Strained (and Sloppy) Readings of the Constitution and Strained (and Sloppy) Readings of Hamilton’s Federalist No. 77

 

  

 

Extract from Michael Stokes Paulsen, The Interpretive Force of Alexander Hamilton’s Early Expositions of Presidential Power, 53 Pepp. L. Rev. (forth. circa 2026) (manuscript at 18 n.46) (bold added), <https://ssrn.com/abstract=5648310>: 

 

[I]ronically, the removal-power issue is one on which Hamilton, writing as Publius in The Federalist No. 77, can be read as suggesting, sloppily, that the Senate’s role in confirming appointments operated to limit removals as well. The Federalist No. 77, at 432 (I. Kramnick ed. 1987) (Alexander Hamilton) (“The consent of that body would be necessary to displace as well as to appoint.”). While it is possible (with some straining) to read this line, in the context of the overall passage, as intended to explain that the power to withhold consent to a new, replacement to office would operate as an indirect constraint on the President’s prerogative to remove officers, Hamilton himself reportedly acknowledged error or at least imprecision on this point at the time of the congressional debates on the State Department bill over presidential removal language.

Extract from Joseph Story, Commentaries on the Constitution of the United States §§ 1532–1533 (Boston, Hilliard, Gray, & Co. 1833):

§ 1532. [I]n an early stage of the government, [the power of removal] underwent a most elaborate discussion [in Congress]. The language of the constitution is, that the president “shall nominate, and, by and with the advice and consent of the senate, appoint,” &c. The power to nominate does not naturally, or necessarily include the power to remove; and if the power to appoint does include it, then the latter belongs conjointly to the executive and the senate. In short, under such circumstances, the removal takes place in virtue of the new appointment, by mere operation of law. It results, and is not separable, from the [subsequent] appointment itself.

§ 1533. This was the doctrine maintained with great earnestness by the Federalist [No. 77] . . . .

You can find Story’s interpretation of Hamilton’s Federalist No. 77 quoted favorably in the reports of four courts of record: McElrath v. United States, 12 Ct. Cl. 201, 214 (Ct. Claims 1876) (Loring, J.); U.S. ex rel. Bigler v. Avery, Case No. 14,481, 24 F. Cas. 902, 905 (C.C. N.D. Calif. 1867) (Deady, J.); Nicholson v. Thompson, 5 Rob. (LA) 383, 393 (La. 1843) (quoted by the attorney seeking a rehearing); Field v. Illinois, 3 Ill. 79, 166 (Ill. 1839) (Lockwood, J., concurring), superseded by state constitutional amendment. The latter 1839 decision was published roughly contemporaneously with Story’s Commentaries. Likewise, you can find this passage from Story quoted in post-bellum sources by respected commentators and authors. See, e.g., George W. Paschal, The Constitution of the United States / Defined and Carefully Annotated 178, § 185 (D.C., W.H. & O.H. Morrison 1868) (“The removal takes place in virtue of the new appointment, by mere of operation of law.” (citing Fed. No. 77)); Raoul Berger, The President’s Unilateral Termination of the Taiwan Treaty, 75 Nw. U. L. Rev. 577, 596–97 (1980). 

You can even find two contemporaneous reviews of Story’s Commentaries. See Story’s Constitutional Law, 38 North American Review 63 (Boston, 1834); Judge Story’s Commentaries, 14(28) American Quarterly Review 327, 364 (Philadelphia, 1833) (expressly quoting Story’s as to “great earnestness”). See generally Seth Barrett Tillman, The Puzzle of Hamilton’s Federalist No. 77, 33 Harv. J.L. & Pub. Pol’y 149 (2010), <https://ssrn.com/abstract=1331664>. But see generally J. David Alvis, Jeremy D. Bailey, and F. Flagg Taylor IV, The Contested Removal Power, 1789–2010, at 221 n.72, 225 n.41 (2013); Jeremy D. Bailey, The Traditional View of Hamilton’s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman, 33 Harv. J.L. & Pub. Pol’y 169 (2010), <http://ssrn.com/abstract=1473276>; Jonathan Gienapp, Removal and the Changing Debate over Executive Power at the Founding, 63 Am. J. Legal Hist. 229, 238 n.55 (2023) (“Let’s be plain: What Tillman [or Story?] ultimately asks us to believe is far less plausible than what he asks us not to believe, which is the long and short of it.”).

What Professor Paulsen calls a “strain[ed]” reading was Joseph Story’s reading of Federalist No. 77. I see no evidence of any antebellum commentator or other source, or even any pre-21^st century source, squarely contesting Story on this point. Perhaps, Story’s reading was the standard understanding of Hamilton’s Federalist No. 77, and it is Professor Paulsen’s understanding of Federalist No. 77 that is “strain[ed]?

I suppose the ghost of Hamilton should be thankful. In 2024, Professor Paulsen characterized a Chief Justice Chase decision as “bonkers”; here by contrast, Hamilton’s essay (Federalist No. 77) is only characterized as “slopp[y].” William Baude & Michael Stokes Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. 605, 654 (2024) (using “bonkers” language); Michael Stokes Paulsen, The Interpretive Force of Alexander Hamilton’s Early Expositions of Presidential Power, 53 Pepp. L. Rev. (forth. circa 2026) (manuscript at 18 n.46) (using “slopp[y]” language). 

