Nigel Farage: Well you're not laughing now

 

<(65) Nigel Farage Well you're not laughing now - YouTube>

Seth Barrett Tillman, 'Nigel Farage: Well you're not laughing now,' New Reform Club (Jan. 30, 2024), <https://reformclub.blogspot.com/2024/01/nigel-faragewell-youre-not-laughing-now.html>: 

Extracts from Justice Samour’s Dissent in the Colorado Supreme Court Decision

 

Paragraph 279: The Fourteenth Amendment was designed to address a particular juncture in American history. William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. (forthcoming 2024) (manuscript at 3), https://ssrn.com/abstract=4532751. The postbellum framers were confronted with the unprecedented nexus of historical events that gave rise to and shaped secession, the Civil War, and Reconstruction. Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. (forthcoming 2024) (manuscript at 214–15), https://ssrn.com/abstract=4568771. And their response, in some measure, sounded the clarion call of “a constitutional revolution.” Id. at 99.

Paragraph 299: Certain legal scholars have sought to explain this purported incongruence by surmising that Chief Justice Chase’s application of Section Three in Griffin’s Case was politically motivated. Consequently, they criticize Griffin’s Case as wrongly decided and the result of flawed logic. See Baude & Paulsen, supra (manuscript at 35–49). Other legal scholars, however, question whether the statement quoted above from the Federal Reports accurately represented Chief Justice Chase’s views. They point out that the case reporter, a former confederate general, was the very attorney who represented Judge Sheffey in Griffin’s Case.⁷ See Blackman & Tillman, supra (manuscript at 15). Even assuming Case of Davis warrants any consideration at all, there is no need to join this affray because these cases can be reconciled in a principled manner by recognizing that there are two distinct senses of self-execution. Id. at 19. I find this distinction both helpful and borne out by the case law.

Footnote 7: Griffin’s Case was decided in 1869 and the statement from the case reporter regarding Case of Davis appeared in the 1894 Federal Reports. Blackman & Tillman, supra (manuscript at 140).

Paragraph 324: Although Section Three was included in Powell among the so-called Qualification Clauses, closer scrutiny reveals that it is unique and deserving of different treatment. That’s because Section Three is the only one that is “qualifie[d]” by the following language: “[C]ongress shall have power to enforce, by appropriate legislation, the provision[s] of this article.” Griffin’s Case, 11 F. Cas. at 26 (emphasis added) (quoting U.S. Const. amend. XIV, § 5 and stating that “[t]he fifth section qualifies the third”). None of the other Qualification Clauses—even when viewed in the context of the original Articles in toto—contains the “appropriate legislation” modifier. Indeed, that modifier only appears in certain other Amendments, none of which are objectively relevant to the instant matter. I need not contemplate what bearing, if any, this has on the self-executing nature of constitutional provisions more generally. While that might be an open question, see Blackman & Tillman, supra (manuscript at 23) (noting that there appears to be “no deep well of consensus that constitutional provisions are automatically self-executing or even presumptively self-executing”), the demands of the instant matter counsel in favor of limiting my exposition to the Constitution’s presidential qualifications, especially those found in Article II, Section One, Clause Five.

Anderson v. Griswold, Sec. of State and Intervenor-Appellee/Cross-Appellant Donald J. Trump, Sup. Ct. Case No. 23SA300, 2023 Colo. LEXIS 1177, 2023 WL 8770111, --- P.3d ---- (Colo. Dec. 19, 2023) (Samour, J., dissenting), slip op. at 5, 13 n.6, 15 & n.7, 29 (citing Blackman & Tillman’s ‘Response to Baude and Paulsen’ in Tex. Rev. L. & Pol.), <https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf>;

Seth Barrett Tillman, ‘Extracts from Justice Samour’s Dissent in the Colorado Supreme Court Decision,’ New Reform Club (Jan. 30, 2024, 2:38 AM), <https://reformclub.blogspot.com/2024/01/extracts-from-justice-samours-dissent.html>; 

Surprise

                                       Romance of the Three Kingdoms, Chapter 72: 

Yang Xiu was a man of acute and ingenious mind, but inclined to show off. His lack of restraint over his tongue had often wounded Cao Cao’s susceptibilities. Once Cao Cao was having a pleasance laid out, and when it was completed, he went to inspect the work. He uttered no word of praise or blame; he just wrote the word “Alive” on the gate and left. Nobody could guess what he meant till Yang Xiu heard of it.

