“If you want to tell people the truth, make them laugh, otherwise they’ll kill you.”— O. Wilde

Monday, May 29, 2023

The Real Meaning of ‘F Troop’


The prime exemplar of McWhiney & McDonald’s celtic hypothesis in popular culture is F-Troop. The dramatic dyad between English and Irish culture found its natural home and classic statement in Somerville & Ross’s The Irish R.M.*—where the local Irish get the edge on the Englishman.

In the United States, the dramatic dyad shifts from literature to television. But the conflict remains much the same in all its essentials. In F-Troop, Sergeant O’Rourke generally outsmarts Captain Parmenter, who has an Anglo-Norman name. The Indian conflict and the American Civil War were only incidental to the plot—the real storyline is O’Rourke’s outsmarting the U.S. army and Parmenter, while remaining loyal, broadly speaking, to American ideals (including making money).

Thus, the real battle of wits is between the Irish and the English—in America—which, in itself, continued the prior established literary tradition. Of course, this made more sense to the public at a time when Hollywood’s writers remained connected to (and, generally, supportive of) the Western literary canon.

Seth Barrett, ‘The Real Meaning of “F Troop”,New Reform Club (May 29, 2023, 9:26 AM), <https://reformclub.blogspot.com/2023/05/the-real-meaning-of-f-troop.html>; 

*R.M. is an abbreviation for resident magistrate.

The Ways of the Ancestors


The [American] Civil War began in 1861, when Confederate artillery batteries opened fire on Fort Sumter in Charleston Harbor. That same year, “in the year of the independence of the Confederate States of America,” as the [congregation’s] deed recites, Berith Shalome acquired the land on which its synagogue was located.

Charleston was besieged and shelled by Union forces during the Civil War, and many people fled the city, Berith Shalome was the only one of Charleston’s three synagogues to keep its doors open during the [American Civil] War, and kosher meat as well as matzo on Passover were provided by the Synagogue during this trying period. A full complement of Berith Shalome’s members served the Confederate cause, and several Confederate veterans are buried in the congregation’s first cemetery.

See <https://www.bsbisynagogue.org/history> (bold added).

Seth Barrett Tillman, ‘The Ways of the Ancestors,’ New Reform Club (May 29, 2023, 8:53 AM), <https://reformclub.blogspot.com/2023/05/the-ways-of-ancestors.html>; 

Wednesday, May 24, 2023

How to Read the Text of the Constitution’s Appointments Clause


The Appointments Clause states:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. [U.S. Const. art. II, § 2, cl. 2]

The Appointments Clause enumerates, or “provides,” four categories of specific positions: “[1] Ambassadors, [2] other public Ministers and [3] Consuls, [and] [4] Judges of the supreme Court.” But that list is not exclusive. The Appointments Clause also generally references “all other Officers of the United States.” This list of positions is subject to two limitations: “whose Appointments are not herein otherwise provided for, and which shall be established by Law.”

That phrase, “whose Appointments are not herein otherwise provided for,” is, admittedly, a mouthful. We think this phrase tells the reader that the appointment of “Officers of the United States” is limited to the processes announced in Article II, Section 2. This sub-clause directs the reader not to scour the remainder of the Constitution for other provisions that provide authority to fill other federal “Officers of the United States” positions—by election or by appointment. In other words, the Appointments Clause’s “not herein otherwise provided for”-language is not an invitation to search for other constitutional provisions providing authority to create or fill federal offices; rather, this language puts the reader on notice that no such constitutional provisions exist beyond the textual bounds of Article II, Section 2. We think any alternative reading that leads readers to look for other constitutional mechanisms to fill “Officers of the United States” positions is mistaken. The “Officers of the United States” are only those positions that are filled by Article II, Section 2 processes.

From: Seth Barrett Tillman and Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 38384 (2023) (bold added), <https://ssrn.com/abstract=4432164>. 

Seth Barrett Tillman, ‘How to Read the Text of the Constitution’s Appointments Clause,’ New Reform Club (May 24, 2023, 8:29 AM), <https://reformclub.blogspot.com/2023/05/how-to-read-text-of-constitutions.html>; 

Tuesday, May 23, 2023

Un-Lawful Laws


“If [the prince] employs a man, he is immediately afraid that the man will act in his own interest, and so another man is employed to keep a check on the other’s selfishness. If one measure is adopted, there are immediate fears of its being abused or evaded, and so another measure must be adopted to guard against abuses or evasions. All men know where the treasure-chest lies, and so the prince is constantly fretting and fidgeting out of anxiety for its security. Consequently, the laws have to be made tight ad as they become tighter they become the very source of disorder. These are what one calls ‘un-Lawful laws.’