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Seth Barrett Tillman, ‘Strained (and Sloppy) Readings of the Constitution and Strained (and Sloppy) Readings of Hamilton’s Federalist No. 77,’ New Reform Club (Oct. 30, 2025, 5:22 AM), <https://reformclub.blogspot.com/2025/10/strained-readings-of-constitution-and.html>;  

The Appeal: People of the State of New York v. Trump

[A]nother thing that one has to ask is, “What is the interest of justice here that Alvin Bragg, the Manhattan District Attorney, is really serving at this point?” No matter what happens at this point, Trump remains president. And the Appellate Division can’t increase the sentence. So at best, the only thing that Bragg is defending is that Trump retains the title of felon. But at worst, he’s spending a tremendous amount of judicial resources and his own office’s resources to defend this decision by Judge Merchan. 

What legitimate purpose is served by the District Attorney (“DA”) Bragg in defending the sentence and conviction below? The traditional purposes served by the criminal law include: deterrence—general and specific, retribution, restitution, and rehabilitation. I find it difficult to see how any of these traditional purposes are meaningfully served by the DA’s defending Merchan’s decision below. I suppose that the DA’s real purpose might be fairly described as some sort of institutional expressivism—which is easy to do when spending other people’s (that is, the taxpayers’) money. But if that is Bragg’s purpose, then that simply feeds into the narrative that violations of the criminal law are not now (and never were) the core of the prosecution against Trump; rather, it was always just politics. 

The above is from: Seth Barrett Tillman, Due Process and New York v. Trump: A Conversation with Professor Seth Barrett Tillman, Clem. L. Rev. Interview (Oct. 29, 2025), <https://www.clemsonlawreview.com/post/due-process-and-new-york-v-trump-a-conversation-with-professor-seth-barrett-tillman>, <https://ssrn.com/abstract=5677364>.

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Seth Barrett Tillman, ‘The Appeal: People of the State of New York v. Trump,’ New Reform Club (Oct. 29, 2025, 5:43 AM), <https://reformclub.blogspot.com/2025/10/the-appeal-people-of-state-of-new-york.html>;

A Short Note on IRELAND’s Presidential Election

 

See todays (FRIDAY’s) image on GOOGLE’s front page.

Today is IRELAND’s presidential election. Three candidates on the ballot paper, but one is not running an active campaign. ... So, it is really a two-horse race—two women—an independent (formerly LABOUR) and a candidate from FG (one of the two parties in the governing FF-FG coalition). The independent is the favourite according to the bookies. Odds on the FG candidate are around 10-to-1.

The leading opposition party—SINN FEIN—did not field its own candidate. In fact, SF is supporting the independent. And the smaller opposition parties all (or nearly all) also support the independent. The third candidate, the one on the ballot paper but who is not actively running a campaign, was nominated by FF—one of the two parties in the governing coalition. My understanding is that if the FF candidate does not clear 12%, then FF will sustain considerable negative financial consequences—I think a loss of its deposit. Of course, FF also sunk its own party funds into the candidate’s election prior to the candidate’s decision to stop active campaigning.

Throughout most of post-independence Irish history, FF and FG competed with one another. Indeed, immediately after independence, the two parties’ antecedents fought on opposite sides in a civil war. Lately they have become coalition partners—the Irish uniparty.

Seth Barrett Tillman, ‘A Short Note on IRELAND’s Presidential Election,’ New Reform Club (Oct. 24, 2025, 6:51 AM), <https://reformclub.blogspot.com/2025/10/a-short-note-on-irelands-presidential.html>; 

By-Election in the U.K.

 

Welsh By-Election for Senedd (the devolved Welsh parliament)—35% swing against LABOUR Party , <https://news.sky.com/story/plaid-cymru-win-caerphilly-by-election-in-humiliation-for-labour-13455893>. 

The seat was taken by the Welsh regional party (nominally seeking independence from the UK) … with 15,961 votes (47%). This is a first-past-the-post or plurality victory. Nigel Farage’s Reform UK came in second … with 12,113 votes (36%). And Labour came in third … with 3,713 votes (11%). Conservatives crash to less than 1,000 votes (2%). Both Conservatives and the Liberal Democrats lost their deposit.

Seth Barrett Tillman, ‘By-Election in the U.K.,’ New Reform Club (Oct. 24, 2025, 6:17 AM), <https://reformclub.blogspot.com/2025/10/by-election-in-uk.html>; 

A Letter to AG Paxton and Others

Attn: Ken Paxton, Attorney General of Texas

Dear AG Paxton,

I am a U.S. citizen living abroad. I teach law in a foreign law school. I grew up in New York, and I have practiced law in the District of Columbia and Delaware.

The U.S. State with the greatest number of federal judicial vacancies is Texas—with TEN federal district court vacancies. Texas has TEN Article III vacancies. The rest of the country has collectively 50 vacancies. 1-in-6 of the vacancies are in Texas! As of October 21, 2025, there have been no nominations to ANY of the TEN Article III vacancies in Texas. Texas voted for Trump in 2016, 2020, and 2024. Texas has continuously sent two Republicans to the U.S. Senate. And Texas’ U.S. House delegation strongly leans majority Republican: circa 2-to-1.

I have written both Texas’ two U.S. senators on this issue. I would think that your office and your Texas constituents should raise (if not press) this issue with the administration.

