Teaching Others and Learning from Others: A Response to Professor Evan Bernick

 

          Few legal academics write about military law and military government. I have had occasion to think and write about these topics, but they do not occupy the intellectual heartland of most in legal academia. As a result, it can sometimes happen that conversations with others, or responses directed to others, can become somewhat one-sided, as one party to the conversation knows something he believes to be understood by members of his audience, but the other party is (or remains) in the dark. Conversations, like a teacher-student relationship, are a shared enterprise. The active speaker must always consider whether his assumptions about a listener’s knowledge is sufficiently complete to understand the speaker’s meaning. It is the same in the other direction: the listener must always consider whether his knowledge base is sufficiently complete to understand and to criticize the speaker’s meaning.

          When historians discuss the American Civil War, discussions of the political exigencies, the military battles, and contemporaneous international relations take the lead. By contrast, those historians in the weeds have explained that the day-to-day legal character of the war[1] also shaped events. The Union’s law officers followed a dual-track legal theory,[2] in and off the battlefield, to prosecute the war and to punish Civil War era (and Reconstruction Era) wrongdoing.

The first track related to criminal prosecutions under domestic federal law. U.S. citizens and foreigners who engaged in insurrection or rebellion (and also violations of the law of land warfare) could be prosecuted as criminals. Furthermore, U.S. citizens and, in certain circumstances, foreigners who adhered to the (purported) confederacy, and gave that enemy nation “aid and comfort,” could be prosecuted for treason under federal law. E.g., Jefferson Davis was indicted for treason.

The second track relied on military force and military law as controlled by public international law. The Union fought the (purported) southern confederacy as a de facto enemy nation. In doing so, the Union was not recognizing de jure the (purported) confederacy as a matter of public international law, much less recognizing the constitutionality or legality of secession. Rather, the Union recognized the existence of a de facto war between itself and a foreign de facto government. This limited recognition of actual belligerency in the field permitted the Union to take actions in regard to persons and property that were not otherwise permitted in peacetime, but were permitted in war time as a matter of public international law. E.g., internment of enemy prisoners of war, during war time, absent individualized hearings or trials. Authority to take such actions flowed from international law, but it was supplemented by the Lieber Code, which was the military law code that governed the Union armed forces, by constitutionally granted presidential war powers, by extant statutory authorities, such as the Militia Acts and Insurrection Acts, and by acquiescence and affirmative actions by Congress generally.

The dual-track legal theory justifying the Union’s use of force was a messy set of legal theories in a messy war. Indeed, the language of Section 3 of the Fourteenth Amendment follows the dual-track theory.[3]

          In a 2025 Mississippi Law Journal article, I wrote:

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.[4]

 

          Frankly, I believe my statement above is entirely unexceptional. During hostilities, Lee’s soldiers were enemies[5] of the United States as they were the soldiers of a de facto enemy nation during actual hostilities. In other words, as a matter of public international law, the (purported) confederacy was at war with the United States. Once Lee surrendered and Lee’s soldiers were paroled, per the terms of the surrender, then they became former enemy soldiers.

          I was surprised to learn that Professor Evan Bernick, on Bluesky, finds my characterization of these events as anything but factual and commonplace. Indeed, Bernick wrote that my characterization “seems to assume the validity of secessionist claims about the nature of a republic that Lincoln (contra Lee) considered to have existed since the Declaration.”

It strikes me that Bernick may have arrived at his (and, in my opinion, mistaken) opinion, in one of several ways.

My best guess is that he was unaware of the dual-track legal theory underlying and rationalizing the Union’s theory for prosecuting the war (including interning enemy soldiers) and for punishing wrongdoers. If my assumption is correct, that is, that Bernick was unaware of dual-track theory, then you the reader would have to assess where (if anywhere) fault lies. Was it my assuming the reader of a law review would know this? Or, was it Bernick’s willingness to criticize an author having personally made insufficient inquiry to understand the author’s intended meaning?

          Is Bernick’s error (if properly characterized as error) his use of “seems”? Does that justify his comment here, even if not otherwise wholly accurate and complete? I wonder.

          Does Bernick’s error (if properly characterized as error) arise in connection with my use of “his,” as in “his (and, then, their) nation’s former enemy soldiers”? Does Bernick believe I was referring to Lee, as opposed to Grant? But even if that were so, that interpretation would make the sentence a nonsense, and it does not in any way obviously link up to my supporting the legality of secession or the permanent lawfulness of two separate nations. And if that interpretation were on one’s mind … is not that interpretation of my writing inconsistent with my last sentence. “I do not think our present and future is or will be as difficult as was Grant and Lee’s.” The single apostrophe indicates that Grant and Lee had a common future. Is Bernick taking exception to my correct use of an apostrophe?

