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Dr. Larry Arnn On The Constitutional Convention And Federalist 10 And 51

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HH: Welcome to the Hillsdale Dialogue. It’s the last radio hour of the week. Or when we replay it on a day like Thanksgiving, it could be the middle hour of the day, or the first hour of the day. I don’t know, but today is an important day, because today, we have been working for two years to get to a gathering in Philadelphia in 1787, one that would birth out of the Revolutionary War moment an extraordinary document, a document that’s under a great deal of stress these days, but remains an amazing silver frame. And joining me to talk about that document and how it came to be is none other than Dr. Larry Arnn, president of Hillsdale College. He’s been my guest on most of the Hillsdale Dialogues, not always alone, sometimes alone, sometimes not here at all. All of the Hillsdale Dialogues are collected at www.hughforhillsdale.com, and you can also see all of Hillsdale’s offerings at www.hillsdale.edu, including their brand new course, the Presidency and the Constitution. Dr. Arnn, a good Friday to you.

LA: Good Friday to you, Hugh, how are you doing?

HH: I’m good, but let’s go back, and I can think of few people better able to talk about this since you wrote the Founders’ Key, an important book on what was going on back then. How did those men, and they were all men, come to arrive in Philadelphia in May of 1787, stay for four months, and produce this document?

LA: Well, it’s hard to believe, but the founders are just like us. They lived their lives in time order. And they founded a kind of government in the Declaration of Independence, on principles that had never been adopted as the central principles of a government, so they had to come up with a new way to structure it. And the early attempts didn’t work. They wrote some really wonderful constitutions for the national, the Articles Of Confederation, for the states, especially Virginia and Massachusetts, and they learned while they went. And they found deficiencies. And so in 17…11 years after the Declaration of Independence, they had discovered that the Union was falling apart. It had an army of 635 members. And they had several British forts that a recent treaty, the Treaty Of Paris in 1783, had said that they were to be abandoned, and they still occupied them and garrisoned them and sallied out from them. And we kept some part, there were three of them, and we kept some part of our 635 soldiers to watch them. And the soldiers often weren’t paid, and their presence was transient, and the army was always changing. Therer was a rebellion in Massachusetts led by Daniel Shays.

HH: Very famous rebellion.

LA: And they would, they basically took much of Massachusetts, and they would go to banks on days when mortgages were due to be paid, and they would disrupt the banks, sometimes take them over, take over the towns. And of course, when they hurt creditors, they also hurt the people creditors get their money from, the depositors. And so you’ve got chaos. The country’s not paying its bills, people won’t lend it money. It’s stiffing the people who lent them money to make the Revolution possible. And it looks like they’re going to collapse. And Madison wrote a really great paper about this called Vices of the Political System of the United States, and he says not only is it not functioning, the Articles, but they’re the wrong kind of thing, because they don’t divide power in a way to assemble it when you need it, and to distribute it to make it safe.

HH: Now I had wondered how you would characterize the chief failing of the Articles of Confederation, which were not bad, but on this matter, they were imperfect.

LA: Yeah, and it was, you know, the country, and you know, there’s a bitter debate about the Constitution, of course, and an eloquent debate on both sides. But both sides of the debate, the federalists and the anti-federalists, agree that a stronger and better-functioning central government is necessary. And so the failure of the Articles, it’s common opinion by the time they meet in Philadelphia.

HH: And so when they get there, they have also got a unique lineup. It’s not just 55 people they’ve rounded up by virtue of popular election. It’s selected by the graybeards or the gray hairs or the wisest men. And they’re ruled over by the wisest man of all.

LA: Well, Michael Barone gave a good speech at our Kirby Center the other day in our lecture room, and it’s dominated by a 12 foot long painting by our Sam Knecht, the painter, an artist at our art department, of the signing of the Constitution. And Michael said to me, he said you know, this room that we’re in right now is almost as big as that room they were in. And I said yes, Michael, and a lot of great people come here, but I still haven’t quite got that 55 here, yet.

HH: George Washington took the dais, and there was a famous chair in which he sat that Ben Franklin would refer to at the end of the proceedings. But some of the others in the room, you’ve already mentioned Madison, James Madison, about whom Lynne Cheney’s wonderful new biography is really superb, Hamilton, the great New Yorker, the great arguer on behalf of the remnants of British monarchical authority in the United States, though I suppose that’s a bit of a slander, isn’t it? He was charged with being a monarchist, wasn’t he?

