), <>; 

Saturday, December 10, 2022

Is social science more social than science?

A decision theorist was struggling whether to accept an offer from a rival university or to stay. His colleague took him aside and said, “Just maximize your expected utility – you always write about doing this.” Exasperated, the decision theorist responded, “Come on, this is serious.”

The joke works because, unlike the hard sciences, the social sciences have served up too little nourishment to satisfy a critical mind. Years ago, a researcher proved – using commonly-accepted practices – that eating chocolate makes you lose weight. The social and pop scientists can prove anything if they are only ever required to produce a theory, rather than actual results.

Theirs is the legacy of the magicians, who proved not by results or common sense, but by fantastic-sounding theories. This was the fount of Twain's humor in A Connecticut Yankee in King Arthur's Court where, in but one comical example, the yankee set out to investigate what evil spell had been cast on the town's well, declared magical by the town's monks, only to find – simply by looking with his own two eyes – the water had escaped through a simple fissure:

"He did everything by incantations; he never worked his intellect. If he had stepped in there and used his eyes, instead of his disordered mind, he could have cured the well by natural means, and then turned it into a miracle in the customary way; but no, he was an old numskull, a magician who believed in his own magic; and no magician can thrive who is handicapped with a superstition like that."

Plus ça change. Even today, a social problem may be defined as a situation in which the real world differs from the theories of intellectuals. And how often do theories stray from the real world? Social psychologist Phillip Tetlock's famous study proved that when grouped together, experts' predictions were worse even than those of dart-throwing monkeys!

The number of the world's social problems, then, bears a curious relationship to the number of social theories.

Fortunately, the social sciences supply the antidote to their own folly, and that is through the humility supplied by the study of history. The distinguished British historian Paul Johnson put it well:

"The study of history is a powerful antidote to contemporary arrogance. It is humbling to discover how many of our glib assumptions, which seem to us novel and plausible, have been tested before, not once but many times and in innumerable guises; and discovered to be, at great human cost, wholly false."

Wednesday, December 07, 2022

New Article(s)

Seth Barrett Tillman, ‘East Wall and the Plantations: Ireland and Its New Migrants,’ The American Spectator (Dec. 6, 2022, 10:48 PM), <>, <>, <>;

Next up:

Andrew Hirsch and Seth Barrett Tillman, ‘More War or EU Expansion?,’ Copenhagen Post (forth. circa Dec. 8, 2022) (print), Copenhagen Post Online (forth. circa Dec. 10, 2022), <> (English-speaking newspaper in a Danish venue); 


Seth Barrett Tillman, What Court (if any) Decided Ex parte Merryman?—A Correction for Justice Sotomayor (and others), 13(1) Br. J. Am. Leg. Studies (forth. circa Mar. 2024) (peer review), <>; 


Seth Barrett Tillman, ‘New Article(s),’ New Reform Club (Dec. 7, 2022, 8:32 AM), <>;

Thursday, December 01, 2022

2022 Elections: State Legislatures, Governorships, and Changes in Control


State Legislatures and Governorships: before and after 2022 election

National Conference of State Legislatures, <>; and, <>. 


50 State Legislatures:         Senate Dems: -9 seats

                                            House Dems: +21 seats

                                            Net: +12 seats


50 State Legislatures:          Senate Repubs: +20 seats

                                             House Repubs: +35 seats

                                             Net: +55 seats


50 States Legislatures:         Senate Independents/Vacancies/Other: -10 seats

                                             House Independents/Vacancies/Other: -54 seats

                                             Net: -64 seats


*Nebraska is unicameral and (formally) non-partisan

**3 seats added across 50 state legislatures


Republican net pickup: 43 seats.


Dems pickup AZ governorship: AZ government shifts from Repub to Divided control.

Dems pickup MD governorship: MD government shifts from Divided control to Dem control. (But already under effective Dem control: so little potential for any U.S. House redistricting.)

