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.
