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Dr. Larry Arnn On The Bill Of Rights And Washington’s Resignation Address

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HH: It’s the last hour of the radio week. That means it’s time for the Hillsdale Dialogue. At this hour each week, I am joined by Dr. Larry Arnn, president of Hillsdale College, sometimes alone, sometimes with one of his colleagues. Today, he is alone, and Dr. Arnn, welcome, it’s great to talk to you.

LA: How are you doing?

HH: I’m great. We’re going to replay this, even though we’re talking originally on the Friday after the President delivered his executive order on immigration speech from the East Room of the White House. We’re going to replay this on Thanksgiving next week and in Thanksgivings future. So I want to be aware of that, that we don’t date it and we set it up the right way. Before we go to the Bill of Rights and the ratification, I am curious as to your reaction about the President’s assertion of his authority last night when it comes to people in the country not legally?

LA: Well, I don’t like it, because it’s unilateral. He claims it’s within his scope of the executive branch. It’s very difficult to pin down all his claims, but he’s been saying for years to La Raza, for example, that he doesn’t have the power to fix it by his self, this is a nation of laws. And so I’m not sure that what he did last night in those statements are strictly incompatible, but I want to bring up just this issue. In the Declaration of Independence, in the middle parts, they’re criticisms of the king. And one of those criticisms is that he has subjected the country to the authority of a foreign jurisdiction. What he did was, and he took much of the Northwest Territory, on which I stand right now, and he put it under the authority of the government in Quebec. And his argument, and the argument in the Declaration, and implicitly of the people at the time is the ruler doesn’t have the right to pick his constituents. The constituents have the right to pick their ruler. And so he’s changing the dynamic of American politics, and it’s notorious and often stated that the thinks that those people are going to vote for him and his party, and so there’s a partisan interest in it. And of course, he must act according to his partisan interest, but he has to act under the system of separation of powers that we have, and that means we need a law to deal with this problem. And so he’s circumvented that, and it’s a very bold thing to do. And it’s like other things he’s done. And so one, in my opinion, one should fear it. I think he should be afraid, too, because already, people are afraid of the government. And you know, it’s necessary for a president always to be double sure, especially about a matter this big, that he’s acting lawfully. And so that’s what I fear…

HH: Now Dr. Arnn, you, whether you are standing in the Northwest Territory today at Hillsdale, or you’re at the Kirby Center, the Hillsdale office in Washington, D.C., where you collect scholars and students, you consult often with senior members of the opposition party. What is your advice to them in response to this action?

LA: Well, they sued today, and I wouldn’t have done that, because I don’t think the courts actually are the final depositors of conflicts between the branches. But what they should do is make a case against it. That’s the single most important thing. They should come up with an immigration bill, by the way, and it should call for wide immigration, control of the border, and focus on immigration of people who are able to work and contribute to the society, and who will obey and understand our laws. And it should take no account of color. And so I think they need to pass a law like that, and then about these illegals, I think that the law should be mindful of the fact that they have broken the law to come here.

HH: And that is a very large opportunity to deal with it. Mindful of the fact does not suggest deportation, but it does suggest also not erasure.

LA: They’re working on strategies, I hear, to, and I really just read. I haven’t been in Washington this week. But I read that they’re working on strategies to deny funds. First of all, they’re going to pass a budget, one hopes and prays, next year. We haven’t been having budgets lately. And budgets are handy, because they can detail where the money is to go. And right now, under these continuing resolutions, the executive branch has way too much scope in what it does. And so Democrat or Republican president, and Democrat or Republican Congress, there need to be budgets so that the priorities of government can be established by the representatives of the people in combination, the Congress and the executive branch. And so if they do that, that will give them opportunities to constrain and direct, not simply direct, but influence spending in this area. And there are tools in there where they can combat this.

HH: Now Dr. Arnn, we’re about to talk about the first Congress. The Congress that you’ve just referred to will be the 114th Congress. The basic denomination of American history are Congresses – two years of the legislative branch. The most infamous in my lifetime, the 94th Congress, which abandoned Vietnam and Cambodia, in the latter case, a genocide, in the former case, in the murder of hundreds of thousands. But the 114th will be significant in ways that it’s been a long time since a Congress has been significant. They have to oppose a president who has a very expansive view of his understanding of power. But the first Congress had to be the most significant Congress, correct, because it set the rules.