            . . . .

“Should it be said that ‘There is only governance by men, not governance by law,’ my reply is that only if there is governance by law can there be governance by men. Since un-Lawful laws fetter men hand and foot, even a man capable of governing cannot overcome inhibiting restraints and suspicions. When there is something to be done, men do no more than their share, content themselves with the easiest slapdash methods, and can accomplish nothing that goes beyond a circumscribed sphere. If the Law of the early kings were still in effect, there would be spirit among men that went beyond the letter of the law. If men were of the right kind, all of their intentions could be realized; and even if they were not of this kind, they could not slash deep or do widespread damage, thus harming the people instead of benefiting them. Therefore I say that only when we have governance by law can we have governance by men.”

Huang Tsung-hsi, Waiting for the Dawn: A Plan for the Prince (Wm. Theodore de Bary trans., New York, Columbia University Press 1993) (1663) 98–99.

Seth Barrett Tillman, ‘Un-Lawful Laws,’ New Reform Club (May 23, 2023, 5:10 AM), <https://reformclub.blogspot.com/2023/05/un-lawful-laws.html>;

Sunday, May 21, 2023

A Comment on Noah A. Rosenblum & Andrea Scosera Katz’s “Removal Rehashed”


Professors Rosenblum and Katz wrote:


Our own attempts to reconstruct Fish’s data reveal many cases of officers who were not removed, but simply superseded when the President nominated their replacement. Thus, for example, Fish noted that there were four removals of “Consuls, etc.” under President Adams. One was presumably Edward Church, Consul General in Portugal, who was displaced on July 6, 1797. But Adams does not seem to have removed Church, at least not in the way Bamzai and Prakash use the term in their Article. Rather, he nominated Thomas Bulkely to succeed Church, and Church in turn was “superseded.” There are many other such examples, involving Consuls as well as other officers who, like Consuls, required Senate confirmation.

Fish included such removals in his aggregate counts. But these “removals” do not show an indefeasible executive power of removal. They show, at most, that the President could displace a duly appointed officer by appointing his successor.

136 Harv. L. Rev. F 404, 421–22 (2023) (footnotes omitted) (emphases added), <https://harvardlawreview.org/forum/vol-136/removal-rehashed/>.

Perhaps, the two modern authors use of “displace” is coextensive with how Hamilton used “displace” in Federalist No. 77? In Federalist No. 77, Hamilton stated: 

It has been mentioned as one of the advantages to be expected from the co-operation of the senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. (emphasis added)

This understanding of Hamilton’s “displace” language, used in Federalist No. 77, was put forward by Justice Story in his Commentaries on the Constitution and also later supported by Professor Forrest McDonald. See, e.g.Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010) (quoting Story and linking to McDonald), <https://ssrn.com/abstract=1331664>.

My regular co-author, Josh Blackman, makes some similar points here: Josh Blackman, Justice Kagan on Hamilton in Federalist No. 77,’ Reason-Volokh Conspiracy (July 1, 2020, 2:09 PM), <https://reason.com/2020/07/01/justice-kagan-on-hamilton-in-federalist-no-77/>.

Seth Barrett Tillman,   A Comment on Noah A Rosenblum & Andrea Scosera Katz’s Removal Rehashed,New Reform Club (May 21, 2023, 11:19 AM), <https://reformclub.blogspot.com/2023/05/a-comment-on-noah-rosenblum-andrea.html>; 

Part II, P.J. O’Rourke Lives Again (at The Spectator)


I think I have never enjoyed a more pleasant time [than during the COVID lockdown]. The weather was beautiful, and out in the Kent countryside, where I then lived, one could enjoy it to its full. Wildlife was less shy than usual, perhaps a consequence of the state-imposed quietude. Occasionally city dwellers would infest our country lanes and I had great pleasure in yelling at them to return to their filthy tenements, taking their vile diseases with them.