Dems pickup MASS governorship: MASS government shifts from Divided control to Dem control. (But already under effective Dem control: so little potential for U.S. House redistricting.)

Dems pickup both MICH state legislative houses: MICH government shifts from Divided control to Dem control. (Potential for Dem-favored redistricting of U.S. House seats. Post-2022 election: U.S. House from Mich: 6 R / 7 D.)

Dems pickup MINN state house and control of legislature. MINN shifting from Divided control to Dem control. (Potential for Dem-favored redistricting of U.S. House seats. Post-2022 election: U.S. House from Minn: 4 R / 4 D.)

Repubs pickup Nevada governorship: Nevada government shifting from Dem control to Divided control. Only Repub pickup leading to change in control. But no potential for U.S. House redistricting. 

Penn: Dems pickup State House. Control remains Divided.

Control in many state legislative houses remains narrow. So all results remain tentative. Eg: A single state legislative seat--in the NH state house--resulted in a tie. In 3 state Houses, the majority is 1 or 2 seats. (And, the NH state House maybe 2 or 3 seats apart depending on how the single tied seat is finally determined.) In 5 state Senates, the majority is 1 or 2 seats. Redistricting in Michigan and Minnesota based on changes in control could be consequential given the Rs 9-seat majority in the U.S. House.


Seth Barrett Tillman, 2022 Elections: State Legislatures, Governorships, and Changes in Control, New Reform Club (Dec. 1, 2022, 12:03 PM), <>; 

Thursday, November 24, 2022

A Thanksgiving Prayer

Pascal says that God “instituted prayer in order to allow His creatures the dignity of causality”. There are some things that are within our direct power to do: we wash our hands, and (save for Lady Macbeth) our hands become clean. Most of the events that go on in the universe are, of course, out of our hands. But that is not to say they are out of our control, for we may still pray for them.

Of course, putting a wish in a prayer does not exactly put it within our power. Quite so. And thank God for that. For think of all the wickedness that men do with their hands – we have police and prisons and restraining orders and bulletproof glass and handcuffs and straitjackets to protect us from the violence and destruction that is wrought just by men's hands. The causality exercised by our own hands is guaranteed, and therefore ruthless. 
But the kind which we exercise by prayer is not like that; God has left Himself a discretionary power. Had He not done so, prayer would be an activity too dangerous for man. We would have the horrible state of things envisaged by Juvenal: “Enormous prayers which Heaven in anger grants." That is why God has retained a discretionary power of granting or refusing prayers; except on that condition, prayer would destroy us.
Now I hear another objection: "But prayers are not always granted." Ah, but here we come to God's rebuke to Job: "Who are you to call me to account? Can you hope to understand why or how I do anything? Were you there at the Creation? Can you comprehend the marvels of the stars, the animals, the infinite wonders of existence? You, a worm that lives a few moments, and dies?" When we judge, crudely, a prayer as "granted" or "not granted," we are judging without seeing the evidence. Prayers seem to us unfulfilled not because prayer is a weaker kind of causality, but because it is a stronger kind. When it “works” at all it works unlimited by space and time. Here are C.S. Lewis's words on that matter: 
Don’t bother about the idea that God “has known for millions of years exactly what you are about to pray”. That isn’t what it’s like. God is hearing you now, just as simply as a mother hears a child. The difference His timelessness makes is that this now (which slips away from you even as you say the word now) is for Him infinite. If you must think of His timelessness at all, don’t think of Him having looked forward to this moment for millions of years: think that to Him you are always praying this prayer. But there’s really no need to bring it in. You have gone into the Temple (“one day in Thy court is better than a thousand”) and found Him, as always, there. That is all you need to bother about.
Thanks is merely a backwards looking prayer. God hears thanks for the good of the past as merely a prayer from a different orientation.
And that is where, it seems to me, the power of thanksgiving enters in. When normally we pray, we are asking for something, presumably in the future, and something that might not come about quite the way we expect – something that, when it comes about at all, might be quite unrecognizable to us as the fulfillment of our prayer, if even we are blessed to cross paths with the realization at all. But thanksgiving is not like that. If a prayer feels like a coin thrown desperately into the fountain, thanksgiving is like the cash you find in the pocket of an old pair of jeans. As far as that particular blessing goes, you and God are not longer separated by the vast canyons of time and the mysterious workings of the universe, for the blessing has arrived! Now, in your own time! Here, in your own hands!
George Bailey felt quite powerless when he prayed his desperate sinner's prayer at the bridge, not knowing of any way out of the charges of embezzlement against him, and of the humiliation of his family, least of all that the way out lay in jumping into the snowy river; but he had gained rich blessings – the answer to his prayers and then some – by the time his daughter Zuzu pointed out to him the ringing bell, reminding George that he had thanksgiving prayers to send up.
A particular blessing has come into your hands. The blessing unites a prayer and its fulfillment in your own time, in your own life. That is a miracle, a small part of heaven, that God allows us to experience in this life. And the key to unlocking this miracle is through sending up a prayer, and telling God, simply and earnestly: Thank You.
(Borrowed heavily from C.S. Lewis, How to Pray.)