“‘Gate’ with ‘Alive’ inside it makes the word for ‘wide’,” said he. “The Prime Minister thinks the gates are too wide.”

Thereupon they rebuilt the outer walls on an altered plan. When complete, Cao Cao was asked to go and see it. And he was then delighted.

“But who guessed what I meant?” said he.

“Yang Xiu,” replied his people.

Cao Cao thereafter lauded Yang Xiu’s ingenuity, but in his heart he feared.

 Available: <here> (at 8:16ff)

Spielberg’s Lincoln

Thaddeus Stevens to a Asa Vintner Litton (a fictional Radical Republican Representative): “Nothing surprises you, Asa, therefore nothing about you is surprising. Perhaps that is why your constituents did not re-elect you to the coming term.”

Available: <here> (at 00:55ff), or <here>

Seth Barrett Tillman, ‘Surprise,’ New Reform Club (Jan. 25, 2024, 9:00 AM), <https://reformclub.blogspot.com/2024/01/surprise.html>; 

 

Is the President an Amendment XIV, Section 3 “Officer of the United States”? Answer: What People Said Before Trump

 

 

George Washington Paschal, The Constitution of the United States Defined and Carefully Annotated (W.H. & O.H. Morrison, Law Booksellers 1868). Id. at xxxviii (opining that the Article VI oath and Section 3 apply to “precisely the same class of officers” (emphases added)); id. at 250 n.242 (Section 3 is “based upon the higher obligation to obey th[e] [Article VI] oath”); id. at 494 (noting that the “persons included in this [Section 3] disability are the same who had taken an official oath under clause 3 of Article VI” (emphasis added)); 

Garrett Epps, Reading the U.S. Constitution 177–78 (2013) (“And political power, beyond the mere act of voting, would be withheld from that group of people who had sworn an individual oath before secession to support the Constitution and had then violated that oath by joining the Confederacy. There were three classes of such people: (1) former members of the United States Congress; (2) appointed federal officials and US military officers (both were ‘officer[s] of the United States’); and (3) state officials, whether judges, legislators, or executive officials, who had taken the oath prescribed for all state officials in Article VI, Section Two, to regard the Constitution as ‘the supreme law of the land.’ If anyone meeting this description had joined the Confederate cause by ‘engag[ing] in insurrection or rebellion against the same, or giv[ing] aid or comfort to the enemies thereof,’ he was barred from certain political offices. These forbidden offices are, in order, (1) member of Congress; (2) presidential elector; (3) officer of the United States, meaning an appointed official either in the military or in the civil government; and (4) state officer of any kind.” (emphases added));

Christopher R. Green, Our Bipartisan Due Process Clause, 26 Geo. Mason L. Rev. 1202 (2019) (noting that “section 3 of the Fourteenth Amendment is limited to those rebels who broke Article VI oaths” (emphasis added)); 

Seth adds: Presidents take Article II oaths, not Article VI oaths. And Presidents are elected, not appointed. 

Seth Barrett Tillman, ‘Is the President an Amendment XIV, Section 3 “Officer of the United States”? Answer: What People Said Before Trump,’ New Reform Club (Jan. 23, 2024, 10:13 AM), <https://reformclub.blogspot.com/2024/01/is-president-amendment-xiv-section-3.html>; 

Are Section-3 Disqualified Defendants Barred From State Legislative Service?

Are Section-3 disqualified defendants barred from state legislative service? These sources ask the question, and their answer is no.

John Randolph Tucker, General Amnesty, 126 N. Am. Rev. 53, 55 (1878), https://www.jstor.org/stable/i25110155;

‘Does the Fourteenth Amendment Exclude the Disqualified from a State Legislature,’ Wheeling [West Virginia] Daily Register, Aug. 30, 1871, at 4;

‘Does the Fourteenth Amendment Exclude the Disqualified from a State Legislature,’ [Richmond, Virginia] Daily Dispatch, Aug. 28, 1871, at 3.

