Our problems remain epistemological.

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), <https://www.stanfordlawreview.org/online/rethinking-strategy-after-dobbs/>.

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), <https://reformclub.blogspot.com/2022/09/abortion-debate-litigation-and-strategy.html>; 

Twitter: <https://twitter.com/SethBTillman/status/1569591966043602944>;



Sunday, August 28, 2022

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

 BEFORE:


AFTER:





Seth Barrett Tillman, ‘Was that Tweet Defamatory?: Before and After (UPDATED),’ New Reform Club (Aug. 28, 2022, 5:54 AM), <https://reformclub.blogspot.com/2022/08/social-media-used-as-tool-to-target.html>; 

Tweet: <https://twitter.com/SethBTillman/status/1563071702988337152>; 


Monday, August 22, 2022

Thursday, August 18, 2022

Castration

 

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), <https://reformclub.blogspot.com/2022/08/castration.html>



[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), <https://tinyurl.com/2p93mrrm>. 

Wednesday, August 17, 2022

A Letter to Politifact

 

 

Amy Sherman

Politifact


 

Re: Amy Sherman, Can Donald Trump run for president if charged and convicted of removing official records?, Politifact (Aug. 9, 2022), <https://tinyurl.com/5y6juh52>.

 

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

Seth Barrett Tillman, A Letter to Politifact,’ New Reform Club (Aug. 17, 2022, 3:17 AM), <https://reformclub.blogspot.com/2022/08/a-letter-to-politifact.html>; 



[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), <https://www.nyujll.com/volume-15/blog-post-title-four-flm6h>, <https://ssrn.com/abstract=3978095>, <https://tinyurl.com/3n77hrhw>; 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), <https://tinyurl.com/tnnv7dvw>, <https://ssrn.com/abstract=3837615>; 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), <https://www.ssrn.com/abstract=2679512>; Josh Blackman & Seth Barrett Tillman, Defining a Theory of “Bribery” for Impeachment, Lawfare: Hard National Security Choices (Dec. 6, 2019, 12:43 PM), <https://tinyurl.com/trafz4f>, <http://ssrn.com/abstract=3492627>; 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), <https://www.lawfareblog.com/reading-senate-rules-impeachment-litigation-response-hurd-and-wittes>, <https://ssrn.com/abstract=3499577>;  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), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2650328>.

[2] See Lauren Carroll, Trump lawyer: Foreign dignitaries staying in a Trump hotel doesn’t violate Constitution, Politifact (Jan. 13, 2017, 4:00 PM), <http://www.politifact.com/truth-o-meter/statements/2017/jan/13/sheri-dillon/trump-lawyer-foreign-dignitaries-staying-trump-hot/>; Lauren Carroll, Giuliani: President Trump will be exempt from conflict-of-interest laws, Politifact (Nov. 16, 2016), <https://www.politifact.com/factchecks/2016/nov/16/rudy-giuliani/giuliani-president-trump-will-be-exempt-conflict-i/>.

 

Tuesday, August 16, 2022

A Response to Professor Kevin Jon Heller’s “Norway Murders Freya the Walrus”

 

 


 

Why do I write (nonfiction)? Generally, I write for three reasons. First, I write to make inquiries or to open up wider discussions by posing questions. Second, I write to inform others. And, third, I write to persuade others. Sometimes, I think, others write for different reasons. Here may be one such example.

 

Perhaps, you read the recent story about Freya, the walrus, who wandered into a Norwegian harbour and took over a pier and some boats (which Freya damaged). A Norwegian government agency, the Directorate of Fisheries, took the view that despite warnings, people were engaging with Freya at too close a distance, and this posed a danger to human life. For this reason, i.e., basically giving priority to human life, the agency ended Freya’s life. The decision to do so was defended by the agency’s director: Frank Bakke-Jensen.

 

Many with strong views about animal welfare/animal rights condemned the government agency’s move. Professor Heller, a self-described vegetarian, was one such person. He wrote a strongly worded blog post on the subject. See Kevin Jon Heller, ‘Norway Murders Freya the Walrus,’ OpinioJuris (Aug. 15, 2022), <http://opiniojuris.org/2022/08/15/norway-murders-freya-the-walrus/>. The position of animals in our moral framework is contestable. I do not doubt Heller’s sincerity. I take no position whether his view in regard to the agency’s decision was the right one or the wrong one. He puts forward facts and explains his reasoning for criticising the agency’s decision. And he is not alone—he is far from alone. One might criticize Heller’s blog post’s title as extreme and also for misusing the word “murder”—but those criticisms would be petty. People who refrain from using strong language frequently find that their voice is not heard over the din. Generally, his post is squarely within the realm of good (academic) writing.