          There is another possibility that could explain Bernick’s interpretation of my writing. Bernick is still fighting the Civil War, Reconstruction, and the Dunning School. And If I (Tillman) fail to engage (as he would) in the remaining remnants of what is now only an intellectual war, then it follows that any ambiguity in my writing indicates a quiet support for the secessions of 1860 and 1861. I do not suggest that this “seems” to be correct. I would hope that my hypothesis is not correct as any such position is tantamount to abandoning all aspirational efforts towards neutrality and fair play. Academics should always strive (if we can do so reasonably) to adopt the most charitable view of others’ writings. And for that reason, among others, I would be hesitant to put forward the Bernick is still fighting the Civil War as the best explanation for his Bluesky statements. But I would also like to see some reciprocity if only because the most charitable view is frequently the better or best interpretation of disputed text.

How we communicate our views to others, how we do so calmly and rationally, and how we attempt to accommodate different members of our audience sincerely, reflects on who we are as teachers. How we receive such ideas and information, how we react, how critically and how charitably, reflects on who we are as audience members, as students, and, sometimes, as colleagues.

Seth Barrett Tillman, ‘Teaching Others and Learning from Others: A Response to Professor Evan Bernick,’ New Reform Club (Sept. 11, 2026, 8:04 AM), <https://reformclub.blogspot.com/2026/09/teaching-others-and-learning-from.html>; 

See also Professor Evan Bernick’s original post and thread: <https://bsky.app/profile/evanbernick.bsky.social/post/3loivs2tzzc2b>;

 

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[1] This essay draws freely from: Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350, 539–41 (2024), https://ssrn.com/abstract=4568771.

[2] See, e.g., James G. Randall, Constitutional Problems Under Lincoln 59–73 (rev. ed. 1951) (1926) (outlining the dual character of the U.S. government’s approach to legal issues arising during the American Civil War); see also, e.g., Andrew C. McLaughlin A Constitutional History of the United States 617 (1935) (“[T]he [American Civil] [W]ar was of a dual character: in strict theory it was an insurrection; but in the conduct of the war the insurgents were treated as forces of an independent government.”).

[3] U.S. Const. amend XIV, § 3: “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two‑thirds of each House, remove such disability.” (emphases added). The meaning of this language was litigated in: Anderson v. Griswold, Case No. 2023CV32577, 2023 WL 8006216 (Dist. Ct., City and County of Denver, Colo., Nov. 17, 2023) (Wallace, J.), rev’d, 543 P.3d 283 (Colo. Dec. 19, 2023) (per curiam), rev’d Trump v. Anderson, 601 U.S. 100 (2024) (per curiam).

[4] Seth Barrett Tillman, Some Personal Reflections on the Recent Litigation involving Section 3 of the Fourteenth Amendment, 94 Miss. L.J. 1375 (2025) (emphasis added).

[5] E.g., The Brig Amy Warwick (The Prize Cases), 67 U.S. (2 Black) 635, 644 (1863) (referring to “alien enemies”); id. (referring to “the enemy”—as in an enemy nation or sovereign (emphasis added)); id. at 674 (explaining that “enemies’ property” is a “technical phrase peculiar to prize courts, and depends upon principles of public policy, as distinguished from the common law.” (emphases added)). 

American-English and British-English

Many people know that American-English and British-English are not entirely the same. Some words are spelled differently: e.g., labor vs labour, practice (noun or verb) vs. practise (verb). Some verb tenses and grammatical points are also different: e.g., shall and may. The collective plural is used in British-English, but not in American-English. E.g., Congress has raised questions. Or, Parliament have raised questions. 

But the most significant distinction between American-English and British-English is that in the former modifiers are placed near the words they modify, as opposed to any place in the sentence. Likewise, American-English does not favor/favour the passive voice. Consider this sentence:

“At the same time Parliament’s attitude towards frequent instances of disregard of appropriation by the Executive hardened considerably.” Paul Einzig, The Control of the Purse (London, 1959), page 174. 

A naive reader might quite reasonably read this sentence as stating that some unstated entity disregarded appropriations fixed or made by the Executive. Of course, that interpretation would be a misreading of what the author was trying to communicate. 

In American-English, we would add a comma for the introductory clause, we would clarify what entity determined or fixed the appropriation (thereby avoiding the passive voice), and we would move and modify several modifiers and modifying clauses. 

In American-English, this sentence would be written as:

“At the same time, Parliament’s attitude hardened considerably towards the Executive’s frequent instances of disregard of its [that is, Parliament’s] appropriations.”