Editor, ‘Interesting Decision as to Disqualification Under the Fourteenth Amendment,’ [Richmond, Virginia] Daily Dispatch, Mar. 5, 1869, at 3;

Seth Barrett Tillman, ‘Are Section-3 Disqualified Defendants Barred From State Legislative Service?,’ New Reform Club (Jan. 22, 2024, 10:34 AM), <https://reformclub.blogspot.com/2024/01/are-section-3-disqualified-defendants.html>; 

More On Those Bayards

 

 

There is a story of the apocryphal Irish defamation case where the jury determined that the defendant’s words amounted to defamation. When it came to damages, the court granted a remittitur, and reduced what had been a hefty jury award to one Irish Punt (Ireland’s pre-Euro currency). The judge’s rationale was that for defendant to have injured or harmed the plaintiff’s reputation, the plaintiff had to have had a reputation to be injured or harmed. And as he had none ….

***

In what is apparently intended to be a rebuke for poor research in the Professor-Calabresi-led amicus brief in Trump v. Anderson, Michael Stern, the blogger at Point of Order, wrote:

 

So what is the originalist evidence that supports Calabresi’s remarkable evolution? Well, see it all starts with a speech given “during the impeachment trial of U.S. Senator William Blount in 1799 by Senator Bayard, one of Blount’s defenders.” See Amicus Br. at 10.

Wait, you say, “I didn’t know that there was a Senator Bayard who defended Blount during his impeachment trial.” Sure, that’s because you are just a rando who reads blog posts and not a famous legal scholar who gets cited by the Supreme Court. Well, also because there was in fact no Senator Bayard in the Blount impeachment trial. There was (as you know from reading my last post) a Representative Bayard, but he was a House manager who was prosecuting, not defending, Blount.

. . . .

[T]here was a Senator Bayard (actually, there were a number of them, but only one that matters here) who is relevant to the argument the amicus brief is making, but he was not involved in the Blount trial. Senator Bayard, the grandson of the Bayard who served as a House manager during the Blount impeachment, was the leading opponent of a controversial oath requirement that the Senate sought to impose on its members during the Civil War.

 

and,

 

This resulted in retorts from his colleagues who pointed out that Bayard’s grandfather had taken the opposite position in the Blount case.

 

and,

 

[A]nother senator, like Bayard an opponent of the [Civil War Era] oath requirement, took it upon himself to show that the elder Bayard had been more consistent with his grandson’s views than the opposition allowed.

 

These quotations are from: Michael Stern, ‘The One Where They Mix Up the Bayards,’ Point of Order (Jan. 21, 2024), <https://www.pointoforder.com/2024/01/21/the-one-where-they-mix-up-the-bayards/> (emphases added) (author’s bold removed).

You can find a short biography of Representative James Asheton Bayard, Sr. here: <Bioguide Search (congress.gov)>. Representative Bayard was a House manager during the Blount impeachment. He later became a U.S. Senator. So Calabresi was not entirely wrong in describing House manager Bayard as a Senator.

You can also find a short biography of Senator James Asheton Bayard, Jr. here: <Bioguide Search (congress.gov)>.

These congressional biographies report the two Bayards as father and son, not grandfather and grandson. See generally Harold M. Hyman & Morton Borden, ‘Two Generations of Bayards Debate the Question: Are Congressmen Civil Officers?’ 5 Delaware History 225 (1953) (that is two, not three, generations). 

As to the substantive point under discussion, see Attorney General ex rel. Bashford v. Barstow, 4 Wisc. 567, 652, 1855 WL 1929 (Wisc. Sup. Ct. 1855) (argument of counsel) (explaining that Blount held that the controlling “office”-language in the United States Constitution “did not embrace members of the senate, but only the subordinate civil officers of the government who were appointed and commissioned by the president” (emphasis added)); Harold M. Hyman & Morton Borden, ‘Two Generations of Bayards Debate the Question: Are Congressmen Civil Officers?’ 5 Delaware History 225, 229 n.18 (1953) (“Since the Blount impeachment decided that any elected official is not a civil officer, Bayard was wrong in defining the presidential office as a civil office” (emphasis added)). 