 

Still, in his Opinio Juris blog post, Professor Heller also wrote:

Before getting to the substance of [Fisheries Director Frank] Bakke-Jensen’s comments, it’s worth noting that he is a member of Norway’s Conservative Party and a former Minister of Defence. In other words, he’s pretty much the last person you would want making a decision about whether to protect or kill an innocent animal.

What is Heller’s point here? Is Heller expert on modern Norwegian history, government, and parties, including Bakke-Jensen’s “Conservative Party,” and is he telling us that this particular party is weak on animal welfare/animal rights issues? I suppose that is possible, but how is the reader to know that Heller has such expertise? Or is Heller’s point that Bakke-Jensen is a member of a little-c “conservative party,” and he is telling us that all (or, at least, most) such conservative parties—and their members—are weak on animal welfare/animal rights issues? Is that his point?

 

What is one to make of Heller’s critiquing Bakke-Jensen for being a former Norwegian Minister of Defense? Is Heller’s point that Norwegian ministers of defense are weak on animal welfare/animal rights? Or is his point that all (or, at least, most) ministers of defense world-wide (or in Scandinavia?, or in Western Europe?) are weak on animal welfare/animal rights? Is that his point?

 

I suppose there could be some empirical basis for Heller’s criticism of Bakke-Jensen for being a Norwegian Conservative Party member and a former minister of defense, but it is noteworthy that he puts nothing forward. Nothing at all. Heller’s views here appear to be little more than personally held and strongly held stereotypes and prejudices.

 

Another possibility is that Heller really did not mean to make either of those claims—in the sense that he gave them any thought. Rather, his blog post was a primordial scream baring his tortured soul for all—i.e., publicly exhibiting his pain for the death of Freya. If the reputations of members of the Norwegian Conservative Party or of former ministers of defense (in Norway or elsewhere) were injured or if their feelings were hurt, so what—what is their pain compared to his and Freya’s? After all, the real story is Freya’s death, not any mistakes about the attribution of wrongdoing made along the way.

 

The problem with this latter explanation is that it is essentially self-defeating. If Professor Hellers claims are untrue, if Norwegian Conservative Party members are not weak on animal welfare/animal rights, then his criticising its members in this way is unlikely to win his cause many new supporters and might very well alienate an important electoral and parliamentary constituency when animal welfare/animal rights issues are being decided. The Norwegian Conservative Party was the leading party in the prior government, which sat from 2013 to 2021, and it is now the largest opposition party. Heller may be successfully baring his soul, but I do not think his unsupported criticisms (prejudices?) here have limited the likelihood of another Freya. Indeed, Heller’s blog post might have done just the opposite. Heller might just be alienating the very people needed to change the policies which he objects to.

 

I suppose there is another possibility. Heller’s blog post is not indicative of prejudice. And, it is not an attempt to persuade. Rather, it is an attempt at self-identification to other members of the Elect. Heller is identifying himself to other similarly minded people as one who deeply cares; he has his heart and mind in the right place. Moreover, he wants other similar thinking individuals to know he is one of them. That would be why his relying on unsupported stereotypes is OK—because he is not trying to change future policy and he is not really trying to persuade those thinking differently from what he thinks.

 

That might be the explanation. But it is not a good approach for an academic to take. An academic holds a safe perch, and is unlikely to lose his position merely for announcing a few less than thoughtful and less than well-reasoned views. Reliance on stereotypes poses little risk to most academics—particularly if the views are shared by the majority (or even a vocal minority). The problem is that Heller’s less sophisticated students and others will read this writing style and copy it. Students do not enjoy the protections academics enjoy. Prospective (public and private) employers will scan student-applicants social media footprints. Applicants writing in a style like Professor Hellers might bar the applicants from opportunities that they might otherwise have gained. That would be an unfortunate result, which will benefit no one; indeed, it is not even likely to stop the Directorate of Fisheries from killing future Freyas.

 

So why write this way?