Sincerely,

Seth

Seth Barrett Tillman, ‘A Letter to AG Paxton and Others,’ New Reform Club (Oct. 22, 2025, 4:02 AM), <https://reformclub.blogspot.com/2025/10/a-letter-to-ag-paxton-and-others.html>; 

A 1970 Judicial Decision

A 1970 judicial decision—Corbett v Corbett (otherwise Ashley) [1970] 2 All English Reports 33 (probate, divorce, and admiralty division) (Ormrod J):

Since marriage is essentially a relationship between man and woman, the validity of the marriage in this case depends, in my judgment, upon whether the respondent is or is not a woman. I think, with respect, that this is a more precise way of formulating the question than that adopted in paragraph 2 of the petition, in which it is alleged that the respondent is a male. The greater, of course, includes the less but the distinction may not be without importance, at any rate, in some cases. The question then becomes, what is meant by the word “woman” in the context of a marriage, for I am not concerned to determine the “legal sex” of the respondent at large. Having regard to the essentially hetero-sexual character of the relationship which is called marriage, the criteria must, in my judgment, be biological, for even the most extreme degree of transsexualism in a male or the most severe hormonal imbalance which can exist in a person with male chromosomes, male gonads and male genitalia cannot reproduce a person who is naturally capable of performing the essential role of a woman in marriage. In other words, the law should adopt in the first place, the first three of the doctors’ criteria, i.e., the chromosomal, gonadal and genital tests, and if all three are congruent, determine the sex for the purpose of marriage accordingly, and ignore any operative intervention. The real difficulties, of course, will occur if these three criteria are not congruent. This question does not arise in the present case and I must not anticipate, but it would seem to me to follow from what I have said that the greater weight would probably be given to the genital criteria than to the other two. This problem and, in particular, the question of the effect of surgical operations in such cases of physical inter-sex, must be left until it comes for decision. My conclusion, therefore, is that the respondent is not a woman for the purposes of marriage but is a biological male and has been so since birth. It follows that the so-called marriage of September 10, 1963, is void.

I must now return briefly to counsel for the respondent’s submissions. If the law were to recognise the “assignment” of the respondent to the female sex, the question which would have to be answered is, what was the respondent’s sex immediately before the operation? If the answer is that it depends on “assignment,” then if the decision at that time was female, the respondent would be a female with male sex organs and no female ones. If the “assignment” to the female sex is made after the operation, then the operation has changed the sex. From this it would follow that if a 50 year old male transsexual, married and the father of children, underwent the operation, he would then have to be regarded in law as a female and capable of “marrying” a man. The results would be nothing if not bizzare. I have dealt, by implication, with the submission that because the respondent is treated by society for many purposes as a woman, it is illogical to refuse to treat her as a woman for the purpose of marriage. The illogicality would only arise if marriage were substantially similar in character to national insurance and other social situations, but the differences are obviously fundamental. These submissions, in effect, confuse sex with gender. Marriage is a relationship which depends on sex and not on gender.

Seth Barrett Tillman, ‘A 1970 Judicial Decision,’ New Reform Club (Oct. 12, 2025, 9:41 AM), <https://reformclub.blogspot.com/2025/10/a-1971-judicial-decision.html>;

Joel Klein’s World Class Kinsleyesque Gaffe

 

 

          Joel Klein published a reflection on his experience clerking for Judge Bazelon (liberal) and Justice Powell (conservative). It was published as: ‘Ancient Wisdom: How a Supreme Court Justice Changed My Life,’ The Free Press (Sept. 28, 2025). Klein’s reflection is all the talk—even on academic listservs.

          Klein reports:

Time and again, [Justice Powell] would say things I found to be unexpectedly insightful and moving. I can vividly remember him once returning to the office after an oral argument and saying to me, “I just had an amazing experience with Thurgood,” referring to Thurgood Marshall, the only black justice on the Supreme Court at the time. “In the middle of the tax case we were hearing,” Powell continued, “Thurgood leaned over and said, ‘Lewis, I don’t know the first thing about a case like this, and I have no idea what the lawyers are talking about. I’m going to give you my vote.’ After I thanked him,” Powell went on, “Thurgood then said, ‘And, you know, Lewis, you don’t know the first thing about civil rights, so, when those cases come before us, you should give me your vote.’ ” Powell looked at me and added, “You know, Joel, I think he might be right.”

How, precisely, is this “insightful”? Or “moving”? Here, Klein is recounting how one judge solicited another judge’s vote in naked vote trading … across unrelated cases … with different parties. I am not going to say that such vote trading violates positive law or that such conduct has led to specific sanctions in the past in those rare circumstances where it has been ferreted out. But it seems to me, and it is just my opinion, that judicial vote trading, particularly, across unrelated cases, with unrelated parties, violates due process norms and the aspirational goal of transparent justice. What is the point of adversarial litigation if judges have secret deals which litigants are unable to respond to because they are secret? If judges are going to make such “deals,” then would it not be better to make them public, so that parties could avoid the time, expense, and heartache of bringing futile appeals? If this story really happened, and I have some doubts that it did, then I cannot fault Klein for telling the truth as he knows it. But then why does Klein tell his audience that there is something here “insightful” or “moving”? What? All this story shows is that Klein did not understand what was going on at the time, and he remains as blissfully blind now as he was then.

          And if Klein was not blind: Could not Klein have done something—proactive—about this event, at the time, rather, than just publishing it as part of a reflection long after the fact? Could Klein not have mentioned something—anything—to Powell (even on his last day clerking for Powell) or to Marshall’s clerks? Perhaps, something along the lines, that this is all a very bad look for the Supreme Court of the United States, as it would be for any court of record?

          Then there is this Klein story:

I went from being a favored clerk to a clerk in exile. Bazelon literally moved my office from the big one adjacent to his to a small one down the hall. For the next couple of months, he communicated with me through his executive assistant only. Then, in mid-March, he summoned me to his office and told me I should listen as he returned a call to Potter Stewart, a justice on the U.S. Supreme Court. To my surprise, without telling Stewart, he put him on the speakerphone and said, “Hi, Potter. I got a message saying you wanted to talk about one of my clerks, Joel Klein. You’re considering him for yourself?” Stewart started to say some nice things he’d heard about me, but Bazelon interrupted. “He’s no good,” he said. “One of the worst clerks I’ve ever had. Not very smart and doesn’t work hard.” Bazelon hung up the phone and told me that several other justices had called asking about me, and he’d given them the same report.

