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>;
Seth Barrett Tillman, ‘They Know How We Should Live,’ New Reform Club (Aug. 22, 2022, 4:46 AM), <https://reformclub.blogspot.com/2022/08/they-know-how-we-should-live.html>;
Twitter: <https://twitter.com/SethBTillman/status/1561589522672107520>;
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>.
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/>.
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 Heller’s 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 Heller’s 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>;
Seth Barrett Tillman, ‘Rationale or Prextext?,’ New Reform Club (Aug. 12, 2022, 5:15 AM), <https://reformclub.blogspot.com/2022/08/rationale-or-pretext.html>;
Twitter: <https://twitter.com/SethBTillman/status/1558018468997390343>
Seth Barrett Tillman, ‘How to Serve a Search Warrant,’ New Reform Club (Aug. 9, 2022, 11:19 AM), <https://reformclub.blogspot.com/2022/08/how-to-serve-search-warrant.html>;
Tweet: <https://twitter.com/SethBTillman/status/1557022623284006913>;
Seth Barrett Tillman, ‘Training Children,’ New Reform Club (Aug. 2, 2022, 7:50 AM), <https://reformclub.blogspot.com/2022/08/training-children.html>;
Tweet: <https://twitter.com/SethBTillman/status/1554422612415094784>;
Seth Barrett Tillman, ‘Today’s Extra-Judicial Killing,’ New Reform Club (Aug. 2, 2022, 3:08 AM), <https://reformclub.blogspot.com/2022/08/todays-extra-judicial-killing.html>;
Tweet <https://twitter.com/SethBTillman/status/1554361254269050882>;
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: Olivier Esteves, Book Review, 57(4) Journal of Contemporary History 1126 (2022) (reviewing Paul Corthorn, Enoch Powell: Politics and Ideas in Modern Britain (OUP 2019) (book)); Lindsay Aqui, Michael Kenny, and Nick Pearce, ‘“The Empire of England”: Enoch Powell, Sovereignty, and the Constitution of the Nation,’ 32(2) 20th Century British History 238 (2021); Robbie Shilliam, ‘Enoch Powell: Britain’s First Neoliberal Politician,’ 26(2) New Political Economy 239 (2021); Paul Corthorn, ‘Enoch Powell, the Commonwealth and Brexit,’ 109(6) New Commonwealth Journal 750 (2020); Colin Kidd, ‘The Provocations of Enoch Powell: Fifty years after it shunned him, the Conservative Party has embraced Powell’s Eurosceptic and Nationalist views,’ 148(5486) New Statesman 42 (2019); Shirin Hirsch, In the Shadow of Enoch Powell: Race, Locality and Resistance (Manchester University Press 2018) (book); Sally Tomlinson, ‘Enoch Powell, Empires, Immigrants and Education,’ 21(1) Race, Ethnicity and Education 1 (2018); 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 Culture’s 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.50webs.com/scripts/Series_3/45.htm>; <https://www.youtube.com/watch?v=2ewY8CnFae0> (at 3:08ff);