HH: It is the last radio hour of the week, the much look forward to Hillsdale Dialogue, where once a week, I sit down with Dr. Larry Arnn, the president of Hillsdale College, and/or some of his colleagues on their extraordinary faculty of the extraordinary college, and we talk about the most important issues in the history of the West, and the most important people and debates. And over the last seven weeks, we have covered the Lincoln-Douglas debates. Last week, we covered the Cooper Union speech that Lincoln gave that launched his presidential campaign. And today, we’re going to talk about that campaign, what happened, and what the first inauguration speech by Abraham Lincoln did. But Larry Arnn, first, welcome, it’s great to have you, friend.
LA: Nice to be on, nice to talk to you.
HH: There is a large debate about originalism underway right now, and it touches on Lincoln, because it’s about the 14th Amendment and how it begins about who’s a citizen of the United States. And on one side are some great legal brains like John Eastman and Mark Levin and Andrew McCarthy. On the other, a number of other originalists, including former Supreme Court clerks to Clarence Thomas and many others. And the practice of the United States since the late 1890s has been to treat anyone born on United States soil as a citizen. What do you think was the intention of the framers of the 14th Amendment on this? And even before that, what was the intention of the people who put together the Declaration and the Constitution?
LA: Well, so that asked two questions. Before the 14th Amendment ,which as everybody knows, was passed after the Civil War, one of the three Civil War amendments. There was no federal definition of citizenship in the Constitution, so the 14th Amendment provides one. And the reasons for doing that in the logic of reading the 14th Amendment, and it has to do with the fact that privileges and immunities of citizenship are one of the three things that are protected in the first clause of it. So then the question comes up who’s a citizen. And so now I’m remembering from graduate school days, but I think accurately, and of course, the audience should know that Hugh Hewitt springs things on me like that, this time in particular, on 15 seconds notice.
HH: It wouldn’t be any fun if I warned you, would it?
LA: Yeah, you know, it’s like a sport we’ve been engaging in for 30 years now or more. But so the 14th Amendment was principally drafted by a Congressman named Bingham, and the language, and I don’t have it in front of me right now, but I think it says all persons born and naturalized in the United States are citizens of the United States and of the state wherein they reside.
HH: Subject to the jurisdiction of the United State is the word in there that gets people divided in the two camps. What’s that mean?
LA: Yeah, there you go. So there’s a debate in the Congress about the 14th Amendment. There is a passage in the debate, and I can find it, and this always assumes that my memory serves, but it’s crucial. And the question comes up what about people who owe allegiance to a foreign government, for example, children of ambassadors? The answer is given, and if memory serves by Bingham, that no, of course, they would not be included.
HH: That’s correct.
LA: And so the best reading of it, in my opinion, is that it was not meant to cover people who are not here owing fealty to the United States of America by some legal process. And that, you know, there’s all kinds of consequences that flow from that, but really specifically, there’s only one, and that is are they citizens because they were born here. And if the answer to that is no, which I think is true under the interpretation of the intent of the people who wrote it, then that doesn’t mean it wouldn’t be a good idea to give them, you know, for example, education for their kids, which seems to me like a good idea. One of the first court rulings on this, if I remember again correctly, is in Plyler V. Doe, where I think the Supreme Court of the United States ruled that they are entitled to education in the public schools as a Constitutional matter. And I don’t think that’s true, but on the other hand, not to educate them seems kooky to me, because what do you want to do? Do you want them to be here illegally and grow up ignorant, too?
HH: Well, we had this debate earlier this week between John Eastman, who is of the opinion that the citizenship clause does not extend to the children of people in the country illegally, and between Erwin, who believes it does. And I brought up the James Ho article defining American, and he’s a Clarence Thomas clerk, and a bigwig at Gibson, Dunn and Crutcher. And he found countervailing legislative history. And Erwin’s big argument, and it is a compelling argument, is that ever since there have been immigration laws, which postdate the Civil War, and even in the occasion of Toreys who returned illegally to the United States, the people who violated those post-Civil War laws, and the children of the Toreys were always viewed as citizens because of the old English common law having to do with if you’re born on English soil, you’re subject to the right of kings. And John vehemently disagreed that that was intended by the framers, and especially by the proponents of the Declaration to be the rule. But Erwin’s point is look, we’ve done it this way since the 1860s. How in the world can we change now? People who are, been walking around thinking themselves citizens for many, many years, maybe 40 years because they were born 40 years ago in the United States to parents here illegally, would suddenly not be citizens. And John responded that well, you know, the Bracero program actually operated that way. So there are two questions here. What would be required to change the practice, and not one conservative attorney general has brought the lawsuit trying to change the practice, and would an amendment be necessary or a statute, and then is it prudent to pursue it? These are issues you’re always raising, what is right and what is prudent, correct, Larry Arnn?