I was devastated. I was also astonished by what I saw as inexplicably cruel behavior by this great liberal judge.

          Let’s say Klein was right, and that Bazelon was wrong. What did Klein do about it—at the time? Did he resign? Wait a few days or weeks and, then, have a heart-to-heart discussion over a lunch? Send a written memorandum on his last day clerking, and explain that it is not right to surreptitiously have people listen in on telephone conversations between judges involved in official administrative duties? I know this might sound strange, but just perhaps, Klein could have helped Bazelon? Klein could have suggested that Bazelon take a vacation, take senior status, or therapy? Might Klein have warned (even anonymously) future clerks of the risks involved in working for Bazelon? Could Klein have appealed to Bazelon’s family? Friends? Colleagues? Spoken to the chief judge of the federal circuit court? Did Klein ever tell Justice Potter Stewart—who was on the Supreme Court when Klein clerked for Powell? Instead, Klein saved this story for when Bazelon is dead and cannot answer. In my mind, that’s a damn sight worse than what Bazelon is alleged to have done.

 

It is hardly news that each of us would have some difficulty evaluating our own accomplishments and deeds. The real issue here is not Klein, but rather, it is his Free Press editors and the many, many readers who did not see these stories for what they reveal: a world class Kinsleyesque gaffe (or series of such gaffes). Having read Klein’s article-as-memoir, and more than a few responses, I have come to two conclusions: Our political culture has more than some difficulty distinguishing cowardice from virtue, and the Supreme Court should not have any law clerks.

 

Seth Barrett Tillman, ‘Joel Klein’s World Class Kinsleyesque Gaffe,’ New Reform Club (Sept. 30, 2025, 8:35 AM), <https://reformclub.blogspot.com/2025/09/joel-kleins-world-class-kinsleyesque.html>;

How Department of State v. Aids Vaccine Advocacy Coalition Should Be Resolved (But Probably Won’t Be)

 

How Department of State v. Aids Vaccine Advocacy Coalition Should Be Resolved

(But Probably Won’t Be)

A key issue in this federal case is: What are the legal consequences when Congress appropriates funds by statute? Here, Congress has appropriated funds for named organizations, but the President or his officers have chosen not to segregate and remove the appropriated funds from the Treasury.

Many believe, including some federal judges and legal scholars, that when Congress appropriates money by statute, it follow that those funds must be spent (leaving aside the possibility of any express discretion designed into the statute at issue). There are reasons to reject this position as a settled rule of law.

First, an appropriations statute authorizes the Executive Branch to segregate funds in the Treasury (if such funds are available) and to remove those funds from the Treasury, and, then, further authorizes that the funds be spent for the purposes or in the manner approved by Congress, and in no other fashion. See generally Paul Einzig, The Control of the Purse (1959). But it is not clear that an appropriation commands the segregation, removal, and spending of such funds. Whether a particular statute mandates the segregation, removal, and spending of such funds will depend on the words of the statute. In other words, a naked appropriation (even where made for a particular purpose) does not without more imply that Congress has left the Executive Branch without discretion not to spend the appropriated funds.

Prior to 1787–1788, I do not believe this issue came up in the Imperial or colonial legislatures. Nor do I believe that it came up post 1776 and prior to 1788 among the independent states. The King or his representative was hungry for cash. If an expenditure was approved by the legislature, the executive spent the funds as soon as it was appropriated if not before—often anticipating statutory approval once the lower (elected) house passed a resolution in support of the spending. Sir Thomas Erskine May, A Treatise on the Law, Privileges, Proceedings, and Usage of Parliament 573–74 (7th ed. 1873) (stating that “[i]t has been customary for the government to levy the new duties, instead of the duties authorised by law” either “immediately [after] the resolutions for that purpose have been reported from a committee, and agreed to by the house; or from the date expressed in such resolution, although the legal effect cannot be given to them by statute ... and may ultimately be withheld by Parliament”).

The historical ideal or purpose behind the Constitution’s Appropriations Clause was to make sure that funds could not be segregated and removed from the Treasury absent the legislature’s approval, and that if so removed, such funds could only be spent for the purpose or in the manner as provided by the legislature. I have real doubts if in debating, proposing, and ratifying the Constitution with the Appropriations Clause anyone had considered whether the Executive Branch was obligated (by the Constitution and by statute) to spend such funds as provided by a mere appropriations statute absent some indication (beyond the form of such an act) that Congress intended to mandate such an expenditure. I suggest that the historical default in regard to an appropriation was that such statutes were understood as permissive, not mandatory.

The real question, then, is not the effect of an Appropriations Act per se, but what statutory language would be effective to mandate the Executive Branch’s segregating the appropriated funds, removing them, and then spending them in conformity with the statute. Where Congress’s appropriations act directs a cabinet member, other statutory officer, or civil servant to appropriate such funds, then the question is entirely one of statutory interpretation—as Congress has the power to issue binding directives, in the normal course of legislating, to such governmental actors.

However, where an appropriations act directs the President to segregate funds, remove them, and then to spend them in conformity with the statute, then other principles come into play. Why? Primarily because the President is not a subordinate of Congress and is, instead, a coordinate (and, in some sense, a co-equal) branch of government with its own independent democratic mandate. For Congress to impose a mandatory duty on the President by statute, Congress’s statute must: set a time limit for its fulfilment, designate adverse consequences or a punishment in regard to presidential inactivity, and must clearly indicate that the appropriation is more than permissive, but is mandatory. Furthermore, the use of “shall” is ambiguous, and for that reason, such language does not, without more, impose a duty to act on the President.

