The Natural Born Citizen Clause as a Limited Policy Response to International Dangers and American Weakness

Consider the following hypotheticals. Imagine a long-enduing rivalry between two world-wide empires: Empire A and Empire B. Each has its capital in Europe. The two empires go to war against one another from time to time. There is no long-term optimism for world peace. The consequences of such wars are devastating. The United States tries to stay neutral, but U.S. merchant ships are attacked. The United States offers to mediate. 

The President will choose one of two senior State Department candidates to act as chief mediator. Both candidates are U.S. citizens; both are equally loyal to the United States; and both are equally good choices in terms of traditional “merits” or “qualifications.” 

One candidate was born in the United States, and he is able to trace his American heritage back six generations through both his father and mother. His ancestors served in the active U.S. military during the American Civil War and both world wars. 

By contrast, the other candidate was born in Empire A, grew up in Empire A until the age of 16, was educated there, which is where his extended family remains, and then, at the age of 16, immigrated to the United States with his immediate family after they and he had been bombed by Empire B’s military (in a prior conflict). The second candidate subsequently became a naturalized U.S. citizen, albeit, he has never formally given up his Empire-A citizenship. Arguably, he is a dual national. Culturally, he retains some “connections” with Empire A. 

If you were the President, which candidate would you choose? 

Which candidate is more likely to mediate the dispute successfully? 

If you think it reasonably clear that the second candidate would be the lesser choice—despite that candidate’s loyalty, allegiance, and trustworthiness, then you are admitting that reasonable judgments relating to “merits” and “qualifications” are not entirely co-extensive with traditional prudential judgments involving the candidate’s policy approach, education, skills, and experience. The candidate’s actual merits do not relate in toto either to the individual candidate’s abstract qualifications or to intramural (American-focused) distributional consequences among competing (American) pools of candidates in connection with their group status, ethnicity, national origin, etc. Instead, the better choice is connected with the function of the position and the candidate’s likelihood of success in that position. The latter might turn on how foreigners react to the American candidate. How the foreigners react to the American candidate for chief mediator might be rooted in their own reasonable prudential judgments, or it might arise in consequence of bigotry, prejudice, and other irrational preconceptions. In any event, the foreigners’ reaction(s) might define the possibility for a successful mediation, where the stakes are large. The President’s choosing a chief mediator based upon what he believes will be Empire B’s reaction might work an unfairness vis-à-vis the individual candidate. In some instances, that unfairness might be so great that the United States might (and should) walk away from the process or simply tell Empire B that the United States chooses its functionaries as it sees fit. But the President might not take that approach. The President might tell the second candidate.

You hold and have held high positions of trust in the State, and will hold others in the future. The success of this diplomatic mission will raise all boats—the prestige of the United States and my administration, the condition of the people in the warring states and neutrals, and the safety of all our people living abroad, along with the commercial interests of our people engaged in foreign trade. It might be unfair to you individually, but the stakes are too large for me to allow that admitted, individualized unfairness to determine my choice.

Contra Professor Kennedy (characterizing the Natural Born Citizen Clause as an “unjustified inequality”),[1] Professor Post (characterizing the Natural Born Citizen Clause as a “vestigial excrescence” and an “instance of rank superstition”),[2] and Professor Tribe (characterizing the Natural Born Citizen Clause as “offensively discriminatory, nativist, and xenophobic”),[3] is not the president’s approach in this hypothetical a reasonably fair or good one—at least in some circumstances? 

Now take a step back. Assume there is no Natural Born Citizen Clause. Here, the hypothetical is not that the President is choosing between two candidates for chief mediator. Instead, you, the voter, are choosing between two otherwise similarly placed presidential candidates—one foreign born (but now a naturalized citizen) and one native born. It is understood that the President will personally attend and chair the peace conference at the head of the American diplomatic delegation. Would it be entirely wrong for a voter to vote for the native-born presidential candidate, and against the foreign born one based on their different life stories? In such circumstances, the former candidate benefits from the fortuity of birth, blood, time, and place. If your answer is yes—that a voter could reasonably cast his vote on such a basis, then one might argue that the Natural Born Citizen Clause is but one short step removed from that choice. The Natural Born Citizen Clause constitutionalizes the choice of the hypothetical president (appointing the chief mediator) and the hypothetical voter (electing a President), discussed above. 

Now consider a second hypothetical. Assume, again, there is no Natural Born Citizen Clause. Empire A and Empire B are at war. The United States is holding a presidential election. The two candidates for President of the United States have similar party manifestos, etc. But their vitas are those of the two hypothetical chief mediators described above. If you were a citizen of Empire B and an advisor to its government, how (if at all) would you advise your government to react to this situation? Would you do nothing at all? Would your citizens (and posterity) think such conduct responsible? What would your citizens think if you chose not to respond or interfere in the U.S. election? Is it obvious what counts as lawful speech or unlawful interference—under the standards of public international law and domestic U.S. law? Would not your advice, given during the exigencies of war-time, and with less than perfect information, depend on many contingencies and imponderables relating to military developments and the likelihood of your successfully affecting the outcome of the U.S. election? 