LA: He was, yeah, and he was, he was an urbanite, and he was commercial, and he wanted protection, and he wanted strong banking. And he wanted wealth to be protected in the name of the property of all. And so these guys would eventually fall to fighting, and the Jefferson crowd would accuse the Hamilton and Adams crowds of being monarchists. And the Hamilton and Adams crowd would accuse the Jefferson and Madison crowd of being demagogues and levelers. And both of those charges were false made against each other by some of the greatest people who ever lived.

HH: Wouldn’t you love to have a videotape of this? I think of Charles Carroll, who was the wealthiest man in the colonies, and now the new states, he’s a Catholic man, I just found out this week, Larry Arnn, that he asked President Jefferson for advice on who to name bishop of the newly-purchased Louisiana Territory, and Jefferson through his secretary of State, Madison, declined, saying it wasn’t an appropriate suggestion for the executive to give to a private citizen about a Church matter, I mean, a magnificent bit of originalism there. But they’re all in this room, and it must stink to high Heaven. It’s the middle of a Philadelphia summer, and the windows are closed.

LA: They closed the windows, and they closed the shades.

HH: It’s just unbelievable.

LA: And they didn’t open them until the last day when they were voting. And then it was all bright and pretty in there. It still probably smelled bad.

HH: Close run thing.

LA: Close run, well, yes and no. First of all, they’re now doing something that all of them have experience with. And their experience is the only experience in human history in this. They know the classics, like there is a reason why we’ve read all these books, beginning with, what, what was first, Homer?

HH: Yes.

LA: We read them because they’re beautiful, and we’ve read them because the people who laid our country had read them, and they refer to them through their writing, and they’re in their minds, many of the founders, including many of the leading ones, read those books in the original languages, and corresponded with each other sometimes in those languages. And so they have all of the best of human experience in front of them, and they have 11 years of trying to found a republic ruled under the principle of consent of the governed of all.

HH: Now there are three men who are not there. I just want a curious, a quick comment on this curious absence of Jefferson, Adams and the most eloquent man in the colonies, Patrick Henry. And providential, don’t you think, that none of those three were there?

LA: Yeah, Jefferson had odd ideas. He wanted, and about this time, he’s recommending to Madison that every law and every contract should sunset every 33 years, because the Earth belongs to the living, that’s a quote, and you should start over.

HH: Gosh.

LA: And Madison writes him back, Madison was very good for Thomas Jefferson, and vice versa, and Madison writes him back and says well, that’s a brilliant argument, and true in every respect except it is in fact the purpose of laws, and especially constitutions, to prejudice the actions of the next generation and this one. And Jefferson writes back and says, oh, right.

HH: (laughing)

LA: (laughing) And Jefferson and Adams were abroad ambassadoring…

HH: And Adams was just a cranky guy at times. He would have stormed out too often.

LA: Well, he helped to write the Massachusetts Constitution, and that’s a thing of very high quality. So I actually regret his loss, but they did pretty well.

HH: Patrick Henry, you do not regret his absence?

LA: I do not. No, he opposed the Constitution, and you know, people of very high quality opposed the ratification of the Constitution. So in Virginia, the very great George Mason opposed George Washington, and suffered the fate that such people do. And the very great, although I think wrong about this and some other things, Patrick Henry, opposed both Washington and Madison in Virginia.

HH: And I’m reminded of Jefferson’s letter to Madison about that opposition. We shall just have to pray that he dies.

LA: (laughing)

HH: (laughing) We’ll be right back with Dr. Larry Arnn. We like this too much, because it’s such a beautiful document. It inspires not just joy, but also mirth.

— – – — –

HH: In this segment, I’d like to actually talk about the structure, Dr. Arnn. Again, you’re the author of The Founders’ Key. We can talk about the debate that swirled around it after it was produced and the windows thrown open in September, 1787. But just to dwell for a bit on the structure of the document and its articles I, II, II and everything else, how did they come to this division of powers and this federalist system?

LA: Well, the reasons behind the main features of the Constitution are very deep, and they’re explained most beautifully and most profoundly, I think, in the Federalist Papers, of any American book. I think it’s the greatest book in American political writing. And the thing is, you know, the key elements of the American Constitution as they’re explained in the Federalist Papers, first of all, it is a representative form, and that means that we elect the people who serve in the government. They all owe their appointment directly or indirectly to the people. And that, Madison writes, is essential. In the 63rd Federalist, he writes that. And then in addition, in several Federalists, he writes that. But in addition, in the 63rd, he says, it is the first purely representative system. And that means that we will be sovereign, the people, but we will only act through representatives. We won’t form any of the branches of government. And that, by the way, is the first check and balance in the Constitution. We have the power, but we use it through others. The others who use it depend entirely upon us for their appointment.