Second, even if an appropriations act is mandatory (as opposed to permissive), Treasury funds can only be segregated and removed if they are available. If the Treasury is in the red, then funds are not available, and so, the Executive Branch cannot be held (as a legal matter) to do what is not possible. Indeed, a congressional appropriation, without more, does not empower the Executive Branch to tax, to borrow funds, or to sell federal property to meet otherwise mandatory obligations to spend funds. Such powers must be granted in free-standing statutes (or in additional provisions in the appropriations act itself). Where Congress empowers the Executive Branch to engage in deficit spending by borrowing funds, that too is a statutory power. Here also, one must look to the words of the statute. If Congress has granted the Executive Branch a power to borrow funds (that is, to sell bonds, etc), that power may be merely permissive, and not mandatory. And if permissive and unexercised, then the Executive Branch cannot be faulted for not segregating, removing, and spending funds in conformity with the other statutes, including any appropriations act.

Third, there is a history of Presidents’ acting on their own authority to impound funds temporarily subject to congressional ratification after-the-fact. The general rule is that what Congress can approve ex ante, it can also ratify ex post. However, a President’s taking such unilateral action risks the possibility that Congress will not ratify his impoundment decision, and sanctions (e.g., impeachment) could flow from such presidential conduct. Likewise, Presidents have claimed the power to impound funds approved (by statute) for military use in situations where hostilities end unexpectedly. Lincoln claimed similar financial powers at the outbreak of the Civil War. And his doing so is why we have a country today.

Generally, Congress is the master of the federal government’s financial house. But if it fails to speak with a clear and consistent voice among its different statutes, then that will empower the Executive Branch and the President. That is just how our separation of powers system works.

Seth

Seth Barrett Tillman, ‘How Department of State v. Aids Vaccine Advocacy Coalition Should Be Resolved (But Probably Won’t Be),’ New Reform Club (Sept. 28, 2025, 9:00 AM), <https://reformclub.blogspot.com/2025/09/how-department-of-state-v-aids-vaccine.html>; 

 

Asking Professor John Yoo: What is the Evidence that John Merryman “sympathized” with the confederacy?

 

John Yoo’s 2025 Publication Discussing John Merryman (1861): 

At the outset of the [American] Civil War, President Abraham Lincoln refused to obey a writ of habeas corpus issued by Chief Justice Roger Taney regarding confederate sympathizer John Merryman.

John Yoo, Rational Judicial Review: Constitutions as Power-sharing Agreements, Secession, and the Problem of Dred Scott, 76 UC Law SF L.J. 1227, 1230–31 (2025), <https://repository.uclawsf.edu/hastings_law_journal/vol76/iss4/6>. What is the evidence or support that Merryman “sympathize[d]” with the confederacy? What? But see ‘Merryman, John, of Hayfields,’ in 1 The Biographical Cyclopedia of Representative Men of Maryland and District of Columbia 312, 312 (Baltimore, National Biographical Publishing Company 1879) (explaining that shortly before Merryman’s seizure by the U.S. Army, Merryman “was introduced to [U.S.] Major Belger, and offered to render him or the [Union] troops any service required; and if necessary would slaughter his [Merryman’s] cattle to supply the[] [Union troops] with food”). 

Seth Barrett Tillman, ‘Asking Professor John Yoo: What is the Evidence that John Merryman “sympathized” with the confederacy?,’ New Reform Club (Sept. 28, 2025, 5:45 AM), <https://reformclub.blogspot.com/2025/09/john-yoos-2025-publication-discussing.html>.

The Wartime Statesmanship of Éamon de Valera / Advice for the Americans After Doolittle’s Raid—1942

 

 

Éamon de Valera                                        Confidential

Taoiseach                                    Ref No: T-EDV-1942-613

Head of Government

Ireland

20 May 1942

Franklin Roosevelt

President of the United States

The White House

Washington

United States of America

Dear President Roosevelt, 

      The war that now exists between the United States of America and the Empire of Japan--brought about by the attack on Pearl Harbour, and by the quasi-warlike embargo which preceded the attack--is likely to go on for countless years and to cost countless lives. There will be a concomitant injury to civilians and civilian property on both sides, as well as substantial consequential injuries to non-belligerents. E . g ., the USSR and Ireland.

      Doolittle's Raid has achieved its military objective. Retribution for Pearl Harbour is now a fact. They have killed your people, and now, you have killed theirs--the numbers are roughly equal. No lasting peace can be, or has ever been, achieved by making exactitudes of retribution a precondition for peace. Thus, national honour must be held to be satisfied. They have rounded up your nationals, and you are putting in motion plans to round up theirs. Any further horrors of war can serve no useful purpose. Is it not now time to consider an alternative to war? Surely you cannot seriously aim at Japan's (much less, the Axis') actual surrender? Japan's armed forces have captured territories all over Asia and the Pacific, and those forces hold those territories by the same warrant under which your nation and the European imperial powers hold and have held such territories there--all far beyond your American and their European homelands. Japan's honour will not permit her to surrender. And even if the people of Japan were willing to do so, any such decision would be blocked by the Japanese militarists who control the same powerful forces that attacked Pearl Harbour. It follows that the only way to achieve such a surrender would be for your armed forces to recapture your lost territories, and then to go on and to conquer Japan's home islands, and, in the process, to destroy Japan's industry, merchant marine, cities, and population. You do not have the ability to achieve these goals, and were you to try to do so--or worse, were you to achieve them--the horrific price would leave your good name and the good name of the United States covered in the blood of millions of innocents.