LA: There you go. So prudence involves both consideration of ultimate purposes and of circumstance. Let’s start with the ultimate purposes. America is a system, is a union of people who subscribe to certain practices and beliefs. You don’t, it doesn’t matter what color they are, it doesn’t matter where they come from. What matters is are they republican in their temper, and by republican, I mean what James Madison meant by it – government by consent under constitutional law that protects the rights of all, and with limited government. So America, you know, in my opinion, you can’t make any sense out of the American Union except thinking of citizenship in those terms. It’s the first country built on a set of ideas and of the practice of those ideas. So how do you best get that? And I don’t think that this particular thing is central to that, because if we stopped illegal immigration, which I hope we will do, and it has been declining a lot, by the way, because our economy’s not so great, then that would help go a long way to taking care of that. What I think should happen is, you know, I’ve counseled people about this, some important people. The citizenship test should be made very serious. You should have to learn the story of the country, and we’re not really competent in this day and age to teach it very accurately. It’s very politicized. And so there could be some prescription that you would teach it from the original source documents, and not what contemporary scholars write about it, and that is a doable thing. We do it at Hillsdale College, and that means you read your John C. Calhoun, and you read your Abraham Lincoln. And so that seems to me the approach that’s important. We should redefine our citizenship as a set of rights coupled with a set of responsibilities. And right now, what it is, is a set of claims. And obviously, you know, I used to read that there was in certain Southern California hospitals a queue of people who were in labor and you know, I don’t know the truth of this, but in parking lots waiting to have a baby, and they waited until 5:00, and then they went to the emergency room, and then they had to be admitted, and then their kid would be delivered as an American. And if that’s the case, well, that’s not exactly the right spirit, although you’ve got to admire it some, too. And what you want is you want citizenship to carry a content. We are a self-governing people. That means we must govern our individual selves, and we must be responsible in exercising the authorities that come to us to help govern everybody else. So I would think about it that way and talk about it that way. And you know, I will tell you, I have some sympathy myself with the argument that the illegals who are here, if they obey the law and have worked a long time and haven’t been on public benefits, and they can prove that and they would take a real citizenship test, that they should be, there should be a path to citizenship open to them. And this Constitutional point, it looks to me like it’s clear, actually, because, so it sounds like Erwin, I forget his last name.
LA: Yeah, and I actually know the guy, too, and he’s very smart. And Eastman’s very smart, and he’s a friend of mine. But it looks to me like the only safe way to, and the controversy, see, his point would reign if there wasn’t any controversy about it. In other words, it’s been done a certain way for a long time, but now there’s an argument about it. And you do have to go back to what was done at the beginning, because otherwise, how do you, what do you mean by law?
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HH: Larry, we spoke briefly last week about the political catastrophe that befell both the Whigs and the Democratic Party, and the deep divisions of the election of 1860. But Lincoln won it fair and square, and the South called it quits at that point.
LA: Yeah, it’s, the election itself, Lincoln got 39.8% of the popular vote. And that means others got, you know, a little over 60%. He got an overwhelming majority in the Electoral College. And if all the candidates against him had been united, he still would have beaten them. Then, one has to consider the fact that in the Southern slave states, he got no electoral votes, even though he got some of the vote, because the rule was that somebody had to declare that they were, wanted to be an elector and would support Lincoln, and nobody did that. And one of the causes of that had to be fear. And that makes you wonder how the votes were counted in those states. Here’s another fact. In the Southern states, taking all of the states that eventually seceded, or you can include Delaware and Maryland, which were slave states that did not, it’s actually true that Unionist candidates, if you lump them all together, and they were Abraham Lincoln, Stephen A. Douglas, and John Bell, if you put their votes together, they carried those states. And they even carried, by a slim margin, the deep South states. So this side that the popular vote, that Lincoln is illegitimate because he didn’t win the popular vote, you have to look into those unusual circumstances to figure out whether that’s true or not, and I, for one, don’t think it’s true.
HH: Now I also want to pause for a moment on the fact that he arrives in office having previously only been elected to a term in the Congress. This is interesting given right now, we see a Republican field riven by charges that some people have no experience or not enough experience, or they’ve only been in the United States Senate two years or four years, or Carly Fiorina’s never held office, or Donald Trump’s never held office. Against these standards, Lincoln would also come up somewhat short.