LA: Well, it sets the precedents, the original precedents. That’s right, and it is very important, and it was tumultuous, and in the afterlight, fun, but not so much fun at the time.

HH: Now when we left off last week, and all the Hillsdale Dialogues are available at www.hughforhillsdale.com, or at www.hillsdale.edu, the states were meeting in their ratifying conventions, and in a close-run thing, Virginia voted aye over the objections of Patrick Henry, and New York came in over the landed interests of the Clintons in the western part of the state and some other interests. The good guys carried the day, and Rhode Island unfortunately was included in the Union. And so they got together, and they had these 13 states. But then they had to go to a Congress, and they had to elect a president. And everybody knew it was George Washington, right, but nobody knew he was going to go away after eight years. So we’re going to cover that today as well.

LA: Yeah, that’s right. And of course, by the way, the party battles, which started brewing in the Washington administration, had a definite limit on them, because George Washington didn’t like it. And so it went on underneath, and Washington, you know, was such a powerful figure because of his obvious virtues and achievements that they all had to play nicely, and at least overtly. And Washington did some great things. You know, for example, here’s a quick, little story. When he gave the first annual message to the Congress prescribed in the Constitution, he went over there. And he thought the whole experience was useless. And so after that, he wrote them. And it’s also fun to compare his annual messages. I used to do this every inaugural, every state of the Union message on TV, to his ones, because like in the one where Bill Clinton said that the days of big government are over, I stopped counting at 50 or 80 or some number of new programs. And George Washington mentioned eight things, usually, and hardly ever more than, and never more than twelve in his annual message to Congress. There’d be like the debts and the income and the revenue and war, and he always talked about education. He loved education, but he never proposed to do anything about it except the Northwest Ordinance and pay attention to it. And so they were brief, and they were about the great affairs of the nation, and not about details.

HH: Now I have a very important question. I have in the studio with me today three of my law students – Matt and Rebecca and Chris, and a young lawyer from Alliance Defending Freedom, and I’ve been making the case to them all year long, and last year as well, some of them have had to put up with me for two years, that it matters what happened in this period of time. So why does it matter what Washington did, or that Washington would be brief, or that we would enumerate eight things? That’s 230 years ago, Larry Arnn. Why do we care? They didn’t have Twitter.

LA: Well, they had, yeah, yeah, too bad. But by the way, if they had, they’d be better at it than we are.

HH: (laughing)

LA: (laughing) No, it matters, because first of all, it’s the first time a government like this ever operated. And so they’re just setting precedents every day. But the second thing is they had reasons for working out why it had to be the way it had to be. Of course, they knew that things would change. They were interested in establishing the fundamentals that would not change. I’ll name one for you. They thought that the concentration of power in the hands of a human being or a small group of human beings would sooner or later go wrong. That’s step one. Step two, on the other hand, the government has to be powerful. So conclusion, how do you make a powerful government that can be managed and accountable to the people and protect their rights? And they’re working out the practical system to do that first in the Constitution, writing it and ratifying it, and then second, making it work. And these guys, by the way, made this achievement, first in human history. And the Constitution they wrote is much the longest-lived of anything of its kind. The rest are not even worth mentioning, because they’re not close. And so there may have been some wisdom there.

HH: There may have been, and we’ll talk more about what that wisdom might have been when we come back. The Hillsdale Dialogue here on Friday.

— – — – –

HH: Dr. Arnn, Counselor Bowman of the Alliance Defending Freedom has been listening to many of our Hillsdale Dialogues, and he suggested to me today that he had noted between you and me some tension on the question of how much can be done by America abroad, and that I would occasionally suggest they ought to do more, and that you would gently push back and say perhaps they ought to be doing less, that it’s harder to make a nation than a lot of Americans, including Hugh Hewitt, think it is. And I pointed out that you in fact used to advice Bush people of that on a regular basis, am I correct?

LA: Yes, that’s true.

HH: So when they set about doing this not easy thing, do they expect to fail in 1789?

