Trump

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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The Pause

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Since Trump was elected it seems that anyone I’m speaking with who wants to bring politics into a conversation, and who doesn’t know me well, and who (I’m guessing) doesn’t like Trump, will make a remark about “these days” or “the situation” or something along those lines, and expect to continue (or not) the conversation in a political direction based on my response. At least that’s how it seems to me in my purplish part of the country. I don’t react when this happens. There may be a brief pause in the conversation. We continue with our nonpolitical topic or move on to another one.

I’d bet that many of the readers of this blog have had similar experiences. My question is whether this type of experience is the inverse of what politically left-of-center people experienced when Obama was president. Is it?

Discuss.

Seth Barrett Tillman: Bob Bauer’s Free Speech Problem and Ours

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We have a free speech problem in America. I have talked about it before. It starts with the judiciary. See Seth Barrett Tillman, This Is What Is Wrong with the American Judiciary, The New Reform Club (Mar. 16, 2017, 4:23 AM), http://tinyurl.com/z4q9f8v. But the wider legal community has embraced the same legal philosophy. They want you to shut up, and if you don’t shut up, there is always punishment. Here is an example…

An excellent post.