I don’t often respond to people asking me to write something about their work. It’s not that I think I’m too important for that or anything – rather, it’s that I tend to be slightly frazzled with writing, and can hardly keep up with my own not very impressive stuff. But I’m breaking my usual rule for Seth Tillman’s article A Textualist Defense of Article I, Section 7, Clause 3, forthcoming in the Texas Law Review. I really think there’s something very compelling about the piece, and I encourage people to take a look at it – as an important piece of substantive scholarship to be sure, but more striking to my mind, as an example of what can be done with legal writing –especially by a young person. I’ll certainly be taking some ideas from what Seth’s done.

I should say, though, that the substantive question of law the paper addresses is not the obviously compelling part to the general reader. Indeed, to call Tillman’s chosen topic arcane is both to be unfair and to understate the matter dramatically. Before I tackled the piece, I had heard neither of Article I, Section 7, Clause 3 of the Constitution, nor of Tillman’s principle case, an obscure 1798 decision called Hollingsworth v. Virginia. And frankly, after initially paging bewildered through his complex argument, I wasn’t sure that I could precisely describe the controversy. After a little more effort, however, let me try. The above clause of the Constitution says that Orders, Resolutions, or Votes of the Congress must be submitted to the President for approval. This is apparently puzzling because Article I, Section 7, Clause 2 says the same thing, except that it refers to Bills. The historically accepted explanation of this unclear text is that Madison was concerned about wily legislators slipping laws past the President without requiring his approval, simply by calling the laws something other than Bills. But this interpretation leaves us with an even thornier puzzle – if that’s right, than how could the Supreme Court have decided in Hollingsworth that the 11th Amendment was legitimately ratified, since we have no evidence of a Presidential signature? Tillman dispenses with the current explanations, and proposes an alternative meaning for Clause 3 – what it really means, he says, is that Orders, Resolutions and Votes of the Congress only require Presidential approval when they are authorized by previously approved Bills. But since constitutional amendments are by definition not authorized by previous statutory authority, they do not implicate the clause. At a blow, then, Hollingsworth is explained – the Supreme Court was right to uphold the ratification of the 11th amendment in 1798, because the petitioner’s argument about faulty presentment had nothing to do with any constitutional requirement.And if that’s right, in Tillman’s words, then Chadha (the famed legislative veto case), was “1/2 right and 1/2 wrong, as a matter of original meaning. All congressional lawmaking (bicameral or single-house instruments) purporting to make binding law on the public must be presented, but not all lawmaking need be bicameral, where, for example, a single house acts pursuant to delegated statutory authority”.

What makes Tillman’s piece much better than the usual turgid law review article, however, is how he goes about making his case. First, Seth’s style is bracingly undeferential – clearly, his stint at a law school somewhat built around hero worship was not enough to imbue him with the proper sense of decorum towards his elders. One prevailing explanation of the constitutional settlement is not merely problematic, as the customary formula would have it, but “make[s] no sense at all”. Another alternative explanation turns swathes of the constitution into “gibberish”. Second, Seth has followed his stylistic clarity with some quite intriguing and novel argumentative devices. Instead of explaining Hollingsworth in the usual academic fashion, for example, Seth has written an extremely helpful set of judicial opinions fleshing out what the Court might have meant in their exceptionally terse decision. The combined effect, to me, is reminiscent of Henry Hart’s famous constitutional dialogue. Later in the piece Seth dispenses again with the usual argumentative style and poses queries and their answers. Do the Federalist papers help us explain what’s happening? No, they don’t. And that’s knowledge the general reader might normally have had trouble excavating from the mass of dense argument. Finally, and most remarkably, Seth took a novel approach to research. Apparently deciding that the procedural knowledge of what a clause like the one at issue might have meant had passed beyond the ken of American lawyers, Tillman consulted parliamentary professionals in the Commonwealth – the great, loose, conglomeration of countries once bound by the British Empire (I remember fondly a story told by the former US Ambassador to the Court of St. James, who when asked what he was doing at a Commonwealth event, told the queen that he was part of the Alumni club). The answers and reasoning they came up with stands at the center of Tillman’s argument, and provide for a novel understanding of what is undoubtedly a much underserved constitutional provision.