LA: Well, that’s, you know, their language about that is glorious and tragic. You know, some of the most beautiful things said in American history, last best hope of mankind on Earth, stuff like that, there’s a lot of things like that. And so they regarded it as a formidable task. And by 1787-89, these are guys who are used to accomplishing the unprecedented, right? So you’re not talking about a bunch of shrinking violets here. It’s certainly true that the Constitution, the Constitutional Convention was called in an atmosphere of crisis. Madison is worried for the continuation of the country, and thinks its dismemberment is near. And Washington thinks that, too. And they also think we can get this done. And you know, there was a crisis, it’s worth mentioning to explain what George Washington is like, and to give the atmosphere. Washington decided not to go to the Convention at one point not long before it started. And the reason was a perfect George Washington reason. He’d been invited to a meeting of the Society of Cincinnatus, which he helped to found. And he decided not to go, because it was being attacked in the press as an aristocratic institution. So he told them I’m not going to come. He didn’t want disfavor and to seem aristocratic. But then he thought, if I go somewhere else, then it will be a slight to the Society of Cincinnatus. And so it’s manners that was going to keep him away from one of the most important meetings in human history. And James Madison personally went and talked him into going. So it hung by that thread at one point, George Washington’s sense of courtesy.

HH: Well, he had this enormous rectitude, and that is in fact which defines him, I think, in history. But he does go, and they do meet, and they come up with a great document. It goes out to the states. And where we left it off last week, these formidable people, as you point out, had screwed up. They had underestimated the demand on the part of the conventions of the states for a Bill of Rights, and James Madison somewhat grudging in acknowledging this, and Alexander Hamilton explicitly so, correct?

LA: That’s correct, yeah, in the 84th Federalist. And so their argument was you don’t want to go doing this. And the reason is, first of all, the whole document is a Bill of Rights. That’s the fundamental point. And that ties to their fundamental point overall, which is that the structure of the Constitution, the arrangement of its powers, and the way people will organize to control their government under it, is the key to success. And so writing a list of things that you can do or can’t do is not as powerful as that. And so they’re resisting on that ground. And then there are other arguments in Hamilton, in the 84th Federalist. One thing he says is if you start listing rights, how are people going to know that there aren’t others? How are you going to make an exhaustive list? And they deal with that in the 9th Amendment. And how do you keep this from becoming an expansion of the government? And they deal with that in the 10th Amendment.

HH: Robert Bork said the 9th Amendment was an ink blot.

LA: He did, didn’t he?

HH: Yes, he did.

LA: That was not his finest hour.

HH: (Laughing) A fine…

LA: His argument was, by the way, the strict text of the Constitution is simply controlling, and you can never read anything except that, or read anything out of that. That was his first argument. And then you know, my teacher, and yours, was arguing yeah, but okay, but there’s lots of rights. And the Declaration of Independence has a bearing on that. And Bork argued with that, and then Professor Jaffa said, and you know, Bork would argue there are no rights in the Constitution except the ones that are named. And Professor Jaffa said okay, then what about the 9th Amendment? And Bork said it’s an ink blot…

HH: Yeah.

LA: …which means he read out part of the document.

HH: Right.

LA: So duh. Anyway, that was not his best moment, and he had many great moments.

HH: And I always thought attributing to the wisest men the world an extra meaningless paragraph was not a strong position on which to begin. By the way, did you see young Senator Cruz quoting Cicero and the Catiline Conspiracy last night.

LA: I read a reference to it, but I haven’t read what he said.

HH: Well, he basically read the oration as though President Obama was Catiline sitting in front of him.

LA: Yeah, yeah. Well, it is, you know, we should be concerned about the rule of law on general principles, on the general practice of the government because the law is so exhaustive and complicated, and made so fast, and changes so much, and made by people that we have only the least possible direct control of, and we don’t know who they are. And that is the characteristic of the age. And so government should be simplified and localized. And then we can control it, and it would actually be, for the purposes we want government, more powerful. And most purposes, I hasten to say, include taking better care of the poor…

HH: Sure.

LA: …on whom we have spent, by the way, an enormous fortune since the war on poverty started fifty years ago, and we’ve got more of them.