Now consider a third hypothetical. You are now a delegate to your country’s constitutional convention. Your independent country is relatively new, not particularly wealthy, and not especially powerful. But you know there will be wars, and the great powers have an interest, if not in moving your nation onto “their” side, at least in keeping your nation from allying with the “other” side. Naturally, you fear such entanglements, and you fear interference by these foreign nations in your decision-making. You fear such interference because if it is successful, it means you will not be the master in your own home. You fear it because the actions of one foreign power might lead to counter-efforts by their foreign opponents. And you fear it because the result may not just be loss of control in elections, but domestic disputes about fair-play during contested elections which could lead to civil strife and, perhaps, to civil war amongst rival domestic personalities and factions. You have no clear idea how far the great powers will go to keep your country from upsetting their plans. 

In these circumstances, one way to think about the Natural Born Citizen Clause is that it was an effort by the Constitution’s Framers to pacify the United States’ relationship with foreign powers. It was a unilateral effort to indicate that the new nation wanted peace with the world’s great powers—its cost was that it bound the hands of the public when choosing some of their future leaders. It was an attempt to take the circumstances of all the hypotheticals posed above off the policy-making table by assuring foreign powers that the new and relatively weak American Republic intended to stay out of Europe’s wars. Thus, it is really no surprise that the Constitution’s “natural born citizen” language was promoted by John Jay—Jay was the nation’s Secretary of Foreign Affairs, as opposed to a cabinet member having purely domestic responsibilities. The Natural Born Citizen Clause was never about us (Americans)—native born or foreign born; it was always about them (foreign powers). 

The efforts of the modern commentators to explain the Natural Born Citizen Clause as one rooted in bigotry and prejudice directed at naturalized citizens is the product of an intellectual milieu of large, powerful countries, where there is no memory of bombs falling on the nation’s core territory or any existential fear of conquest by foreign powers. The concern of these authors is merely the fair, intramural distribution of society’s benefits and opportunities, between citizens and immigrants, and between native-born and foreign-born citizens. The “other,” to the extent he exists at all, is just a person who has not yet become or who has not yet been allowed to become an American. 

Modern theories of separation of powers and constitutional design have little or nothing to do with the Framers’ and Founders’ world of revolutions and imperial wars—where oceans and frontiers pose dangers—as you yourself pose dangers to others—where others may burn down your capital as you may burn down theirs. The Natural Born Citizen Clause was the limited policy response of a People who believed that beyond one’s national frontier was a dangerous world. That the clause’s purpose is no longer widely understood indicates that much has changed since 1787. 

Seth

[1] Randall Kennedy, A Natural Aristocracy? (1995) 12 Constitutional Commentary 175.

[2] Robert Post, What is the Constitution’s Worst Provision? (1995) 12 Constitutional Commentary 191.

[3] Laurence H. Tribe, “Natural Born Citizen” as Illuminated by the Cruz Candidacy (2017) 161(2) Proceedings of the American Philosophical Society 111; Laurence H. Tribe, Reflections on the “Natural Born Citizen” Clause as Illuminated by the Cruz Candidacy, Harvard Civil Rights-Civil Liberties Law Review Blog (15 September 2016), <https://tinyurl.com/h5mevuzc>. 

Seth Barrett Tillman, The Natural Born Citizen Clause as a Limited Policy Response to International Dangers and American Weakness, New Reform Club (Aug. 16, 2021, 12:37 PM), <https://reformclub.blogspot.com/2021/08/the-natural-born-citizen-clause-as.html>; 

Academics’ Criticizing Third-Parties

 

A few years ago, Joshua Matz, a Washington, DC litigator, criticized my professional competence and personal integrity in a blog post on Take Care Blog. Matz wrote: “It’s hardly an impressive defense [by Tillman] to mislead so dramatically in the NYT . . . .” Josh Matz, Foreign Emoluments, Alexander Hamilton & A Twitter Kerfuffle, Take Care Blog (July 12, 2017), <https://takecareblog.com/blog/foreign-emoluments-alexander-hamilton-and-a-twitter-kerfuffle>. At the time, it seemed to me that Matz was just trying to gin up support for his briefs in the Emoluments Clauses cases. So I did not take his criticism to heart. Litigation can drive lawyers to say and write hyperbolic things. In any event, I had cause to address his points from other quarters.[1]

What did strike me as distinctly odd about Matz’s post was his casual willingness to attack third-parties who were wholly unconnected to the Emoluments Clauses dispute, that is, non-parties who had nothing to say about the merits of the arguments which had divided us (Matz and me). For example, Matz wrote: “even if [the Tillman-authored texts] actually offered any meaningful analysis (which they don’t), all three [Tillman-authored] texts that [Professor] Blackman cites are low-profile academic articles, read by a small and specialized audience.” Now, as Matz understood, one of my publications was a British peer-reviewed law journal. See Josh Matz, Foreign Emoluments, Alexander Hamilton & A Twitter Kerfuffle, Take Care Blog (July 12, 2017), <https://takecareblog.com/blog/foreign-emoluments-alexander-hamilton-and-a-twitter-kerfuffle> (at note 1, Matz cites to my 2016 peer reviewed law publication). But see, e.g., Joshua Matz et al., [Plaintiffs’] Brief in Opposition to Petition for Writ of Certiorari, Trump v. District of Columbia, Supreme Court of the United States Case No. 20-330 (Dec. 14, 2020) (citing, in 2020, to a paper authored by Professor John Mikhail, which appeared on the Social Science Research Network in 2017, and was not in 2017, or at any time since, published in a traditional journal), <https://www.supremecourt.gov/docket/docketfiles/html/public/20-330.html>. If Matz had said, Tillman’s article was not any good, and this is the reason why it is not any good …, then I would have no reason to complain, and my proper recourse would have been to write a response (which is something I have done from time to time). But Matz was not really attacking (or, better, not just attacking) my scholarship, he was attacking the venue I had published in—a British peer-reviewed law journal, which had published my article well prior to Trump’s surprising 2016 election. Here, Matz was characterizing the venue as “low profile” and as one having only “a small and specialized audience.” Why attack the journal?