 

Seth


Seth Barrett Tillman, ‘A Response to Professor Kevin Jon Heller’s “Norway Murders Freya the Walrus”,’ New Reform Club (Aug. 16, 2022, 8:22 AM), <https://reformclub.blogspot.com/2022/08/a-response-to-professor-kevin-jon.html>;


Friday, August 12, 2022

Tuesday, August 09, 2022

Tuesday, August 02, 2022

Monday, August 01, 2022

Our Culture’s Muse


     It is also noteworthy that Enoch Powell was in life and continues to be—even long after his death in 1998—a muse or focal point for much art, drama, other fiction, pop music, and modern political and wider social commentary. One recalls: Jonathan Coe’s Middle England (2018) (fiction); Chris Hannan’s What Shadows (2016) (a play); Andrew Smith’s The Speech (2016) (fiction); Sunder Katwala, ‘Powell: “best understood as part of our history”,’ British Future (June 15, 2012), <https://tinyurl.com/24ffucxt> (“There are many debates about identity, immigration and integration that we still need to have. A centenary after his birth, Enoch Powell’s contribution to them are best understood as part of our history now.”) (commentary); C.J. Sansom’s Dominion (2012) (fiction); Christopher Caldwell’s Reflections on the Revolution in Europe (2009) (commentary); Brian Walden (Labour-MP, for Birmingham–All Saints, and Ladywood), Walden Reminisces, BBC Radio 4 (Oct. 3, 2004), <https://tinyurl.com/3786xawk> (“On the issues [Powell and I] were fiercely opposed and [we] couldn’t discuss immigration for five minutes without disagreeing. But unlike many people, including leading Tories, I never regarded Powell as a racist.”); ‘NCS: Manhunt,’ BBC One (Mar. 12, 2002), <https://tinyurl.com/yu6j75uy> (Marc Warren’s “I am an Englishman” speech was expressly influenced by Powell’s St. George’s Day speech (1961)) (television drama); Jonathan Coe’s The Rotters’ Club (2001) (fiction); Shivaji Sondhi, ‘Enoch Powell and the invention of Thatcherism’ (1999) IV(7/8) Biblio: A Review of Books 24 (reviewing Simon Heffer, Like The Roman: The Life of Enoch Powell (London: Weidenfeld and Nicholson 1998)) (“It has come as a delight then to come across Simon Heffer’s recent biography of the man who died last February 9th, and to discover that the cardboard Powell was fiction.”) (Biblio is an Indian literary journal), <https://tinyurl.com/249kz7ar>; Christopher Morgan, ‘[Westminster] Abbey vigil for Powell enrages bishops,’ The Sunday Times (Feb. 15, 1998) (“Unexpected backing [for the abbey vigil], however, came from the Association of Black Clergy. Charles Lawrence, its chairman, said: ‘Powell was not a single-subject person and served his country well. Each person stands before God and deserves the same level of love.’”); Ayub Khan Din’s East Is East (1996) (a play); Hanif Kureishi’s The Buddha of Suburbia (1990) (fiction); Salman Rushdie’s The Satanic Verses (1988) (fiction); Paul Gilroy’s There Ain’t No Black in the Union Jack: The Cultural Politics of Race and Nation (1987) (commentary); Samuel Selvon’s Moses Migrating (1983) (fiction); Howard Barker’s The Loud Boy’s Life (1980) (a play); David Edgar’s Destiny (1976) (a play) and Tedderella (1971) (a play); Millie Small’s Enoch Power (1970) (pop recording); Arthur Wise’s Who Killed Enoch Powell (1970) (fiction); The Beatles’ Get Back (1969) (pop recording); Cartoon Archetypical Slogan Theatre’s Muggins’ Awakening (1968) (a play); and any number of items within the collection of the United Kingdom National Portrait Gallery, <https://tinyurl.com/kc5dpnp2>. 

See also ‘Question Time,’ BBC One (Dec. 11, 2014), <https://tinyurl.com/2uk7jc44> (Russell Brand describing Nigel Farage, leader of the UK Independence Party and Member of the European Parliament (South East England), as a “pound shop Enoch Powell”) (at 1:45ff). One cannot help but notice that Brand thought “pound shop” was a legitimate criticism.

For an effort (which I think succeeds) at portraying Powell (the individual) and also the debate on Powell fairly, see: Denys Blakeway, Documentary, ‘Rivers of Blood,’ BBC Two (Mar. 8, 2008), <https://tinyurl.com/3ma6jmeb> (produced for the 40th anniversary of Powell’s 1968 Birmingham speech).