HH: And perhaps in a much more failed state, and in a more permanent poverty as well. I want to mention, though, because after Federalist 84, and after much thumping of pens and chests, Madison and Hamilton give up the ghost. They surrender. They compromise on this point, and it’s an important thing through history, especially for Republicans to recognize at this point. They didn’t want the Bill of Rights. They didn’t think they needed the Bill of Rights. But Madison and Hamilton were pragmatic, prudential men, and so they promised, and they delivered a Bill of Rights.

LA: It’s more than that. It’s true, what you said is true, but it’s also truly more than that. The reason they reached the compromise about the Constitution is that they all believed in the rights. And so there wasn’t a controversy about that. It was a controversy about means, and not ends. And remember, the states that demanded a Bill of Rights just took their word that it would be passed, and they didn’t even know who would be elected to the government at the time they took that word. And then that word was kept, although there was no mechanism to make it be kept.

HH: And there wasn’t much enthusiasm. In Lynne Cheney’s magisterial biography of James Madison, she details he really didn’t want to put the time in to do this, but he did it, because he’d given his word.

LA: Yeah, and he thought, you know, we agree about the purpose. And think of, by the way, like the argument between the federalists and the anti-federalists, and then the argument between the Jeffersonians and the Hamiltonians later, were bitter arguments, in my opinion. And they accused each other, by the way, of having different ends. But I believe they were both wrong in both cases.

HH: When we come back, we’ll talk about that.

— – — –

HH: We were talking about how the federalists and the anti-federalists fell to fighting. And they said horrible things about each other, Dr. Arnn.

LA: Yeah, they did. They, you know, centralizers, monarchists, lots of things like that…

HH: They took to shooting at each other as well.

LA: Some, not much.

HH: Well, Burr killed Hamilton.

LA: Well, that was a private matter. (laughing)

HH: (laughing) All right, so what I wanted to get to is Madison comes up with the Bill of Rights. And they arrange them, it’s not all of the amendments were passed, the 1st Amendment really wasn’t the first amendment. It was the third amendment. The first two didn’t pass then. One of them recently was ratified within the last decade, I believe. But they come about this, and how deliberate is the process? And what do you make of the way that courts have read into these new rights that were not understood to be rights by the people who understood generally what the rights were they were referring to when they wrote the Bill of Rights?

LA: Well, that was of course one of the warnings against the Bill of Rights, and the answer is first of all, James Madison wrote these things, and so there was a general agreement about them, and they went through. And there was bickering about it, but you know, they went through. And it’s not easy to amend the Constitution of the United States, and this happened pretty fast.

HH: Yes.

LA: So about the reading into the rights, of course in American history, because this country is so concerned with rights, then the argument about what they are is always going to point to a fundamental argument. And in the great crises of American history, in which I think this is one, that’s what the arguments are about. What is a right? And you know, there is a new definition. And it’s not just this case and that case. There’s a new definition of rights now. Madison says that a right is a thing to which anyone may attach a value and have a right, leaving the like advantage to every other. And if you think about that for a minute, and he lists what they are in this essay called Property in 1792, and it means prayer and property and conscience and speaking, and everything we can all do all at once, all at the same time without taking anything from anybody else. And if you start naming things, as Franklin Roosevelt does in 1944 when he says we have new self-evident truths, and so we must have a new bill of rights. And the new rights include a bunch of stuff that cost other people money, or that are grounded just in the will. So in the Atlantic Charter, they say freedom from want, freedom from fear. And so that’s a different kind of thing. Want, you know, certainly it’s true that we should have a social relief system. We always have. And it should put a premium on work and on help for the unfortunate. And it does, in the best times in American history, and it should be widespread. But on the other hand, what if somebody won’t work? You know, what if somebody is a wastrel? What if somebody is like the philosopher Jack Handy from Saturday Night Live? It’s easy wanting other people’s money. That’s why I like it so much. So what about that, right? Can you have a right to that, if the cause is in you? And then what about fear? What can you do to make sure cowards are not afraid? And if you set out to do that, what do you do by way of demotion of the virtue of courage? And so they’re different kinds of things, right? And there’s an argument that’s been, that’s become prevalent. This has become dominant, at least among highly-educated people. So it would go to prove that I am not, that those new rights are actually defining. And so they break their, the relationship between rights and nature, and they become matters of the will.