Sunday, November 13, 2022

The Arrest of James Hodges (UPDATED)


The Hodges arrest video is making rounds on the internet, along with commentary. It strikes me that the commentary is not focused on the most central fact of the case.


The focus of most of the commentary is on the Terry stop (Terry v. Ohio, 391 U.S. 1 (1968) (Warren, C.J.)) and the lawfulness of the original detention. That detention was (it appears to me) illegal. Thus, it is no surprise (as has been reported) that the state’s attorney has declined to prosecute Hodges. Likewise, it is no surprise (as has been reported) that one or both of the police officers have been disciplined.


What is not being discussed sufficiently (if at all) is the last 10 to 15 seconds of the video. In that segment, Hodges asks the arresting officers for their names and identification numbers, and he indicates that he will seek some sanction against them for their wrongfully detaining him. Hodges appears to be “threatening” to sue them. But such a “threat” is not illegal; rather, it is lawful First-Amendment-protected speech. It is only at that juncture that the more senior police officer tells his junior to arrest Hodges for “resisting” arrest. It seems to me that any such arrest is fairly characterized as retaliation for Hodges’ exercising free speech. Any such retaliation is a consequential constitutional violation quite apart from the initial wrongful detention.


When one adds, that Hodges is (apparently) legally blind, and a veteran (as has been reported), and was on the street in the early morning specifically because he was returning home from a mandatory jury duty summons (or, so he claims), he will make a most sympathetic civil rights (42 U.S.C. § 1983) plaintiff before any jury.


Finally, it is all captured on video. So the facts will not be much in dispute. Lawyers should be lining up around the block to take this case. It might be worth a big pay day—whether it goes to trial or settles. And even if the defendants (i.e., the municipality and the individual officers) are only compelled to make a payment at the smaller end of the spectrum, Hodges’ case should be a very easy win, and it should be a win taking little time. Any trial court victory will place the lawyer in the news. It is free favorable advertising for his or her practice and/or for a future run for political office.

UPDATE: The Arrest of James Hodges: An Update, <>; 

Seth Barrett Tillman, ‘The Arrest of James Hodges,’ New Reform Club (Nov. 13, 2022, 5:07 AM), <>;

Twitter: <>;


Friday, November 11, 2022

Re: The Red Tsunami

And I live in a welfare state that has more tax revenues than it can possibly find ways to squander. We live on a hill and I have a shotgun and you only see this

when you get off the freeway. Every freeway, but hey, you're on your way to somewhere else. Vanishes from your rear-view mirror before you even look back.

The Red Tsunami didn't happen because this is the New Normal: Biden bad; Orange Man worse. Life goes on.