Seth Barrett Tillman, Our Cultures Muse, New Reform Club (Aug. 1, 2022, 2:36 AM), <https://reformclub.blogspot.com/2022/08/our-cultures-muse.html>;

I forgot one: Monty Python's Travel Agent Sketch: <http://montypython.net/scripts/travagent.php>; <https://www.youtube.com/watch?v=2ewY8CnFae0> (at 3:08ff); 


Tuesday, July 26, 2022

DOBBS is now The Law of the Land

At 18 weeks, you may call this what you want. But it is manifestly more than a "clump of cells" and 2/3 of Americans consistently agree that there is no "right" for anyone to kill it. Roe silenced all principled debate and nuance — and the conscience of America — for 50 years. But as one wag put it, ROE was a clump of words. Let us begin again.


Tuesday, July 19, 2022

Tuesday, July 12, 2022

Monday, July 11, 2022

Friday, July 08, 2022

Two Issues: Overturning Roe v. Wade, and Immigration



Seth Barrett Tillman, Two Issues: Overturning Roe v. Wade, and Immigration,  New Reform Club (July 8, 2022, 2:22 PM), <https://reformclub.blogspot.com/2022/07/two-issues-overturning-roe-v-wade-and.html>; 


 




Wednesday, July 06, 2022

Tuesday, July 05, 2022

Characterizing Sources At The New York Times

 

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)

 

 July 5, 2022

 

The New York Times

letters@nytimes.com

 

Re: Peter Baker, ‘New Insights Into Trump’s State of Mind on Jan. 6 Chip Away at Doubts,’ New York Times (July 3, 2022), <https://www.nytimes.com/2022/07/03/us/politics/new-insights-into-trumps-state-of-mind-on-jan-6-chip-away-at-doubts.html>.

 

In Baker’s article, he quoted attorney Josh Matz and proceeded to describe Matz as “as a lawyer for House Democrats during both of Mr. Trump’s impeachment trials in the Senate.” That was all true. But it leaves out something significant: Matz is currently one of the attorneys of record for E Jean Carroll, a plaintiff, who is suing Trump in a federal district court in New York. See Court Listener <https://www.courtlistener.com/docket/18418220/carroll-v-trump/> (Dkt. No. 60). Given that Matz is on the opposite side from Trump in ongoing litigation, I suggest he is not well positioned to give a wholly unbiased judgment in relation to Trump. If Matz disclosed his current connection to Carroll v Trump to Baker, then I suggest Baker should have reported it. And if Matz—inadvertently—failed to disclose this to Baker, then perhaps the thing to do is for the New York Times to issue a suitable correction. See, e.g.Josh Matz, Foreign Emoluments, Alexander Hamilton & A Twitter Kerfuffle,’ Take Care Blog (July 12, 2017), <https://takecareblog.com/blog/foreign-emoluments-alexander-hamilton-and-a-twitter-kerfuffle> (To be sure, there’s always a fine balance to be struck between scholarly nuance and word limits, especially in op-eds and works of legal advocacy. Many capable lawyers and legal scholars fail, at times, to ....”).

     Le meas,

          Seth Barrett Tillman


Seth Barrett Tillman, Characterizing Sources At The New York Times,’ New Reform Club (July 5, 2022, 9:38 AM), <https://reformclub.blogspot.com/2022/07/characterizing-sources-at-new-york-times.html>; 

Twitter: <https://twitter.com/SethBTillman/status/1544319122665881605>; 







Monday, July 04, 2022

A Fourth of July Dayyenu

In the Seder reading of the Haggadah, the Jews remember the liberation of their forebears from slavery into the Promised Land of Israel, and God's other miracles and blessings, various and sundry, for good measure. Each element of the hymn, explained Norman Podhoretz, is the subject of its own sentence, and each sentence of the series concludes with the word dayyenu, which can roughly be translated as “That alone would have been enough for us.” The idea, said Podhoretz, is that, "not content with 'that alone,' God went on and on and on to pile up wonder after wonder and marvel after marvel: so many that those participating in the seder invariably grow fatigued by the time they finish reciting them all.'"

It seems fitting that we Americans, if we be not ingrates, should submit our own verses, punctuated with dayyenu, in remembrance of the many miracles and blessings bestowed upon our country. Our verses might include:

If mankind had only had the opportunity to discover such a rich continent and, not merely to settle it and survive off it, but to open it to the world and to thrive, that would have been enough.

If Americans had only contributed the Declaration of Independence to the annals of human achievement, without consummating it or bringing its ideals to fruition, however imperfectly, it would have been enough.

If Americans had only produced one president, George Washington, who, though his popularity could have made him a king, laid down power voluntarily and gave us a model of American virtue, it would have been enough.

