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Tuesday, December 29, 2015

Why The Debate on "Office" and "Officers" Matters

Constitutions, statutes, and regulations create public offices, and frequently such legal instruments also create qualifications for those offices. When positive law creates qualifications for elected positions, these restrictions limit the scope of democratic choice. Nevertheless, such restrictions on democratic choice have a long pedigree in a variety of jurisdictions. Adjudications relating to qualifications to public office are not uncommon. Likewise, in the United States, the Constitution sets out qualifications for elected federal officials: i.e., Representatives, Senators, President and Vice President. Such qualifications include, among others, provisions relating to age, citizenship, and residence. Courts and commentators have long debated whether the qualifications in the Constitution’s text are exclusive (i.e., floors and ceilings) or whether they are merely floors, which can be supplemented by additional qualifications imposed by Congress and/or by the States.

Once again, this issue has become topical. Hillary Clinton, a former Secretary of State and former Senator, is a prominent candidate in the upcoming Democratic Party primary elections. These primaries select delegates to a national convention which will choose the Democratic Party’s candidate for the November 2016 popular presidential election. It has been alleged that, during her term of service as Secretary of State, Clinton violated a provision of the federal statute mandating government record keeping. Section 2071 of Title 18 of the United States Code provides:


Section 2071’s language poses two interesting interpretive challenges.

First, what is the scope of the statute? In other words, does Section 2071’s generally worded “office under the United States” language extend to the presidency?

Second, if Section 2071’s general “office under the United States” language fairly encompasses the presidency, is the statute constitutional? In other words, does Congress have the power to create additional qualifications for the presidency beyond those already expressly stated in the Constitution’s text?

. . .

Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5(1) British Journal of American Legal Studies (forthcoming 2016), available here

My prior post is here: Seth Barrett Tillman, A Critique of Two Left-of-Centre Views of the United States Constitution: Professor Akhil Amar & Professor Lawrence Lessig, The New Reform Club (Dec. 28, 2015, 4:48 AM)

Twitter:  ( @SethBTillman )

Monday, December 28, 2015


Henry VII and his Council: Debate on the Use of Private Liveries by the Great Barons, and on Defiance of the Law of the Land through the use of Church Grounds as Sanctuary

Henry Tudor: My Lords, we have called you together today to discuss two matters, one important and one of little moment . . . .
[Council meeting ends.]
Earl of Pembroke: Which was the matter of little importance?
Henry Tudor: Well, you must ask the Earl of Lincoln or [Bishop] Fox.
The Shadow of the Tower (1972)

Professor Akhil Amar (Yale Law School) and Professor Lawrence Lessig (Harvard Law School) have both written on the scope of the Constitution’s office-language. Indeed, their individual views on the scope of the Constitution’s office-language are central to (some of) the leading theories they have each popularized. 

Professor Amar has written repeatedly that the Constitution’s “Office ... under the United States”-language (including its textual variants) does not reach members of Congress (although it does encompass the presidency). Amar’s views on this point are central to his understanding of the Presidential Succession Clause and the several impeachment-related clauses in the Constitution. See, e.g., Akhil Reed Amar & Vikram David Amar, Is the Presidential Succession Law Constitutional?, 48 Stanford Law Review 113, 115 (1995) (“‘Officers’ of or under the United States thus means certain members of the executive and judicial branches, but not legislators—the legacy of an earlier view sharply distinguishing the ‘people’s’ representatives in Parliament from ‘crown’ officers in executive and judicial positions.” (emphasis added)).

By contrast, Professor Lessig has expressed the view that the Constitution’s Foreign Emoluments Clause, which uses Office ... under the United States-language,[1] does reach members of Congress (and, apparently, the presidency). Lessig’s views on this point are central to his anti-corruption centred analysis of the original Constitution, and to his understanding of the First Amendment and of the permissible bounds of the regulation of political speech. See, e.g., Lawrence Lessig, A Reply to Professor Hasen, 126 Harvard Law Review Forum 61, 70 (2012) (“And most relevant to the conception of ‘dependence corruption’ that I have advanced here: the Framers banned members [of Congress] from receiving ‘any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State’ without the consent of Congress.’” (emphasis added)).

Professor Amar and Professor Lessig cannot both be correct. 

