Trump

Seth Barrett Tillman: Good Lawyers & Good Books: My Personal Difficulties During the Recent Hamilton-Signatures Dispute

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These five experts did a very brave thing. They knowingly took on the cause of historical truth in spite of the fact that a social media mob had already descended on me, and in spite of the fact that they don’t (as far as I know) have any particular love for the administration. (Indeed, one of them loathes the President, but nevertheless took on this project because it was the right thing to do.) They have all written extensively on Hamilton, the Constitution, the Founding Era, and/or the Early Republic. As a personal favor to me, and if you value what has been accomplished to date, I would ask you to buy their books. If you cannot buy a book or two, please ask your local library or university library to do so. Of course, cite to their publications in your articles and elsewhere. That’s a valuable thing too. If you want honesty in our courts, in legal practice, and in the wider intellectual marketplace of ideas, then honest researchers have to be able to make a living. So if you can, help.

Read the whole thing.

Seth is gracious to people who helped him. He deserves great credit for his original and important scholarship, and for standing firm in the face of scurrilous personal attacks

Josh Blackman and Seth Barrett Tillman: The ‘Resistance’ vs. George Washington

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The conclusion of Seth’s brief piece:

But for some reason the Trump administration continues to stand by the 2009 opinion, drawn up when Mr. Obama was being awarded the Nobel Peace Prize, which came with a $1.4 million award. The Office of Legal Counsel concluded Mr. Obama could accept the money, but the opinion simply assumed the Foreign Emoluments Clause applied to the presidency. It was taken as a given with no citations either to judicial rulings or to the practices established by Washington and other founders.
 
We have submitted friend-of-the-court briefs in New York, the District of Columbia and Maryland explaining this argument. At a minimum, the historical record should give Justice pause. But ideally the department would abandon the 2009 opinion and argue in court that the president is not governed by this clause. Mr. Trump’s adversaries are arguing that Washington and Jefferson were crooks.

(The full column is behind a pay wall but is worth reading if you have access.)

Seth Barrett Tillman: Tillman Responds to the Legal Historians Amicus Brief in CREW v. Trump Emoluments Case

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From the post:

I stand entirely behind the above footnote: behind every sentence, every phrase, every word, and every syllable. I have made no mistake, intentional or inadvertent. I retract nothing, and I do not intend to retract anything.
 
Recently, my amicus brief and scholarship has been criticized by the Legal Historians Brief, other academics, some litigators, and by the press. Here I respond. This document is my declaration submitted as an exhibit to a motion responding to the Legal Historians Brief.

See also the comment by Glenn Reynolds here.

My money’s on Seth.

Seth Barrett Tillman: Karl Popper’s Falsifiability: The Foreign Emoluments Clause—A Debate Between Constitutional Eloi and Constitutional Morlocks

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https://ssrn.com/abstract=2996412

Abstract
How should we understand the Foreign Emoluments Clause? The debate has been presented to the public as a choice between idiosyncratic conservatives embracing early practice and liberals embracing intellectual reconstructions of constitutional purpose. That distinction is only the surface. The reality is that this debate is a conflict between constitutional Eloi and constitutional Morlocks.
 
The ninety-nine percenters are our constitutional Eloi, our beautiful people, our self assured true believers who regularly assume they understand 99% of the Constitution’s original public meaning. For them, figuring out what a yet-to-be adjudicated clause means is easy: it only requires their selecting the most eligible meaning which already fits in with what they already know. And what’s the danger of that strategy—when you already know (or believe you know) 99% of what there is to know?
 
On the other side, we have constitutional Morlocks. Morlocks are ugly, or, at least, their theories are ugly. Ugly and dangerous. Morlocks don’t believe they know 99% of what there is to know, and, not surprisingly, they don’t believe the Eloi or anyone else knows 99% either. Moreover, Morlocks believe that fitting what you don’t know into what you (think you) know permanently freezes our constitutional theories even when those theories are entirely wrong.

(Seth adds: The PDF posted on SSRN is my amicus brief in CREW v. Trump.)

To Save the Union

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Before the Civil War, the two sides often read different authors, saw different newspapers, read different novels. Some northern works were not easily available in the south and the levels of literacy differed. Of course, today, all is open. We choose to narrow our options: a Fox listener is likely to be a Wall Street Journal reader who begins surfing with Instapundit. A CNN listener is more likely to read the NYTimes and check out HuffPost.

So, we can speak to each other, but anyone listening to the rhythms of Obama and those of Trump, the voices of the average humanities teacher and of the dirty jobs guy, may well wonder if they would understand. (Though, of course, it is a perspective rather than position Rowe and Victor Davis Hanson, as academically credentialed as they come, understand each other thoroughly.)

Listening to Trump’s speech on Charlotte, I heard something reporters didn’t mention. The speech’s rhythms came from an emphasis we’ve heard before: in Trump’s inaugural, in Lincoln’s second inaugural and blended them in Trump’s less rhythmical, less evocative but direct and emotion-driven voice. It lacks the distance and gravitas of Lincoln, but its purpose is similar.

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