If Americans had only had the opportunity to sacrifice our country for a chance at a new birth of freedom, and then to help the fight to liberate the European continent from the murderous scourge of Nazism, and then to face down the murderous scourge of communism that succeeded and exceeded it, and then to see the world out of presumptive poverty and into presumptive prosperity, it would have been enough.

Humanity's history tells a story of savagery and violence, and its language is a language of war and base survival, with only recent entries into the lexicon pertaining to rights and freedom. Without the yoke of authority, the great minds before America's founding taught life was solitary, nasty, poor, brutish, and short. If we had had only the chance to prove them wrong, if we had had only the right to argue for the miracle of liberty, instead of fighting for mere survival -- if we had only the chance to celebrate that right this Fourth of July -- it would be enough.

Happy Independence Day. Dayyenu.

Friday, July 01, 2022

Tuesday, June 28, 2022

Monday, June 27, 2022

Sunday, June 26, 2022

Fisking Professor Simon Schama, Columbia University, Department of History

 




1. Professor Simon Schama: “It so happens all 5 justices voting to overturn Roe are devout Catholics.” (bold added) Gorsuch was raised Catholic, but it is not clear that he currently identifies as Catholic. Gallup recently identified Gorsuch as a Protestant. See Frank Newport, The Religion of the Supreme Court Justices,’ Gallup (Apr. 8, 2022), <https://tinyurl.com/2p9fj9re> (“[Judge] Jackson, who was confirmed by the Senate on Thursday, will be only the second Protestant on the high court when she joins the [Supreme] [C]ourt this summer, along with Neil Gorsuch (who is Episcopalian but was raised Catholic).”). 

2. Schama: “It so happens all 5 justices voting to overturn Roe are devout Catholics.” (bold added) What is the evidence that each of the 5 are “devout” Catholics? What did Schama mean by this claim? It cannot be that they attend a Catholic church—because Gorsuch (reportedly) attends an Episcopal church. See Alison Durkee, What religion is Neil Gorsuch,’ Mic (Apr. 7, 2017), <https://nc.mic.com/articles/173527/what-religion-is-neil-gorsuch> (Gorsuch “has been attending Episcopal services for the past 15 or so years.”). Even if Schama had a particularly meaning in mind for “devout,” he cannot possibly believe that his readers had a common, settled, or unified understanding of what he intended by that word. So why would a respected historian use such a loaded and ambiguous term?

3. Schama: “No wonder [the] Union of Conservative Rabbis issued an outraged denunciation.” (bold added) There is no organization with the name: “Union of Conservative Rabbis.” There is an organization called the Rabbinical Assembly, which can be characterized in many ways, including, as a union of Conservative rabbis. If Schama thinks the Rabbinical Assembly’s view is important, then why not use its actual name? Is it really that he has no genuine idea—at all—what Jewish organization he is referring to, and he is merely co-opting the Jews most conveniently at hand in order to show that some Jews take exception to what some Catholics (and others) have done? 

4. Schama: “It so happens all 5 justices voting to overturn Roe are devout Catholics, two Jesuit-educated. No wonder [the] Union of Conservative Rabbis issued an outraged denunciation.” (bold added) Schama does not link to the Rabbinical Assembly’s response to Dobbs. So we cannot evaluate whether it was a mere disagreement, or a strongly worded but otherwise fair-minded “denunciation,” or an “outraged denunciation.” 

That said, even without reading the Rabbinical Assembly’s response, and contra Schama, it would be a “wonder” if the Rabbinical Assembly’s objection were related to the fact that the 5 Justices in the Dobbs majority held a particular religious persuasion, Catholic or otherwise, or that some or all of the 5 Justices were educated in institutions connected to other religions, or that some or all of them were devout, whatever that might mean. If that were the basis for the Rabbinical Assembly’s objection, it would not be a “wonder.” Rather, it would be an American tragedy, and an invitation to ramp up sectarianism and religious communalism of the sort that the United States has avoided throughout the largest part of its history.

Schama’s writing illustrates the ancient adage:

Whom the gods would destroy they first make mad.

Seth

Seth Barrett Tillman, Fisking Professor Simon Schama, Columbia University, Department of History,New Reform Club (June 26, 2022, 3:56 PM), <https://reformclub.blogspot.com/2022/06/fisking-professor-simon-schama-columbia.html>; 

Schamas Tweet: <https://twitter.com/simon_schama/status/1540655363095248897>;