In any case, I commend the article to everyone. It’s an interesting read.

I have only yesterday discovered Rufus Wainwright's Cigarettes and Chocolate Milk, which is to say that I have only yesterday discovered the true greatness of Rufus Wainwright. I have heard a few other songs off of Poses, also good, although not quite as good. I have struggled to turn this into a substantive post, but thus far, to no avail.

Relatedly, my longstanding enmity against licorice may be coming to an end. I have just sampled a licorice Altoid from a co-worker (the one Altoid I had never tried) and much to my surprise it was delicious. I am vaguely alarmed.

In The Whole Duty of a Woman from 1737, I find the following recipe for French toast. The entire thing is good (though necessarily simple) - but the last sentence is best. Breakfast for dinner is great fun.

"Having two French Rolls, cut them in Slices as thick as your finger, Crumb and Crust together, lay them on a dish, put to them a Pint of Cream, and half a pint of milk, strew them over with beaten Cinnamon and Sugar, turn them frequently until they are tender; but take care not to break them, then take them from the cream, with a Slice, break four or five Eggs, turns your slices of bread in the Eggs, and fry them in clarified butter, make them of a good brown colour, not black; scrape a little Sugar on them.

They may be served as a second Course Dish; but fittest for Supper"

Via Friend of Crescat Dimitriy Masterov I learn that Umberto Eco owns 50,000 (!) books. I am orders of magnitude behind.

The Religious Land Use and Institutionalized Persons Act is constitutional, at least on its face and in the Institutionalized-Persons context. This result is unanimous (contra Justice Stevens's Boerne concurrence). Justice Thomas concurs with some interesting thoughts on how his unincorporated Establishment Clause would play out here. Also interesting, for those of us who read tea-leaves, is his observation at two different places in the opinion that RLUIPA may well be unconstitutional anyway on commerce-clause/spending-power grounds; Thomas doesn't tackle those grounds since they weren't in the question presented, but of course they were in Raich . . .

Amanda's 5 previous RLUIPA posts can be found here, here, here, here, and here.

[N.B. I back down from my previous prediction that the government will get only 6 votes to uphold the Controlled Substances Act when Raich comes down; 8 seems more likely, and I hold out hope for a Thomas dissent.]

Jacob Levy commented on my post yesterday about DC bookstores (with the depressing claim that Second Story books and Kramerbooks are as good as it gets).

Angus asked me whether this fact deserved a post of its own, and then asked what would happen if Professor Levy were to comment on this post-- would he be able to make Levywatches propagate down the blog in an endless recursion?

I've opened comments, but only for Professor Levy.

I had never seen Lawrenceville, or been to New Jersey, never been farther away from New Orleans than to Yankeetown, Florida, where my military school was located in the buildings of a former Catholic hospital for sick and crazy priests.

Richard Ford, "Calling," collected in A Multitude of Sins

"Dad, is there a military school in Yankeetown or was there ever a Catholic hospital?"

For what it's worth, a private boarding school by the name Lawrenceville does indeed exist in New Jersey, and has existed for 200 years. That part, at least, passes the fact-checker. I suppose far more readers would be likely to know about that than about Yankeetown; the author probably knew about the school. It's an open guess as to whether he knew anything about the town---knew, for instance, that it was too small for his story to be likely, for those institutions to be set there.

I'm not a stickler for accuracy in my historical fiction. As I've said before, I firmly believe that Warren knew that when gave directions heading out of what was presumably the capital city in which he lived, he knew that you went northwest to get to what was once pine country; northeast takes you to Mississippi. That's no flaw in the prose but a warning to the reader to not take things too literally. And yet, when I come across the above sentence---a real school combined with implausible enterprises---I wonder, was this intentional?

I start doubting more of the story. Hip waders and pirogues sound authentic for duck hunting, but is it necessary to crouch and turn your head to the ground while calling the ducks lest they get spoked by the white of your face? Or is this a false fact, some symbolism I should heed. Mr. Ford, of all the small towns in Florida to use for a throw-away setting, why'd you pick the one I know best?