I urge you to choose peace and to open negotiations with accredited representatives of the Empire of Japan.

On behalf of Douglas Hyde, the President of Ireland, I offer you my own government's good offices towards the pacific mediation, arbitration, and settlement of the war now existing between your nation and the Empire of Japan. I would urge you to respond to my overtures with all the alacrity that this terrible emergency permits, as my loyal opposition, as well as certain public charities, are calling for a boycott against the goods of belligerents and those selling arms to belligerents. In doing this, the opposition might act in concert with partisans of their political persuasion in other neutral jurisdictions. Should it come to this, I trust you will understand that we intend no animus against the People of the United States, and our policy would treat both your nation and the Empire of Japan even-handedly.

Sincerely,

Éamon de Valera

cc:   Lt Gen Yoshitsugu Tatekawa, Ambassador of the Empire of Japan to the USSR

[END]

Seth Barrett Tillman, ‘The Wartime Statesmanship of Éamon de Valera’ / ‘Advice for the Americans After Doolittle’s Raid—1942,’ New Reform Club (Sept. 26, 2025, 9:01 AM), <https://reformclub.blogspot.com/2025/09/the-wartime-statesmanship-of-eamon-de.html>, <https://ssrn.com/abstract=5527098>.

Seth Barrett Tillman, ‘The Wartime Statesmanship of Éamon de Valera’ / ‘Advice for the Americans After Doolittle’s Raid—1942,’ Quadrant (Sept. 25, 2025, online) (Australia), <https://quadrant.org.au/magazine/story/the-wartime-statesmanship-of-eamon-de-valera/>, <https://ssrn.com/abstract=5527098>, 69(10) Quadrant 104, Oct. 2, 2025 (hardcopy).

This historical parody is a prequel to my prior historical parody: Seth Barrett Tillman, ‘Advice to the Allies—1945,’ 15(2) Claremont Review of Books 13 (Spring 2015) (United States), <http://ssrn.com/abstract=2478600>, <https://claremontreviewofbooks.com/correspondence2/> (bottom of the page), <https://claremontreviewofbooks.com/author/seth-b-tillman/>.

A Great Turn-Down Letter

Dear Seth,

I appreciate your considering ... as a potential platform for [your submission]. The piece is not quite right for us, but I do understand that much time and effort goes into the literary realization of a creative thought; I earnestly wish you luck in placing it with the right journal.

Though we do not have the resources to provide personal feedback for each submission, what I can illuminate (for the curious) is that—much like those of most journals—our decisions are highly subjective, merely matters of taste and style. Just as one opts for certain books (and not others) from a vast shelf, we choose the works that compel us personally, fully recognizing that others are of equal merit, standing in wait to dazzle another potential reader. After all, diversity in aesthetics is precisely what makes the array of literature beautiful.

To fulfilling successes in your writing life!

Best,

[Editor]

Seth Barrett Tillman, ‘A Great Turn-Down Letter,’ New Reform Club (Sept. 22, 2025, 5:13 AM), <https://reformclub.blogspot.com/2025/09/a-great-turn-down-letter.html>; 

Motifs In East Asian Time Slip Dramas

 

Motifs In East Asian Time Slip Dramas

 

Tyrant-monarch can be recast as a kindly, paternalistic family man;

Conniving eunuch taking bribes or otherwise acting disloyally;

Deep attachments to local geographical features (eg, mountains, rivers, forests) and local foodstuffs, cooking styles, etc;

National honor is asserted by competing against larger neighbour (eg, China), and by making ahistorical claims adopting one’s neighbour’s cultural achievements; 

The state is the royal dynasty;

The music shifts from traditional, native music to Western music when the plot reaches its crescendo or something uncommonly good or refined happens;

Women, including high born aristocratic women, should have practical skills to support their family should it go into decline from hardships or catastrophes; 

One should accept the moments of joy as they come, bearing in mind that such good will not last long;

Seth Barrett Tillman, ‘Motifs In East Asian Time Slip Dramas,’ New Reform Club (Sept. 18, 2025, 4:37 PM), <https://reformclub.blogspot.com/2025/09/motifs-in-east-asian-time-slip-dramas.html>; 

On Politicians’ Commenting on Private Decisions to Fire an Employee: An Irish Example

 

On Politicians’ Commenting on Private Decisions to Fire an Employee

An Irish Example

 

Tillman: “All Myers meant to do was [to] pay a compliment to two successful people who happened to be Jewish. That is not antisemitism. It is not even remotely antisemitism. The ultimate result is that an Irishman [Kevin Myers] is out of a job, and now will be on the dole. And we are all paying for it—because of a Twitter storm that started in England—my G-d!”

Sean O’Rourke: “But … it is not just a Twitter storm in England. You have the Irish Prime Minister (the Taosieach, Mr Varadkar), [and] his deputy [prime minister]—both saying what The Sunday Times did [in firing Myers from his position as a journalist/editorialist] was right. The Chair of the Press Council did not wait for a hearing … he was on the news at 1 [pm] … although he [the Chairman] is not dealing with this complaint [against Myers] I gather ….”

--Extract from: ‘Today with Sean O’Rourke,’ RTÉ Radio 1 (Aug. 3, 2017, 11:40 AM), <https://www.rte.ie/radio/radio1/clips/21213461/> (at 11:55ff).