HH: Right.

LA: So that keeps the first and worst vice of politics down, which is that the people who have power use it in their own interest. They can’t. They work for us.

HH: Yeah.

LA: So representation. The second one, representation makes possible the second one, and that is separation of powers, because if a sovereign people is busy delegating their authority to representatives, they can delegate it to different ones with different functions. And it emerges that in the Constitution, if you look at I, II, III and IV of the Articles, the fourth is really about the states, mostly, they delegate it to states and to a national government, and then secondarily, when they delegate through the Constitution the national government, they delegate it to three different branches that correspond to the three main things that government does, which is decide what to do, do it, and judge cases that arise from the doing of it. So the legislative, executive and judicial branches, and it’s fundamental that those powers be exercised by different people. Even in the case of our Constitution, in a thing that I think was brilliant, and they thought was a main feature, selected at different times for different lengths of times by different constituencies.

HH: So that nothing could sweep through and wholly disorder under the force of any particularly demagogic moment that which was underway. By the way, we lapsed that in 2008. It’s one of the rare times that we allow the wind to blow so strong that it blew us off into one party government without the benefit of checks and balances.

LA: Well, rare in modern times, more common in, throughout the course of American history. In fact, this long stretch of divided government being the rule is the longest stretch we’ve had in our history. But it’s also true, though, that you know, parties, which they didn’t imagine, expect with distaste, and then formed immediately after the Constitution began to operate…

HH: Yeah, so much for our geniuses.

LA: And they began to launch on each other through them. Parties arose to help coordinate the branches, and help them work together, and also to assemble opinion for the great electoral contest.

HH: So Article I was that representative body, Article II was that chief executive, about which they had a long argument.

LA: That’s right, and see, all these arguments, by the way, remember one of the reasons the Constitution eventually passed, and it had its most trouble in the largest and most powerful states which had the most to lose, and that means the political organizations or machines in those states, but a lot, one of the reasons it passed is that almost all of these guys sallied out and supported the Constitution effectively and eloquently and persuasively in their home state. So Hamilton was important in New York, and Madison and Washington mostly had massive effect and saying very little, because he was what he was, but Madison and Washington were very important in Virginia. And so the arguments were profound and often deep about things where they had deep differences.

HH: But they came to a unitary executive.

LA: Yes.

HH: And there were many different propositions put on the table, but they had, they believed in a unitary executive.

LA: And the federalist argues that there are two advantages to that. And the first one is action, because remember, I said in government, you have to both assemble and use power, and you have to make it safe so it’s not a danger to the citizens. And so if you have a unitary executive, the executive, and you give it all executive power, which by the way, because of the bureaucracy, it doesn’t exercise anymore. If you give if all of that, then it can act. So he makes up his mind and he goes. And then also, they argued, that it’s actually better from the point of view of accountability than having two or three co-equal executives, which was a Roman example very present in their minds, because you know who to blame.

HH: You know, that is interesting given how you pointed out in the first segment, they were very Roman, and steeped in that. But they did not go for the two, and that they went for the four years as opposed to one.

LA: Yeah, and you know, the Roman experience helped them with that, right, because the two consuls often fought, argued. And you know, for a while, they had the idea that one would command the army one day, and the other the next day, and they’d just go back and forth.

HH: Yeah, a disaster.

LA: Yeah.

HH: And then Article III is the judiciary, much on our minds these days, because of course, Obamacare is headed back to the Supreme Court, as will the definition of marriage. And their understanding of their role as articulated by Judge Sutton last week in the marriage case out of the 6th Circuit will matter a great deal. If they understand Article III correctly, they will defer from telling the states they may not define marriage.

LA: That’s right, and it’s worth making two points about that. One is judicial review in Hamilton’s argument in the Federalist Papers arises from the structure that’s been set up, because if you have a law, and see, one of the defects of the Articles of Confederation is that it was passed by the ordinary legislature, by the Continental Congress. And they said that, and Madison argues in the Vices of the Political System, that you actually have to have a law that comes, a fundamental law, that comes from a higher authority. And so they arrange for it to be ratified through the people electing delegates to a special convention in each state to ratify it. And so it is the only law that the people of the United States have ever made directly.

HH: Pretty good record.

