Mensch tracht, un Gott lacht

Friday, October 20, 2023

Professor Charles Warren asks: ‘What is Giving Aid and Comfort to the Enemy?’



Charles Warren, ‘What is Giving Aid and Comfort to the Enemy?,’ 27 Yale L.J. 331 (1918):


“Hence, treason by levying war is more generally committed in internal insurrections directed against the government by persons in the United States; whereas giving aid and comfort is generally committed in connection with a war waged against the United States by a foreign power. When those who commit treason by levying war become an organized body politic, however, they may become ‘enemies’ within the purview of the law, and giving aid and comfort to such enemies will constitute treason. [citing The Prize Cases]


The acts constituting giving aid and comfort to the enemy are more numerous and of wider scope than the acts constituting the first branch of the crime, viz., the levying of war. It is important to note this point, for it has been largely disregarded by text-book writers and by judicial authorities (owing probably to the fact that prior to the Civil War every case of treason in the federal courts, with few exceptions, was a case of levying war). As a result of this failure to distinguish between the different elements necessary to constitute the separate branches of the crime, doctrines of law applicable only to levying war have been stated by writers and judges to apply to giving aid and comfort to the enemy. Careful consideration shows, however, that while every action which, when performed by domestic insurrectionaries, will constitute a levying of war, will, when performed in connection with a war with a hostile foreign nation, also constitute a giving of aid and comfort to the enemy, the reverse of this statement is not true. For many actions which give aid and comfort to the enemy are not actions which necessarily constitute a levying of war [or a domestic insurrection or rebellion]. Thus, since levying of war consists, in general, of the actual assemblage of men in force, the mere ‘enlistment of men to serve against the government does not amount to levying war,’ unless followed up by actual assemblage in force.”


Id. at 333 (footnote omitted) (emphases added), <>; 

Seth Barrett Tillman, Professor Charles Warren asks: ‘What is Giving Aid and Comfort to the Enemy?’, New Reform Club (Oct. 20, 2023, 5:56 AM), <>;






Thursday, October 12, 2023

A Note on the Constitution’s Journal Clause


The Constitution’s Journal Clause and congressional practice are, in significant ways, a break from British practice circa 1787. In Britain, parliamentary officers were crown officers—albeit, later such officers became controlled by the government and its ministers. In other words, the Executive had power to control Parliament’s Journal Clerk and the Journal: the official record of parliamentary proceedings. During the colonial period, both in the thirteen colonies and in several of the other British New World colonies, the struggle by popular government against arbitrary crown government was waged on many fronts. That included famous conflicts over free speech in popular assemblies, but it also included less well-known conflicts involving parliamentary privilege, e.g., an assembly’s efforts to control its own journal, its journal clerk, and to exclude royal governors and their placemen from the floor of the house during debate. See generally Mary Patterson Clarke, Parliamentary Privilege in the American Colonies (1943). This history also explains in part why parliamentary houses did not report debate and why they did not want it reported. Its members feared punishment or reprisals, not by voters, but by royal officers. Here, in the United States, under the Constitution of 1788, with its “hard” separation of powers under the Incompatibility Clause, the Executive was excluded from any power over the Journal. But that means the Journal is “captured” by each house’s presiding officer and the majority in each such house.


And why is the Journal important–whether or not it records debate? There is a tendency to think of the Journal as a or, merely as, a physical thing—a stale paper or electronic record. But the better way of thinking about the Journal is that it is a legal concept expressing a series of constitutional and historical conventions. In other words, the “Journal” is akin to the “Treasury.” The latter might be thought of as a physical bank account at a particular or group of locations. But the better way to understand it is that the “Treasury” refers to the entire legal complex of debts and other financial obligations owed to and by the United States. The “Journal” is a similar concept. The Journal reflects votes of each house—that includes votes on the timing of meetings and the agenda. If you control the Journal and the timing of meetings, then, you control the house’s agenda.


Seth Barrett Tillman, ‘A Note on the Constitution’s Journal Clause,’ New Reform Club (Oct. 12, 2023, 9:30 AM), <>;

Monday, October 02, 2023

Governor Newsom, Laphonza Butler, and the Constitution’s Plain Text



Since 1913, when the Seventeenth Amendment was ratified, there have been two ways to become a senator. A would-be senator could be “elected by the people” of his state, or, in the event of a senate vacancy, the vacancy can be temporarily filled by appointment by the state’s governor. (It is a temporary appointment because the remainder of the term can be filled by a special senate election, which would displace the governor’s temporary appointee.) The key point is that there are two ways to become a senator: election by the people, and appointment by the governor. 

This textual distinction appears across many constitutional provisions. For example, the Ineligibility Clause states: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time.” [Article I, Section 6, Clause 2 (emphases added)]

Still not just anyone can hold the position of senator. Article I provides three basic qualifications.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. [Article I, Section 3, Clause 3]

The age-related qualification and the citizenship-related qualification apply to all would-be senators: elected senators and appointed senators. But the inhabitancy-related qualification only applies to elected senators. If a senator is appointed by a states governor, there is no inhabitancy-related qualification.[1] Thus Governor Newsom is free to pick a non-Californian, including Laphonza Butler. This follows from the Constitution’s plain text.

It is not difficult to understand why the Framers of both the original Constitution of 1788 and the Seventeenth Amendment made this choice. The nation was geographically vast. It would take time to hold an election and, similarly, it would take time for a temporary appointee from one’s home state to physically move to the national capital. The capital itself, over time, would become the home to many former representatives, former senators, and other former senior government officials. It would make sense for states to be able to draw on these individuals as a temporary matter to fill vacancies—even where such appointees had no home-state residence. Where a candidate was filling a full six-year term, one wanted him to have home-state connections. But where a candidate, living in or near the national capital, was filling a temporary trust, it would make sense to loosen residence requirements so that a state could immediately have senate representation. For similar reasons, the strictures of the Ineligibility Clause applies only to elected representatives and senators, and not to temporary senators holding short appointments.

Seth Barrett Tillman, Governor Newsom, Laphonza Butler, and the Constitution’s Plain Text,’ New Reform Club (Oct. 2, 2023, 3:54 PM), <>; 

[1] See Seth Barrett Tillman, Understanding Nativist Elements Relating to Immigration Policies and to the American Constitution’s Natural Born Citizen Clause, 32(2) Study on the American Constitution 1, 4 n.5 (Aug. 2021) (peer review) (“Under Article 1, senators were originally elected by the United States’ constituent state legislatures. Under United States Constitution Amendment 17 (1913), senators are now popularly elected. However, if a senate seat is vacant, a temporary senator may be chosen by a state governor to fill the senate vacancy. Id. In such circumstances, it is not clear that the senator must be an inhabitant of that state.”), <>; Josh Blackman & Seth Barrett Tillman, Symposium: Biden’s First 100 Days, 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, 192 (Apr. 30, 2021) (“The Constitution of 1788 imposes three somewhat stricter qualifications on senators. First, senators must ‘have attained to the Age of thirty Years ....’ Second, they must be ‘nine Years a Citizen of the United States ....’ Third, ‘when elected,’ the Senator must ‘be an Inhabitant of that State in which he shall be chosen.’ The Constitution authorizes a governor to temporarily fill a senate vacancy by appointment. In these situations, it is not clear that the inhabitancy qualification applies, as temporary senators are not ‘elected.’”). See generally Brian Kalt, Can the Senate Refuse to Seat Blagojevich's Appointee?, Concurring Opinions (Dec. 30, 2008, 11:22 PM), (comment 6) (Nexis).