I suppose anyone can make a mistake—I am sure I have. 

Seth

Seth Barrett Tillman, ‘More On Those Bayards,’ New Reform Club (Jan. 22, 2024, 8:59 AM), <https://reformclub.blogspot.com/2024/01/more-on-those-bayards.html>;

A Response to a Journalist’s Question

 

 

Dear Journalist,

You asked: “Another question comes to mind, and apologies if you’ve already answered it in writings I missed: If the president is not an officer under the U.S. for the purposes of the 14th amendment, wouldn’t that mean that he cannot be disqualified from future office even by impeachment and conviction? Article II refers to disqualification from ‘any office of honor, trust or profit under the United States.’ So a Supreme Court of the United States ruling that President is not an officer for 14th amendment purposes would also mean an impeached and convicted President cannot be disqualified from seeking another term?”

This is not a single question. It is multiple questions. 

I have not taken any position on the meaning of Section 3’s “office ... under the U.S.”-language. I have repeatedly written on the meaning of “Office ... under the U.S.” as it appears in several clauses of the (original) Constitution of 1788. In 1788, that language did NOT, in my opinion, extend to any elected federal positions. Furthermore, I have been on the record since 2011, that that meaning may or may not have been the original public meaning in 1868. Why? There may have been linguistic drift between 1788 and 1868. My brief (with Josh Blackman) has not taken any position on the 1868 meaning of the phrase. We have not asked the Court to reach that issue. If the Court does reach this issue, and does adopt a limited construction of that phrase as used in Section 3, then that determination may or may not extend to the same language as used in provisions of the Constitution of 1788. We will have to wait and see what the Supreme Court decides and how it rationalizes its decision. 

As for the Impeachment Disqualification Clause in the Constitution of 1788 ... there was a special issue on the scope of that clause in Quinnipiac Law Review in 2014. I contributed to that symposium here: Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014), <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2484377>. I maintained, then and now, that a defendant impeached by the House, and tried, convicted, and disqualified by the Senate cannot serve in appointed federal positions in all 3 branches of the federal government, but such a party may be elected to either house, to the vice presidency, to the presidency, and elected or appointed to any state position. 

As to “office ... under the U.S.” in Section 3, Professor Lash has taken the position, as I understand it, that the weight of evidence does not support any inference that that language extends to the presidency (as used in Section 3). That is his position, not mine. I am still studying this issue—as I have been since 2011. 

My amicus brief (with Josh Blackman) takes the position that in 1788, 1868, and now—that “officer of the United States” only extends to appointed positions in the Executive Branch and in the Judicial Branch of the federal government. I do not see any good evidence of linguistic draft between 1788 and 1868. See, e.g., United States v. Germaine, 99 U.S. 508 (1878); United States v. Mouat, 124 U.S. 303 (1888).

Finally, in United States v. Smith, 124 U.S. 525, 532 (1888) (Field, J.), the Court held: 

An officer of the United States can only be appointed by the president, by and with the advice and consent of the senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the constitution. This subject was considered and determined in U.S. v. Germaine, 99 U.S. 508 [(1878)], and in the recent case of U.S. v. Mouat, 124 U.S. --, ante, 505 [(1888)]. What we have here said is but a repetition of what was there authoritatively declared.

 

Id. at 532 (bold added).

In Smith, the Supreme Court’s use of “authoritatively declared” is quite exceptional. And, because the language of “officer of the United States” is used in the Constitution as a defined term, much (if not most) of the evidence collected by Heilpern and Worley, Professor Graber, and others, which only reflects popular usage, is (in my view) substantially irrelevant to the issue at hand.

I hope that answers your questions.

