The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Tablet Magazine on Tillman: "A thinker whose mind hasn't been corrupted by politics."
Tillman on most things: "There are multiple aspects of the standard narrative ... that just don’t make any sense and that people just have mindlessly repeated for almost two centuries now,”
Tablet, a Jewish Magazine, published a lengthy profile of my dear colleague Seth Barrett Tillman. I think the author really captured Seth's essence. Seth, more than anyone else I've ever met, challenges everything. And I don't mean that in the cliché sense of "think critically." He challenges every assumption, no matter how widely adopted, by bringing forward intellectual communities that have long since faded away. Seth has done this in more contexts than I can count. And in each 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 Lincoln ignored Chief Justice Taney's order in Ex Parte Merryman. And that assumption is necessary to argue in favor of a robust Article II power. Tillman disproved that assumption.
- Some scholars assume that that the Order, Resolution, and Vote Clause has the anti-circumvention rationale that Madison attributed to the Presentment Clause. And that assumption is necessary to defend INS v. Chadha. Tillman disproved that assumption.
- Some scholars assume that the North Carolina House of Commons expelled Jacob Henry because he was Jewish. And that assumption is necessary to make broader points about religious discrimination and pluralism. Tillman disproved that assumption.
- Some scholars assume that there is no difference between an "Officer" and an "Officer of the United States," and the Framers used "Officer"-language indiscriminately. And that assumption is necessary to argue that the Presidential Succession Act is unconstitutional. Tillman disproved that assumption.
- 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 disproved that assumption. As Will Baude wrote in 2017, Tillman "has a nearly comprehensive theory of how all of 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 that assumption is necessary to argue that President Trump is disqualified for engaging in insurrection. Tillman disproved that assumption.
- 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 "strange" or speaking a "secret code" or being an "Illuminati priest." This first approach does little to actually address Tillman's arguments, other than use hyperbole, and degrade 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 Hamilton document incident from 2017, which was inexplicably resurrected of late, demonstrates how this second type of response usually shakes out. Indeed, even Justice Scalia can err. As close as I work with Seth, he still pulls things out of his memory banks that I had never heard of it.
I think the Tablet profile really illustrates what makes Tillman tick. No it is not, as some critics love to charge, some sort of political bias. It's actually quite the opposite. Tillman got into the "officer" stuff precisely because it was not political:
[Tillman] told me that when he began researching the original meanings of the various official titles in the U.S. Constitution he did not think the topic would ever be litigated, and saw its lack of political salience as aiding in a clearer comprehension of the past. "The things I wanted to understand, the things that I thought were important to know, become more difficult to write about the more currency they have," Tillman explained. "That is: If you're trying to understand the past, the present often gets in the way and the past often gets rewritten to make itself useful to the present."
…
Tillman's various projects often probed different versions of a unifying thematic question: "What if there's something we forgot in part because no one ever thought they had to write it down?" as he put it to 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 noticed that even textualist scholars, most notably Akhil Reed Amar, treated the Constitution's offices and officers language as if every title meant the exact same thing. Retrieving any possible original, intended meaning required inventive new approaches.
And with that scholarship, Tillman challenges "useful fictions" and "assumptions."
Human nature in general, not just its various subsets of law, history, and religion, often prefers useful fictions to uncomfortable truths, especially when a figure as unique and polarizing as 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 explained to me. "He makes them rethink it, and they don't like doing that. The immediate response is, 'he's gotta be nuts. It can't be that this guy in Ireland can rethink everything—it's wrong.'" Luckily, Blackman noted, Tillman "doesn't seek their approval."
"It happens a great deal in academic life," Tillman told me, "that the people at the center often feel very threatened with even considering the idea that there's something essential they don't know."
And so it is.
The conclusion of the article highlights one area on which Seth and I do not see entirely eye-to-eye:
Did the persistence of a constitutional obscurity, and the dedication of partisans to exploiting it in order to preclude an undesired democratic result, reveal a strength or a weakness of the U.S. system? Here, it was possible to spot a difference of opinion between Blackman and Tillman.
"Trump just makes obscure constitutional law great again," Blackman sighed the week after the ruling. "Trump has this unique constellation of facts that really test the boundaries of what the law permits." Blackman didn't seem to think the discovery of exciting new frontiers in constitutional theory was worth the attendant innovations in lawfare, the use of legal processes to circumvent the normal run of politics.
The Supreme Court will soon have to rule on Trump's claims that he was immune from prosecution over alleged criminal acts as president, another instance where the ex-president and his opponents are battling over fundamental questions of law and democracy in the months before Americans are supposed to vote. "To be completely honest, I would much rather have never had to deal with any of these cases," said Blackman.
For Tillman, the alleged tendentiousness of the ballot exclusion push recalled much grimmer possibilities. "We have to allow people to make use of the legal system to challenge their political opponents even on weak theories because if we don't the only alternative is violence," Tillman told me from Dublin. "What appears to some people as irresponsible lawfare is the price we all pay for the rule of law."
I encourage everyone to read this article, and for my Jewish friends, print it out to read over the weekend.