I had thought that this sort of mean-spiritedness directed to strangers and third-parties was the exception, not the rule. But maybe I was wrong. Maybe I only first noticed this sort of criticism in 2017 because it had been directed at me? Consider Professor Mark Graber’s post on Balkinization. See Mark Graber, A “Review” of Justice Breyer’s “Manuscript,” Balkinization (Aug. 14, 2021, 6:06 PM), <https://balkin.blogspot.com/2021/08/a-review-of-justice-breyers-manuscript.html>. This post leaves me deeply uneasy, and I say this fully cognizant that I have consistently criticized Justice Breyer’s judicial opinions and scholarship over many years.[2] 

Apparently, Breyer’s manuscript will appear as a Harvard University Press (“HUP”) publication. Professor Graber thinks that HUP ought not publish Breyer’s manuscript in its current form. Graber’s chief criticism is that Justice Breyer’s citations are too few and insufficiently developed, which shows that he failed to engage the most relevant political science literature. That is a fair merits-based criticism. Still, Graber wrote:

[G]iven that almost every sentence of the text has been subject to scholarly investigation, it would be nice if Harvard University Press as opposed to, say Regent, actually demanded some evidence of engagement with the literature.

Could you imagine being a principal, editor, or other employee at Regent Press? (Or, is this, possibly, Regent University Press? What did Regent do to deserve Graber’s aside?) If Graber had merely stated that, given HUP’s mission and its traditional standards, Breyer’s manuscript was a poor fit, that would have been the sort of criticism within everyday academic norms. But adding in “as opposed to, say, Regent,” comes across as harsh—an unnecessary attack on a stranger to the publication which Graber is reviewing. The fact that Graber might have done this inadvertently does not exactly make the situation more acceptable—arguably, it makes it worse.

Then there is this:

Breyer as is his wont, engages with none of this literature. Instead, without citing any evidence he states, the court “played an essential role in ending legal segregation,” that the Court [with other political actors] . . . won a majority [sic?] victory for constitutional law, for equality, and above all for justice itself,” and that the decision “helped to promote respect for the Court and increased its authority.” Breyer concludes “I cannot prove this assertion. But I fervently believe it.” “Credo absurdum,” Latin scholars might observe.

. . . .

In fairness to Justice Breyer, I note that he has a day job that may take up a good deal of his time, even though that day job comes with more research assistance than any academic could ever dream of. The main lesson to take from the problems with The Authority of the Court is that one cannot successfully perform the function of Supreme Court Justice and publish a major university press book that scholars ought to take seriously. Still, the book does demonstrate a good deal of native talent. If submitted as part of an application, I believe any major graduate program in political science would be happy to take Justice Breyer on as a student. The University of Texas comes to mind, as does Princeton. Julie Novkov runs an underappreciated program in SUNY, Albany. Justice Amy Coney Barrett, who I fear has a book of similar quality forthcoming, might consider joining Justice Breyer.

(emphasis added) (citations omitted). 

Graber criticizes HUP and Justice Breyer for publishing his (that is, Breyer’s) honestly held views, albeit absent “evidence.” Then Graber criticizes Barrett based on his (that is, Graber’s) “fears” in regard to a forthcoming Barrett publication which Graber has not yet seen? What happened to the “evidence” standard?

Can I be the only person who sees a problem here? If this is a good thing, I am missing it.

Seth

[1] Declaration of Seth Barrett Tillman, Lecturer (Exhibit D), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae Judicial Education Project’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017) (Daniels, J.) (filed by Professor Josh Blackman et al.), ECF No. 85-5, 2017 WL 7795997, <https://ssrn.com/abstract=3037107>.

[2] Compare Julian Ku, More on Breyer v. Scalia, Opinio Juris (Jan. 23, 2005, 6:07 PM), <http://opiniojuris.org/2005/01/23/more-on-breyer-v-scalia> (quoting Tillman on Breyer), with Josh Blackman & Seth Barrett Tillman, Justice Breyer made it impossible for Congress to impeach territorial officers for accepting bribes, Balkinization (July 14, 2020, 1:45 PM), <https://balkin.blogspot.com/2020/07/justice-breyer-made-it-impossible-for.html>. 

See generally Seth Barrett Tillman, “Karl Popper’s Falsifiability: The Foreign Emoluments Clause,” South Texas College Law Review Symposium: The Foreign Emoluments Clause: From President Washington to President Trump (Sept. 8, 2017) <https://www.youtube.com/watch?v=I38aoslis88> (at 35:45ff).

Seth Barrett Tillman,  Academics’ Criticizing Third-Parties, New Reform Club (Aug. 15, 2021, 8:38 AM), <https://reformclub.blogspot.com/2021/08/academics-criticizing-third-parties.html>.