Seth

Seth Barrett Tillman, ‘A Response to a Journalist’s Question,’ New Reform Club (Jan. 18, 2024, 5:17 AM), <https://reformclub.blogspot.com/2024/01/a-response-to-journalists-question.html>;

 

The Self-Executing Nature of the Takings Clause is Nothing New

 

 

What follows is an extract from Blackman and Tillman’s Response to Baude & Paulsen

 

In our view, Griffin invoked Section 3 in an offensive posture, that is, as a cause of action in support of affirmative relief, but he lacked a federal statute authorizing his doing so. We do not put this view forward as an after-the-fact invention or ahistorical gimmick which merely accommodates otherwise inconsistent or difficult to explain prior case law. Our position is that this is what Chase was saying in 1869, how he was understood, and how courts and commentators understood the Fourteenth Amendment until . . . until about 2020, and more recently, by Baude and Paulsen. For example, in Cale v. Covington (1978), the U.S. Court of Appeals for the Fourth Circuit, held

 

It is true that in [T]he Civil Rights Cases [(1883)] the [Supreme] Court referred to the Fourteenth Amendment as self-executing, [and] when discussing the Fifteenth, but it is also true that earlier in the opinion, discussing s 1 of the Fourteenth Amendment, the [Supreme] [C]ourt stated: “in order that the national will, thus declared, may not be a mere Brutum fulmen [a mere warning without effect], the last section of the amendment invests Congress with power to enforce it by appropriate legislation.” The Civil Rights Cases did not overrule Ex parte Virginia, and any apparent inconsistency between the two just quoted statements in [T]he Civil Rights Cases may be resolved, we think, by reference to the protection the Fourteenth Amendment provided of its own force as a shield under the doctrine of judicial review. See the dissent of Mr. Justice Harlan in the Civil Rights Cases quoted infra. See also the Slaughter-House Cases, 16 Wall. at 81, where the Court, referring to the equal protection clause of the Fourteenth Amendment, had stated that when it is a State dealt with and not alone the validity of a State law, the matter should be left until Congress should has exercised its power or some case of State oppression by denial of equal justice in its courts claims a decision at the hands of the Supreme Court. Another early opinion, not by the Supreme Court but by Chief Justice Chase sitting as a Circuit Justice, is Griffin’s Case, 11 Fed. Cases 7 (C.C.D. Va. 1869), which held that the third section of the Fourteenth Amendment, concerning disqualifications to hold office, was not self-executing absent congressional action . . . With this understanding in mind, we believe that the Congress and Supreme Court of the time were in agreement that affirmative relief under the amendment should come from Congress.

 

And what authority did the Fourth Circuit look to and cite: Griffin’s Case. Former Fourth Circuit Judge Michael Luttig, who recently wrote that Griffin’s Case was “poorly reasoned,” seems unaware of his former court’s precedents.

We don’t doubt that there are some exceptions to the sword-and-shield framework which we have put forward. Bivens is one exception; Takings Clause cases and inverse condemnation proceedings, another. Contracts Clause cases, which also turn on government abridgment of a form of property, may be another. We suspect other exceptions may exist where concrete property rights are in dispute under Article III’s equity prong, as opposed to the law prong. There may be other exceptions too. But they are individually and collectively exceptions—often of recent judicial creation. The historically dominant view is what was put forward by Chase in Griffin’s Case. Our view is that this sword-and-shield framework undermines Baude and Paulsen’s core position: they believe that the Fourteenth Amendment is self-executing. If Baude and Paulsen believe all constitutional provisions are self-executing in both senses—as a sword and shield, we think they are in error. If they believe that Section 3 is distinguishable from other constitutional provisions, and yet Section 3 is self-executing in both senses, as a sword and shield, even if other constitutional provisions are not, then we fail to see how they distinguish Section 3 from other constitutional provisions.

 

Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28(2) Tex. Rev. L. & Pol. 350, 483–84 (forth. 2024) (footnotes omitted) (underscore added) (bold and italics in the original) (posted on: Sept. 19, 2023), <https://ssrn.com/abstract=4568771>.

Seth Barrett Tillman, ‘The Self-Executing Nature of the Takings Clause is Nothing New,’ New Reform Club (Jan. 17, 2024, 7:39 AM), <https://reformclub.blogspot.com/2024/01/the-self-executing-nature-of-takings.html>; 

 

 

How To Write A Letter of Recommendation

 

Liu Bei dismounted, took Xu Shu by the hands, and said, “Alas! We part. Each goes his way, and who knows if we shall meet again?”

His tears fell like rain and Xu Shu wept also. But the last goodbyes were said. When the traveler had gone, Liu Bei stood gazing after the little party and watched it slowly disappear. At the last glimpse he broke into lamentation.

