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Dr. Larry Arnn On The Federalist Papers And Our Out Of Control Government

Saturday, November 30, 2013

HH: Hope you are enjoying your Black Friday. Whether you are trapped going into or coming out of a shopping mall, you’re trapped in the right place, which is in our weekly Hillsdale Dialogue, when I spent an hour talking about the most important issues and the most important books and people of Western Civilization with Dr. Larry Arnn, president of Hillsdale College, or one of his many colleagues. All of the offerings of these dialogue series going back to January of this year are available at, and all of the Hillsdale offerings, and many of them you simply ought to just spend time this holiday season going through, whether it’s on the founding, on the progressive challenge to the Constitution, on economics, are all available at A happy day after Thanksgiving to you, Dr. Arnn. I hope yours was a wonderful day.

LA: And I hope you have all our shopping done by now, Hugh.

HH: I’m not. In fact, I’m heading off to D.C. tomorrow night, and I won’t be doing any shopping until December 21st, and so I’m really going to be retrograde. But let me ask you before we turn to foreign affairs, and I asked you to be ready to talk with me this week not about a great work of Western Civilization, but about what the President’s done with Iran, about the role of the Court in our life, because two cases are heading there this week – Hobby Lobby and Conestoga. And our friends at the Alliance Defending Freedom are bringing the latter one on behalf of five Mennonite family members who make baskets, I believe, and then Hobby Lobby, the Green family with 13,000 employees. Both are privately-held corporations. Both don’t want to buy abortifacients for their employees as is mandated by Obamacare. So the case is going up there under Free Exercise. But how often and ought a Chief Justice to rethink what he has visited in previous cases? In other words, do you think John Roberts might rethink his decision of a year ago?

LA: Oh, well I hope and pray. And if he does, first of all, it’s a big thing. It’s devastating to Obamacare, but it’s good to state what the issue is here, because the 1st Amendment is the first amendment, and it protects speech and religion, the press and such things. And the fundamental rights of human beings come from their rationality, which is a synonym for speech. In Greek, the word for speech and the word for reason are the same word, and they’re also the word for Jesus in the Gospel of John. It’s the gift we have. And these people have a religious objection to abortion. And so is the question that’s before us is if everything is going to be lumped under the administrative state, so we buy our health care, and I will add we get our educations through a regulatory state, and we pay taxes to fund it, and then the regulatory state doles out to us health care and education and everything like that. Then what about the rules that they make, which are very comprehensive, because Obamacare and the education bills, the various ones, and now the Dodd-Frank finance bill, they’re full of detailed controls of all kinds of things like what you buy and what you have to provide to employees and things like that. And the question is, what room is there going to be left for people to follow their consciences, which is their fundamental right? And so that’s the issue that’s before the Court, and if they say there is room, then to that extent, the administrative state recedes, and we have room to worship and live as we please. And if it doesn’t, then a hundred things have to bow, including the most fundamental things.

HH: You know, the rising water of the state, it’s starting to lap up against many, many institutions that had previously thought themselves on high ground, like the Roman Catholic Church. Indeed, I believe Obamacare has begun to soak the floorboards at Hillsdale as well. Am I correct?

LA: Sure. And you know, our costs are going to go up, and all kinds of things, those abortifacients, they apply to us, too. And you know, we’ve got at Hillsdale College a tremendous benefit system, and that’s very good for a college to have, because college is a very long term operation, and the people who work in it, you know, tend to work in it a long time. And so that’s hallowed around here, and we work very hard to control our costs. And we’re looking at very large increases in costs for the first time since I’ve been at Hillsdale College.

HH: Now I fancy that the Chief Justice and some of his colleagues at least occasionally listen to some of these programs. I did share an office suite with him a long time ago, and we do transcribe these, and they circulate around. What do you hope is in his mind as he confronts both what was a very artful decision in the Sebelius decision, in that it kept the Supreme Court out of the middle of a shooting war between Obama and Romney, and it struck down a lot of the coercive aspect of the law, in fact making it unworkable with this Medicaid expansion not going in many states. And in many respects, he allowed the law to descend upon us in what Krauthammer, Charles Krauthammer, whose three hour interview with me aired yesterday, is calling it a defining and destructive moment of liberalism that would never have rolled out had Roberts not interfered, had Roberts interfered with its rollout. So would it be appropriate at this moment, though? It’s almost as though Marshall got a second bite at Marbury V. Madison after Jefferson was weakened, and he ordered him to deliver the commission, don’t you think?

