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Friday, February 16, 2018

How My Next Academic Paper Ends

The Way Forward
          As illustrated above, much of the discussion regarding the Foreign Emoluments Clause, the scope of its Office-language, and relevant historical inquiry has been less than useful. I think there are several reasons why we have come to this unfortunate state of affairs.

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 Claims that they have made that they know or now know to be incorrect should be withdrawn or revised.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existence of documentary support, should be supported, and promptly, with actual documents—or else the claims should be withdrawn.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. If the debate is going to be informative, might not I (or you, the reader) ask these commentators to do more than make a mere tactical claim: viz., the President falls under the aegis of the Foreign Emoluments Clause. Might not I (or you, the reader) ask these commentators to turn to the more challenging intellectual question: viz., What is the scope of the Foreign Emoluments Clause and its operative “Office of Profit or Trust under [the United States]” language? Some heavy intellectual lifting might be involved. Once they have defined that language, maybe they could, maybe they should, tell us if the clause extends to: (i) Senators, (ii) Representatives, (iii) presidential electors, (iv) federal jurors, (v) attorneys admitted to practice in federal courts, (vi) advisors to the President who lack individualized legal discretion to affect binding legal relations, (vii) state judges subject to mandamus orders by federal courts, (viii) elected territorial officials, (ix) territorial officers appointed by elected nonjudicial territorial officials, (x) enlisted federal military personnel, (xi) state militia officers called into national service by the President, (xii) federal civil servants, (xiii) federal contractors, (xiv) members of a national Article V convention, (xv) members of state ratifying conventions called pursuant to Article V, (xvi) American appointees to treaty created offices (where the treaty is not domesticated), (xvii) multistate compact officials, (xviii) qui tam plaintiffs asserting federal causes of action, (xix) holders of letters of marque and reprisal, (xx) trustees, directors, members, officers, employees, and other agents of federally chartered trusts, corporations, and other private entities with legal personality, and (xxi) individuals affiliated with private entities created under state (or federal, or even foreign) law in which significant equity (or, possibly, debt) is held by the United States government. I do not ask this to satisfy idle curiosity. The commentators above believe they have a coherent (if not correct) intellectual position. But the only way for us to be confident that their position is coherent (or correct) is for them to communicate their position to the rest of us so that we can see how it plays out, not only in regard to the presidency, but in regard to other federal and state positions. And if they cannot do so, is not that telling? 


Welcome Instapundit readers!

Here is part of the Article: Seth Barrett Tillman, A Response to Professor Victoria F. Nourse’s Reclaiming the Constitutional Text from Originalism: The Case of the Foreign Emoluments Clause (Feb. 18, 2018), https://ssrn.com/abstract=3125806.

Seth Barrett Tillman, How My Next Academic Paper Ends, New Reform Club (Feb. 16, 2018, 11:52 AM), http://reformclub.blogspot.ie/2018/02/how-my-next-academic-paper-ends.html

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