Tablet, a Jewish magazine, published a long profile of my dear colleague Seth Barrett Tillman. I think the author really captured the essence of Seth. Seth, more than anyone he’s ever met, challenges everything. And I don’t mean that in the cliché sense of “thinking critically.” He challenges every assumption, no matter how widely adopted, bringing forward intellectual communities that have long disappeared. Seth has done this in more contexts than I can count. And in every context he has clashed with those who seek to perpetuate those narratives, especially where that assumption is essential to their scholarship.
- Some scholars assume that there is no difference between an “Officer” and a “United States Officer” and the Framers used the language “Officer” indiscriminately. And this assumption is necessary to argue that the presidential succession law is unconstitutional. Tillman refuted this hypothesis.
- Some scholars assume that the President holds an “office under the United States.” And that assumption is necessary to argue that President Trump was violating the Foreign Emoluments Clause. Tillman refuted this hypothesis. As Will Baude wrote in 2017, Tillman “has a nearly complete theory of how all the different office-related phrases in the Constitution make sense together.” There is no “secret code”.
- Some scholars assume that the President is an “Officer of the United States” for purposes of Section 3 of the Fourteenth Amendment. And this assumption is necessary to argue that President Trump is unfit to engage in an insurrection. Tillman refuted this hypothesis.
- Some scholars assume that Lincoln ignored Chief Justice Taney’s order Ex Parte Merryman. And that assumption is necessary to sustain strong power under Article II. Tillman refuted this hypothesis.
- Some scholars assume that the Order, Resolution, and Vote clause has the anti-circumvention logic that Madison attributed to the Presentment clause. And this assumption is necessary to defend INS v. Chadha. Tillman refuted this hypothesis.
- Some scholars assume that the North Carolina House of Commons expelled Jacob Henry because he was Jewish. And this assumption is necessary to formulate broader considerations on religious discrimination and pluralism. Tillman refuted this hypothesis.
- I could go on.
There are two general types of responses to Tillman. The first type of response doesn’t even bother to engage with Tillman, but instead calls him “crazy” or “weird” or “fringe” or “weird” or that he speaks a “secret code” or that he is an “Illuminati priest” . This first approach does little to actually address Tillman’s arguments, beyond using hyperbole and degrading academic discourse. The second type of response argues that Tillman is wrong, or that he missed a document, or that he failed to account for something. The 2017 Hamilton document incident, inexplicably resurrected in recent times, demonstrates how this second type of response usually crumbles. Indeed, even Justice Scalia can be wrong. As much as I work with Seth, he keeps pulling things out of his memory that I’ve never heard of.
I think the Tablet profile really illustrates what makes Tillman tick. No, it is not, as some critics like to accuse, some kind of political prejudice. In reality it is quite the opposite. Tillman got into the “officer” thing precisely because he was one Not politic:
[Tillman] he told me that when he began researching the original meanings of the various official titles in the U.S. Constitution he didn’t think the topic would ever be controversial, and he saw its lack of political relevance as aiding a clearer understanding of the past. “The things I wanted to understand, the things I thought were important to know, become harder to write down the more valuable they are,” Tillman explained. “That is: if you are trying to understand the past, the present often gets in the way, and the past is often rewritten to make itself useful to the present.”
…
Tillman’s various projects often probed different versions of a unifying thematic question: “What if there was something we’ve forgotten in part because no one ever thought they should write it?” like he told me. He believed that the meaning of seemingly innocuous or self-evident terms in the Constitution belonged to this category of vanished knowledge. As early as the mid-1990s, Tillman noted that even textualist scholars, notably Akhil Reed Amar, treated the offices and language of the Constitution’s officials as if each title meant exactly the same thing. Recovering every possible original and intended meaning required new creative approaches.
And with this erudition, Tillman challenges “useful fictions” and “hypotheses.”
Human nature in general, not just its various subsets of law, history, and religion, often prefers convenient fictions to inconvenient truths, especially when a unique and polarizing figure like Donald Trump enters the equation. “We are too willing to accept explanations that have no explanatory force,” Tillman said. . . .
Tillman challenges orthodoxies, things that people took for granted,” Blackman told me. “He makes them reconsider, and they don’t like to do that. The immediate response is: “he must be crazy”. It can’t be that this guy in Ireland can rethink everything: he’s wrong.’” Fortunately, Blackman noted, Tillman “doesn’t seek their approval.”
“It often happens in academic life,” Tillman told me, “that the people at the center often feel very threatened by even considering the idea that there is something essential that they don’t know.”
And so it is.
The conclusion of the article highlights an area that Seth and I don’t entirely agree on:
Has the persistence of constitutional obscurity and partisans’ dedication to exploiting it to prevent an unwanted democratic outcome revealed a strength or weakness of the U.S. system? Here it was possible to identify a difference of opinion between Blackman and Tillman.
“Trump makes an obscure constitutional law great again,” Blackman sighed the week after the ruling. “Trump has this unique constellation of facts that really test the limits of what the law allows.” Blackman did not seem to believe that the discovery of exciting new frontiers in constitutional theory was worth the resulting innovations in legislation, the use of legal processes to circumvent the normal course of politics.
The Supreme Court will soon have to rule on Trump’s claims that he was immune from prosecution for alleged criminal acts as president, another case in which the former president and his opponents have been fighting over fundamental questions of law and democracy in the months leading up to the Americans’ assumption. vote. “To be completely honest, I would much rather have never had to deal with any of these cases,” Blackman said.
For Tillman, the alleged tendentiousness of the push for electoral exclusion beckoned much darker possibilities. “We need to allow people to use the legal system to challenge their political opponents even with weak theories, because if we don’t the only alternative is violence,” Tillman told me from Dublin. “What appears to some to be an irresponsible piece of legislation is the price we all pay for the rule of law.”
I encourage everyone to read this article and, for my Jewish friends, to print it out to read over the weekend.
The Tablet Magazine post on Tillman: "A thinker whose mind has not been corrupted by politics." first appeared on Reason.com.