Seth Barrett Tillman

President Lincoln and Ex Parte Merryman

My goal is to displace the several factual and legal myths associated with Ex Parte Merryman, and to explain the practical modern relevance of this project.

Ex Parte Merryman: A Short Reply to Andrew Hyman and Others

I recently posted a short paper taking issue with the standard restatement of Ex parte Merryman. This paper is a short reply to several responses which I have received from Andrew Hyman (posted at the Originalism Blog) and others.This paper addresses the myths that make up Merryman scholarship. The first and primary Merryman myth is that Lincoln ignored or defied a judicial order from Taney to release Merryman. The second Merryman myth is that Lincoln ignored Taney’s opinion. The third Merryman myth is that Lincoln could have and should have upheld rule of law values by seeking clarity from the courts by appealing Taney’s Merryman decision to the (full) U.S. Supreme Court. The fourth myth is that General Cadwalader, who was in overall command of Fort McHenry, ignored or defied Taney by not showing up for the first day’s hearing on May 27, 1861, and that he defied Taney by not producing Merryman as he was ordered to do. Lest there be any confusion . . . some have argued that the President — in certain circumstances — has an independent power to interpret the Constitution, and a concomitant power to defy court orders if the President comes to a good faith conclusion that the courts have erred. I have not here or elsewhere opined on the correctness of this departmentalist view. This view may be the best or the correct understanding of the original public meaning of the Constitution, and it may not. Instead, I make only the more limited claim that Merryman and what we currently know about Lincoln’s actions in connection with the Merryman litigation and its aftermath are too ambiguous to lend support to a strong departmentalist view of the Constitution. It may be that there is support for a Merryman power, but wherever that support may be, it is not to be had in Merryman.

Point of Order Blog: Michael Stern & Seth Barrett Tillman: An Exchange on the Constitution’s Office-Related Language, February 22, 2013 & March 7-10, 2013

This is an exchange between Michael Stern & Seth Barrett Tillman in regard to the Constitution’s Office-related language. The exchange appeared on Point of Order blog, and it ran between February 22, 2013 & March 7-10, 2013.

Amendment XIV and Federal Pension Obligations: A Response to Professor Michael McConnell

Professor McConnell has argued that: For Congress to limit the amount of the debt does not “question” the “validity” of the debt that has been “authorized by law.” At most, it means that paying the public debts and pension obligations of the United States, as they become due, has priority over all other spending. Although McConnells first statement is correct, his second statement is incorrect. Giving the federal debt priority over other government obligations requires a firm legal basis. Amendment XIV supplies no such basis.

Conference Paper: Comparative Public Law, Originalism, and Foreign Parliamentary Materials: One American’s Exploration of Australian Judicial and Parliamentary Materials

Historians, political scientists, academic lawyers, litigants, and judges have parsed nearly every article, clause, phrase, and word of the United States Constitution of 1787. Nonetheless, there remain a few “orphan” clauses: obscure provisions and clauses which have escaped significant academic and judicial commentary. Of course, absent concrete cases and controversies, judges have no substantial opportunity to opine on such provisions. When academics engage these materials, the results are not too pretty. One standard response is to opine that these provisions had no reasonably determinate meaning in 1787 within the American polity, or, even if they once (may have) had such a determinate meaning, we now lack sufficient records to determine their meaning. Another standard trope is to assume that these clauses are redundant (with other clauses whose meaning we know) or to assume aspirational unity with other clauses (again, clauses whose meanings we know). In this lecture, I will discuss three orphan provisions, including: (i) the Orders, Resolutions, and Votes Clause (U.S. Constitution Article I, Section 7, Clause 3); (ii) the “Propose or Concur with Amendments” language within the Origination Clause (U.S. Constitution Article I, Section 7, Clause 1); and (iii) the diverse language in the Constitution relating to Office and Officer. In regard, to each provision (or related set of provisions), I will explain how the current understanding (or, at least, my understanding) of these provisions has been destabilised (or influenced) by investigating foreign legal – in particular, foreign parliamentary – materials. Finally, I will opine on why I believe Australian (and Canadian) legal, and especially parliamentary, sources, are likely to prove particularly useful sources in developing early American constitutional and statutory materials. [September 2, 2013]

The Mini-Unitary Executive and the Original Public Meaning of the Opinions-in-Writing Clause

This is paper is part of my continuing project of discussing the under explored clauses and private law linguistic origins of the Constitution of 1787. In this paper, I argue that the Opinions-in-Writing Cause was meant to serve a concrete purpose and, contrary to Hamilton, was no mere redundancy. The Opinions-in-Writing Clause effectuated the record keeping function of the Mini-Unitary Executive. [This article has not yet been drafted. It is just in the idea stage.]

Noncontemporaneous Lawmaking: Can the 110th Senate Enact a Bill Passed by the 109th House?

The text of the Constitution nowhere expressly demands contemporaneous action (i.e., during the life of a single two year session) by the two houses of Congress as a precondition for valid lawmaking. No on-point federal decision mandates contemporaneity - nor do the precedents of the two Houses (i.e., the reported decisions of the Speaker, the Clerk, the Secretary, the parliamentarians, etc.). Is this a power Congress has chosen never to exercise? Or, a power that Congress does not possess? Can we be sure that the federal courts would intervene to block such a practice, particularly if the bill were signed by a Speaker and a Vice-President - albeit, perhaps not in office concurrently? This paper makes heavy use of foreign authority, including, Australian, British, Canadian, Indian, and New Zealand sources. Additionally, this paper criticizes prior domestic scholarship in this area. This piece is presented in a comic voice: a memorandum offering confidential legal advice to Speaker Hastert from an embittered politically spiteful Republican House counsel. My opening article will appear at: Tillman, Noncontemporaneous Lawmaking, 16 Cornell J. of Law & Public Policy 331 (2007), available at http://ssrn.com/abstract=505822. Professor Aaron-Andrew P. Bruhl response to my opening article will appear at: Bruhl, Response, Against Mix-and-Match Lawmaking, 16 Cornell J. of Law & Public Policy 349 (2007), available at http://ssrn.com/abstract=932574. My Reply to his response will appear at: Tillman, Reply, Defending the (Not So) Indefensible, 16 Cornell J. of Law & Public Policy 363 (2007), available at http://ssrn.com/abstract=956155.