There was a pleasure, too, in the Ballardian scenes at the local supermarket, as the chavs wheeled out their thousands of loo rolls and sacks of pasta. And at the local farm shop, a couple of assistants wore plastic bags over their shoes because of a theory then prevalent that the virus was heavy, fell to the floor with a kind of awkward clunking sound and then got picked up inadvertently by the nearest pair of Nikes. It was, I would concede, a time of government-enforced mass idiocy and I enjoyed it immensely.


From: Rod Liddle, ‘Who gets to decide what is “harmful”?’ The Spectator (13 May 2023, 9:00 AM), <https://www.spectator.com.au/2023/05/wrong-but-not-harmful/>;


Seth Barrett Tillman, Part II, P.J. O’Rourke Lives Again (at The Spectator), New Reform Club (May 21, 2023, 8:29 AM), <https://reformclub.blogspot.com/2023/05/part-ii-pj-orourke-lives-again-at.html>;

Tuesday, May 16, 2023

A Distinct Point of View


If [the prince] employs a man, he is immediately afraid that the man will act in his own interest, and so another man is employed to keep a check on the other’s selfishness. If one measure is adopted, there are immediate fears of its being abused or evaded, and so another measure must be adopted to guard against abuses or evasions. All men know where the treasure-chest lies, and so the prince is constantly fretting and fidgeting out of anxiety for its security. Consequently, the laws have to be made tight ad as they become tighter they become the very source of disorder. These are what one calls un-Lawful laws.

            . . . .

Should it be said that There is only governance by men, not governance by law,’ my reply is that only if there is governance by law can there be governance by men. Since un-Lawful laws fetter men hand and foot, even a man capable of governing cannot overcome inhibiting restraints and suspicions. When there is something to be done, men do no more than their share, content themselves with the easiest slapdash methods, and can accomplish nothing that goes beyond a circumscribed sphere. If the Law of the early kings were still in effect, there would be spirit among men that went beyond the letter of the law. If men were of the right kind, all of their intentions could be realized; and even if they were not of this kind, they could not slash deep or do widespread damage, thus harming the people instead of benefiting them. Therefore I say that only when we have governance by law can we have governance by men.

Huang Tsung-hsi, Waiting for the Dawn: A Plan for the Prince (Wm. Theodore de Bary trans., New York, Columbia University Press 1993) (1663) 98–99.

Seth Barrett Tillman, A Distinct Point of View, New Reform Club (May 16, 2023, 1:01 PM), <https://reformclub.blogspot.com/2023/05/a-distinct-point-of-view.html>; 

Are Directors “Officers”?


Compare Monroe v. Scofield, 135 F.2d 725, 726 (10th Cir. 1943) (Huxman, J.) (explaining that “[a] director is an officer of a corporation”), In re Walt Disney Co. Derivative Litig., 907 A.2d 693, 777 n.588 (Del. Ch. 2005) (Chandler, C.) (referring to “non-director corporate officers”), and Bruch v. Nat’l Guar. Credit Corp., 116 A. 738, 741 (Del. Ch. 1922) (Wolcott, C.) (“A director is an officer chosen by the stockholders.”), with Jackson v. County Trust Co. of Md., 6 A.2d 380, 382 (Md. 1939) (Sloan, J.) (holding “[a] director is not an officer of a corporation”), and In re Walt Disney Co. Derivative Litig., 906 A.2d 27, 46 n.38 (Del. 2006) (Jacobs, J.) (“To the extent [plaintiff’s] argument is advanced against [director] Russell, it also is not grounded in fact, because Russell was not an officer of Disney.”). Compare, e.g., Del. Code Ann. tit. 8, § 211(b) (2008) (providing for the election of directors by stockholders), with Del. Code Ann. tit. 8, § 142(b) (2008) (providing that officers are chosen by the board or as prescribed by the by-laws). See generally 18b Am. Jur. 2d Classification as officer or employee § 1171 (2004) (“Directors have, at times, been regarded as corporate officers . . . .” (emphasis added)); 2 Carol A. Jones, Fletcher Cyclopedia of the Law of Private Corporations § 271, at 35 (perm. ed., rev. vol. 2006) (“[W]hile a director is ordinarily considered an officer, the director is not always such an officer as is contemplated by certain statutes or bylaws.”) (collecting authority); A. Gilchrist Sparks, III & Lawrence A. Hamermesh, Common Law Duties of Non-Director Corporate Officers, 48 Bus. Law. 215, 216 (1992) (“Even a director is not ordinarily an officer for the corporation.”).