President Buchanan, Governor Cuomo, the Failure to Enforce the Law, and Impeachment (Updated)

 

 

            President Buchanan is usually rated the worst or among the very worst of our presidents. That view is not an entirely modern one. He was not well loved by the largest part of northern Unionist sentiment during the American Civil War. Yet, there was no serious move to impeach him while he was president or after Lincoln succeeded to the presidency. (Albeit, one reason for the latter is that the issue of late impeachment always would complicate the analysis.) With the departure of all southern Democrats from the House and all southern Democrats (Senator Andrew Johnson excepted) from the Senate, impeachment by the House should have been a snap, even if securing a Senate conviction would not have been entirely certain. One wonders: Why was Buchanan not impeached?

            What did President Buchanan do wrong? One thing: during secession, he did next to nothing. Buchanan was unwilling to use force—particularly the U.S. Army and Navy—to enforce U.S. law in states which had seceded, to protect federal judges and other U.S. officers in carrying out their lawful duties in states which had seceded, to protect federal enclaves and property in states which had seceded, and to stop the formation of the confederate government in violation of U.S. law.

So why was President Buchanan not impeached for failing to enforce the law, and for failing to defend the country, etc, etc?

• Because at each step, there was the hope that there would be a change of political opinion in the confederate states (albeit, a forlorn hope) …
• Because at each step, there was the fear that moves by the U.S. military to compel obedience to the law would be perceived as an invasion, and consequently push the border states towards secession (which is what happened) …
• Because at each step, there was the view that a civil war would be costly in treasure and lives (resulting, according to modern estimates, in over 600,000 Union dead and wounded, and in over 400,000 confederate dead and wounded) …
• Because at each step, many believed that Union/Northern victory was not assured (and, is there any doubt of that point?) … and,
• Because at each step, it was believed that if disunion came, if it came amicably, then in the future, partial or total, reunification remained a real possibility (and, who can say if this position was an unreasonable one to take?).

I do not suggest that Buchanan was right and that Lincoln was wrong. But one reason we think Lincoln was right is because by 1865, he and the armed might of the United States prevailed. But in 1861, after Fort Sumter—but prior to Gettysburg, prior to Sherman’s taking Atlanta, and prior to the election of 1864—it was hardly clear that the Union would prevail.

Buchanan’s efforts, such as they were, were grounded in a moral vision and policy choice. It may be a policy choice that you and I disagree with. But that sort of choice is part of normal politics—albeit, normal politics (including wartime politics) where the issue on the table is the continued existence of the nation itself.* That is what elections are meant to decide. Buchanan’s inaction violated no statute (nor any other positive law). Buchanan did not take a bribe or act for self-interested ends. Here the President had lawful discretion if and when to use force. He acted in a disinterested manner (i.e., akin to complying with a fiduciary duty of loyalty); he was fully informed (i.e., akin to complying with a fiduciary duty of care). His actions were transparent—albeit, objectionable to many (including me and, maybe, to you too). If a retrospective inquest on a disputed policy matter can convert inactivity into a constitutional “high crime and misdemeanor,” then the latter language is emptied of all substantive content.

Indeed, all law enforcement officers face Buchanan’s choice. In every law enforcement action, there is always a question of if, and when, and how much lawful force should be used, and how long (if at all) enforcement can and should be delayed. It is precisely because that question is always a judgment call (where not guided by statute or other positive law) that we have no history of impeaching officers based upon a retrospective investigation and trial—conducted by subsequently elected officials seeking to vindicate different values and goals—which reaches a different conclusion than that which had been reached by the original officeholder as to what precisely was best policy ab initio.

This is the fundamental danger of all the recent loose discussion about “abuse of office.” It is a vague standard which, when misapplied, converts normal democratic disagreement, where elected officials must make decisions in real-time based upon imperfect information, into trials and then seeks to disqualify political opponents.

Let’s apply this standard to Cuomo.

If Cuomo broke positive law by retaliating against women who had lodged complaints about his behavior, then those retaliation-related allegations (if true) could supply a good basis for impeachment. The COVID19 allegations are entirely different. If Cuomo chose poorly (as we now understand it) in sending elderly patients with COVID19 into nursing homes, but did so acting on the information before him and for disinterested ends (i.e., in the narrow sense of not taking any bribes), then that is a reason for voters (if they so choose) to boot him out of office and not to re-elect him to future office, but it is not a reason for the legislature to impeach. Otherwise, you are converting impeachment into an ongoing legislative vote of no confidence. This might be an arguable possibility under the New York Constitution’s impeachment provision because it lacks any express “high crimes and misdemeanors”-language limiting legislative discretion in the impeachment context. On the other hand, it is precisely for this reason that any such vote of no confidence (masking as an “impeachment” vote) would make no sense under the United States Constitution . . . because under the federal constitution impeachment is limited to “high crimes and misdemeanors.”

Seth Barrett Tillman, President Buchanan, Governor Cuomo, the Failure to Enforce the Law, and Impeachment (Updated), New Reform Club (Aug. 11, 2021, 12:42 PM), <https://reformclub.blogspot.com/2021/08/buchanan-cuomo-failure-to-enforce-law.html>; 

*Consider the United Kingdom’s 2016 Brexit referendum and Scotland’s 2014 independence referendum—both normal democratic politics.

Cuomo and Disqualification

 

Twitter <https://twitter.com/SethBTillman/status/1425143595917619200>; 

Letter to the Editor at Bloomberg, Responding to Keshia Clukey's “What to Know About the Bid to Impeach New York Governor Andrew Cuomo”

Seth Barrett Tillman, Lecturer

 

 

August 10, 2021

 

Letters Editor

Bloomberg—QuickTake

letters@bloomberg.net

 

Re:      Keshia Clukey, “What to Know About the Bid to Impeach New York Governor Andrew Cuomo,” Bloomberg—QuickTake, 9 August 2021, 22:23 GMT+1 (Update).