Saturday, November 05, 2022

An Awards Speech

On Saturday, November 5, 2022, I was awarded the 2021 North Carolina Society of Historians’ Award of Excellence for Outstanding Contribution to the Preservation and Perpetuation of North Carolina History and Heritage. What follows is my awards dinner speech, parts of which were read in absentia

First, I would like to thank the North Carolina Society of Historians, its members, officers, and, especially its judges for choosing my two Jacob Henry-related papers[1] for the society’s Award of Excellence for a significant contribution to the preservation and perpetuation of the history and heritage of North Carolina. In an earlier, simpler time, we would not have to reflect on the need for such organizations. But now is not such a time—ours is a time when older certainties are not merely forgotten or questioned, but vilified. So the central task of a historical society, as with sister cultural institutions, is a critically important one: it is to remember and to preserve what can be preserved for a better future which all hope will emerge—even if we cannot clearly see it today.


Second, I should especially like to thank my home institution, Maynooth University, and my current head of department, Professor Michael Doherty, for providing me with the opportunity to take a sabbatical, which made writing these articles possible. Also, there were any number of archivists and librarians, anonymous reviewers, editors, and others who I owe thanks—especially Professor Sandeep Gopalan, my former head of department, and now Vice-Chancellor of Carolina University, Annie Miller, at the North Carolina Historical Review, and Professor Yvonne Pitts, Purdue University, at the American Journal of Legal History. As usual, my wife, Nora, reviewed any number of drafts—of both articles.


Third, I would like to express my apologies for being unable to attend your awards ceremony. My living across the Atlantic and your dinner’s timing preclude my attending and participating.


Fourth, I left the United States some eleven years ago and moved abroad, to Ireland, to find work—I teach in an Irish university. Still, one misses home. And also one’s publications, which focus on a foreign country—that is the United States, are of less interest to the Irish than they would be to other Americans. In such circumstances, one can only wonder if one’s research and writing is being well received. Although winning such an award is gratifying to any recipient, I think I can fairly state it means a bit more to an expatriate—such as myself—to know that one’s publications are appreciated in the home country. For that, I thank you.


And, finally, in my papers on Jacob Henry, I attempted to peel back a veneer of historical silence. A few have privately noted to me that in doing so, I undid (in a small way) what Henry and his contemporaries accomplished: elevating Henry to the status of folk hero in the hope of crafting a culture of American religious tolerance. That may be so. But the other view, is that in reducing Henry’s heroic status, I have elevated the accomplishment of all those other unknown North Carolinians who, in 1809, crafted our society’s culture of religious tolerance. And perhaps, it is those unknowns who are the heroes our society most needs today.


     Is mise le meas,[2]


          Seth Barrett Tillman


Seth Barrett Tillman, ‘An Awards Speech,’ New Reform Club (Nov. 5, 2022, 11:50 PM), <>; 

[1] Seth Barrett Tillman, What Oath (if any) did Jacob Henry take in 1809?: Deconstructing the Historical Myths, 61 American Journal of Legal History 349 (Dec. 2021) (peer review), <>, <>; Seth Barrett Tillman, A Religious Test in America?: The 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat—A Re-Evaluation of the Primary Sources, 98 North Carolina Historical Review 1 (Jan. 2021) (peer review), <>.

[2] Pronounced: Ish mish-a leh may-os. It is an Irish phrase meaning “It is I, with respect.” 

Sunday, October 16, 2022

“Educating” the Irish Football Athletes

We now all know that the Republic of Ireland’s women’s team players were filmed chanting (what is widely understood as) an IRA song. Before, during, and even after the Football Association of Ireland issued its apology on behalf of those players, the great and the good were heard saying the problem was “education.” In other words, these young adults were too young to remember what the IRA had done, and to whom, and Irish schools and wider society had failed to teach them. The great and the good were correct—but not in the way they meant.

The problem is not an absence of teaching. The problem is what their betters choose to teach.