I do not remember hearing, in 2017,  any voices in the Irish press, media, government or opposition, or academia suggesting that the intervention of the Irish prime minister and his deputy in a private employment decision was in any way less than praiseworthy. 

Seth Barrett Tillman, ‘On Politicians’ Commenting on Private Decisions to Fire an Employee: An Irish Example,’ New Reform Club (Sept. 18, 2025, 9:27 AM), <https://reformclub.blogspot.com/2025/09/on-politicians-commenting-on-private.html>; 

On Their Way Out the Door

 

 

          It might surprise you, but the performance of individual civil servants is reviewed from time to time. Some civil servants know that their time is up. They have a good idea that they will be let go in the not too distant future.

          If they are let go, their performance record may be held against them when they seek future employment—public or private. But if the outgoing employee can hijack the process and prompt an early termination in connection with political activism/speech, then their poor performance record will not be front and center when they seek new employment—including government employment. Also, many (albeit not all) civil servants have any number of protections against being fired in connection with speech unrelated to their work and work place. If they are wrongfully fired, they will have a lawsuit against the government and government agency which fired them. Firing them wrongfully is to put the public’s money into their pocket.

          Don’t be manipulated.

         

Seth Barrett Tillman, ‘On Their Way Out the Door,’ New Reform Club (Sept. 17, 2025, 7:18 AM), <https://reformclub.blogspot.com/2025/09/on-their-way-out-door.html>;

Tillman-Authored and Co-authored Contributions to The Heritage Guide (3d)

 

Josh Blackman & Seth Barrett Tillman, Essay No. 100, ‘The Domestic Emoluments Clause / ART. II, § 1, CL. 7,’ in The Heritage Guide to the Constitution 365–70 (Josh Blackman & John Malcolm eds., 3d ed. 2025), <https://ssrn.com/abstract=5466157>, <https://tinyurl.com/5zwfwm3j>.

Josh Blackman & Seth Barrett Tillman, Essay No. 91, ‘The Elector Incompatibility Clause / ART. II, § 1, CL. 2,’ in The Heritage Guide to the Constitution 317–21 (Josh Blackman & John Malcolm eds., 3d ed. 2025), <https://ssrn.com/abstract=5466075>, <https://tinyurl.com/5zwfwm3j>.

Josh Blackman & Seth Barrett Tillman, Essay No. 76, ‘The Foreign Emoluments Clause / ART. I, § 9, CL. 8,’ in The Heritage Guide to the Constitution 265–72 (Josh Blackman & John Malcolm eds., 3d ed. 2025), <https://ssrn.com/abstract=5466035>, <https://tinyurl.com/5zwfwm3j>.

Josh Blackman & Seth Barrett Tillman, Essay No. 34, ‘Incompatibility Clause / ART. I, § 6, CL. 2,’ in The Heritage Guide to the Constitution 111–17 (Josh Blackman & John Malcolm eds., 3d ed. 2025), <https://ssrn.com/abstract=5465974>, <https://tinyurl.com/5zwfwm3j>.

Josh Blackman & Seth Barrett Tillman, Essay No. 33, ‘Ineligibility Clause / ART. I, § 6, CL. 2,’ in The Heritage Guide to the Constitution 104–10 (Josh Blackman & John Malcolm eds., 3d ed. 2025), <https://ssrn.com/abstract=5465918>, <https://tinyurl.com/5zwfwm3j>.

Josh Blackman & Seth Barrett Tillman, Essay No. 98, ‘The Presidential Succession – Congress Clause / ART. II, § 1, CL. 6,’ in The Heritage Guide to the Constitution 354–62 (Josh Blackman & John Malcolm eds., 3d ed. 2025), <https://ssrn.com/abstract=5466174>, <https://tinyurl.com/5zwfwm3j>.

Seth Barrett Tillman, Essay No. 38, ‘The Order, Resolution, or Vote (ORV) Clause / ART. I, § 7, CL. 3,’ in The Heritage Guide to the Constitution 129–33 (Josh Blackman & John Malcolm eds., 3d ed. 2025), <https://ssrn.com/abstract=4512365>, <https://tinyurl.com/5zwfwm3j>.

Seth Barrett Tillman, Essay No. 112, ‘The Presidential Convening Clause / ART. II, § 3,’ in The Heritage Guide to the Constitution 411–15 (Josh Blackman & John G. Malcolm eds., 3d ed. 2025), <https://ssrn.com/abstract=4512375>, <https://tinyurl.com/5zwfwm3j>.

Seth Barrett Tillman, Essay No. 25, ‘The Quorum Clause / ART. I, § 5, CL. 1,’ in The Heritage Guide to the Constitution 75–80 (Josh Blackman & John G. Malcolm eds., 3d ed. 2025), <https://ssrn.com/abstract=4512557>, <https://tinyurl.com/5zwfwm3j>.

Seth Barrett Tillman, ‘Tillman-Authored and Co-authored Contributions to The Heritage Guide (3d),’ New Reform Club (Sept. 15, 2025, 4:05 AM), <https://reformclub.blogspot.com/2025/09/tillman-authored-and-co-authored.html>;

On Reconciliation

 

 

It is said that at the negotiations at Appomattox Courthouse Lee and Grant were both frank and civil during the course of discussing the surrender of Lee’s Army of Northern Virginia. Afterwards, Grant sent food to Lee to feed his (and, then, their) nation’s former enemy soldiers. Celebrations for Grant’s soldiers came only later not while Lee’s soldiers remained present. Again, in ending active hostilities, the first step towards national reconciliation was frank and civil discourse.