At most—only one of the two—Professor Amar and Professor Lessig—can be correct. Either the Constitution’s Office ... under the United States-language in the Foreign Emolument Clause (and elsewhere in the original Constitution) reaches members of Congress or it does not. It follows that (at least) one of these two deep thinkers is wrong, and wrong about an area of scholarship and a set of interpretive positions which have been widely (if not wildly) popularized by them.

It is not my goal here to settle this question: What is the scope of the Constitution’s office-language? Or, to put it another way, which—if either of these two scholars—is correct?

Instead, my purpose here is otherwise.

First, it is to point out that those on the left who have embraced both Professor Lessig’s and Professor Amar’s positions cannot do so in any intellectually coherent manner. Amar has written that the Constitution’s office-language does not reach members of Congress; Lessig has argued that it does.

Second, those embracing and promoting Professor Lessig’s views should explain where and how Amar’s analysis went wrong, and what consequences flow from Amar’s error in regard to his (Amar’s) understanding of the many constitutional provisions using the language of office and officer. Such constitutional provisions include: e.g., Disqualification Clause (“Office of honor, Trust or Profit under the United States” (emphasis added)); Incompatibility Clause (“Office under the United State”); Ineligibility Clause (“civil Office under the Authority of the United States”); Elector Incompatibility Clause (“Office of Trust or Profit under the United States”); Religious Test Clause (“Office or public Trust under the United States”); see also, e.g., Succession Clause (“what officer”); Necessary and Proper Clause (“the Government of the United States, or in any Department or Officer thereof”); Impeachment Clause (“civil Officers of the United States” and “Office” (emphasis added)); Appointments Clause (“all other Officers of the United States” and “such inferior Officers”); Commissions Clause (“all the Officers of the United States”); Oaths and Affirmations Clause (“all executive and judicial Officers, both of the United States and of the several States”). So the result of a reasoned debate over the scope of the Constitution’s office-language will have implications for many constitutional provisions, not just the Foreign Emoluments Clause. The stakes here are reasonably high. 

Third, those embracing and promoting Professor Amar’s views should explain where and how Lessig’s analysis went wrong, and what consequences flow from Lessig’s error in regard to his (Lessig’s) understanding of the Foreign Emoluments Clause and the many other constitutional provisions using the language of office and officer, and in regard to Lessig’s anti-corruption centred analysis of the First Amendment. Here too, the stakes are reasonably high. 

I am not under any delusion that my post here will have any practical effect on either Professor Amar or Professor Lessig.

Although in the not too distant past, I once had harboured the hope that Professor Amar might respond, I do not now expect that Professor Amar will write a response to this blog post or to my full-length academic publications touching on these interpretive issues. Nor do I, at this juncture, expect anything like a public response from Professor Lessig. And that is as it should be: this post is not directed to them; instead, it is directed to their academic and other supporters.

Both Professor Amar and Professor Lessig have a substantial number of academic supporters, not to mention a great many current and former colleagues and students, educated followers, acolytes, and fans. A good many on the left have espoused or embraced both the positions put forward by Amar and Lessig.

Not one of the Amar true believers has been willing to make the argument that Amar is correct, and that Lessig is wrong in regard to his (Lessig’s) interpretation of the Constitution’s office-language, and—from which it follows—that Lessig is also wrong about his anti-corruption centred analysis of the First Amendment.

Likewise, not one of the Lessig true believers has been willing to make the argument that Lessig is correct, and that Amar is wrong in regard to his (Amar’s) interpretation of the Constitution’s office-language, and—from which it follows—that Amar is also wrong about the Succession Clause, intratextualism, etc. 

Amar and Lessig cannot both be correct. At most—only one can be correct. We, the public, deserve a full, meaningful debate: not a cult—or, even, two well-placed elite academic cults—whose chief sacraments are omerta and humbug.

Will anyone—particularly those on the Left—step forward? Or will the many who have supported both Professor Amar’s and Professor Lessig’s views in this matter continue to support both, notwithstanding that these two views contradict one another?


PS: Here is my prior post: Seth Barrett Tillman, Miscellaneous Americana for the New Year, The New Reform Club (Dec. 20, 2015, 4:02 PM)

Twitter:  ( @SethBTillman )

[1] U.S. Const. art. 1, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”). 