HH: I have to play for you, and I don’t know that my producer has ready, the first paragraph of President Obama’s speech on November 20th, 2014, about immigration. Have we got that ready to play for Dr. Arnn? After the break, I’ll read it to you then. “For more than 200 years, our tradition of welcoming immigrants from around the world has given us a tremendous advantage over other nations. It’s kept us youthful, dynamic and entrepreneurial. It has shaped our character as a people with limitless possibilities,” and here, wait for it, “people not trapped by our past, but able to remake ourselves as we choose.” What do you think of that?

LA: Well, you know, I’d like to be an angel, and I work at it, but you know, progress is slow. So you know, and sometimes, you know, imagine you’re a magical horse. Well, you can imagine it, but can you be it? And what we are instead is human beings who are slow to grow up, feel our pleasures and our pains and have a conscience outside them to govern what we do.

HH: And we do not remake ourselves as we choose. It was negated, his speech, in its first paragraph.

— – – –

BO: For more than 200 years, our tradition of welcoming immigrants from around the world has given us a tremendous advantage over other nations. It’s kept us youthful, dynamic and entrepreneurial. It has shaped our character as a people with limitless possibilities, people not tapped by our past, but able to remake ourselves as we choose.” But today, our immigration system is broken. And everybody knows it.

HH: Dr. Larry Arnn is my guest on the Hillsdale Dialogue. That was President Barack Obama speaking on November 20th, 2014, about being able to remake ourselves as we choose. I wanted to play that, Dr. Arnn, because we’re going to talk about George Washington’s farewell address in this segment. Not much in common between the cautious approach that Washington articulated at the end of an amazing career of statesmanship and the rather sweeping grandeur of the President’s assertion in November of ’14.

LA: No, okay, so let me, let’s go to the other end of the Washington presidency, because there’s a perfectly apposite statement in there, perfectly comparable. So George Washington’s first inaugural was actually written by the greatest presidential speechwriter in human history, James Madison, and equally sweeping, but opposite in its meaning is the opposite sentence. “Our republic is founded in the great fact in the whole course an economy of nature, the indissoluble connection between virtue and happiness.” So you see, in other words, what we can hope to do through struggles like the struggles of George Washington is make ourselves into good people. And you know, think of Calvin Coolidge. Calvin Coolidge says we live in an age of material and boundless accumulation. But these did not make our Declaration. Our Declaration made them. The things of the spirit come first. And so this idea of liberation of all possibilities, first of all, what you get, read C.S. Lewis in The Evolution of Man about that, what you get is the liberation of the will of some, to exercise dominion over others.

HH: And fully articulated also by that author in his Trilogy that ends up, and in The Inner Ring, and in a number of other writings. So as we come to the conclusion of this, it’s the early American republic, Washington serves for eight years, and he doesn’t really like it. He has to lead his army to war again. He’s got France in revolution, he’s got this cabinet, a pause here, Hamilton and Jefferson opposed on everything, come together on a street corner one day, and they do a deal that saves the credit of the United States, and establishes the District of Columbia, kind of a sweeping compromise by people who were opposed to each other, Larry Arnn.

LA: Yeah, and there are a lot of that, because, and I think that the ground is laid for them. It’s an argument, and it’s somewhat different than their self-understanding at various times, although not always. They were able to do those deals, because they were geniuses, but also because ultimately, they had the same purposes in mind. You know, Madison, Jefferson’s good friend and the founder of the Jeffersonian party, and dominating of American politics until Lincoln, Madison opposed the First Bank of the United States, a Hamilton creation, and he signed into the law the Second Bank of the United States as president of the United States. And so my actual argument is, is that these controversies they were having were not fundamental, even though you can read them, both sides, as saying that they are.

HH: At the conclusion of all of those, non-fundamental but very hot controversies, Washington voluntarily leaves office. He did not have to. He could have been reelected, correct?