Seth Barrett Tillman, Are Directors “Officers”?,New Reform Club (May 16, 2023, 3:09 AM), <https://reformclub.blogspot.com/2023/05/are-directors-officers.html>; 

Friday, May 12, 2023

An “Absurd” View


Dear Professor,

I noticed that you cite Joseph Story in more than a 1/2 dozen of your publicationsand sometimes, you cite Story’s position favorably. For that reason, I have attached an extract from: 2 Joseph Story, Commentaries on the Constitution of the United States § 791, at 260 (Boston, Hilliard, Gray, & Co. 1833). You will notice that Story takes the view that the Constitution’s “officers of the United States”-language in the Impeachment Clause (art. II, S. 4) and, apparently, in the Commissions Clause (art. II, S. 3) does not reach the president.

Story takes a similar view with regard to the Constitution’s “Office ... under the United States”-language in the Incompatibility Clause (art. I, S. 6, cl. 2) and the Elector Incompatibility Clause (art. II, S. 1, cl. 2). Id. § 791. The Impeachment Disqualification Clause (art. I, S. 3, cl. 7) also uses the same “Office ... under the United States”-language. Given the linguistic similarity, I do not think it is a reach to say that Story’s position was that the presidency does not fall under the scope of that clause. Likewise, McKnight—a mid-century commentator—said that: “[I]t is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.’” David A. McKnight, The Electoral System of the United States 346 (Philadelphia, J.B. Lippincott & Co. 1878) (emphases added).

As to the normative basis for excluding a disqualified defendant exclusively from appointed federal positions, but not from elected federal positions, that too can be explained:

The disqualification clause of punishment was evidently put in for the purpose of making the power of removal by impeachment effectual. After providing that the officers of the United States might be removed on impeachment, although the President could not pardon the offender convicted and removed, yet if he could reinstate him the next morning he would have substantially the power of pardon. To prevent this was the object of the disqualifying clause; which Story says is not a necessary part of the judgment. You might impose it where you had removed an officer appointed by the President whom the President could reinstate. You could stop that by fixing disability upon the officer; and that I take to have been the sole purpose of this clause.

3 Asher C. Hinds, Hinds’ Precedents of the House 318 (1907) (quoting Mr Carpenter, counsel for Belknap—a defendant in impeachment proceedings before the Senate).

I do not suggest that the authorities above conclusively settle the issue. And, I suppose you disagree with my view, with Carpenter’s view, with McKnight’s view, and with Story’s view. But is their (and my) view as to the scope of the Impeachment Disqualification Clause’s “Office ... under the United States”-language really an “absurd” view?


Seth Tillman

Seth Barrett Tillman, An “Absurd” View, New Reform Club (May 12, 2023, 4:45 AM), <https://reformclub.blogspot.com/2023/05/an-absurd-view.html>; 

Monday, May 08, 2023

P.J. O’Rourke Lives Again (at The Spectator)


“I thought I had forgotten about Diane Abbott, but in fact there has been a Diane-sized hole in my life and I only properly realised this when she came back, gloriously, to fill it again. Hitherto I had been going about my business, writing columns, cooking for my family and so on, and perhaps to other people I seemed to be getting along normally enough—but in truth I was hollow inside, devoid of a sense of purpose. How uplifting it was to see her back in the headlines.

From Rod Liddle, ‘The Delicious Doublethink of Diane Abbott,’ The Spectator , 29 April 2023, at 15, <https://www.spectator.co.uk/article/ive-missed-you-diane-abbott/>; 


On the morning of the 26th, the day after Violeta Chamorros victory over Danny Ortega, I walked into the Inter-Continental Hotel in Managua and Bianca Jagger was sitting alone in the lobby. Bianca had been ubiquitous during the election campaign: There was Bianca looking smart in an unreconstructed linen jacket and yellow socks to match, Bianca looking serious with press pass and camera, Bianca looking thoughtful listening to Jimmy Carter, Bianca looking concerned conferring with Senator Christopher Dodd, Bianca looking committed in simple tennis shoes and neatly mussed hair, Bianca looking important wearing sunglasses after dark. But this morning Bianca looked ... her age. Here we had ... [a] discarded rock-star wife, trapped in the lonely hell of the formerly cuteone bummed-out show-biz lefty. I was feeling great myself, ready to turn somersaults over the Ortega defeat, full of good cheer and pleased with all the world. But then the forlorn, sagging little shape of Bianca caughy my eye and, all of a sudden, I felt even better.