 

Dear Letters Editor,

 

Ms Clukey wrote that: “A conviction [by the state senate] would require approval by two-thirds of the senators and judges in attendance. They could also take the further step of disqualifying [Governor] Cuomo from further public service.” But that is not quite correct.

 

There is no doubt that conviction and disqualification in state senate impeachment proceedings would leave Cuomo eligible to hold all federal positions: including both [i] any elected federal position, e.g., President, Vice President, member of the U.S. Senate and U.S. House of Representatives, from New York or from any other state, and [ii] any appointed federal position. It is unclear if disqualification in state senate impeachment proceedings extends to municipal posts—elected or appointed—or if it extends to state civil service positions.

 

More importantly, it is not clear that conviction and disqualification in state senate impeachment proceedings would bar Cuomo from subsequently holding elected state positions, including the governor’s office. Under Article VI, Section 24 of the New York state constitution (1894), disqualification extends to “any public office of honor, trust, or profit under this state.” This language first appeared in the New York Constitution of 1821. The state provision is based on analogous language in the United States Constitution (1787). Under Article I, Section 3, Clause 7 of the U.S. Constitution, disqualification extends to “any Office of honor, Trust or Profit under the United States.” Unfortunately, neither the state courts of New York, nor the federal courts have meaningfully opined on the scope of either the state constitution’s or the federal constitution’s disqualification provision. Nor are there any New York state or federal historical precedents where a disqualified former officer sought post-disqualification to hold an elected position. So contra Keshia Clukey, one cannot say with any certainty that a state senate conviction and disqualification would bar Governor Cuomo from subsequently holding state elective positions.

 

What is clear is that disqualification would act as a bar in regard to holding appointed state positions. This language of “office … under the United States” and “office … under the state” is successor terminology to a pre-revolutionary era British statutory drafting convention, which used “office … under the crown”-language. Such language did not reach elected positions (eg, Members of Parliament) or other apex positions (eg, the King), but only reached appointed positions. That is some good reason to believe that the very similar language appearing in the New York Constitution’s and in the U.S. Constitution’s disqualification provisions did not extend to any elected positions, but only barred the defendant from subsequently holding state appointed positions.

 

Sincerely

Seth Barrett Tillman, Submitted as a Letter to the Editor at Bloomberg, Responding to Keshia Clukey's “What to Know About the Bid to Impeach New York Governor Andrew Cuomo,” New Reform Club (Aug. 10, 2021, 6:44 AM), <https://reformclub.blogspot.com/2021/08/letter-to-editor-at-bloomberg.html>; 

Letter to the Editor at National Review, Responding to Andrew McCarthy's “Impeachment in New York State”

 

Seth Barrett Tillman, Lecturer

Maynooth University Department of Law

National University of Ireland Maynooth

New House (#53)

Maynooth

County Kildare W23 F2H6

Ireland

August 8, 2021

 

 

Letters Editor

National Review

letters@nationalreview.com

 

Re:      Andrew McCarthy, “Impeachment in New York State,” National Review: The Corner (Aug. 5, 2021, 4:58 PM), <https://tinyurl.com/e4a5s3bw>.

 

Dear Editors at The Corner,

 

Andrew McCarthy wrote: “Conviction [in New York state senate impeachment proceedings] results in the removal of the official and disqualification from holding state office in the future—it is not a disqualification from seeking federal or even municipal office.” There is one big problem and one lesser problem with McCarthy’s restatement of New York impeachment law. First, under the state and federal model, the defendant’s removal form his office (if in office when convicted) flows as an automatic consequence of conviction by the senate. But, the senate has discretion in regard to imposing disqualification as an additional punishment. That’s the big problem.

 

The lesser problem is that McCarthy asserts that disqualification is a bar against holding “state office.” He asserts that this bar does not reach state municipal offices. There is a paucity of case law, scholarship, and historical precedents in regard to both New York and federal disqualification, so his determination that municipal positions are exempt from the disqualification bar is very difficult to understand. Moreover, the reader will assume McCarthy’s “state office”-language means that Governor Cuomo, should he be convicted and disqualified, would be barred from holding the position of governor again. But that too is surprisingly less than clear.

 

Under Article VI, Section 24 of the New York state constitution (1894), disqualification extends to “any public office of honor, trust, or profit under this state.” This language first appeared in the New York Constitution of 1821. The state provision is based on analogous language in the United States Constitution (1787). Under Article I, Section 3, Clause 7 of the United States Constitution, disqualification extends to “any Office of honor, Trust or Profit under the United States.” Unfortunately, neither the state courts of New York, nor the federal courts have meaningfully opined on the scope of either the state constitution’s or the federal constitution’s disqualification provision. Nor are there any New York state or federal historical precedents where a disqualified former officer subsequently sought to hold an elected position. So contra Andrew McCarthy, one cannot say with any certainty that a state senate impeachment conviction and disqualification would bar Governor Cuomo from subsequently holding state elective positions—including the governor’s office.