LA: It is. Well, it’s this. This is a purer case, right, because the Constitution is an important document because it’s A) the only law that the people of the United States have ever made, B) it provides the form of the government, and C) its purpose is to protect our liberties. The way courts work is that that’s the place where the law is applied to the individual, and the reason we have separation of powers and we have the independence of the judiciary, which is a fundamental part of it, is that the legislature and the executive may not affect the court as it applies the law to individuals with a view to protecting their rights.

HH: Yes.

LA: And so here are some people, these Mennonites and the Green family, and those people live a code. They have adopted it, and it is the first purpose of the United States of America to protect their right to do that. And now this law is to be put upon them and everyone like them, and that means very many people listening to this program, and that means you and me, and the question is, or the point is, that is what must be on the mind of John Roberts.

HH: I also wonder, Larry Arnn, is there any, I don’t want to use the word shame, because I’m not talking about shame. But is there anything surprising that a great intellect would change their mind about a previously rendered decision, because I also think it’s well within the power of the Chief Justice to say you know, I called this a tax a year ago in National Federation of Independent Businesses V. Sebelius, and I thought that it was. But now that I see how it’s worked out, it’s actually not a tax. It’s an arbitrary system of fines which are levied on those the President doesn’t like, and relief from fines given to those that he does, and that arbitrariness undermined my previous…in other words, is it appropriate for justices and other lawgivers to change their minds about important things they have previously decided?

LA: No, well, and see, the issue is, think about the way the Court works. The Court is not a legislative body, well, it’s not supposed to be, anyway. And so it waits for cases to come, and issues are presented to the Court. And so first of all, I imagine Roberts is looking for a way to preserve what he can of the law, and he should. And so he doesn’t necessarily have to reach that point. You could put the point this way. A tax might be legal. What if we put a tax on everybody who’s a Christian, that they had to pay 20% more? Would that be Constitutional?

HH: Of course not.

LA: And this is like that, right? So you could say it’s a tax, but this operation of the tax is unconstitutional on 1st Amendment grounds, and you know, I would, I don’t, I’m not, I don’t the honor, as you are to be a lawyer. I instead am an educated man. But you know, education in the law of the high kind is a kind of education, too. And so I don’t know what he’s going to do, but I would imagine he’s thinking along those lines. At least I am. And I hope he does.

HH: Well, I know there are four justices there who wanted to strike the whole thing down in its entirety a year ago.

LA: Yeah.

HH: And they have not changed their minds. And so the question really becomes what does John Roberts want to do about this law? And Dr. Larry Arnn, this is a bad law. This is a very bad law. And ought not the justices to take account of that?

LA: Yeah, and you know, think of the character of the law. The law is prescriptive in detail. And you know, there’s a way, I don’t much like Romneycare, and I study Winston Churchill who did favor national health insurance. But he favored it to try to find a way to do it so that it isn’t bureaucratic its essence. An such a law like that would be very broad, and it would not require things like lists of things like abortifacients that you have to provide to people. So the law is essentially a bureaucratic nightmare. And you know, I think we’re entering the period where they’re going to tinker with the law in all kinds of ways to deal with the eruptions of public outrage and inconvenience that come with it, and try to save it that way. And that’s a lawless prospect.

HH: And that ought to be on the mind of every justice.

— – – –

HH: You know, Dr. Arnn, I want to move on to the Geneva Accord, but I did have to point out the growth of the administrative state in the last segment. The IRS announced this week that they would be regulating closely what activities by 501c4 advocacy groups would be protected in their view by the 1st Amendment and which would not. And I just know the framers would shudder at the idea of the revenue collecting arm of the national government dictating what is and is not an appropriate action for 1st Amendment protected entity.

LA: That’s right, and you know, at the center of this 1st Amendment and of our rights of speech have to do with those that involve our control of the government. And so they’re regulating words about politics. And of course, the IRS is also a key implementing agency in the Obamacare apparatus, which is huge and reach which touches many agencies. But the IRS is the agency that determines if you’ve conformed to the law, and if you haven’t, then whether or not you have to pay a fine. And so that’s, and you know, that will also be making judgments about who’s eligible for the many subsidies that are in it. So the IRS has gotten a lot bigger, and there’s another instance where it’s gotten a lot bigger.