Every year the European Parliament determines the winner of the Sakharov Prize for Freedom of Thought. Who was Andrei Sakharov? Andrei Sakharov devoted the major part of his professional life towards developing advanced atomic weapons for the former Soviet Union. He did this work under Stalin and under his successors. Sakharov’s work made it more difficult for the United States and the world’s other democracies to press for human rights reforms in the Soviet Union and the countries within its orbit—just as his work made it easier for the Soviet Union to threaten its neighbours and the other countries of the world. The nuclear weapons in Russia today which threaten Ukraine and all of Europe—who do you think made those weapons? When Andrei Sakharov has a European Union prize named after him—then lessons will be learned.

Nearer to home, Ireland issued a Che Guevara stamp on the 50th anniversary of that terrorist’s death. Similarly, President Higgins eulogized Fidel Castro—a dictator so brutal that hundreds of thousands sought escape in rickety boats on the Atlantic. When Guevara and Castro are honoured and eulogized—then lessons will be learned.

The problem is not that the system failed to teach these young people; the problem is what they were taught—in school and out of it. The problem is not that they failed to learn what was taught, but that they learned it all too well. If a society’s senior elected officials and other elites teach that Sakharov, Guevara, and Castro deserve admiration, and those elites teach this lesson repeatedly, in public, and in planned events, then why object when young athletes, in a one-off, private, and impromptu event, do much the same? The athletes were just doing what they were taught to do—at every step of the way.

Seth Barrett Tillman, ‘“Educating” the Irish Football Athletes,’ New Reform Club (Oct. 16, 2022, 9:25 AM), <>; 

Twitter: <>; 


Wednesday, October 12, 2022

Sunday, October 09, 2022

A Simple Plan for Ending the War in Ukraine


Russians opposed to Putin have no place to go. Opposing Putin during a hot war makes members of the Russian opposition adverse to their troops in the field and, therefore, it exposes them to charges of disloyalty, if not worse.

Likewise, Putin has no place to go. If he loses the war and fails to take and hold Ukrainian territory, he will lose power. And those who take power out of his hands might not intend or want a peaceful transfer of power. In these circumstances, Putin has little to lose and everything to gain by extending the war, risking escalation, and, indeed, using tactical nuclear weapons. Such an escalation might cause his own death, as it may cause millions of other deaths. But Putin may not be like you and me. He may draw comfort from pulling down everyone else’s home if his own political future is in the process of being destroyed.

            What is to be done?

Give Putin, his Russian opposition, and Ukraine a desirable place to go. What place is that? It is a place everyone in Russia and Ukraine, from oligarch to worker on the factory floor, wishes to gain access. That place is: the European Union. Indeed, overtures by the EU and NATO suggesting membership for Ukraine (and only Ukraine) were some of the ill-advised decisions that led us to today’s terrible status quo. Those overtures might have been the wrong thing for the West to have done, but might not modifying those decisions be today’s path to peace? Let the European Union offer Russia AND Ukraine a deal—that is, total withdrawal of all troops to borders as they stood prior to Russia’s February 2022 invasion, and if done within 30 days, then both Russia and Ukraine would be granted immediate EU membership.

            If the offer is accepted and then put into effect, then the hot war is over. That is a good result. Putin will find it easier to end the war if he has something in-hand that his people will value. And I suggest the average Russian, as well as every Russian oligarch, would value EU citizenship, travel rights, and the right to work across the EU; indeed, they would value those intangible legal rights much more than they would value Russian troops’ holding Ukrainian territory and its sunflower oil supply.

            If the offer is rejected, then Putin and his political allies will hold even less popular support because the Russian voter will know that Putin’s incompetence (in war) and his intransigence (in making peace) cost them EU citizenship with all that it entails. Making Putin less popular, in this fashion, is also a good result.