Friday, December 25, 2015

Can a Liberal Kill? or: Dukakis got hosed

But they are different questions.

1988: Dukakis [for whom I voted anyway] simply blew the answer. In his defense, it was a preposterous question he could not have been prepared for.

The nature of the question was about retribution, not self-defense or defense of one’s family.
[CNN’s Bernard Shaw] would ask Dukakis a crime question, a capital punishment question, but also a personal question. One that nobody in the world would dare to ask:What if some criminal raped and murdered Dukakis’ wife, Kitty. Would Dukakis still oppose capital punishment?
Sophistic swine. It would take at least 20 minutes to answer the question of forgoing retributive justice in a principled fashion. The proper question–esp re this discussion–is whether Dukakis would kill anyone attempting such a thing.

I trust he would have.

Mind you--Gov. Dukakis, alleged author of the Massachusetts Miracle, did deserve to lose the 1988 election for not foreseeing the bizarre optics of looking like the biggest smacked ass since, well, Walter Mondale in 1984.  But as a matter of national security, I can picture "Duke" pointing at Muslim or Christian terrorists or his wife's prospective rapist just like this and going, "Don't do that or I will have this tank shoot at you, or at least in your general direction!"

Mike, we hardly knew ye.  If only you'd have run again in 2008, tough guy, we wouldn't be in this mess today. You go, dude.

A merry Christmas from The New Reform Club

Christus natus est! Christ is born!

But you, Bethlehem in Ephrathah, 
as small as you are to be among Judah's clans,
out of you shall come for a governor for Israel, 
Therefore only so long as a woman is in labour shall he give up Israel; 
and then those that survive of his race shall rejoin their brethren. 
He shall appear and be their shepherd in the strength of the Lord, 
in the majesty of the name of the Lord his God. 
And they shall continue, for now his greatness shall reach the ends of the earth; 
and he shall be a man of peace. 
--Micah 5:2-5a (New English Bible). 

Thursday, December 24, 2015

Merry Christmas From the Moon









It is good. God bless us, every one.

Wednesday, December 23, 2015

Just how much did early Americans party during the Christmas holiday?

Quite a bit, as historian extraordinaire Thomas Kidd gives some of the background on the festive nature of Christmas back in the day: Was Christmas in Revolutionary America a Drunken Bash? As Kidd writes:
In the 1700s, Christmas was notorious for drunken bashes more reminiscent of Mardi Gras than our family-friendly holiday. An account from New York published during the "twelve days" of Christmas in early 1787 (the same year Americans would frame the new Constitution) paints a picture of a deeply conflicted holiday. As one might expect, some people focused on the religious meaning of the season, setting aside the time "for a most sacred purpose." Others, however, spent the twelve days "reveling in profusion, and paying their sincere devotions to merry Bacchus," the Greek god of wine and festivity. 

The overt partying that was part of the Christmas celebration back in the day certainly adds context to George Washington's eggnog recipe! Folks back in the founding era liked their 'nog strong, as did the Father of Our Country:
Love that last sentence.  Washington unfortunately left out the number of eggs to add to the receipt, so feel free to experiment a bit and still claim complete authenticity to Washington's concoction. Merry Christmas!

Tuesday, December 22, 2015

Helpful clarity about the Declaration of Independence

One of the things that amazes me, as a lawyer and as an educator, is how much confusion there is about what the Declaration of Independence is and what it isn't, and not just among regular citizens but among historians and legal scholars.  In my day job, I've published on the non-binding legal character of the Declaration, and over at the Law & Liberty blog Greg Weiner has published a helpful post reinforcing that point by pointing out the nature of the document: What the Declaration Doesn't Say.  In words that echo the fundamental insights of men like Russell Kirk and M.E. Bradford, Weiner writes:

Sunday, December 20, 2015

Miscellaneous Americana for the New Year










Twitter:  ( @SethBTillman )

Tuesday, December 15, 2015

Where do our rights come from?

  • "We, the people of the state of Idaho, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare do establish this Constitution." -- Preamble to the Idaho State Constitution.
  • "We, the people of the Commonwealth of Pennsylvania, grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking His guidance, do ordain and establish this Constitution." -- Preamble to the Pennsylvania State Constitution.

Monday, December 07, 2015

Thoughts on liberty & electoral integrity

- John Adams (1735-1826), second president of the United States, Inaugural Address (1797).