“He is gone! What shall I do?”

One of the trees shut out the traveler from his sight, and Liu Bei pointed at it, saying, “Wish that I could cut down every tree in the countryside!”

“Why?” said his officers.

“Because they hinder my sight of Xu Shu.”

Suddenly they saw Xu Shu galloping back.

Said Liu Bei, “He is returning: Can it he that he is going to stay?”

So he hastened forward to meet Xu Shu, and when they got near enough, he cried, “This return is surely for no slight reason.”

Checking his horse, Xu Shu said, “In the turmoil of my feelings, I forgot to say one word. There is a person of wonderful skill living about seven miles from the city of Xiangyang. Why not seek him?”

“Can I trouble you to ask him to visit me?”

“He will not condescend to visit you. You must go to him. But if he consents, you will be as fortunate as the Zhou when they got the aid of Lu Wang, or the Han when Zhang Liang came to help.”

“How does the unknown compare with yourself?”

“With me? Compared with him I am as a worn-out carthorse to a palomino, an old duck to a phoenix. This man often compares himself with the ancient sages Guan Zhong and Yue Yi but, in my opinion, he is far their superior. He has the talent to measure the heavens and mete the earth. He is a man who overshadows every other in the world.”

“I would know his name.”

“He belongs to Langye, and his name is Zhuge Liang. He is of the family of the former General Zhuge Feng. His father, Zhuge Gui, was the Deputy Governor of Taishan but died young, and the young fellow went with his uncle Zhuge Xuan to Jingzhou. Imperial Protector Liu Biao was an old friend of his uncle, and Zhuge Liang became settled in Xiangyang. Then his uncle died, and he and his younger brother, Zhuge Jun, returned to their farm in Nanyang and worked as farmers. They used to amuse themselves with the composition of songs in the Liangfu style.

“On their land was a ridge of hills called the Sleeping Dragon, and the elder of the brothers took it as a name and called himself Master Sleeping Dragon. This is your man. He is a veritable genius. You ought really to visit him. And if he will help you, you need feel no more anxiety about peace in the empire.”

[From chapter 36: Luo Guanzhong, Romance of the Three Kingdoms (translated Charles Henry Brewitt-Taylor, 1925) (first printed version circa 1522).]

Seth Barrett Tillman, ‘How To Write A Letter of Recommendation,’ New Reform Club (Jan. 12, 2024, 8:01 AM), <https://reformclub.blogspot.com/2024/01/how-to-write-letter-of-recommendation.html>; 

 

The Supreme Court on “Officer of the United States” as used in the Constitution

 

United States v. Smith, 124 U.S. 525 (1888) (Field, J.):

“An officer of the United States can only be appointed by the president, by and with the advice and consent of the senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the constitution.  This subject was considered and determined in U.S. v. Germaine, 99 U.S. 508 [(1878)], and in the recent case of U.S. v. Mouat, 124 U.S. --, ante, 505 [(1888)]. What we have here said is but a repetition of what was there authoritatively declared.”

Id. at 532 (emphasis added). 

I suggest that this authoritative statement goes far to establish that the President of the United States is not an “officer of the United States.” And so Section 3 of the Fourteenth Amendment, which is part of the Constitution, and which uses “officer of the United States”-language, does not extend to the presidency. 

Seth Barrett Tillman, ‘The Supreme Court on “Officer of the United States” as used in the Constitution,’ New Reform Club (Jan. 11, 2024, 3:50 PM), <https://reformclub.blogspot.com/2024/01/the-supreme-court-on-officer-of-united.html>; 

A Judge on Twitter

 

 

You might know that I write on and follow the developing literature on the scope of the Constitution’s “office”- and “officer”-language. More recently, Section 3’s “officer of the United States”-language has been litigated in a variety of courts of record. Moreover, the Supreme Court of the United States will apparently opine on this issue soon.

Insights can be found in a variety of fora. So I also monitor what is said on social media, including Twitter. I came across this interesting post.

 

See David O. Carpenter (@DavidOCarpenter) on Twitter (Nov. 21, 2023, 9:59 PM), <https://twitter.com/DavidOCarpenter/status/1727084297562300427>.  