This change in American-English came about with the publication of Strunk’s The Elements of Style (1920), and republished as Strunk and White’s The Elements of Style (1959). All this illustrates that: ‘England and America are two countries divided by a common language’—sometimes attributed to Shaw, Wilde, and Churchill.

Seth Barrett Tillman, ‘American-English and British-English,’ New Reform Club (Sept. 10, 2026, 6:39 AM), <https://reformclub.blogspot.com/2026/09/american-english-and-british-english.html>; 

Why Conservatives on this Side of the Atlantic Lose

 

 

 

Why Conservatives on this Side of the Atlantic Lose

 

I am an expat U.S. citizen writing to you from Ireland. I doubt it will surprise you that here, in Ireland, and across the nearby islands of the East Atlantic archipelago (a/k/a the British Isles), there are few conservative newspapers, podcasters, and other pundits. Amongst the handful of conservative commentators is nothing like a spirit of cooperation. The larger number of them are prima donnas who will bad mouth other conservatives for no apparent reason at all. And for the crumbs of popularity and social media engagement, they are all too willing to engage in random anti-Americanism and TDS-driven commentary.

          Enter Laura Perrins—an Irish commentator, educated in University College Dublin & Cambridge University, member of the Irish and English bars, who had made a career in London, but who, now back in Ireland, writes a Substack: The West Brit. It is a daring title. ‘West Brit’ is a commonly used slur—directed by Irish nationalists against other Irish perceived as pro-British, or, at the very least, insufficiently Irish, politically or culturally, or both.

          On August 24, 2026, on her Substack, Ms Perrins entered the Lindsay Clancy culture war—firmly on side-Clancy. And she wants you to know that. Perrins wrote:

It was Ms Clancy’s deep, deep misfortunate to suffer serious side-effects from the cocktail of drugs she was prescribed by two practitioners who were not communicating with each other and never met her in person. Lindsay Clancy did not choose to suffer from serious side-effects that included 48 hours without sleep, the triggering of bi-polar disorder and perhaps hallucinations and psychosis.

No, I do not believe Lindsay Clancy chose, in a rational sense, to murder her three children, one by one, by her own hands.

I will make it simple. If Clancy was actually insane at the time she killed her three children, then under settled state law and consistent with prevailing law across the common law world, she should escape criminal punishment (although she might have to be committed until her sanity is (re)established). But if she was not insane, then she is a criminal, subject to the rigours of the law, as would be any other parent who killed their children. Perrins wrote: “Lindsay Clancy did not choose to suffer from serious side-effects that included 48 hours without sleep, the triggering of bi-polar disorder and perhaps hallucinations and psychosis.” Suffering from post-partum depression (assuming Clancy so suffered) does not amount to insanity. Drug-induced side-effects (assuming Clancy so suffered) does not amount to insanity. 48 hours without sleep (assuming Clancy so suffered) does not amount to insanity. And 100s of 1000s of persons (if not millions) suffer from bi-polar disorder—that, without more, does not amount to insanity. Hallucinations and psychosis—they do amount to insanity, but here, Perrins does not affirm that Clancy so suffered; instead, Perrins merely says “perhaps” Clancy was afflicted in that way. That’s a problem for Perrins. If Clancy was not suffering from hallucinations or a psychotic break, or both, then her killing her (and her husband’s) children amounts to murder, and as such, she should be prosecuted.

          I do not want to be overly harsh. There are so few journalists and commentators in these islands and in wider-Europe who hold anything akin to conservative sentiments, and for that reason, I would eschew making negative comments based on a single word. But … later in her Substack article, Perrins goes on to say:

 

Do you think this [case against Clancy] is likely or logical?

Or do you think that her postpartum depression, followed by the cocktail of drugs and negligent care, her declining mental state, a psychiatric emergency, her insomnia, anxiety, bi-polar, and perhaps mania, that she was having hallucinations and on that terrible day she did indeed hear a ‘male commanding voice’ telling her to kill her children and herself. That this was her only way out. (emphasis added)

Again, “perhaps” rears its ugly head—why? Everything that comes before “perhaps” is unfortunate—but those conditions do not, without more, support a finding of “insanity.” What follows Perrins’ use of “perhaps” if established to a jury could reasonably support an insanity defence—if and only if it happened. So why the “perhaps”?