P.J. ORourke, Return of the Death of Communism, Nicaragua, 1990,in Give War a Chance: Eyewitness Accounts of Mankinds Struggle Against Tyranny, Injustice and Alcohol-Free Beer 55 (1992). 


Seth Barrett Tillman, ‘P.J. O’Rourke Lives Again (at The Spectator),’ New Reform Club (May 8, 2023, 1:27 AM), <https://reformclub.blogspot.com/2023/05/pj-orourke-lives-again-at-spectator.html>; 

Thursday, April 27, 2023

Courtesy (II)


            The rapid approach of Sukkos, so close on the heels of Yom Kippur, took us [a Jewish couple in Taiwan on a Fulbright scholarship] by surprise. We had not yet developed a routine for sukkah-building and now we were confronted with the realization that we had only a few days for our construction project. Fortunately, there was no shortage of materials since an abundant supply of bamboo poles was available, and I immediately began to erect the frame for the sukkah.

            Each day as I worked on the structure, Chinese passerby would stop to watch, scratch their heads and move on. As the sukkah grew more complete, the number of onlookers increased. I constructed a roof of small bamboo branches and leaves, making sure that there was enough open space among them to see the stars at night. On erev Sukkos I moved the kitchen table and chairs outside and set them up in the bamboo shack. Devorah [the couple’s daughter] helped with the decorations and, like Jewish children the world over, had a great time tying fruit to the overhanging limbs.

            About an hour before candlelighting [time] and the onset of the festival, Mei-Mei [the family’s Chinese housekeeper] informed us that we had a visitor. A very serious looking university official was waiting at the front door. After exchanging courtesies, the official stated that he had been sent by the Dean of Studies who wished to know what aspects of our assigned accommodations displeased us. The university would do everything in its power, he said, to oblige us.

            We stared at the official in confusion. Several times we had expressed our gratitude to our [academic] hosts for the truly delightful accommodations. How could they possibly have gotten the impression that we were dissatisfied? We assured our visitor that the cottage was ideal and that we were very pleased and appreciative.

            Now it was the official’s turn to look perplexed. “If that is the case,” he stammered, “why are you moving out of this house and building a new one outside?”

            Mei-Mei, as usual, was listening from the wings. Before we could reply, she inserted herself into the conversation and calmly explained. “Tomorrow is the fifteenth day of [the] eighth lunar month. Chinese celebrate mid-autumn Moon Festival. Chinese eat mooncakes and walk in the light of the moon. [Mr and Mrs Schwartzbaum] are yoh-tai-ren. They celebrate festival by eating and living outside, like old Chinese saying ‘to wear moon on your head and use stars as your cloak’.”

            “Oh, now I understand,” the official said with a smile. “I did not realize that our customs were so similar! Gung Hsi! Gung Hsi!

            Chag sameach!” we replied.

Abraham Schwartzbaum, The Bamboo Cradle: A Jewish Father’s Story 120–21 (2d ed. 1989) (emphasis added).

Seth Barrett Tillman, Courtesy (II),’ New Reform Club (Apr. 27, 2023, 3:06 PM), <https://reformclub.blogspot.com/2023/04/courtesy-ii.html>;

Wednesday, April 26, 2023



Three Kingdoms


Chapter 120: Courtesy


One day [General] Yang Hu* [of the Sima-Jin Dynasty] and his officers went out to hunt, and it happened that [General] Lu Kang** [of the Sun-Wu Dynasty] had chosen the same day to hunt. Yang Hu gave strict orders not to cross the boundary [between the two armies], and so each hunted only on his own side. Lu Kang was astonished at the enemy’s scrupulous propriety.

He sighed, “The soldiers of Yang Hu have so high a discipline that I may not make any invasion now.”

In the evening, after both parties had returned, Yang Hu ordered an inspection of the slaughtered game and sent over to the other side any that seemed to have been first struck by the soldiers of Wu.

Lu Kang was greatly pleased and sent for the bearers of the game.

“Does your leader drink wine?” asked he.

