In Trump’s electoral case in Colorado, the outsider theory occupies a central place

In the world of American legal studies, Seth Barrett Tillman He is an outsider in more ways than one. As an associate professor at a university in Ireland, he has proposed unusual interpretations of the meaning of the United States Constitution that for years have been largely ignored, if not outright dismissed as far-fetched.

But at 60, Professor Tillman enjoys a certain level of vindication. When the U.S. Supreme Court on Thursday considers whether former President Donald J. Trump is barred from the Colorado primary, a seemingly counterintuitive theory that Professor Tillman has championed for more than 15 years will take center stage and could shape the presidential election.

The Constitution uses several terms to refer to government officials or offices. The conventional view is that they all share the same meaning. But by his account, each is different and, crucially for the case before the court, the particular phrase “officer of the United States” refers only to appointed positions, not the presidency.

If a majority of the court accepts Professor Tillman’s reasoning, then Trump would be allowed to appear on the ballot. At issue is the meaning of Section 3 of the 14th Amendment, adopted after the Civil War, which prohibits people from holding public office if they participated in an insurrection after having sworn to defend the Constitution as an “officer of the States.” Joined”.

Professor Tillman, with a thick beard, black-rimmed glasses and studious demeanor, flew to the United States this week to witness the arguments. With Josh Blackmanwho teaches at South Texas College of Law in Houston, Professor Tillman presented a friend of the court writing and He was asked to participate in the arguments.but the court rejected.

Still, his hobbyhorse will be on the Supreme Court’s agenda, and it has received both enthusiastic support and fierce rejection.

Mr. Trump’s legal team led with the idea in his brief to the court, and many supporters of overturning Colorado’s disqualification of Trump have invoked it, including three former Republican attorneys generalEdwin R. Meese III, Michael Mukasey, and William P. Barr.

But former conservative Justice J. Michael Luttig, in a lightning series of publications about, mocked Trump and his supporters for having “put all their eggs in Blackman and Tillman’s tattered basket of constitutional interpretation.” He cited a recent Lawfare article That drew attention to a letter Justice Antonin Scalia sent to Professor Tillman in 2014 rejecting his theory. (Professors Tillman and Blackman published it in an article last year.)

During a video interview from his book-lined Dublin living room, Professor Tillman chuckled ruefully and noted his outsider status (and location) while saying that critics were objecting “in the most petty and personal way, without any attempt to deal with the ideas.”

“It’s very discouraging,” he added. “But fortunately I am here. “I’m in a position where I can get away from those things.”

Akhil Reed Amarprofessor at Yale Law School who presented a brief Siding with the Colorado high court, he described Professor Tillman’s theory as a “trick” that relied on tracing words in “all these interesting little ways that don’t make sense as a whole.” He predicted that he would get at most three votes on the nine-member court.

At the same time, Professor Amar described Professor Tillman as a “brilliant” person who was finally gaining widespread recognition.

“Tillman is one of the genuinely interesting people in our world and the world hasn’t rewarded him very much,” he said. “He thinks about the strength of character it takes to keep slogging away for 30 years at some of these things, when no one seems to pay attention to you.”

Professor Tillman declined to predict how the Supreme Court would rule, but said that even a vote based on its position would give it credibility as a “serious or reasonable view.” But when asked whether he would feel justified if a majority of justices backed him, he adopted a tone of resignation.

In a sense, yes, he said. “But in the sense of, would there be any demand in the larger sector of the American legal academy? I think the answer is no. “I think they would still say what the majority has already said, which is that the particular opinion I presented is erroneous and if the Supreme Court adopted it, it did so for pragmatic reasons that they do not want to acknowledge.”

The Supreme Court could also decide the case on other grounds. It could confirm Colorado’s decision. Or you could return Trump to the ballot based on different reasoning, such as saying that Trump’s actions leading up to the Capitol riot on January 6, 2021 fell short of an insurrection, or that, as Professor Tillman also argues, Section 3. would need a statute to be enforceable.

But earlier in the case, a trial judge in Denver accepted Professor Tillman’s idea. While the judge ruled that Trump’s efforts qualified as insurrection, she kept him on the ballot because, she said, presidents are not “officials of the United States.” The Colorado Supreme Court later disagreed. But Professor Tillman said the fact that a lower court had accepted his position already meant he could no longer be dismissed as out of the ordinary.

Professor Tillman, an Orthodox Jew who unplugs for the Sabbath at sundown every Friday, was born in New York in 1963, the second of two children. His father was co-owner of a factory in Yonkers and his mother was a housewife.

