‘“Romance of the Three Kingdoms”—How it Begins and Ends’

 

 

The opening:

Domains under heaven, after a long period of division, tends to unite; after a long period of union, tends to divide. This has been so since antiquity.

The penultimate paragraph:

That is domains under heaven, after a long period of union, tends to divide; after a long period of division, tends to unite.

And its text ends with:

Liu Shan, the Emperor of Shu-Han, passed away in the seventh year of Great Beginning, in Jin calendar (CE 271). Cao Huang, the Emperor of Wei, passed away in the first year of Magnificent Peace (CE 302). And Sun Hao, the Emperor of Wu, passed away in the fourth year of Prosperous Peace (CE 283). All three [emperors] died of natural causes. 

Seth Barrett Tillman, ‘“Romance of the Three Kingdoms”—How it Begins and Ends,’ New Reform Club (May 31, 2023, 9:18 AM), <https://reformclub.blogspot.com/2023/05/romance-of-three-kingdomshow-it-begins.html>; 

The Irish Judicial Backlog

Deputy Carol Nolan TD (Independent, Laois-Offaly), Dáil Éireann debate: Court Proceedings (Delays) Bill 2023: Second Stage (Resumed), Houses of the Oireachtas (May 30, 2023), <https://www.oireachtas.ie/en/debates/debate/dail/2023-05-30/11/> 

Deputy Nolan discussed proposed judicial reforms and appointments, and she further stated: “The Government says that it is considering the appointment of several additional judges to speed up the process. However, I will make the point—one made by Mr. Seth Barrett Tillman of Maynooth University many times[!]—that these appointments will not improve matters if the rules and traditions that guide the conduct of litigation carry on using the same or a similar procedural framework. In fact, it will just mean that whatever new courts we set up will continue to be weighed down by the exact same backlog in the exact same way as exists now.” (bold added).

Seth Barrett Tillman, ‘The Irish Judicial Backlog,’ New Reform Club (May 31, 2023, 5:38 AM), <https://reformclub.blogspot.com/2023/05/the-irish-judicial-backlog.html>; 

Tillman's publications on Irish law and policy:

[1] Seth Barrett Tillman, Viewpoint, ‘All at sea: Why were former Chief Justice Frank Clarke and former High Court President Peter Kelly cajoled into resigning their judicial positions in the United Arab Emirates, when the ultimate beneficiaries would have been UAE litigants,’ 116(8) Gazette of the Law Society Ireland 22–23 (Oct. 7, 2022), <https://www.lawsociety.ie/globalassets/documents/gazette/gazette-pdfs/gazette-2022/october-2022-gazette.pdf>, <https://www.lawsociety.ie/gazette/in-depth/judicial-positions-and-uae>, <https://ssrn.com/abstract=4193901>;

[2] Seth Barrett Tillman, Viewpoint, ‘Access to Court Records and Oral Arguments,’ 115(1) Gazette of the Law Society Ireland 14–17 (Feb. 5, 2021), <https://ssrn.com/abstract=3740512>, <https://www.lawsociety.ie/globalassets/documents/gazette/gazette-pdfs/gazette-2021/jan-feb-2021-gazette.pdf>;

[3] Seth Barrett Tillman, Opinion Editorial, ‘Court of public opinion offers Séamus Woulfe no justice,’ The Sunday Times (Ireland edn), Nov. 15, 2020, 12:01 AM GMT, News Section, page 14, <https://tinyurl.com/y69zfkso>, <http://ssrn.com/abstract=3729356>;

[4] Seth Barrett Tillman, ‘COVID-19: Can the Oireachtas Legislate During the Pandemic?,’ 38(7) Irish Law Times 94 (2020) (Terri McDonnell, ed.), <COVID-19: Can the Oireachtas Legislate During the Pandemic?>, <https://reformclub.blogspot.com/2020/04/can-oireachtas-legislate-during-pandemic.html>, <https://tinyurl.com/y7u54woq>;

[5] Seth Barrett Tillman, Opinion Editorial (Thunderer), ‘Court of Appeal failure should fuel reform of judiciary,’ The Times (Ireland edn), July 26, 2018, 12:01 AM, <https://tinyurl.com/yb2qb8dc>, <https://ssrn.com/abstract=3370810> (available on Nexis);

[6] Seth Barrett Tillman, ‘The Court of Appeal Backlog,’ 35(15) Irish Law Times 206–08 (2017), <http://ssrn.com/abstract=2996405>;

[7] Seth Barrett Tillman, ‘Has the [Irish] Court of Appeal Solved the Judicial Backlog? Can it?,’ 34(14) Irish Law Times 210–12 (2016), <http://ssrn.com/abstract=2816458>;

[8] Seth Barrett Tillman, Opinion Editorial, ‘Court of Appeal just a new version of Supreme Court—only more costly,’ The Irish Times (July 28, 2014, 1:30 AM), Business & Innovation at 7, <http://ssrn.com/abstract=2465554>, <http://www.irishtimes.com/news/crime-and-law/court-of-appeal-just-a-new-version-of-supreme-court-only-more-costly-1.1874746>, 2014 WLNR 20562005;

and,

[9] Seth Barrett Tillman, Opinion Editorial, ‘Time to Open Courts and Let Justice Be Seen,’ The Irish Independent, August 22, 2012, 17:00 PM, at A14, <http://works.bepress.com/seth_barrett_tillman/334/> (hard copy version), <http://tinyurl.com/bsy9789> (available on Nexis), <https://ssrn.com/abstract=2129771>.

And, also, on democracy, free speech, and immigration-related issues: Seth Barrett Tillman, ‘East Wall and the Plantations: Ireland and Its New Migrants,’ The American Spectator (Dec. 6, 2022, 10:48 PM), <https://spectator.org/ireland-new-migrants-east-wall/>, <https://spectator.org/author/seth-barrett-tillman/>, <https://ssrn.com/abstract=4296073>. 

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, having an Irish last name, 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>; 

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, 383–84 (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>; 

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 and 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>;

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>;

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>; 

An “Absurd” View

 

Dear Professor,

I noticed that you cite Joseph Story in more than a 1/2 dozen of your publications—and 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?

Sincerely,

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>; 

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/>; 

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“On the morning of the 26th, the day after Violeta Chamorro’s 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 cute—one 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. O’Rourke, ‘Return of the Death of Communism, Nicaragua, 1990,’ in Give War a Chance: Eyewitness Accounts of Mankind’s Struggle Against Tyranny, Injustice and Alcohol-Free Beer 55 (1992). 

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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>;