In the world of American legal scholarship, Seth Barrett Tillman is an outsider in more ways than one. An associate professor at a university in Ireland, he has proposed unusual interpretations of the meaning of the US Constitution that have for years been largely ignored – if not outright dismissed as unusual.
But at 60, Professor Tillman enjoys some level of vindication. When the U.S. Supreme Court considers Thursday whether former President Donald J. Trump is shut out of the Colorado primary, a seemingly contradictory theory that Professor Tillman has championed for more than 15 years will take center stage and could shape the presidential election.
The Constitution uses various terms to refer to government officials or offices. The conventional view is that they all share the same meaning. But according to his account, each is separate — and that, crucial to the case before the court, the specific phrase “officer of the United States” refers only to appointed positions, not the presidency.
If the majority of the court accepts Professor Tillman’s reasoning, then Mr Trump will 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 bars people from holding office if they participated in a rebellion after taking an oath to uphold the Constitution as an “officer of the United States.”
Professor Tillman, heavily bearded with black-rimmed glasses and a biblical demeanor, flew to the United States this week to watch the arguments. With Josh Blackman, who teaches at Texas South College of Law in Houston, Professor Tillman filed a brief for friends of the court and asked to join arguments, but the court refused.
However, his hobby will be on the Supreme Court’s agenda and has garnered both zealous support and fierce pushback.
Mr. Trump’s legal team took the idea to court, and many supporters of overturning Mr. Trump’s Colorado ban have invoked it — including three former Republican attorneys general, Edwin R. Meese III, Michael Mukasey and William P. Barr.
But conservative former Justice J. Michael Luttig, at a languishing series of posts on X, mocked Mr. Trump and his supporters for “putting 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 this in a paper last year.)
During a video interview from his book-filled living room in Dublin, Professor Tillman gave a rueful laugh and pointed to the outsider’s condition – and its location – as he said critics were objecting “in the most intense and personal way, without no effort to grasp the ideas.’
“It’s very disappointing,” he added. “But luckily, I’m here. I’m in a position where I can walk away from things like that.”
Akhil Reed Amar, a Yale Law School professor who filed a brief in support of the Colorado Supreme Court, portrayed Professor Tillman’s theory as a “gimmick” based on detecting words in “all these interesting little ways that don’t they make sense of the thing as a whole. .” He predicted he would garner 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 mainstream recognition.
“Tilman is one of the really interesting people in our world, and the world has not rewarded him very much,” he said. “Think of the strength of character it takes to continue to ignore some of these things for 30 years when no one seems to care.”
Professor Tillman declined to predict how the Supreme Court would rule, but said even a vote based on his position would give it credibility as a “serious or reasonable view”. But when asked if he would feel vindicated if a majority of justices approved, he struck a resigned tone.
In a sense, yes, he said. “But in his sense would there be any vindication in the larger element of American legal academia? I think the answer is no. I think they would still say what the greater numbers have already said, which is that the particular view I have taken is wrong, and if the Supreme Court has accepted it, they have done so for pragmatic reasons they don’t want to acknowledge.”
The Supreme Court could also decide the case on other grounds. It could uphold the Colorado decision. Or it could put Mr. Trump back on the ballot on a different rationale, such as saying that Mr. Trump’s actions that led to the Capitol riot on Jan. 6, 2021, were not a riot, or that — as Professor Tillman also argues — Section 3 would need a statute to be enforceable.
But earlier in the case, a judge in Denver embraced Professor Tillman’s idea. While the judge ruled that Mr. Trump’s efforts amounted to sedition, she kept him on the ballot because, she said, presidents are not “officers of the United States.” The Colorado Supreme Court later disagreed. But Professor Tillman said the fact that a lower court had already adopted his position meant it could no longer be dismissed as off the wall.
An Orthodox Jew who goes offline for the Sabbath at sundown every Friday, Professor Tillman was born in New York in 1963, the second of two children. His father co-owned a factory in Yonkers and his mother was a homemaker.