Sunday, December 06, 2015

Russell Kirk's conservative principle no. 2: society is organic

The Sage of Mecosta's second conservative principle involves the nature of society and the necessity of continuity in social order:

Saturday, December 05, 2015

Russell Kirk's Ten Conservative Principles: moral order is no. 1

During this election cycle, for those of us who consider ourselves to be conservative, it might be helpful to go back and think again about the basic principles of a conservative approach to political, economic & social issues. Conservativism, as Russell Kirk often reminded his readers, is not an ideology. Rather, it is an approach to thinking about questions of social, political, legal, spiritual & moral order. This approach, according to Kirk, is typified by several different characteristics, or as Kirk called them, "sentiments." For the next two weeks or so, I would like to spend some time reprinting Kirk's understanding of these different conservative sentiments, posting a different principle by Kirk. Kirk's essay, Ten Conservative Principles, is available in its entirety here. Here's the first principle:

Friday, December 04, 2015

What's a hundred years between friends?

Blogger/explainer Ezra Klein once said the Constitution was confusing because it was written "more than a hundred years ago." That was back in 2010, which itself seems like a hundred years ago. But it was no mere young-man's error. Seventh Circuit judge Richard Posner, the most-cited jurist of all time, raises Klein, saying "[t]he notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense."

Most Americans, I think, will not follow Posner or Klein in their rejection of American continuity. Gone With the Wind is still Americans' all-time favorite film, for example, despite being made a 'hundred years' ago in 1939 about the Civil War a 'hundred years' before that. The themes of community, honor, culture, love, war, and loss of the 19th century still connect through a story told in the 20th century to us now in the 21st. It's a great service movie-making does to put the history of each preceding generation on screen, to give a sense of our continuity and proximity.

For that matter, a hundred years—even two-and-a-half—is not so long. Consider this amazing fact from G. Edward White's biography of Supreme Court justice Oliver Wendell Holmes:
Holmes himself, born in 1841, still wearing high collars and swallowtail coats in his nineties, seems anything but a modern judge, even though one of his law clerks, Alger Hiss, died only in 1996. In some respects it seems easier to believe that Holmes knew John Quincy Adams, the sixth president dent of the United States, than that he worked with a man who lived into the 1990s.
Incredible. I might have traveled to New York during college to try to meet Hiss before he passed, which, by just three more introductions, would have connected me to a founding father. They might as well be in the phone book.

Thursday, December 03, 2015

The Guardian and San Bernardino

Rory Carroll et al., San Bernardino shooting suspects raised few red flags before ‘horrendous’ crime, The Guardian, Dec. 3, 2015, 20:08 GMT

"The motives of anyone who plans a mass shooting are necessarily murky and complex. But the actions of Syed Rizwan Farook and Tashfeen Malik seem more incomprehensible still."

"In one of the most jarring details to emerge in the aftermath of the shooting, it is now known that the couple, who died in a gunfight with police, began their day by leaving their six-month-old daughter with Farook’s mother."

Id. (emphasis added).

Why would anyone believe that the motives of those who “plan ... mass shootings are necessarily murky and complex? Are not such persons’ motives all too frequently simple and plain?

In what way are Farook and Malik’s actions “incomprehensible”? Precisely what is it that the writers are unable to comprehend?

How is it “jarring” that the killers sought to look after the welfare of their child before killing other peoples’ children?

Don’t you just love The Guardian.


PS: Here is my prior post: Seth Barrett Tillman, The Tale of the Swedish Prosecutor, the Citizen, and the Human Being, The New Reform Club (Dec. 3, 2015, 8:52 AM), 

Twitter:  ( @SethBTillman )


It may not be unnecessary to inform the Reader, that the following Reflections had their origin in a correspondence between the Author and a very young person at Paris, who did him the honour of desiring his opinion upon the important transactions, which then, and ever since, have so much occupied the attention of all men.
—E.B. (1790)

I suggested in my last missive that modernity has created:

a disconnected transnational ... elite ... which sees tradition, loyalty, and patriotism as primitive, and whose promoters teach that nations, citizenship, borders, and law defined by elected parliaments are irksome problems to be overcome.

Here I will try to continue that theme.