— – – – –

HH: I know some of you are thinking after that last segment Dr. Arnn just said it’s the only law the American people have ever made, speaking about the Constitution. And next week, we’re going to talk about the Bill of Rights and the early republic. But Dr. Arnn, those amendments are not the same as these state ratifying conventions.

LA: No, no, the state ratifying, the states elected delegates, you know, who ran on issues, on the stances of for or against, to go and debate and vote on whether the state would ratify it. And once the people have made a law, if it’s true that the right of self-government is fundamental, then no ordinary law made by their representatives can overcome that law. And then so that means the judges when they sit down always have two levels of law in front of them. And that means it’s not that anybody imagined or that it’s proper for judges to be a kind of ongoing academic Solomonic counsel, let’s say, to decide what the Constitution means. They work case by case. And when a case comes before them, there’s an injured party, and he is sued for relief. And he must, they must decide if the Constitution says X, and the statute says not X, they must say that the statute is invalid, else they would be violating the Constitution. Judicial review arises from that argument, and that logic, and it’s ineluctable, in my opinion.

HH: It is articulated in Federalist 78, and first operating in Marbury V. Madison in 1803. But this Federalist 78 leads me, I didn’t know how to do the Federalists, so I thought we would pick two, Larry, 10 and 51.

LA: Yeah.

HH: I’ve just mentioned 78, which is important. There are other important ones as well. But 10 and 51 in any short course intended to sort of do bread crumbs into the forest would be the two I would pick. Do you agree with those selections?

LA: Yeah, there’s, well, they help you make two central points. They’re both excellent.

HH: Let’s start with 10 for the remaining five minutes of this segment and move to 51 after the break.

LA: Okay, so Federalist 10 says two kinds of things, and one of them is famous. It says, first of all, it’s written by Madison, and it’s prepared in Federalist 9 written by Hamilton. And it says, you know, let’s take a hard look at what’s going on here. We’re governing a bunch of people, or they are governing themselves. And the great thing about them is that they’re people, and the bad thing about them is that they’re people. And people have interests. And they form groups to support those interests. And those are factions. And sometimes, the factions are adverse to the public interest. That is the interest of all the people. And so if you deposit power with the people, some faction could grow up that gets overwhelming power and oppresses the minority. And so you’ve got to work on that, right? And so the first thing, that’s the problem that Madison poses. If you’re going to leave them free and leave them in control of the government, you’ll get that problem.

HH: Yup.

LA: So how do you control it?

HH: You’ve got to look clearly here. No la-la land. Be very, very clear about what’s going to happen.

LA: That’s right. And Madison, the famous thing that Madison says is that you are empowered, it’s possible now to enlarge the size or sphere of government, the size of the country, by the representative principle. It’s not so small, it doesn’t have to be small, because everybody doesn’t have to get together to govern. You can just send people. And if you do that, he says, and the first thing he says is that it’ll be big, and there’ll be a lot of factions, and they’ll cancel each other out to some extent, and it will be hard for them to dominate anyone, any one of them or even group of them to dominate. There’ll be safety in that, not perfect, and you have to read the whole Federalist to see how the whole system works. But this is an important element of it. And from that point of view, then, larger is safer if the other controls, which the mains ones he describes in 51 have to do with the structure of the Constitution, if those are in place.

HH: And doggone it if he wasn’t right.

LA: I think so, and we should also notice in Federalist 10, because that’s often read as a crass document, you know, we’re all corrupt and we’re going to cancel out these factions, and there’ll be like a mechanism that’ll make us all safe. That’s there. But it’s much more to the federalists than that, including in Federalist 10, because in Federalist 10, he refers to what you’re trying to get the government to serve, which he phrases the permanent and aggregate interests of the people.

HH: And that is a high thing to serve, and we’ll talk about how you get it served after the break in Federalist 51.

—- – – – –

HH: This segment, the last of our week together with Dr. Larry Arnn, president of Hillsdale College, and by the way, there’s a great course on the presidency and the Constitution available at www.hillsdale.edu, which you ought to be watching. There’s also every single one of our dialogues dating back to January of last year available at www.hughforhillsdale.com, is Federalist 51. Ambition must be made to counteract ambition. It’s a beautiful thing, Larry Arnn.

LA: It is. So we should mention 49, where Madison writes these four or five papers in a row, 48, 49, 50 and 51, and they’re very important.

HH: Not 51.