            For Ukraine, there is no downside. If the plan succeeds: the war ends, and Ukraine gets EU membership. Ukraine would be mad to reject the offer, and they could continue to make overtures in international fora for the return of Crimea and their eastern territories. If Putin rejects the offer, but Ukraine accepts it, then Ukraine will lose nothing consequential, and it will enjoy much additional good will from the international community.

            The downside (such as it is) of the EU’s making this offer is that it will be accepted, and then the EU Parliament (and other EU institutions) will have to accommodate Russian and Ukrainian nationalists. That will be tricky, especially as it will undoubtedly come with money laundering, fraud, and subversive intelligence activities. But we, in the West, are not without defences against such wrongdoing. And such wrongdoing, which is surely regrettable, is much more manageable, then a hot war risking escalation, along with the outflow of millions more migrants’ escaping conflict and military conscription.

            It may be the EU and its member states have the means to end this war. Let us encourage them all to risk making peace.

Seth Barrett Tillman, Associate Professor
Maynooth University School of Law and Criminology
Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad
(academic title & affiliation for identification purposes only)

Seth Barrett Tillman, ‘A Simple Plan for Ending the War in Ukraine,’ New Reform Club (Oct. 9, 2022, 10:03 AM), <>; 

Seth Barrett Tillman, ‘To End Putin’s War, Offer Both Ukraine and Russia EU Membership,’ Newsweek (Oct. 25, 2022, 4:32 PM EDT), <>, <>;

Twitter: <>;

Friday, October 07, 2022

A Letter to The Irish Times on Nuclear Power for Ireland



Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad

(academic title & affiliation for identification purposes only)


7 October 2022


The Irish Times

Letters to the Editor


RE: William Reville, ‘We need to take the nuclear option’ The Irish Times (Dublin, 6 October 2022) 8, <>


I do not doubt that today’s small modular nuclear reactors are safer than their historical large-scale predecessors. But “safer” here means with regard to accident and acts of God. The unspoken risks posed by nuclear power do not relate to accident; rather, the substantial risks posed by nuclear power relate to intentional wrongdoing in connection with crime, blackmail, terrorism, and war. Adopting nuclear power is just a way of saying you wish to lose the next war—just look at the threat posed to Europe by Russian occupation of Chernobyl and other Ukrainian nuclear facilities.


Today, Ireland is at peace: Ireland has no enemies which presently or in the near future threaten an invasion of its landmass. If you believe that this will last forever and that history is at an end, then just maybe nuclear power is a reasonable option. But if history is not over, then nuclear power puts both safety and hard-won national independence at risk.


Is mise, le meas,


Seth Barrett Tillman

Seth Barrett Tillman, Letter to the Editor, ‘Nuclear power and war: National independence at risk,’ The Irish Times (Oct. 10, 2022, 2:45 AM), <>; 

Seth Barrett Tillman, A Letter to The Irish Times on Nuclear Power for Ireland,New Reform Club (Oct. 7, 2022, 6:44 AM), <>; 

Twitter: <>; 

Tuesday, September 13, 2022

Abortion Debate, Litigation, and Strategy: The Case of Stanford Law Review

Here is a citation to an article, recently published, in Stanford Law Review Online:

David S. Cohen et al., Rethinking Strategy After Dobbs, 75 Stan. L. Rev. Online 1 (Aug. 2022), <>.

This article was not titled: Rethinking Pro-Choice Strategy After Dobbs, nor Rethinking Pro-Abortion Strategy After Dobbs, nor Rethinking Pro-Roe v. Wade Strategy After Dobbs. Is it because only one side has a or thinks about strategy?

I suppose the student editors know who their audience is.