I cannot verify the facts of this story. So, please, consider this a piece of fiction: a mere story seeking to pose a moral question. In other words, it is a story about you: about what you believe about your government, your public officials, your fellow nationals, and others—foreigners—nationals of countries other than your own.

The story is that a Swedish prosecutor successfully convicted a migrant (hailing from the Third World) for raping a Swedish twelve year old. A sentence of confinement was imposed by the court. The judge asked the prosecutor to make a recommendation in regard to whether the defendant should be deported after the period of confinement ends.

The prosecutor made a recommendation against deportation.

The prosecutor reasoned that the defendant was unlikely to be rehabilitated by confinement, and therefore, the defendant was likely to commit the same crime again. The prosecutor’s position was that whether the defendant goes on to rape a Swede (or a non-Swede in Sweden) or someone in the defendant’s own home country should not be considered because the health, safety, and lives of all potential future victims should be valued equally. And equality is a value upon which we all do or should agree.

Did the prosecutor act rightly or wrongly?

If rightly, would you agree with the prosecutor’s moral framework, or would you articulate a different general principle which would better justify his/her recommendation against deportation? And in what circumstances, if any, should a prosecutor recommend deportation?

If wrongly, what general principle should the prosecutor have acted upon? And why is your moral framework better than the prosecutor’s equality principle? Equality is a generally recognized value. Right?

Finally, in what sense, if any, is this Swedish prosecutor Swedish? Was the prosecutor acting in his capacity as a citizen or human being? Both or neither?


PS: My prior is post: Seth Barrett Tillman, ‘Teaching Children About World Religions and Ethics Could Help Counter Islamophobia’: A Response, The New Reform Club (Nov. 26, 2015, 12:34 AM),

N/B: Welcome ChicagoBoyz and Instapundit readers. Please stop by again, and take a look at our blog. My co-bloggers have a lot to say too!

Twitter:  ( @SethBTillman )

Wednesday, December 02, 2015

When Puritans banned Christmas

During this festive time of year, it has become normal (sadly) to hear about various attempts to purge things like the Nativity Scene or at least tamp-down the actual word "Christmas" in the public square. From the pc greeting "happy holidays" to the effort by some to emphasize the old pagan winter celebrations to references to the Seinfeld-era faux-holiday Festivus, there seems to always be a level of consternation about using the word Christmas this time of year. You know, because it has that word in it. The new forbidden "C" word. Christ.

Well, there was a time when the ire against Christmas and its celebration here in America had to do with the last syllable of the word, the "mas" -- which is an abbreviated version of the word "Mass," a reference to the Catholic eucharistic liturgy. The Puritans who settled in New England and the Scottish Presbyterians who followed them in settling the American colonial frontier had a particular aversion to the celebration of Christmas, viewing it as a papist festival that had no place in a properly Reformed understanding of the Christian life. And if its Catholic roots weren't bad enough, Christmas was also impermissibly tinged, in the Puritan view, with the earlier pagan holidays that occurred in December, as the Puritan leader Increase Mather noted:
The early Christians who  first observed the Nativity on December 25 did not do so thinking that Christ was born in that Month, but because the Heathens' Saturnalia was at that time kept in Rome, and they were willing to have those Pagan Holidays metamorphosed into Christian ones.
Popery and paganism weren't the only Puritan objections to the Christmas celebration. Christmas also interfered with one of the joys of Puritan life: toil. One Puritan objection to the celebration of Christmas was that it promoted the playing of games and public idleness.  The blog A Puritan's Mind has a short discussion of Puritan efforts to ban the public celebration of Christmas here: When Christmas Was Banned. Horror of horrors, many Christmas observers would actually commemorate the day by ... wassailing!

Monday, November 30, 2015

Remembering Corizon Aquino






Sunday, November 29, 2015

Remembering Catholic liturgical patriotism in the early American Republic





Saturday, November 28, 2015

The theological roots of religious liberty


Thursday, November 26, 2015


After Paris, questions for us all
a response to 
Teaching Children About World Religions and Ethics Could Help Counter Islamophobia










responding to 


Twitter:  ( @SethBTillman )

Tuesday, November 17, 2015

Standing at the Edge of the Crazy Cliff

"I know it's a poem by Robert Burns."

Wednesday, November 11, 2015

The Court of the Friendless




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