They replied, “Only fine wines does he drink.”

“I have some very old wine,” replied Lu Kang, smiling, “and I will give of it to you to bear to your general as a gift. It is the wine I myself brew and drink on ceremonial occasions, and he shall have half in return for today’s courtesy.”

They took the wine and left.

“Why do you give him wine?” asked Lu Kang’s officers.

Because he has shown kindness, and I must return courtesy for courtesy.

When the gift of wine arrived and the bearers told Yang Hu the story of their reception, he laughed.

“So he knows I can drink,” said Yang Hu.

He had the jar opened, and the wine was poured out. One of his generals, Chen Yuan, begged him to drink moderately lest there should be some harm come of it.

“Lu Kang is no poisoner,” replied Yang Hu.

And he drank. The friendly intercourse thus continued, and messengers frequently passed from one camp to the other.

One day the messengers said that Lu Kang was unwell and had been ailing for several days.

“I think he suffers from the same complaint as I,” said Yang Hu. “I have some remedies ready prepared and will send him some.”

The drugs were taken over to the Wu camp.

But the sick man’s officers were suspicious and said, “This medicine is surely harmful: It comes from the enemy.”

However, Lu Kang said, “No; old Uncle Yang Hu would not poison a person. Do not doubt.”

He drank the decoction. Next day he was much better.

When his staff came to congratulate him, he said, “If our opponents take their stand upon virtue and we take ours upon violence, they will drag us after them without fighting. See to it that the boundaries be well kept and that we seek not to gain any unfair advantage.

Luo Guanzhong, Romance of the Three Kingdoms (translated Charles Henry Brewitt-Taylor, 1925) (first printed version circa 1522).

Seth Barrett Tillman, ‘Courtesy,’ New Reform Club (Apr. 26, 2023, 7:37 AM), <https://tinyurl.com/yssf4eae>; 

*Yang Hu (courtesy name: Shuzi) was the Marquis of Juping. Sima Yan offered him a dukedom, but he turned it down. I suppose the reason he turned it down was that had he accepted he would have had to give up his military field command. 

**Lu Kang (courtesy name: Youjie) was Lu Xuns (courtesy name: Boyan) son. General Lu Xun defeated (Shu-Han) Emperor Liu Bei (courtesy name: Xuande) at the Battle of Yiling and Xiaoting Hill circa 221222 CE. Lu Xun served (Wu) Emperor Sun Quan (courtesy name: Zhongmou). And Lu Kang served Sun Quans grandson (Wu) Emperor Sun Hua (courtesy name: Yuanzong). Sun Hua was the fourth and last emperor of Wu. The conquest of Wu by (Jin) Emperor Sima Yan (courtesy name: Anshi) circa 280 CE marked the end of the Three Kingdoms period. As the nameless poet proclaimed: All down the ages rings the note of change, For fate so rules it; none escapes its sway. The three kingdoms have vanished as a dream, The useless misery is ours to grieve.” 

Tuesday, April 18, 2023

A Biblical Injunction

Leviticus 22:28 

But you shall not slaughter, from the herd or the flock, an animal with its young on the same day.

Romance of the Three Kingdoms

Chapter 91

     When he was about fifteen, Cao Rui, who was an expert archer and a daring rider, accompanied his father to the hunt. In a gully they started [startled?] a doe and its fawn. [Emperor] Cao Pi shot the doe, while the fawn fled. Seeing that the fawn’s course led past his son’s horse, Cao Pi called out to him to shoot it. Instead the youth bursts into tears. 
     “Your Majesty has slain the mother. How can one kill the child as well?” 
    The words struck the Emperor with remorse. He threw aside his bow, saying, “My son, you would make a benevolent and virtuous ruler.” 
     From this circumstance Cao Pi decided that Cao Rui should succeed, and conferred upon him the princedom of Pingyuan.

Seth Barrett Tillman, A Biblical Injunction,’ New Reform Club (Apr. 18, 2023, 12:03 PM), <https://reformclub.blogspot.com/2023/04/a-biblical-injunction.html>; 

Sunday, April 16, 2023

Understanding Patriotism


Romance of the Three Kingdoms

Chapter 106


“I feared lest I should not see you again,” said the Ruler of Wei [Emperor Cao Rui]. “But now I can die content.”