 

What is clear is that disqualification would act as a bar in regard to holding appointed state positions. This language of “office … under the United States” and “office … under the state” are successor terminology to pre-revolutionary era British statutory drafting conventions, which used “office … under the crown”-language. The British drafting convention did not reach elected positions (eg, Members of Parliament) or other apex positions (eg, the King), but only reached appointed positions. That is some good reason to believe that the very similar language appearing in the New York Constitution’s and U.S. Constitution’s disqualification provisions did not extend to any elected positions.

 

Sincerely

 

/s/

 

Seth Barrett Tillman

Seth Barrett Tillman, Submitted as a Letter to the Editor at National Review, Responding to Andrew McCarthy’s Impeachment in New York State, New Reform Club (Aug. 8, 2021, 6:53 AM), <https://tinyurl.com/47ht8zp6>;

Part II, How Scholars Change Their Minds: 2006, 2009, and 2017

 

BEFORE

Amanda L. Tyler , Is Suspension a Political Question, 59 Stanford L. Rev. 333 (2006):

Taney, in turn, ordered the release of the prisoner; Lincoln, however, did not comply with the order.

Id. at 355 n.121 (emphasis added).

Amanda L. Tyler, Suspension as an Emergency Power, 118 Yale L.J. 600 (2009):

As is well known, Chief Justice Taney concluded in Ex parte Merryman, 17 F. Cas. 144 (Taney, Circuit Justice, C.C.D. Md. 1861) (No. 9487), that the President does not possess the unilateral power to suspend the writ, and Chief Justice Taney ordered the release of John Merryman, who was taken by the military from his home in Baltimore and detained at Fort McHenry, all pursuant to a unilateral presidential authorization of a suspension in the area.

Id. at 638 n.181 (emphases added).

AFTER

Amanda L. Tyler, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (2017):

[T]he chief justice ordered General Cadwalader to appear and produce the body of John Merryman at a hearing to be held the next day . . . .

Id. at 161 (emphasis added).

Seth Barrett Tillman, Part II, How Scholars Change Their Minds: 2006, 2009, and 2017, New Reform Club (Aug. 8, 2021, 5:00 AM), <https://reformclub.blogspot.com/2021/08/part-ii-how-scholars-change-their-minds.html>; 

Part I, How Scholars Change Their Minds: 2005 and 2020

 

 

BEFORE

 

Saikrishna Prakash, Regulating Presidential Powers, 91(1) Cornell L. Rev. 215 (2005) (reviewing Harold J. Krent, Presidential Powers (2005)):

 

Given that [Professor Krent] spends much time discussing the merits and demerits of judicial review of executive action, and given that Presidents (such as Andrew Jackson and Abraham Lincoln [in Ex parte Merryman]) have ignored judgments in the past, he ought to have more fully discussed the consequences of judicial review-namely, what if anything, the President must do after the issuance of a judicial opinion and judgment.

 

Id. at 223 (footnotes omitted) (emphasis added).

 

AFTER

 

Saikrishna Bangalore Prakash, The Living Presidency: An Originalist Argument against Its Ever-Expanding Powers (2020):

 

The executive complies with such [judicial] judgments because for two centuries presidents have consistently supposed that judges decide who wins and loses a case, with the executive obliged to enforce and honor those judgments. The handful of exceptions, such as Lincoln’s refusal to honor Chief Justice Roger Taney’s constitutional opinion in Ex parte Merryman (Lincoln ignored Taney’s conclusion that the executive was illegally holding John Merryman), force us to take notice.

 

Id. at 110 (emphases added) (parenthetical in the block quotation is Prakash’s).

Seth Barrett Tillman, Part I, How Scholars Change Their Minds: 2005 and 2020, New Reform Club (Aug. 8, 2021, 3:15 AM), <https://reformclub.blogspot.com/2021/08/how-scholars-change-their-minds-2005.html>;

 

Letter to the Editor at The Washington Post, Responding to Amber Phillips’s “How Andrew Cuomo’s impeachment in New York will work”

August 6, 2021

 

Letters Editor

The Washington Post

letters@washpost.com

 

Re:     Amber Phillips, “How Andrew Cuomo’s impeachment in New York will work,” The Washington Post, August 5, 2021.

 

Dear Letters Editor,

Ms Phillips wrote that: If Governor Cuomo is convicted by the state senate, then “the impeachment court can take an additional step and bar him from serving [in] public office in New York again.” That’s not quite right.

Under Article VI, Section 24 of the New York state constitution (1894), disqualification extends to “any public office of honor, trust, or profit under this state.” This language first appeared in the New York Constitution of 1821. The state provision is based on analogous language in the United States Constitution (1787). Under Article I, Section 3, Clause 7 of the U.S. Constitution, disqualification extends to “any Office of honor, Trust or Profit under the United States.” Unfortunately, neither the state courts of New York, nor the federal courts have meaningfully opined on the scope of either the state constitution’s or the federal constitution’s disqualification provision. Nor are there any New York state or federal historical precedents where a disqualified former officer sought to hold an elected position. So contra Amber Phillips, one cannot say with any certainty that a state senate conviction and disqualification would bar Governor Cuomo from subsequently holding state elective positions. Moreover, there is no doubt that conviction and disqualification in state impeachment proceedings would leave Cuomo eligible to hold any federal position: President, Vice President, member of the United States Senate or House—from New York or any other state, and any federal appointed position.

What is clear is that disqualification would act as a bar in regard to holding appointed state positions. This language of “office … under the United States” and “office … under the state” are successor terminology to pre-revolutionary era British statutory drafting conventions, which used “office … under the crown”-language. Such language did not reach elected positions (eg, Members of Parliament) or other apex positions (eg, the King), but only reached appointed positions. 