His parents moved to suburban Rockland County when he was 7, he said, because they were alarmed that he had witnessed a murder on a playground. He said a woman had slapped a drunk man, who chased her until a janitor intervened and strangled the man to death.

After earning a bachelor’s degree in economics from the University of Chicago in 1984, he worked as a commodities trader and researcher until 1997, when he enrolled at Harvard Law School. Once he graduated in 2000, he bounced around for a decade, completing four judicial clerkships and a stint at two law firms, while writing academic articles.

He wanted to be a law professor but had difficulty finding a full-time position. In 2011, Maynooth University’s School of Law and Criminology hired him as a lecturer and he moved to Ireland with his wife, now a secretary at a Dublin synagogue, and his four children. In his spare time, he said, he likes to observe the stars and the history and political philosophy of East Asia. This quarter, he teaches equity and trust law.

He said he was grateful for the job, but also seemed somewhat lonely professionally. He noted that most of his Maynooth colleagues focus on legal issues related to Ireland or the European Union, rather than the American constitutional issues that concern him.

Professor Tillman described himself as the eternal outsider. His great passion, he said, has been to show that the original meaning of the Constitution’s words and phrases is rooted in parliamentary understandings that quickly disappeared after its ratification, when American thought shifted to a model of separation of powers that emphasized the power of attorney. instead of Congress. Few academics on the left or right, he said, are interested.

“I’m not on anyone’s speed dial in the United States; my work is very unusual,” he said, adding: “If you try to promote that or sell that position in the United States, within legal academia, the opportunity The problem of finding an audience is extremely small.”

Professor Tillman employs a close reading of the Constitution. He assumes that the text was written with tremendous precision and intentionality, so subtle distinctions are significant and their meaning can be inferred by carefully tracing the words throughout the text.

His argument that presidents are not “officials of the United States” dates back to his response to a law journal article from 1995 by Professor Amar and his brother, Vikram D. Amarprofessor at the University of California, Davis.

A law that places the speaker of the House of Representatives and the president pro tempore of the Senate in the presidential line of succession is unconstitutional, the Amars argued, in part because of a provision prohibiting “holding any office under the United States” and because at the same time being a member of Congress. In a footnote, they noted that a “comrade” might try to insist that the presidency is not an “office under the United States,” even if they rejected that idea.

“The basis of the document, as I understood it, was that the different terminology in the Constitution for ‘office’ and ‘officer’ meant the same thing,” Professor Tillman recalled. “I started an intellectual project that consisted of saying: ‘Well, what if the Amars are wrong? What if the different phraseology of ‘officer’ in the Constitution had different meanings?’”

In short, Professor Tillman became a sophist. As a paralegal in 2008, for example, stated in a document that the winner of the 2008 presidential election, which pitted Senator Barack Obama against Senator John McCain, could retain his seat in the Senate and at the same time serve as president.

Professor Tillman made several versions of that argument, and it eventually caught the attention of William Baude, a law professor at the University of Chicago. In a short essay In 2016, Professor Baude seemed both bewildered and intrigued.

“When you read an individual article by Tillman, you will notice extremely technical arguments combined with an almost urgent voice,” Professor Baude wrote. “You can’t help but think the author is brilliant and you can’t help but wonder if he is quite eccentric. As you read more pieces together, you will realize that he has a constitutional project, that he pursues it with great skill and knowledge, and that if he didn’t do it, no one would.”

That does not mean that Professor Baude agreed. Last summer he co-wrote a widely cited article arguing on originalist and textualist grounds that Trump is not eligible to be president again. The essay repudiated Professor Tillman’s view, saying that phrases like “United States officer” should be read “sensiblely, naturally, and in context, without artifice” that would turn them into a “‘secret code’ laden with hidden meanings.”

Professor Tillman’s theory began to receive more attention as the Trump presidency raised new legal questions. After Trump won the 2016 election, Professor Blackman said he recognized that a president owning a global hotel empire would lead to legal fights over the Constitution’s foreign emoluments clause. He prohibits people holding “any lucrative or fiduciary office under” the United States from accepting certain payments from foreign states.

Professor Blackman approached Professor Tillman and proposed writing on the topic of the office. In a case challenging Trump’s acceptance of foreign government sponsorship at the hotel he then operated in Washington, the two academics filed a friend of the court writing arguing that the clause does not cover the presidency.

In a 2018 ruling, a federal judge in Maryland committed for a long time with Professor Tillman’s opinion, and rejected it. That case was ultimately dismissed for other reasons. But the Colorado electoral case has now given the line of research even greater relevance.

“Their work was frenetic,” Professor Blackman said. “Now everyone is listening.”