LIFE IN ACADEMIA: Part I—A Response to Professor Jed Shugerman on Slate in 2017, and his most recent 2024 Tweet Thread(s), About The 1793 Hamilton Document!
We reviewed that argument at the time, but we chose not to respond. Why? In September 2017, Shugerman, Rao, and their three co-authors (collectively the “Legal Historians”) retracted their claims about which purported Hamilton-signed document was authentic. We had thought that had ended the matter. This is not to say that we did not have other complaints and grievances against them. We did. We hoped that they’d review their writings for completeness and accuracy and make coordinate changes and retractions. We did not wish to engage in overreach by embarrassing them with each and every error they had made. And we rightly feared that our making other demands, after they retracted on the issue of authenticity, would put us in a bad light. Their argument in Slate was just one such argument—an argument that they should have retracted in 2017.
Another was their claim, in an amicus brief, that presidential electors hold an office of trust under the United States, and for that reason, electors are subject to the Foreign Emoluments Clause. The Legal Historians made this claim in their brief at n.59 which was filed in the Southern District of New York, but they quietly dropped this claim in subsequent briefs. See Seth Barrett Tillman, The Foreign Emoluments Clause–Where the Bodies are Buried: “Idiosyncratic” Legal Positions, 59 South Tex. L. Rev. 237, 248 (2017) (“How could five academics tell a federal court, without citing any supporting authority or noting any contrary authority, that presidential electors hold an ‘office “of trust” under the United States’ and that electors fall under the scope of the Foreign Emoluments Clause?”)
But the most basic reason we did not respond to their Sinecure Clause argument was that we (Blackman and Tillman) are not their unpaid editors whose task it is to perfect their publications. Again, back in 2017, Shugerman, Rao, and three other academics mistakenly identified a document from the 1830s as one from 1793, and then said, we (Blackman and Tillman) failed to put this purported Alexander-Hamilton-signed document before the courts. The situation was surreal. Who ever dreamed that Shugerman or any of his colleagues would willingly return to this minefield of error and hyperbole?
Well, academia.