The general [Sima Yi] bowed and said, “On the road they told me the sacred person was not perfectly well. I grieved that I had not wings to hasten hither. But I am happy in that I now behold the dragon countenance.”

The heir, Cao Fang, was summoned to the Emperor’s bedside and also Cao Shuang, Liu Fang, Sun Zu, and certain others.

Taking Sima Yi by the hand, the dying Emperor [Cao Rui] said, “When Liu Bei [Emperor of Shu-Han] lay dying at Baidicheng [castle], he confided his son, so soon to be an orphan, to the care of [prime minister] Zhuge Liang, who labored in this task to the very end and whose devotion only ceased with [his own, that is, Zhuge Liang’s] death. If such conduct is possible in the mere remnant of a dying dynasty continued in a small state [Shu-Han], how much more may I hope for it in a great country [Cao-Wei]! My son [Cao Fang] is only eight years of age, and incapable of sustaining the burden of rulership. Happily for him he has ample merit and experience around him in the persons of yourself and his relatives. He will never lack friends for my sake.”

Turning to the young prince [Cao Fang], he continued, “My friend Sima Yi is as myself, and you are to treat him with the same respect and deference.”

Cao Rui bade Sima Yi lead the young prince forward. The boy threw his arms around Sima Yi’s neck and clung to him.

“Never forget the affection he has just shown,” said Cao Rui, weeping. And Sima Yi wept also.

Luo Guanzhong, Romance of the Three Kingdoms (translated Charles Henry Brewitt-Taylor, 1925) (first printed version circa 1522).



Tillman’s commentary: Why is this scene affecting? Because at the end of his life, the ruler of Wei took a lesson in governance from Shu-Han. Shu-Han was Wei’s great enemy, but it was an enemy within a shared language, culture, and civilization.

Seth Barrett Tillman, Understanding Patriotism,’ New Reform Club (Apr. 16, 2023, 5:01 PM), <https://reformclub.blogspot.com/2023/04/understanding-patriotism.html>; 


Monday, April 03, 2023

Jeffrey Blehar and the Problem at National Review



Jeffrey Blehar, writing on National Review’s The Corner, wrote: “Everyone knows by now that Donald Trump slept with Stormy Daniels and then paid her hush money when she threatened to go public, using his attorney Michael Cohen as a cut-out.” Jeffrey Blehar, Of Course It’s Political,’ National Review: The Corner (April 1, 2023, 6:30 AM), <https://www.nationalreview.com/corner/of-course-its-political>.

Actually, we do not know that Trump slept with Daniels. Only Trump and Daniels would know. There are no photographs or videos—something Daniels might know about. Nor has Daniels produced any physical evidence supporting her allegations. We just have her word for it. What we do know is, and it has been long reported, that Trump is a notorious germaphobe—a fact which cuts strongly against Daniels’ claims. Would a notorious germaphobe sleep with Daniels?

The fact that some at National Review dislike Trump is not surprising. The fact that some at National Review take Daniels’ claims at face value absent concrete physical evidence is also not surprising. But the fact that the editors at The Corner published Blehar’s assertions as an undoubted truth which “everyone knows” only shows that—all too many at National Review are willing to destroy their publication’s institutional good will.

And why would they do that? It is virtue signaling. By demonstrating that they are oblivious to the actual evidence at hand (and the lack thereof), by putting reason and fair-play aside, they illustrate the same primal unreasoned hatreds about which the American right would usually castigate the left. And here they do it to prove their worth to the beautiful people. The sad truth is…the National-Review-types could never convince the beautiful peopleno matter how hard they try to do so.

Seth Barrett Tillman, Jeffrey Blehar and the Problem at National Review,’ New Reform Club (Apr. 3, 2023, 6:54 AM), <https://reformclub.blogspot.com/2023/04/jeffrey-blehar-and-problem-at-national.html>; 



Friday, March 31, 2023

Something No One Is Talking About Today


Robert H. Jackson, ‘The Federal Prosecutor,’ 24 J. Am. Jud. Soc’y 18 (1940), 31 J. Crim. L. 3 (1940) (address at Conference of United States Attorneys, Washington, D.C., Apr. 1, 1940), <https://roberthjackson.org/speech-and-writing/the-federal-prosecutor/>, <https://www.roberthjackson.org/wp-content/uploads/2015/01/The_Federal_Prosecutor.pdf>.