Sincerely,

/s/

Seth Barrett Tillman 

Seth Barrett Tillman, Submitted as a Letter to the Editor at The Washington Post, Responding to Amber Phillips’s How Andrew Cuomo’s impeachment in New York will work, New Reform Club (Aug. 6, 2021, 10:34 AM), <https://reformclub.blogspot.com/2021/08/responding-to-amber-phillipss-how.html>.

Letter to the Editor at The New York Times, Responding to Atossa Araxia Abrahamian's "There Is No Good Reason You Should Have to Be a Citizen to Vote"

Seth Barrett Tillman, Lecturer

Maynooth University Department of Law

New House (#53)

Maynooth University

County Kildare

Ireland W23 F2H6

July 29, 2021

The New York Times

Letters Editor

letters@nytimes.com

 

RE: Atossa Araxia Abrahamian, There Is No Good Reason You Should Have to Be a Citizen to Vote, The New York Times (July 28, 2021).

 

Ms Abrahamian tells us that she “lived in New York since 2004, but [she] ha[s]n’t once had a chance to cast a ballot here.” That is not quite true is it? Legal residents can apply for U.S. citizenship after residing in the U.S. for as little as 5 years—after which the federal government will process your application. It is now 2021. So Ms Abrahamian has had roughly 12 years to apply for U.S. citizenship and then, having secured it, to vote in U.S. elections. If she has chosen not to apply for citizenship, or not to apply in a timely manner, then it makes no sense for her to claim that she has not had “a chance” to vote. She has had that chance: a substantial one.

 

Legal residents are just that. They get to reside in the United States. No one will ask them or make them share the common fate of other Americans. No one in a position of authority in the U.S. government will ask a legal resident to stay in the U.S., and no one in a position of authority will ask a legal resident to leave. Ms Abrahamian is such legal resident, and as such, she can always leave and return to her former Swiss home. Once in Switzerland, the United States government will have no claim to tax her future income, and it cannot prosecute her for crimes she may commit abroad, and it cannot dragoon her to return to the United States to serve in its armed forces. It is altogether different for U.S. citizens, like me, living abroad. As a U.S. citizen, the U.S. government can tax my income earned abroad, prosecute me for crimes committed abroad, and draft me into its armed forces. And, that is why an American citizen, like me, although living abroad, gets to vote in U.S. elections, and that is why Ms Abrahamian does not, notwithstanding her being legally resident in the United States. 

If you want the right to vote, you should have to commit to sharing our polity’s common fate. And if you choose not to take on American citizenship and to share that fate, then you ought not complain that you are excluded from the democratic process that will in large part determine that common fate.

Seth Barrett Tillman, Lecturer

Maynooth University Department of Law

Seth Barrett Tillman, Submitted as a Letter to the Editor at The New York Times, Responding to Atossa Araxia Abrahamian’s There Is No Good Reason You Should Have to Be a Citizen to Vote, New Reform Club (July 29, 2021, 3:29 PM), <https://reformclub.blogspot.com/2021/07/letter-to-editor-responding-to-atossa.html>; 

The Wards of Civilization

There is a distinctively Orwellian note in the official slogan, "Build Back Better." This is the slogan that follows on the heels of the state-enforced halting of the economy, the cessation of social interaction, the suspension of schooling. "Building Back Better" is often described laced with racial and sexual tribalism. The slogan also vies for ubiquity with the slogan "Defund the Police," to the extent that one wonders if the two ideas are not part of the same program, so that one wants to know: building back to what?

The White House says it has no intentions "to build back to the way things were." So despite the fact that more Americans than ever are unable to have the American dream of owning a house, restoring that dream would be building back "to the way things were," and thus, seemingly by definition, not "better," but somehow worse.

When one is asked to "reimagine" their world and turn it into something new, one cannot help but to look back, if just for a moment, and reflect on what one is being asked to leave behind. That which is new, after all, is not always better. When the Americans threw off the relatively light yoke of George III, a large number of Americans thought it was rather a step backward. T.H. White had King Arthur grumble to Lancelot in The Once and Future King that "It was no good conquering the Dictator unless you and the others do the civilizing part." 

"What is the use," Arthur went on, "if the whole place is fighting mad?" This, I fear, is an apt question for our time. The fighting spirit is the engine of humanity. But it is usually tuned to the key of destruction, always fighting against something. Do we fight for anything?

One can sense something cyclical, if not rather regressive, in the present mood. For this is not the first time we have been fighting mad. We have gone to war before to vindicate a certain ethos, a way of life for this country. Why did we war: For a political agenda? For economic superiority? For military advantage? No, not for these, but for higher pursuits. John Adams had it that "I must study politics and war that our sons may have liberty to study mathematics and philosophy ... geography, natural history and naval architecture, navigation, commerce and agriculture." 

But even these pursuits are merely instrumental. They are pursuits a government ministry might later be installed to study and regulate – and dominate. Domination can never be the end of civilization. Mere domination is not the end: mastery is the end. For as Adams went on, when his children had attained mastery, then their children, in turn, would gain "a right to study painting, poetry, music, architecture, statuary, tapestry and porcelain." The ends of civilization are not the things we do on weekdays. They are the things we give ourselves to on holidays and, perhaps even more, on holy days.