HH: Now let’s turn to a power which was big at the beginning, the President’s powers over foreign affairs. And for this, we have to go back to the Federalist Papers and what they had in mind, because this week, the President, through his Secretary of State, committed us to a process that will allow the Islamic Republic of Iran to go nuclear, in the eyes of many experts – John Bolton, Bill Kristol among those who have opined as much this week on this show. And he also sent B-52’s into airspace declared by the People’s Republic of China to be theirs, in other words, inviting a conflict with the second major power on the globe. And he did this all on his own, Larry Arnn. Your thoughts about these actions in Geneva and over the isolated islands off of the coast of Japan and China?

LA: Well, there’s two questions. One is the wisdom of these actions, and the other is the Constitutionality of these actions. And it’s certainly true, beginning with Federalist #67 and funning for eight or nine papers after that, that they describe a response, an executive that has two qualities. One is energy, and the other is responsibility. And energy means they can get things done, and especially in foreign policy. Responsibility means that they are accountable to the other branches to live under law, and just think about that. The Congress passes the laws and has oversight of executive branch operations while the laws are enforced. And then the laws cannot be applied to individuals except through the court system, which is independent of the executive. So they were looking for those two things, and they thought they had found a way to combine them, I think they did, in that the executive is unitary, that’s just one guy. The executive power is lodged in the president, says the Constitution. And that means, that imparts energy, but also responsibility, they argue, because you know who to blame.

HH: But when the stakes are this high, our mutual friend, Terry Eastland, loves Federalist 70, and he loves the phrase energy in the executive. In fact, he titled a book, Energy In The Executive. And energy in the executive is, according to Hamilton, a leading character in the definition of good government. Now the energy has been used in Geneva…

LA: Yeah.

HH: …to enter into a terrible deal. John Bolton lacked words to describe how bad the deal was, and it got worse since I talked to him on Tuesday, as the Iranians undue every understanding, and it becomes obvious we don’t even know what we signed.

LA: Yeah.

HH: But we’re stuck with that, aren’t we?

LA: Well, that’s the genius of John Kerry at work.

HH: Ha. Never thought I’d hear you say those words together in the same sentence, actually.

LA: Isn’t he a shrewd and precise and careful man? And yeah, you know, it’s a terrible deal, and it’s terrible because we have this one lever. We’ve decided to use sanctions, and we’ve at great laboriousness, we’ve put together a regime of sanctions on Iran, and such people as Victor Hanson have said in the past that those are being, and will be, effective. And that’s what we got. And it’s hard to put that together, and hard to make that work. And of course, there are leaks in it, but apparently, it has done some good, put pressure on them. And what we’re going to do is we’re going to relax that very difficult regime that we’ve put together, or eliminate it for six months, with the problem of having to put it back together again. And it’s very hard. And what we get for that is that they promise to undo some things they’ve done, which things can be redone in a month.

HH: Yes. Yes.

LA: And it looks like, according to the Israeli press, it looks like they can continue building a plutonium installation that is a quicker way to build a nuclear weapon, and is not covered by this agreement.

HH: And indeed, there is no other purpose for plutonium except weaponry, as opposed to the uranium enrichment at 5%, which were they allowed to do it under the U.N. resolutions, you could use for civilian purpose. The plutonium factory is a bomb factory. That’s all it is.

LA: That’s it, and it’s a big thing, and they are announcing that they’re going to carry on with that. And they are reading the agreement to say that we have recognized their right to the enrichment of uranium to a certain amount. And of course once you have that amount of enrichment, it’s not hard, I read in the press it takes a month, to go from that percentage of enrichment to a weapon capable percentage.

HH: Now this is the hard question. Is the system that we designed, that the framers designed in 1787 and ratified in 1789, has it run to its utter limit and now is ruinous to us, because we have vested in the nuclear age the capacity to undo countries in the unitary executive when that unitary executive is incompetent?

LA: Well, there are two ways to answer that question. First is that point you just made cuts both ways, because it’s a fact that we can do that to people, and it’s also a fact that they can do that to us, and we have to respond. And diddling around when such a response is necessary is not likely to work. So that’s one thing. But the second thing is if the Constitution isn’t working, just look at how much it has been changed. The executive branch is now also a legislative branch, and it is huge. The great majority of the rules under which we live that carry force of law never see the light of day in Congress. Obamacare itself, a 2,000 page law, the thing that the Congress passed, which you know, very few people have been able to master what it means. I said on this show once that I’m not an expert on Obamacare, and neither is anyone else.

HH: Neither is…you’re absolutely right.