Seth Barrett Tillman, ‘Abortion Debate, Litigation, and Strategy: The Case of Stanford Law Review,’ New Reform Club (Sept. 13, 2022, 3:37 AM), <>; 

Twitter: <>;

Sunday, August 28, 2022

Was that Tweet Defamatory?: Before and After (UPDATED)



Seth Barrett Tillman, ‘Was that Tweet Defamatory?: Before and After (UPDATED),’ New Reform Club (Aug. 28, 2022, 5:54 AM), <>; 

Tweet: <>; 

Monday, August 22, 2022

Thursday, August 18, 2022



That tragic and intractable phenomenon[1]—castrating men as a condition of their entering the upper echelon of the state’s civil service—which I watched with horror in dramatizations of Chinese history—but which was there, for several millennia, interwoven with the very existence of the imperial Chinese state itself[2]—was abandoned as soon as contact with modernity destroyed the old imperial order. 

Now, a century after the practice has ended in China, a policy of state-sanctioned castration (and paid for by the state’s health budget!) is coming upon us here—in the Western world—by our own volition and our own neglect. Indeed, it has come. In numerical terms, here in Ireland, a small country of some five million souls, the Irish health service has sent 100s of children for treatment for gender dysphoria to a clinic in another country—in England—a clinic subsequently closed by the local medical authorities.[3] How many of these children were castrated or otherwise sterilized remains to be seen. How does a child consent to that?

Seth Barrett Tillman, ‘Castration,’ New Reform Club (Aug. 18, 2022, 11:32 AM), <>

[1] The language and imagery of my text is lifted from: Address to the West Midlands Area Conservative Political Centre (Birmingham, England: Midland Hotel, Apr. 20, 1968). 

[2] The practice of the castration of minors—the so-called castrati—existed in Europe well into the nineteenth century. I have not seen any historical dramatizations of this phenomenon. Had I watched such dramatizations, I expect that I would have been equally horrified. 

[3] Jack Power, ‘How will closure of Tavistock clinic affect trans healthcare in Ireland,’ The Irish Times (Aug. 9, 2022, 19:12 PM), <>. 

Wednesday, August 17, 2022

A Letter to Politifact



Amy Sherman



Re: Amy Sherman, Can Donald Trump run for president if charged and convicted of removing official records?, Politifact (Aug. 9, 2022), <>.


Dear Ms Sherman,


I am the author or co-author of several publications on constitutional qualifications for elected federal positions, on Section 3 of the 14th Amendment, and on impeachment procedures and standards.[1] Likewise, I have also been a source for prior Politifact reports.[2]


You stated in your August 9, 2022 report that:


Congress could act to bar Trump from running again under Section 3 of the 14th Amendment, which says that public officials cannot serve in any future federal, state, or military office if they engaged in “insurrection or rebellion.” The Senate hasn’t pursued that route. It could have banned Trump from running again during impeachment proceedings and did not. It’s unknown how the committee investigating Trump’s actions around the Jan. 6 attack may address the prospect of Trump’s candidacy.


Not one of your statements above is a fact. Each is a highly contestable legal claim, argument, or intuition.


First, you suggest Congress, acting under Section 3 of the Fourteenth Amendment, can pass a statute or resolution barring Trump (and, by implication, others) for purported insurrection. That has never been done. No federal court of record has ever said it could be done. And one federal court has suggested that it cannot be done. See Griffin’s Case, 11 F. Cas. 7 (Circuit Court of the District of Virginia 1869) (Chase, Chief Justice of the United States). Your suggesting that Congress can enforce Section 3, by what amounts to a bill of attainder, is not a “fact;” rather, it is a contestable legal intuition.


Second, you state that a Section 3 disqualification by Congress would bar the defendant from holding “any future federal, state, or military office.” (emphasis added) However, that is not what Section 3 says. Section 3’s disqualification bar extends to listed positions: “Senator or Representative in Congress, or elector of President and Vice-President, or … any office, civil or military, under the United States, or under any State.” This list does not cover: [1] membership in a state legislature; and, [2] arguably, the presidency and vice presidency. No court of record has determined the scope of Section 3 disqualification or the scope of its “office … under the United States”-language. Your use of “any” is not a “fact;” rather, it is a contestable legal intuition.