          Perrins repeated use of “perhaps” undercuts all her efforts to persuade the reasonable reader that Clancy is innocent. And that is as it should be. Because the real question is a difficult one. There are two possibilities. One possibility is that Clancy was insane at the time she did the deed. The other possibility is that she was not insane at that time, and at that time and since, she pretended to be insane to escape punishment. That’s essentially going to be a determination for the jury, under guidance from a judge, after hearing from witnesses and experts and arguments from the state’s counsel and her own. In regard to the jury’s making that determination, Clancy will have all the traditional legal protections, including: a unanimous jury, the presumption of innocence, the burden of persuasion placed on the prosecution, and every element of the charge must be proven beyond a reasonable doubt.

Today is August 26, 2026—the presentation of evidence and argument is yet to conclude. So why is Perrins convinced of Clancy’s evidence? Perrins makes several arguments, but they are each thoroughly unconvincing. In saying that, I am not asserting Clancy’s guilt—I’ll leave that question to the jury charged with hearing all the evidence. What I am criticising is Perrins’ putting forward arguments and evidence in her Substack that have little persuasive force.

First, Perrins reports that Clancy’s killing her children was a complete break from her prior conduct, and that she had no recognized priors. That’s true, but that is equally true for every mass murderer’s first murder. We all have good records until we are caught doing something wrong. Until a wrongdoer is caught, many will continue to believe the wrongdoer is virtuous. Second, Perrins reports that Clancy’s family, including in-laws, saw her as a good, dedicated mother. And that’s true too, but it is not convincing. The question is: Were these people on notice of red flags? And having reached this juncture, are these people now afraid to report and to admit what (if anything) they had noticed in the past but chose not to act upon? Third, Perrins points to the fact that Clancy injured herself in her failed suicide attempt and is now partially paralyzed. Perrins sees this as evidence of a psychotic break. And it could be. It could also be the outcome of a crime that failed to play out as planned. Our jails are full of people who miscalculated being caught and who miscalculated the injuries they’d cause and suffer from during the commission of their crimes. Poor planning is not evidence of insanity or innocence. Finally, Perrins reports that Clancy worked in a hospital as a labour and delivery nurse. That’s all true too. Hospitals are full of patients who are totally dependent on staff—to be educated and to be moral. But not all staff are. For those committed to do wrong, hospitals are places where the dependent can be murdered almost with impunity, and the skills taught to save lives can be misused to accomplish evil ends that terminate lives. All know this—at least all know this who remember the trials of Lucy Letby, a British neonatal nurse, which ended in 2023 and in 2024—not so long ago. Perrins’ article is devoid of any reference to Letby, and that’s a tell.

And that’s also the heart of the dispute here. Perrins cannot bring herself to imagine the possibility that some persons, and in particular some women and some nurses, may actively choose to do evil. And the many, many men who have heard the sorts of arguments advanced by Perrins and others on behalf of Clancy know—we know—to a 100% certainty, that those types of arguments are not likely to be advanced (and, concomitantly, much less likely to be advanced successfully) in defence of a man with an arguably similar (alleged) psychotic break. In comparable circumstances, a man (or father) would be seen by a jury (even if composed entirely of men) as just as a stone-cold killer. More importantly, neither would men’s organisations nor male-focused media nor men’s marches cry, scream, or carry placards on behalf of such male defendants. For better or worse, Clancy’s case is part of the culture war. Ms Perrins’ not seeing what many, many men do see comes across as, at best, ill informed, and at worst, as cowardly.

There are far too many conservative politicians and commentators who lack spines. They are afraid to stand tall, and they will retreat even before being criticized. Their worst nightmare is an accusation directed against them for being racists, and then, a close number two—being called misogynists, and finally, being characterised as heartless, compassionless conservatives. Surrender is their only true creed. Here, on this side of the Atlantic, all too many conservatives have all these defects, supplemented with additional helpings of Anti-Americanism and TDS. Remember Roger Scruton and The New Statesman? In these islands, to be a conservative, is not so much a refusal to die on this or any hill, as it is a continuing refusal to take any stand, on any issue, at any time. Surrender is not put forward as a pragmatic response to a public beyond persuasion, or even as a recognition of the political realities of a fallen (political) world, but embraced as a (if not the only) guiding (political) principle. This is why conservatives lose—even, here, in the land of Burke. 

Seth Barrett Tillman, Associate Professor

Maynooth University School of Law and Criminology

Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad

(academic affiliation for identification purposes only)

Seth Barrett Tillman, ‘Why Conservatives on this Side of the Atlantic Lose,’ New Reform Club (2026), <https://reformclub.blogspot.com/2026/08/why-conservatives-on-this-side-of.html>; 

Seth Barrett Tillman, ‘Different Rules for Women who Kill,’ Quadrant Online (Aug. 31, 2026) (Australia), <https://quadrant.org.au/news-opinions/qed/different-rules-for-women-who-kill/>.