White's King Arthur sensed this too. His knights of the round table, having no higher pursuits to give themselves to after rooting out all the thieves' dens and spreading peace throughout the land, had turned back to fighting against each other. Just so, one would not be too terribly surprised to learn any day now that a member of Congress had been caned on the House floor. (Weighing most anxious on our minds would be questions of the race and sex of the parties involved.) What was needed, Arthur concluded, was a great spiritual quest. So Lancelot and the other knights of the round table went off on crusades. And so have our modern knights of the board room tables.

I have gotten ahead of myself. What I have overlooked – for it is the privilege of the present to assume its inevitability – is how America got from independence to civilization. That was not inevitable. We look to those who drafted our founding documents, and those who fought in our Revolutionary War and Civil War, as the founders of our country. But more precisely, they are the founders of our government. Our country, our civilization, is something apart from its government. And for our civilization we owe credit to many rough fellows, who subdued the wilderness of this country, and who did many unpleasant things, in order to build a great country. The people who carry out the business of civilizing tend to be uncivilized. I do not volunteer to head any committee to erect statues to these uncivilized individuals (for in the present fighting mood they are liable to be torn down anyway). But those of us who value civilization ought to remember them.

Larry McMurtry's Lonesome Dove has a fine passage remembering the likes of those rough fellows. McMurtry, who just passed away earlier this year, did not think his book a "towering masterpiece" or anything, but merely a "Gone with the Wind of the West," which may help calibrate our standards to his rather higher ones. In the book, Gus and Call, who fought in the Civil War and then as Texas Rangers, are now driving cattle up to Montana. In a short bit of dialogue where the characters recall an old Indian they had known, McMurtry sets up a poignant observation:

"I remember him," Augustus said. "It was always a puzzle to me how such a short-legged Indian could cover so much ground." 

"He claimed to have been all the way from the Columbia to the Rio Grande," Call said. "That's knowing the country, I'd say." 

"Well, he was an Indian," Augustus said. "He didn't have to go along establishing law and order and making it safe for bankers and Sunday-school teachers, like we done. I guess that's why you're ready to head off to Montany. You want to help establish a few more banks. ... Every bank in Texas ought to pay us a commission for the work we done. If we hadn't done it, all the bankers would still be back in Georgia, living on poke salad and turnip greens."

Today, of course, there aren't any more cowboys or Indians than there are Sunday-school teachers. But there is no end of bankers. Gus and Call are fictional men, but they stand for real ones. And I doubt many people today want to take credit for their adventures. Yet we have the benefit of them, those of us who are able to live simple and peaceful lives today, for which most of us are grateful. The bankers and politicians and big corporate enterprises, on the other hand, have the greatest benefit of all. And for this, they are resentful. This is something worth remembering the next time you hear these sorts of people launch into sermonizing at you. The wine served at celebrations and ceremonies is taken joyfully and reverently. It is the wine drunk at every meal that collects critics. 

In the end, if you remember, Gus succumbs to an Indian arrow to the leg. He lost the leg, but the gangrene had spread to the other leg. A sawbones was nearby to take it off, but Gus refused. He could still get about by horse as a one-legged man, he figured, but not as a legless one. He was among the last of his kind, and would not give up his legs: for it is a high calling to be a steward of civilization, but a low thing to be its ward. 

Are the stewards of our civilization, like Augustus, who made the world safe for bankers and school teachers, having now discharged the duty for which they were called, passing from the earth? We are the heirs of the bankers and school teachers. But we have become bored. Or like Arthur said, though we could not root out our might, and the desire for conquest, yet we also ran out of things to which to direct our might. John Adams was wrong: painting, poetry, music, architecture, statuary, tapestry and porcelain, did not detain us very long. Adams might have looked to Solomon: Solomon, perhaps because he had seen decay begin to set in even to the great works of Ozymandias, did not ask the Lord for might, but for wisdom. Yet he received might as well, and in the end it defeated his wisdom. Every epoch of human history teaches this: beyond the brief cresting moment upon attaining civilization, when we stand, for a moment, fully upright atop a fleeting domination of the powers of the earth and mastery of its natural forces, in joyful celebration, and having attained stewardship of God's creation, we know naught but the slow but certain bending of our gaze, from up to the heavens, back down to the slime. 

Build back better? I must be permitted to doubt. The builders have nothing but disdain for the stewards of our civilization. They would prefer we settle into the role of their wards, while the new Lords of the earth perfect our souls.

But our new Arthurians are wrong, too: matters of the soul will not detain us either. At least, not in the way we might expect. What finally saved White's Lancelot was neither conquest nor mastery, but ruin, humility, and baptism. Even after he had confessed the sins of his former vainglorious self, Lancelot found he could not return to his old life again. "But if you really were absolved this time!" Guenever cried, to which Lancelot replied: "God was not punishing me by letting the black knight knock me down – he was only withholding the special gift of victory which it had always been within his power to bestow." 

But this is unearthly wisdom: To give up glory? And not get anything back? Lancelot had been victorious as a sinner, so why should he always be beaten when he was heavenly? What then, Guenever wanted to know, did Lancelot do? 

"I knelt down in the water of Mortoise, Jenny, where he had knocked me – and I thanked God for the adventure."

Only God can tame our might, by tipping us over, until we learn: we are not the greatest force in the world – and we kneel in the place where we have been knocked down, and thank God, simply for the adventure. 

And pray that He humble the utopianists.