His parents moved to suburban Rockland County when he was 7, he said, because they were concerned he had witnessed a murder on a playground. He said a woman had slapped a drunken man, who chased her until a doorman intervened and choked the man to death.
After earning an undergraduate 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 judgeships and a stint at two law firms — while writing academic articles on the side.
He wanted to become a law professor but was having trouble 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 in a Dublin synagogue, and their four children. In his spare time, he said, he enjoys stargazing and East Asian history and political philosophy. This term, he teaches justice and trusts the law.
He said he was grateful for the job, but also sounded a bit lonely professionally. Most of Maynooth’s colleagues, he noted, 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 odd man out. His great passion, he said, was to show that the original meaning of words and phrases in the Constitution was rooted in parliamentary understandings that quickly disappeared after its ratification as American thought shifted to a separation-of-powers model that emphasized in the judicial system. than Congress. Few scholars on the left or right, he said, care.
“I don’t work on anyone’s speed dial in the United States — my job is very unusual,” he said, adding, “If you try to make it or sell this position in the United States, within legal academia, the opportunity to find audience is increasingly small”.
Professor Tillman uses a hyper-careful reading of the Constitution. It assumes that the text was written with tremendous precision and purpose, so subtle distinctions are important — and their meaning can be inferred by carefully tracing words within the text.
His argument that presidents are not “officers of the United States” goes back to his response to a 1995 law journal article by Professor Amar and his brother, Vikram D. Amar, a professor at the University of California, Davis.
A law that places the speaker of the House and the president of the Senate roughly in the line of presidential succession is unconstitutional, the Amars argued, in part because of a provision that prohibits “holding any office under the United States” while also being a member of Congress. In a footnote, they noted that an “observer” might try to insist that the presidency is not an “office under the United States,” although they rejected that notion.
“The whole basis of the paper, as I understood it, was that the different terminology in the Constitution for ‘office’ and ‘officer’ all meant the same thing,” Professor Tillman recalled. “I set out on an intellectual venture saying, ‘Well, what if the Amars are wrong? What if the different phraseology ‘officer’ in the Constitution had a different meaning?”
In short, Professor Tillman became a curmudgeon. As a law clerk in 2008, for example, he argued in a filing that the winner of the 2008 presidential election, pitting Sen. Barack Obama against Sen. John McCain, could retain his seat in the Senate while also serving as president.
Professor Tillman made several iterations of this argument, eventually catching the eye of William Baude, a law professor at the University of Chicago. In a short essay in 2016, Professor Baude appeared both bewildered and excited.
“When you read a single piece by Tillman, you will notice highly 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 the author is rather eccentric. As you read more of the pieces together, you will realize that he has a constitutional task, that he pursues it with great skill and knowledge, and that if he didn’t, no one would.”
This did not mean that Professor Baude agreed. Last summer, he wrote a widely cited op-ed arguing for originality and textualism that Mr. Trump cannot be president again. The essay rejected Professor Tillman’s view, saying that phrases like “officer of the United States” should be read “logically, naturally and in context, without artifice” that would make it a “secret code” full of hidden meanings.
Professor Tillman’s theory began to attract more attention as Mr Trump’s presidency raised new legal questions. After Mr Trump won the 2016 election, Professor Blackman said he recognized that a president who owned a global hotel empire would lead to legal battles over the Constitution’s foreign emoluments clause. Prohibits persons holding “any office of profit or trust under” the United States from accepting certain payments from foreign nations.
Professor Blackman approached Professor Tillman and suggested that they write about the subject of the office. In a case challenging Mr. Trump’s reception of a foreign government at the hotel he then operated in Washington, the two scholars filed a friend-of-the-court brief arguing that the clause does not cover the presidency.
In a 2018 ruling, a federal judge in Maryland took up Professor Tillman’s view at length – and rejected it. This case was ultimately dismissed for other reasons. But the Colorado ballot case has now given the line of inquiry even greater importance.
“His work was frantic,” Professor Blackman said. “Now everyone is listening.”