I do not think our present and future is or will be as difficult as was Grant and Lee’s. But we too have to think about national reconciliation. It seems to me that the first steps in that direction involve frank and civil discussion, absent hyperbole, and absent name calling. If federal judges, state judges, and legal academics are not up to that task, then that is just another institutional and cultural problem crying out for reform and renewal.

Likewise, our domestic law schools are supported by taxes, tuition, and donations. If universities and academics only further burden American society by casting aside our free speech traditions and actively engage in just another front in our culture wars, then wider society might very well choose to withhold support. Perhaps this process has already begun?

---

An extract from the conclusion of: Seth Barrett Tillman, ‘Some Personal Reflections on the Recent Litigation involving Section 3 of the Fourteenth Amendment,’ 94(6) Miss. L.J. 1375, 1401–1402 (May 2025) (footnotes omitted), <http://ssrn.com/abstract=5241140>, <https://mississippilawjournal.org/journal-content/some-personal-reflections-on-the-recent-litigation-involving-section-three-of-the-fourteenth-amendment/>; 

The passage above was written prior to May 2025.

Seth Barrett Tillman, ‘On Reconciliation,’ New Reform Club (Sept. 13, 2025, 4:35 PM), <https://reformclub.blogspot.com/2025/09/on-reconciliation.html>; 

The Irish Flag War

 

It appears that more than a few of the best people now believe that the wrong sort of Irish people are putting up Irish flags in Ireland, and that this is being done as anti-migrant “hate speech” directed against fragile foreigners. As night follows day, there will soon be an investigation led by the Gardaí (the Irish police) and then debated by the Dublin City Council. And eventually, a proposal will be made to make it illegal for Irish people to put up Irish flags in Ireland. It is possible that such a proposal might be enacted, and it is also possible, perhaps likely, that such a policy will be upheld by the Irish courts. 

Let me suggest an alternative policy.

Instead of banning unwelcomed speech from the “unwanted”[1]—engage in speech of your own and win a battle in the market place of ideas and political ideals. Instead of ceding your national symbol, your flag, to alleged extremists, reclaim your symbol and hold that torch high.[2]

More specifically, this is what I propose: In front of the main entrance of every government building, public park and playground, erect an Irish flag.

At every major street corner, place an Irish flag.

And most importantly, in every class room, that is, in every government funded classroom—including classrooms within primary, secondary, and (especially) third-tier educational institutions—set up an Irish flag.

This way if some rowdies or street thugs carry an Irish flag, no one will even notice. And, more importantly, you will, at last, refrain from the long-standing policy of ceding the symbol of your national identity to those who might misuse it. In fact, I put this policy forward as much for foreigners in Ireland as I do for the Irish and Irish nationals. In order to help foreigners integrate into the national narrative and culture, there must be an identifiable national narrative and culture for them to integrate into. A land without flags will be experienced, by many, as an unwelcoming and “cold house.”[3] I will go even further, when foreigners apply for and take up legal residence in Ireland, the Irish state should give them their one-hundred thousand and first welcome:[4] an Irish flag to put on their home’s front door. What could be more welcoming than that?

And should all this come to pass, and work out as well as one could hope, “this nation”[5] “once again”[6] might even hold annual (July-4th-like or Brexit-like) independence day parades, with drums, and fifes, and the Irish tricolour.

There is just no good reason to ban other people’s speech.

Seth Barrett Tillman, Associate Professor. Maynooth University School of Law and Criminology, Ireland. Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad. (Academic title and affiliation are listed for identification purposes only.)

---

[1] Address to the West Midlands Area Conservative Political Centre (Birmingham, England: Midland Hotel, Apr. 20, 1968). 

[2] John McCrae, In Flanders Fields (2015) (“The torch; be yours to hold it high.”); see also Seth Barrett Tillman, What has Happened to Canada’s Greatest Poem?, The Dorchester Review (Aug. 20, 2025, online) (forth. Oct. 2025, in print) (Canada), <https://tinyurl.com/4tsbe44s>, <https://ssrn.com/abstract=5390767>.

[3] David Trimble, Ulster Unionist Party, Nobel Prize Lecture (1998) (“Ulster Unionists, fearful of being isolated on the island, built a solid house, but it was a cold house for [C]atholics.”).

[4] “Céad míle fáilte”—Irish/Gaelic for “one-hundred thousand welcomes,” and the phrase is sometimes intended to be descriptive of Ireland generally.

[5] Abraham Lincoln, Gettysburg Address (1863) (affirming “that this nation shall have a new birth of freedom ….” or “that this nation, under God, shall have a new birth of freedom ….”).

[6] Thomas Osborne Davis, A Nation Once Again (1844); see also The Wolfe Tones, A Nation Once Again (2002) (voted #1 song in a BBC World Service poll).

Seth Barrett Tillman, ‘The Irish Flag War,’ New Reform Club (Sept. 5, 2025), <https://reformclub.blogspot.com/2025/09/the-irish-flag-war.html>; 

See generally Seth Barrett Tillman, ‘The Irish Flag War,’ The Galway Review (Sept. 7, 2025, online), <https://thegalwayreview.com/2025/09/07/seth-barrett-tillman-the-irish-flag-war/> (Ireland).

Seth Barrett Tillman, Letter to the Editor, ‘We should recapture the flag for honourable use,’ Irish Mail on Sunday (Sept. 7, 2025), <https://www.pressreader.com/uk/the-irish-mail-on-sunday/20250907/textview>. 

See generally Seth Barrett Tillman, Letter to the Editor, ‘State-sponsored flags for all,’ Irish Examiner (Sept. 5, 2025, 1:00 AM) 8, <https://www.irishexaminer.com/opinion/yourview/arid-41699765.html>.