LA: And that’s partly true, because goodness gracious, they’re making rules about it constantly. And the President, of his own authority, waives part of them, parts of the law, even parts of the law passed by Congress. And so there’s a kind of reach and lawlessness and legislative character. And I’ll just add this. Also, judicial character, because if you violated an administrative regulation that’s never been through Congress, typically, you have to go through their judges that work for the agency before you can go to the regular Article III court.

HH: That is absolutely true.

— – – –

HH: And the question I had put to Dr. Arnn before the break, and which he deftly avoided thus far, but which I return to, is it time to reconsider whether or not the parliamentary option would be preferred in an era like this, because we’re stuck with a manifestly incompetent and ideologically extreme president who hid that, Dr. Arnn, quite well.

LA: Well…

HH: …in the court of 2012.

LA: I can tell you that Winston Churchill often in his life pined for our system.

HH: Okay.

LA: …because you know, in 1945, they elected a socialist government, and in the course of four or five years, I think, five years is how long it took them, they nationalized 20% of the economy. And Churchill’s understanding of the parliamentary system is that it works if the House of Commons is, he understood it to have an element of separation of powers in it, because the House of Commons, the majority in the House of Commons, appoints the executive, can unappoint them whenever it pleases…

HH: Exactly.

LA: …and debates what they do constantly. And so our system, you know, the Congress, you know, and there’s an election coming, thank God, the Congress has the power to deprive the President of funds in things that it doesn’t like, including in foreign policy. It has great powers in foreign policy. And my opinion is now would be the time to use them.

HH: And what are those powers that it has in foreign policy? And specifically, with our friend, Lincoln, in mind, he found it quite convenient to ignore the Congress on occasion, and did so with dispatch when they were out of town, and it was difficult to get there. And he always told them what he did. I know you like to make that point. But we now have a president who loves the power that Lincoln used, even though Congress is right down the street.

LA: Yeah, well, if it’s a treaty, of course, then it has to go before the Senate. And this is a big enough thing that it probably ought to be a treaty, although it’s a temporary thing, too. And it’s hard to think how a legislative body would manage a six month thing like this in detail. So I don’t think the solution to this is there. But what they ought to do is they ought to go campaign before the people that this is a bad deal, and they ought to start building missile defense like crazy.

HH: Well, that is, that’s absolutely true, and they could appropriate funds, but we are now in a broken legislative moment as well. And I intend to bring up to you the other, it’s a major Constitutional week. We have the President doing this thing in Geneva, we have the Supreme Court taking up the 1st Amendment cases that we talked about, and we have the Senate of the United States abrogating through a perversion of the rules, its long-standing filibuster rule. Now I’ve never been a fan of the filibuster, because the Constitution is pretty explicit that the Senate ought to be as a whole rendering its judgment on judicial nominees. But I’m also aware, and I’m wondering what your reaction is, that this is radical in the sense that it is unprecedented what Harry Reid did.

LA: Yeah, well, it’s, you know, the Senate for, since about 1830, the Senate has been reluctant to override a majority and bring to an end debate on a question, any kind of fundamental question. The first time it came up was over the Second Bank of the United States. And it’s been very involved in foreign policy at various times. And the Senate, which was created in the Constitution to be the most deliberative body, that takes the longest term view, has been very reluctant to do that. And it just, for the first time ever, has announced by simple majority vote it can end debate and proceed to a vote on most questions regarding presidential nominees. And there’s a lot of reasons why that’s important. The nominees that are being held up right now are D.C. Circuit nominees, especially, and the D.C. Circuit is the place where cases arise where the claim is that the President has gone too far.

HH: Yes.

LA: …or the Congress. And so, just…and you know, you have to imagine, you know, I invite our listeners to imagine that we are dealing with a new kind of government. And the fact that’s been introduced to it is administrative and bureaucratic rule that reaches everywhere. And everything we’re talking about today is one aspect or another of what is, the questions that are presented by that fact.

— – – – –

HH: So Dr. Arnn, Bill Kristol and I were talking about Harry Reid’s radical move this week, and trying to puzzle through how ought the Senate to respond, Senate Republicans, because if they shut down the Senate, then the Defense establishment isn’t funded, and we have another shutdown, and that didn’t work so well for us. So that’s just as Obamacare undoes itself. But we also came up with an idea that perhaps Mitch McConnell ought to announce now that if he gets a majority in 2015, from the elections of November, 2014, he will be confirming no Obama judicial nominees, including Supreme Court nominees, as retribution for this breach of long-standing procedure, and campaign on that. What do you think of that idea?

