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Tablet, a Jewish magazine, published by the Jewish Journal of America Long profile Seth Barrett Tillman is my dear friend. I think that the author has captured Seth’s essence. Seth challenges me more than anyone I have ever met. And I don’t mean that in the cliché sense of “think critically.” He challenges every assumption – no matter how widespread – by bringing back intellectual communities which have long since faded. Seth has done it 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 believe that Lincoln ignored Chief Justice Taney’s order in Ex Parte Merryman. This assumption is essential to argue in support of a robust Article II. Tillman This assumption is disproved.
• Some scholars assume that that the Order, Resolution, and Vote Clause has the anti-circumvention rationale that Madison attributed to the Presentment Clause. This assumption is essential to defend INS v. Chadha. Tillman This assumption is disproved.
• Some scholars assume that Jacob Henry was expelled from the North Carolina House of Commons because he is Jewish. This assumption is needed to make broader statements about religious discrimination. Tillman This assumption is disproved.
• Some scholars assume there is no distinction between “Officer” (or “Officer of United States”) and “Officer”, and that the Framers used the “Officers”-language without discrimination. This assumption is needed to argue the Presidential Succession Act as unconstitutional. Tillman disproved this assumption.
• Some scholars believe that the president holds an “Office Under the United States.” It is necessary to make this assumption in order to argue against President Trump’s violation of the Foreign Emoluments Clause. Tillman disproved this assumption. Will Baude wrote it in 2017Tillman has a “nearly comprehensive theory” of how the different office related phrases in the Constitution work together. There is no secret code.
• Some scholars assume the President is an “Officer” of the United States for purposes of Section 3. of the Fourteenth Amendment. It is necessary to make this assumption in order to argue against President Trump’s disqualification for insurrection. Tillman disproved this assumption.
• I could go on.

There are two types of responses to Tillman. The first response does not engage Tillman at all, but instead calls Tillman “crazy”, “weird”, “fringe”, “strange”, or even “speaking a secret code” or an “Illuminati Priest.” This first response does little more than hyperbolize and degrade academic discourse. It doesn’t even bother to engage with Tillman. The second response is that Tillman’s arguments are wrong, he has missed a document or he has failed to account. The Hamilton document case from 2017, which has been resurrected inexplicably, shows how the second type of response typically works. Indeed, even Justice Scalia can err. Seth is a very close friend of mine, but he still has a memory bank full of things I have never heard.

I think the Tablet Profile really shows what makes Tillman tick. It’s not political bias, as some critics like to claim. It’s the exact opposite. Tillman was attracted to the “officer” stuff because it was It is not clear how to get there. political:

[Tillman] He told me that he had no idea the topic of the original meanings of official titles in the U.S. Constitution would ever be litigated. His lack of political relevance helped him to better understand the past. Tillman explained, “The more currency that a subject has, the more difficult it is to write on.” “That is, if you’re trying understand the past, often the present gets in the way. And the past gets rewritten so that it can be useful to the current.” Tillman explained.

…

Tillman’s diverse projects often probed various versions of a thematic question that was unifying: “What happens if there is something we forgot because no one thought they needed to write it down?” As he explained to me. He believed that the meanings of terms that seemed innocuous or obvious in the Constitution were part of this category of vanished information. Tillman noted that even textualists scholars, including Akhil Reed Amar, treated the Constitution’s offices and officers as if each title meant exactly the same. To recover any original, intended meaning, new approaches were needed.

Tillman’s scholarship challenges “useful fictionalities” and “assumptions.”

Human nature as a whole, not just the various subsets that make up law, history, or religion, often prefers useful fictional stories to uncomfortable truths. Especially when a figure such as Donald Trump is involved. Tillman said that “we are too willing to accept reasons without explanatory value.” . . .

Blackman told me that Tillman challenges the orthodoxies of people, things they took for granted. “He makes people rethink things, and they don’t like that.” The immediate response was, “he’s got to be nuts.” It can’t be that this guy in Ireland can rethink everything—it’s wrong.'” Blackman pointed out that Tillman “doesn’t seek their approval.”

Tillman told my that “it happens a lot in academic life” that people at the center feel very threatened to even consider the idea of something essential they don’t know.

It is so.

The conclusion of the piece highlights a topic on which Seth is not completely in agreement with me:

Does the persistence of an obscurity in the constitution, and the determination of partisans who want to exploit it to prevent an undesirable democratic result, reflect a strength or weakness of the U.S. System? Here, it was easy to discern a difference in opinion between Blackman’s and Tillman’s.

Blackman sighed a week later after the ruling. “Trump has just made obscure constitutional law great once again.” “Trump’s unique constellation of facts really tests the limits of what the law allows.” Blackman didn’t think that the discovery of exciting frontiers in constitutional law was worth the innovations in lawfare – the use of legal processes in order to circumvent normal politics.

The Supreme Court is soon to rule on Trump’s claims that he had immunity from prosecution for alleged criminal acts while president. This is another instance in which the ex-president, his opponents and fundamental questions of democracy and law are being fought months before Americans go to the polls. “To be honest, I’d rather not have had to deal with these cases,” said Blackman.

Tillman recalled grimmer scenarios when he heard about the alleged tenacity of the ballot-exclusion push. Tillman, who told me this from Dublin, said: “We must allow people the opportunity to use the legal system to challenge political opponents on weak theories. Otherwise the only alternative would be violence.” “What some people call irresponsible legal warfare is the price that we all pay for rule of law.”

I encourage you to read this article. If you are Jewish, print it to read on the weekend.

The post Tablet Magazine on Tillman: "A thinker whose mind hasn't been corrupted by politics." First on Reason.com.

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