Third, you wrote: “[The Senate] could have banned Trump from running again during impeachment proceedings and [it] did not.” Senate disqualification in impeachment proceedings is controlled by the Impeachment Disqualification Clause—Article I, Section 3, Clause 7. That provision bars the defendant from holding “any Office of honor, Trust or Profit under the United States.” Here too, the scope of the Impeachment Disqualification Clause’s “office … under the United States”-language has never been determined by the United States Supreme Court or any court of record. (And, that is not surprising as only three defendants—Judge Humphreys (1862), Judge Archbald (1913), and Judge Porteous (2010)—have ever been disqualified in Senate impeachment proceedings.) Your asserting that this “office … under the United States”-language would bar a disqualified defendant from running for or holding the presidency—or any other elected federal position—is not a “fact;” it is a contestable legal intuition. Indeed, the Impeachment Disqualification Clause’s language of “office … under the United States” is also the language in 18 U.S.C. Section 2071. Today, the majority view (in my opinion) is that the “office … under the United States”-language in Section 2071 does not extend to the presidency (or to any other elected federal positions)—if the majority view is correct, as determined by the courts, that is some reason to think that the nearly identical language in the Constitution in Article I (the Impeachment Disqualification Clause) and Amendment XIV (the Insurrection Disqualification Clause) does not extend to the presidency (or to any other elected federal positions).


Fourth, and finally, you wrote: “It’s unknown how the [House] committee investigating Trump’s actions around the Jan. 6 attack may address the prospect of Trump’s candidacy.” Perhaps, it is not “unknown.” Have you considered the alternative?: The House committee has taken no concrete action because it has no power to do anything consequential—that is, anything which will have actual legal consequences along the lines it would seek to achieve.


Given that even legal holdings established by the Supreme Court can be overturned by the Court in subsequent cases (e.g., Dobbs overturning Roe), perhaps, it is time for your organization to reconsider the idea that legal “facts” exist at all. There might be a few unambiguous and undisputed legal facts (e.g., each state has exactly two authorized senators). But your repeatedly affirming that the scope of disqualification under Article I or Amendment XIV is clear, unambiguous, and undisputed cannot fall under that narrow rubric. Few things do.


Seth Barrett Tillman, A Letter to Politifact,’ New Reform Club (Aug. 17, 2022, 3:17 AM), <>; 

[1] See, e.g., Josh Blackman & Seth Barrett Tillman, Is the President an ‘officer of the United States’ for Purposes of Section 3 of the Fourteenth Amendment, 15 N.Y.U. J.L. & Liberty 1 (2021), <>, <>, <>; Josh Blackman & Seth Barrett Tillman, What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?, 2021 U. Ill. L. Rev. Online 190 (2021), <>, <>; Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5(1) British Journal of American Legal Studies 95 (2016) (peer review), <>; Josh Blackman & Seth Barrett Tillman, Defining a Theory of “Bribery” for Impeachment, Lawfare: Hard National Security Choices (Dec. 6, 2019, 12:43 PM), <>, <>; Seth Barrett Tillman, Reading the Senate Rules of Impeachment Litigation: A Response to Hurd and Wittes, Lawfare: Hard National Security Choices (Dec. 9, 2019, 12:16 PM), <>, <>;  Seth Barrett Tillman, Secretary Clinton Can Relax Because Section 2071 Disqualification Does Not Apply to the Presidency: A Response to Attorney General Michael B. Mukasey and Cause of Action (with a Short Reply from Attorney General Mukasey) (2015), <>.

[2] See Lauren Carroll, Trump lawyer: Foreign dignitaries staying in a Trump hotel doesn’t violate Constitution, Politifact (Jan. 13, 2017, 4:00 PM), <>; Lauren Carroll, Giuliani: President Trump will be exempt from conflict-of-interest laws, Politifact (Nov. 16, 2016), <>.