LA: That’s a good idea, especially if he states it in the name of the rule under the practices that have prevailed in the United States. And see, I’ll add a point. I think first of all, that the debate in America today is about whether or not the government can be controlled in its new administrative and bureaucratic form. And this court case that we talked about at the beginning, that’s the issue that that presents. And there’s, anytime a pollster asks the people are you afraid of the government, or do you think you can control the government, then you get 65-85% majorities saying it’s getting out of hand. And so Leader McConnell should make the point that this is an element of control of the government. And I think, by the way, coming out for gridlock is not the worst thing in the world.

HH: No, and I just wonder if you were Terry Lynn Land, who’s running in your great state of Michigan to replace the retiring Carl Levin, who spent his career obstruction the missile defense we desperately need right now, or if you were Tom Cotton running in Arkansas, who’s our favorite candidate over at the Act Right list at, or you’re running, you’re Mead Treadwell, who I think has some former association with your colleagues at the Claremont Institute…

LA: I know him.

HH: …or anyone anywhere, ought they to be nationalizing these issues and talking about these things right now, Larry Arnn?

LA: Yeah, and especially the points of principle that are raised by them, right? I mean, this man, Green, and his family, and these Mennonites, they, and you know, and everybody who’s going to have to pay more money for their health insurance and buy kinds that they don’t want to buy, and be told in detail what to do all the time, that’s what the government does now. And one has to take a principled stand against that. And it’s not good, and it’s counterproductive in a thousand ways. It’s not good for the economy. But above all, the question is are we people with rights in nature? And do those require to be protected by our government?

HH: You know, that puts me in mind, I think it was de Tocqueville, and I don’t know how many weeks we’re going to have to put aside for Democracy In America, whenever we get there, but I think it was he who spied a young farmer with an axe over his shoulder, and his family in a cart, and a donkey or a mule pulling it west, happy as could be with nothing other than a promise of being on his own out on the frontier somewhere. That’s a long way away from where we are right now, Larry Arnn, from what you just described.

LA: Oh, yeah. Oh, yeah, and very far. And the questions of principle are not hard to understand. In 1936, Winston Churchill published an essay called, in ’35 and again in ’36, an essay called What Good Is A Constitution? And it was in the context of the Supreme Court striking down the National Industrial Recovery Act, which was the most sweeping of the New Deal laws. And he made the point that the issue here is simple. It’s between are we going to be a nation where the government owns the people, or where the people own the government? And that is the question before the American people unfolding all the time.

HH: Now the next three weeks, we’re going to be talking about statesmanship. And Hillsdale makes a study of statesmanship, and you have, hopefully, future statesmen up at Hillsdale, although they’ve disbursed for the Thanksgiving holiday. What is their mood?

LA: Well, first of all, you know, a college campus and ours is not whipped. We try to keep it from being whipped constantly by the news, because we have something to do here, right? We’re supposed to study fundamental things. And so right now, the mood of the kids is they’re exhausted. They had midterms, and their papers are due, and finals are coming in ten days. And so that’s their mood.

HH: But I hear the Arnn seminar is pretty easy, though.

LA: What’s that?

HH: I hear the Arnn seminar is pretty easy. Maybe…

LA: So you know, a few days ago, I set a world record. I actually taught Aristotle for six and a half hours in one day.

HH: Oh, my gosh.

LA: And the reason is I had this stubborn class, and they wouldn’t move on. And so we got way behind. And then, you know, we turned for the barn, and they said we’ve got to finish the book. And I’m gone next week. So we had class for three and a half hours on Saturday morning, and six and a half hours on Monday.

HH: Do you know that we have young people listening who are right now thinking about where they’re going to apply to school?

LA: Yeah, and that’s the point I want to make to those young people. If you want to join a bunch of people like that, you’ll end every term with dark circles under your eyes. And you will learn. And I’m telling you, these kids, I mean, they’re awful. There’s a girl in the class named Brianna. I won’t say her last name. I guess I shouldn’t. And she just twitches all the time with delight. And I will say, and there’s about ten of them in this class of eighteen, and every time I say we’ve got to move on, she’ll say well, I’ve got one more question, right? So that’s what they think. What you’re asking is what do they think about the long term and their own futures? They are a mixture of hopeful and worried, just like everybody else.

HH: On that note, on this Thanksgiving week, I am thankful there is a Hillsdale College. I hope many people who are listening are thankful that there is a Hillsdale College, and I hope they support it, and support it richly and deeply and continuing long into 2014. Dr. Larry Arnn, Happy Thanksgiving week to you., America, for all of these dialogues. That was a good rebuke, well delivered.

End of interview.

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