LA: And that’s because Washington, both in resigning his generalship in his speech to the troops at Newburgh, where he told them not to try to use any force or even extortion against the government to get their way. What have we fought for, he asked them. I will be your servant in this, he said. And then in his reluctance, his silence at the Convention, almost, he said one thing, although without him, it couldn’t have even been called, and then his humble acceptance of the presidency, and then his resignation from it, also, his punishment and active opposition against the people who wanted to make him king. He was establishing an example of the rule of law. And without mentioning any current chief executives, we suffer for the loss of that spirit.

HH: It’s not banished forever.

LA: No.

HH: Some people, it can come back. It is, that’s what so many people were exercised about on November the 20th of 2014, and a lot of people were perplexed by that argument. It’s almost quaint in their eyes, Dr. Arnn.

LA: And see, that’s on the one hand, right, but on the other hand, what percentage of the people say that they’re afraid of their government today? And you know, it’s north of 60, and that’s a consistent trend now. And so we all have a stake in the rule of law. We all must bow before the law, and seek to make it good. And you know, what would be a better thing? You know, Bill Clinton, by the way, after he lost a big midterm election, he acknowledged some lessons, and he pressed on in ways that I wouldn’t want him to. But also, he altered things, too, because the people have spoken. And goodness sakes, Obamacare and this amnesty, this immigration thing, both follow immediately upon big losses to the president’s party in midterm elections.

HH: So the point being that humility would have been a preferable approach?

LA: Yeah, for example, he could say I’m going to, you know, I hear you, and I’m going to keep fighting for what I believe. And so I’m going to push the Congress by every means at my disposal to give me an immigration reform. And the way he postured this is, I’ve done this thing. If you want to undo it, send me a bill. And the subtext is a bill that I like.

HH: Right.

LA: And that’s more, in my opinion, than presidents ought to do.

HH: You know, I think it’s actually going to be an infamous moment. We have 30 seconds to the break. I think Con Law classes of the future that are taught by people long in the future will find that an infamous moment, because it was so full of contradiction, cynicism and hypocrisy, that they’ll read that for reasons that they don’t read Washington’s farewell address now, which is to proclaim its glory.

— – — –

HH: Dr. Arnn, two and a half minutes on Washington’s farewell address and why it matters, and how it is sometimes wrongly cited, and often correctly cited.

LA: Well, it has three points that I think are main. The first one is Washington wants us to be a united people. No Union, no freedom. It says that. He fought for that all his life. The second thing it says is we can best secure ourselves by enjoying the advantages we have of occupying this vast space with no near enemies close. And so he warns against entangling alliances. And my own opinion, by the way, is that the beginning of foreign policy wisdom starts with that, and acknowledges that the world has changed in some important ways, as, by the way, John Adams said about the speech at the time it was given. It’s a rule of prudence, he said. The third thing he says is that to be a free people, we have to be a good people. And so religion and morality are important to us. And those are his themes, and in my opinion, those are a summary of the themes of his life.

HH: He also says in a little noted part that if oaths become worthless, the country is lost, which is very important.

LA: That’s part of the religion and morality section, right?

HH: Right.

LA: In other words, you know, if we’re going to have self-government for the nation, we must be self-governing in our characters. And you know, our conscience, listening to our conscience, and it’s the conscience that points up toward God. And so those two things are related.

HH: Well, that’s why I always thought that the impeachment of Bill Clinton was misunderstood as about Lewinsky. It was really about lying under oath, which is a fundamental, you can’t really forgive that in a president, or you ought not to.

LA: Well, and the chief prosecutor of the nation. And here’s another thing. Clinton and Gore changed, I’m told by former man in the White House Counsel, Doug Cox, they broke a precedent. The president and the vice president, he thinks from time immemorial, but he could speak for the administrations from Reagan through [Clinton], never asked anybody for money for a campaign, were never present in the room when it was done. And so if the chief prosecutor and chief executive of the country calls you up and asks you for dough, you’ve got to be thinking what if I don’t give it? And so there was that flap about Gore doing it, whether he did it on White House grounds or not. And it was Doug Cox who told me that’s not really what the controversy ought to be about. They shouldn’t be doing that at all.

HH: An interesting point to which we will return in a future Hillsdale Dialogue, maybe even when we talk about Abraham Lincoln next Friday. But this will replay on Thanksgiving Day. Go to www.hillsdale.edu for everything that Hillsdale offers, and it is much and more.

End of interview.

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