Jackson’s speech as reported on The Robert H. Jackson Center website:


The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway.


It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.


These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere. This authority has been granted by people who really wanted the right thing donewanted crime eliminatedbut also wanted the best in our American traditions preserved.


Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.


Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized department of justice. It is an unusual and rare instance in which the local district attorney should be superseded in the handling of litigation, except where be requests help of Washington. It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled.


Experience, however, has demonstrated that some measure of centralized control is necessary. In the absence of it different district attorneys were striving for different interpretations or applications of an act, or were pursuing different conceptions of policy. Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts. To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.


Our problem, of course, is to balance these opposing considerations. I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts. At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law.


Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor. Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done. The lawyer in public office is justified in seeking to leave behind him a good record. But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance. Reputation has been called ‘the shadow cast by one’s daily life.’ Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character. Whether one seeks promotion to a. judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.


The federal prosecutor has now been prohibited from engaging in political activities. I am convinced that a good-faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service. There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations. I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics.


There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the eases in which he receives complaints. If the department of justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning, What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.


If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realmin which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.


In times of fear or hysteria· political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views. Particularly do we need to be dispassionate and courageous in those cases which deal with so called ‘subversive activities.’ They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a ‘subversive activity,’ such as we have for murder or larceny. Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as ‘subversive’ by those whose property interests might be burdened or affected thereby. Those who are in office are apt to regard as ‘subversive’ the activities of any of those who would bring about a change of administration. Some of our soundest constitutional doctrines were once punished as subversive. We must not forget that it was not so long ago that both the term ‘Republican’ and the term ‘Democrat’ were epithets with sinister meaning to denote persons of radical tendencies that were ‘subversive’ of the order of things then dominant.


In the enforcement of laws that protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of congress, or dissemination of news or opinions. Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.


Another delicate task is to distinguish between the federal and the local in law-enforcement activities. We must bear in mind that we are concerned only with the prosecution of acts which the congress has made federal offenses. Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians.


But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals. And the moral climate of the United States is as varied as its physical climate. For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely. The same variation of attitudes towards other law-enforcement problems exists. The federal government could not enforce one kind of law in one place and another kind elsewhere. It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment. In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may. Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.


The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.


Seth Barrett Tillman, ‘Something No One Is Talking About Today,’ New Reform Club (Mar. 31, 2023, 7:24 AM), <https://reformclub.blogspot.com/2023/03/something-no-one-is-talking-about-today.html>; 



Monday, March 20, 2023

The First Time They Dropped the (Old) Standardized Test Requirement


“I say that the old style of written examination on the meaning of the classics should be restored, so that a proper answer is put forth by writing out the early and later commentaries and those in official state records. After listing one by one what is said by the various early and later commentators, the candidate should conclude with his own opinion—there being no necessity for blind acceptance of one authority’s word. Through the first part, those who are ignorant will be failed; and through the second part, those who show themselves dull [or servile] in reasoning [will be failed]. This is the way to correct superficiality [which is what is measured by the current examination process]. 

“Some may say that the suggested style for written examinations [emphasizing classical commentators] was considered of lesser consequence in the later classical period because its criterion was seen as [mere] skill in memorization. Could we now, they might say, esteem what the examiners in that [enlightened] period looked down upon? In reply to this, I ask if anyone writes today’s examinations answers without memorizing other examination essays [and model answers]? It is a question of memorizing in either case, and obviously, it is better to memorize the learned ideas of the classical commentators, than the second hand drivel of today[’s] [model examinations and model answers]. . . . [A]t least [under the old examination system], one had to reason carefully and write . . . [well]. It was nothing like the present examination essays, which can be written by any ignorant person.” 

Huang Tsung-hsi, Waiting for the Dawn: A Plan for the Prince (Wm. Theodore de Bary trans., New York, Columbia University Press 1993) (1663).

Seth Barrett Tillman, The First Time They Dropped the (Old) Standardized Test Requirement,  New Reform Club (Mar. 20, 2023, 7:50 AM), <https://reformclub.blogspot.com/2023/03/the-first-time-they-dropped-old.html>; 

see also Seth Barrett Tillman, ‘1663 and 1789,’ New Reform Club (Mar. 10, 2023, 7:34 AM), <https://reformclub.blogspot.com/2023/03/1663-and-1789.html>;