LA: And they’re beautiful. And in 49, he says that the purpose we’re after is to place our reason in control of the government, our passions to be controlled by it. And that’s actually the classical definition of the arrangement of a virtuous soul

HH: Would you say that again?

LA: He says that it is the, quote him, and he says it is the reason alone that must be placed in control of the government. The passions must be controlled by it. And so how do you get that? And he says in 51, and through these papers, he says that it’s not enough just to divide the powers up and give him the job, because one of the branches, especially the legislative, will have a tendency to dominate, as I think, by the way, the legislative function has been delegated largely to the bureaucracy now. And they have the great administrative state with 20 million people working in it or something.

HH: And it is dominating.

LA: State and federal…I think they have a way to dominate.

HH: Yeah.

LA: And they were afraid of that. And they said what you have to do is mix up the powers so the president has some legislative power through the veto, and the Congress have some executive power through the appointment power and the ratification of treaties and through budget and oversight. And you know, I think we may be about to see some actual legislative function here if they start passing a budget and then checking on how the money is spent, which they haven’t been doing in recent years, a fundamental breakdown. So he says ambition must be made to counteract ambition. You must put in place the interest of the man and the duty of the place together, and then they will, you will have a safeguard. And then he interrupts himself, or he introduces the argument by saying this may seem a little low. But in one of the most famous things James Madison wrote, he said but what is government itself but a commentary on human nature. If men were angels, no government would be needed. If angels were to govern men, neither internal nor external controls on the government would be necessary. And that means, by the way, that we’re not angels. Everybody can notice that. But add another point. We are capable of seeking through our arrangements and in our better moments to emulate the angels.

HH: It’s fascinating at that level, 51’s appealing to the natural law, but recognizing how often we will fall short of it.

LA: Yeah, and look at the structure of the Declaration of Independence, by the way, because God is mentioned there four times, and He’s mentioned, among the four, as each of the branches of government. And so this place of man in nature, below God and above the beasts, is you know, first of all, a philosophic reflection, and second of all, a working proposition for the arrangement of government. And the lesson of the Federalist is actually that if we will remember rightly that we are not angels, and yet we know about them, remember that we have passions, but also reasons, then we can build a structure of government which Madison says is the main thing to protect it, to protect us and our freedoms, that we could build one that would let us live happier, more virtuous, and to that extent, not a full extent, more angelic lives.

HH: Now Dr. Arnn, it’s not fair to ask you to do this in two minutes, but I’m not fair. How in the world could anyone not have been persuaded? What were the anti-federalists in doubt about when these eloquent essays roll out from Hamilton, Madison and a few from John Jay? And they sweep across the land, and everybody is reading them or having them read to them. How did Henry and the anti-federalists stand against this, or George Mason?

LA: They had two arguments. One was, well, they had many arguments, and they’re good, by the way. But two, I think, are main. One of them is local is more trustworthy. The thing that’s nearest, we can depend on. And understand the federalists’ answer to that, especially Madison. You know, we can’t really always even depend on our own selves. And so the states and their predations, which are many at the time, are actually the cause of calling, prime among the causes of calling a Constitutional Convention. And then they had another thing that it’s reasonable to think, and a few of them said it, these guys are getting ready to take a bunch of my stuff.

HH: And they did.

LA: So you know, they…

HH: They were pretty smart, weren’t they?

LA: Yeah, that’s right. They’re not, and you know, they’re not, and say a great thing, by the way. In the states that reconciled themselves to it most grudgingly, they made a deal in three of the cases. We’re big, powerful states, and we can see this thing’s going to go, and we’re going to vote for it. But we want to extract something from you. And that’s where you imagine they’re going to say I get a port, or I get the custom duty from my port and I get rich, and I have become powerful. They said we want you to place in the document a Bill of Rights. And that demand, and the later meeting of that demand without any legal requirement that they do so shows the ultimate harmony that drove the process.

HH: And we are going to talk about that Bill of Rights next week, as well as a meeting between Hamilton and Madison, excuse me, between Hamilton and Jefferson that was somewhat chance that resulted in our nation’s capital and a national bank. It’s still a close run thing, and the ratification in 30 seconds, Larry Arnn, was a close run thing.

LA: It was, and they did the tricky thing, by the way, South Carolina mentions in its secession message in 1861 that they said nine states and the government would go into operation, which meant that three might not be in, excuse me, four.

HH: And more on that next week, America. Math isn’t our strong suit, but political theory is. We’ll be back next week with the next federalist dialogue on the Hillsdale Dialogue.

End of interview.

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