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  • Seth Barrett Tillman: How My Next Academic Paper Ends: The Way Forward

    Posted by Jonathan on February 16th, 2018 (All posts by )

    First, the commentators above (along with other commentators) believe their position carries a strong presumption of correctness (if not certitude), that it is my duty to displace that presumption, and that they will be the judges if I have carried that burden. Certainly, I have never agreed to such terms for this debate. Nor should I. The text of the Constitution does not expressly state that the Foreign Emoluments Clause applies to the President. The text of the Constitution does not expressly define the scope of the Constitution’s “Office of Profit or Trust under [the United States]” language. The Supreme Court has had no occasion to address the scope of the clause or the meaning of the clause’s operative language (or even the scope of similar language in other clauses.). As educated generalists who have chosen to recently inject themselves into this debate, their opinions should get a hearing. I would add: so should mine. And since, what is involved here is a debate between opinions lacking firm judicial support, our divergent ideas (and we) meet as equals. I add that the Legal Historians are supporting the plaintiffs in active litigation. Generally, in civil litigation, the burden of proof, production, and persuasion falls on the plaintiff, not on the defendant.
     
    Second, it is time for my intellectual opponents to be fair. Claims that they have made that they know or now know to be incorrect should be withdrawn or revised. Claims that they have made asserting the existence of documentary support, should be supported, and promptly, with actual documents—or else the claims should be withdrawn. If they have to go through this process repeatedly, they might ask themselves if their position (and expertise) is really as strong as they have led themselves and others to believe.
     
    Third, it is time for my intellectual opponents to be forthcoming in regard to an improved debate and debate atmosphere—an atmosphere rooted in mutual respect and goodwill…

    Read the whole thing.