Download this Paper Open PDF in Browser

Conference Paper, Karl Popper’s Falsifiability: The Foreign Emoluments Clause — A Debate Between Constitutional Eloi and Constitutional Morlocks

South Texas College of Law Conference: The Foreign Emoluments Clause: From President Washington to President Trump

46 Pages Posted: 24 Aug 2017  

Seth Barrett Tillman

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law

Date Written: September 8, 2017

Abstract

How should we understand the Foreign Emoluments Clause? The debate has been presented to the public as a choice between idiosyncratic conservatives embracing early practice and liberals embracing intellectual reconstructions of constitutional purpose. That distinction is only the surface. The reality is that this debate is a conflict between constitutional Eloi and constitutional Morlocks.

The ninety-nine percenters are our constitutional Eloi, our beautiful people, our self assured true believers who regularly assume they understand 99% of the Constitution’s original public meaning. For them, figuring out what a yet-to-be adjudicated clause means is easy: it only requires their selecting the most eligible meaning which already fits in with what they already know. And what’s the danger of that strategy — when you already know (or believe you know) 99% of what there is to know?

On the other side, we have constitutional Morlocks. Morlocks are ugly, or, at least, their theories are ugly. Ugly and dangerous. Morlocks don’t believe they know 99% of what there is to know, and, not surprisingly, they don’t believe the Eloi or anyone else knows 99% either. Moreover, Morlocks believe that fitting what you don’t know into what you (think you) know permanently freezes our constitutional theories even when those theories are entirely wrong.

The attached PDF is my amicus brief in CREW v. Trump.

Suggested Citation

Tillman, Seth Barrett, Conference Paper, Karl Popper’s Falsifiability: The Foreign Emoluments Clause — A Debate Between Constitutional Eloi and Constitutional Morlocks (September 8, 2017). South Texas College of Law Conference: The Foreign Emoluments Clause: From President Washington to President Trump. Available at SSRN: https://ssrn.com/abstract=2996412

Seth Tillman (Contact Author)

National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law ( email )

Ollscoil na hÉireann, Má Nuad
New House (#306)
Maynooth, County Kildare
Ireland
(353) (0) 1474-7216 (Phone)

HOME PAGE: http://law.nuim.ie/staff/mr-seth-barrett-tillman

Paper statistics

Downloads
237
Rank
109,814
Abstract Views
1,804