Now before you go—“Oh no! Oh no! Tillman joined the cancel culture crowd!”—that is entirely wrong. I am not commenting on whether a state trial court judge is permitted, as a matter of judicial ethics, to opine on litigation strategy and offer advice to parties in a case in another court. Nor am I suggesting that this judge has his own free-speech right to speak out publicly on a legal issue which is a matter of public interest. Those issues are for Judge Carpenter and others to consider.

I am interested in the substance of Judge Carpenter’s comment.

Judge Carpenter says that “officer of the U.S.” is “repeatedly” used in Mississippi v. Johnson, 71 U.S. 475 (1866) (Chase, C.J.). That’s a canonical or leading case. If you went to law school, it was probably assigned in Introduction to Constitutional Law or Introduction to Federal Courts. Still, I have written on this issue since 2008—Did I really miss this? And it is not just me—many others have written (or recently begun to write on this issue)—Did they all miss this too? So I looked it up. That phrase—“officer of the United States”—appears exactly one time in the report for the case. It does not appear “repeatedly.” Hyperbole is, at best, a legitimate tool for lawyers. For judges, I think it is less than appropriate.

More importantly, the phrase “officer of the United States,” although it appears in the case’s report, it is not part of the opinion of the Court. And, it is not part of any concurrence. It is not even part of a dissenting opinion. Actually, Judge Carpenter is quoting from an editor’s headnote reproducing a lawyer’s argument. (Nineteenth century case reports frequently reproduced the lawyers’ arguments before reporting the judicial decision proper.) So, the Supreme Court of the United States never used the phrase “officer of the United States” in Mississippi v. Johnson (1866). Not even once.

Ours is a dying legal culture. A recrudescence of reason may yet be possible, but only just possible. See generally Seth Barrett Tillman, ‘Practice Tip: Citing Older U.S. Cases—state and federal,’ New Reform Club (Dec. 7, 2023, 7:16 AM), <https://reformclub.blogspot.com/2023/12/practice-tip-citing-older-us-casesstate.html>.

Seth

PS: Do not take legal advice from judges. 

 

Seth Barrett Tillman, ‘A Judge on Twitter,’ New Reform Club (Jan. 6, 2024, 3:59 PM, 8:59 PM local time), <https://reformclub.blogspot.com/2024/01/a-judge-on-twitter.html>;

 

A Response to a Journalist

 

Hello again, professors, I’m sorry to come back to you so soon with yet another question, but I was wondering if you had any comments about the Supreme Court’s decision to take up the Colorado case. 

Seth: It was expected by most that the United States Supreme Court would hear this appeal. That result is not surprising. Albeit, I had expected a more demanding briefing schedule and that the oral argument would have been held some time in mid or late January, and not as late as February 8, 2024. I do not think this late schedule is good for Trump’s team. 

Were there any persuasive arguments, in your view, for denying cert? 

Seth: I think that is the wrong question. As far as I know, the parties—on both sides—supported cert or, at least, they did not actively oppose it. I believe there was some disagreement among the parties as which questions were cert-worthy, but that is a lesser disagreement. 

What do you expect the most pivotal issue(s) to be? 

Seth: The usual ones. Is the president an “officer of the U.S.” as that phrase is used in Section 3 of the Fourteenth Amendment? Is the presidency an “office under the U.S.” as that phrase is used in Section 3? Does enforcement of Section 3 by private parties seeking affirmative relief against the government require prior congressional authorization? Does the relief sought by Plaintiffs trespass on the state Republican Party’s First Amendment free-speech and freedom-of-association rights? Is the relief sought by Plaintiffs barred by the Electoral Count Act? Does Congress, at the Joint Session (which open the states’ electoral certificates and tabulates the electoral votes), have exclusive jurisdiction to determine issues related to presidential qualifications and eligibility? 

What will you personally be looking for in the oral arguments? 

Seth: A good seat.

All the best,

Seth

 

Seth Barrett Tillman, ‘A Response to a Journalist,’ New Reform Club (Jan. 6, 2024, 2:18 PM, 7:18 local time), <https://reformclub.blogspot.com/2024/01/a-response-to-journalist.html>;