Thanks to debates over the emoluments clause’s applicability to the presidency, and, more recently, over Donald Trump’s eligibility for the White House under the insurrection clause of the 14th Amendment, Tillman is known in academic legal circles for arguing that the president, for constitutional purposes, is neither an "officer of the United States" nor an "officer under the United States." He sent me four pieces of writing that made this novel assertion look tame. Tillman has a growing reputation as a consequential contrarian, but he had gone deep enough and far enough into untouchable regions of inquiry to cheapen any label anyone might attach to him.
In two academic papers published in 2021, Tillman, who is an Orthodox Jew, argues that the North Carolina House of Commons’ failed 1809 attempt to expel Jacob Henry over the Jewish legislator’s objections to the state’s religious test for public office has been misremembered to the point of mythology: Henry likely did swear the oath he was alleged to have refused, and there is scant evidence he considered himself Jewish. After a rigorous and richly footnoted plunge into North Carolina constitutional history, as well as an exhaustive close reading of all existing records of the House of Commons debate over Henry’s attempted expulsion, Tillman offers the revisionist argument that Henry was nearly thrown from office not because of his commitment to Jewish religious beliefs that he may not have ever held, but because Henry, who was of Jewish heritage, had sworn his oath of office on a Christian Bible, an act which his legislative colleagues could have "perceived as a kind of lie." His opponents then "pounced and sought to entrap him," Tillman wrote.
It is only through a long process of misremembering that Henry’s defense is now considered a watershed in the history of American pluralism. "There are multiple aspects of the standard narrative involving the Jacob Henry story that just don’t make any sense and that people just have mindlessly repeated for almost two centuries now," Tillman told me when we met in early February. "What are we doing as a society that we tell stories that don’t make any sense, and there’s no recognition that the story on its face wasn’t palatable, wasn’t believable?"