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 ….

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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>;