LA: Well, he was a one term Congressman, and he had experience in the state legislature, and that is not, so on the first hand, he’s been elected to Constitutional office. But on the other hand, you’re right that I think only one other person, but I might be wrong about that, well, I know for sure that only one other person was elected while he was a member of the House, and I think that was Garfield. And so House membership is not typical. And you know, there’s the exceptions also of William Howard Taft and Herbert Hoover, who were nationally famous cabinet ministers and did big, national projects that helped make famous. So it is right that the public very much favors people who’ve held high public office, and you have to include generalships among that.
LA: Because winning generals are excellent candidates for president, and many have won. So that’s a fact, but Lincoln was, you know, you have to also remember, Lincoln was from the frontier. And most of the population didn’t know that much about him. And when he, by the time he takes office and gives this first inaugural that we’re going to talk about, seven states have seceded. And so it’s an extremely controversial moment.
HH: Talk about a challenge. But before we go to the actual address, if you were advising Jeb Bush or any of the establishment Republican candidates – John Kasich or Marco Rubio about what to do about Donald Trump, who’s arrived like a meteor strike on the election, would you encourage them to pay attention to the fact that he hasn’t held office before? And conversely, would you advise Donald Trump, if he were smart enough to call you up and ask for advice, that he ought to bring up the Lincoln example?
LA: Well you know, I got used to, because the audience should know that Hugh not only doesn’t warn me what he’s going to talk about, but sometimes he gets me prepared for things that we don’t talk about. But I watched much of the speech of Donald Trump today to get ready to talk about him.
HH: Oh, very good.
LA: And he’s very impressive, you know. I’ve seen him, I’ve been on a podium with him one time, too, and he’s really good. You’ve got to start with really good. You’ve got to start with that. And I think I understand why he’s so popular. And I think it’s take our government back, and that’s a big theme of his. We’re going to take our country back and make it great again. And that’s a powerful appeal. It always has been in American politics. Stephen Douglas made that appeal, and nearly won. So that’s, those are good things about him. He’s very able. And Lord, is he not confident?
HH: You’ve often said on this show that the defining question of our time is whether we shall run the government or whether the government’s going to run us.
LA: I think he’s speaking to that, and it’s powerful. And so there are real reasons, I think, why he’s thriving. I don’t agree with him about stuff, several things, but in addition, I don’t like it that he points to much to himself as the solution, because you know, we’ve been reading Lincoln here for six weeks, seven weeks, eight weeks. And you just don’t find Lincoln preening on about his greatness. And you know, an important component of Trump’s solution is that Trump is real smart, and he’ll negotiate better. And these guys are really dumb. And where do you find Abraham Lincoln ever say anything like that, or I daresay, Winston Churchill, who is a very different kind of personality?
HH: Lincoln did say some harsh things about Douglas in the course of the seven debates we have covered.
LA: That’s very different, however, than saying you know, that Douglas, he’s just a show pony, and he’s dumb, and look at all these mistakes he’s making, and I’m real smart.
HH: You’re right. You’re right, he didn’t say that. He said, in fact, the opposite. Douglas is very smart, and he’s being very sly with you.
LA: Yeah, and also, also, Lincoln said Douglas is a great man and I am a small one. And except for this point, then about slavery, then I would urge him on, see? So you know, to counsel humility to Donald Trump is a fool’s errand, probably, but I do recognize that there’s real ability there. I mean, goodness. And so what would you do, then, about that? Well, first of all, I would take him on about the things where I disagree with him. His policies about trade are not good. It isn’t true. I mean, first of all, it’s just not a good idea to encourage a people that the only way you can compete with some other people is to exclude their goods. That’s just not wholesome, although to be honest, Abraham Lincoln endorsed that view in much milder and more responsible terms than Trump did. So I would take all that stuff on, and then I would make a point about his background, because his background is all over the place. And that means inconsistency in it. And so it’s not just the absence of a proven record, but who has he supported, and what causes has he supported in his life? And that’s fair game. That’s part of his credentials.
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HH: You know, I’ve been wondering, Dr. Arnn, I’ve been doing these various TV shows, and I’ve been wearing ties. I wore the Centennial Institute tie from CCU. I wore the Miami of Ohio tie, my son’s alma mater. I wore my OSU colors tie, the Heritage Foundation tie. But I’ve looked in vain for a Hillsdale College tie to wear maybe to the Reagan Library debate with millions of people watching. You know, I just despair of ever getting such a tie. I mean, is there a Hillsdale College tie?
LA: Yes, and they’re beautiful. And let me just say, so I’m doing an email right now. What color do you like?
HH: Orange and brown actually would be the best.
LA: Yeah, come on. And you know, what, do you think the college is cheap?
HH: (laughing) Orange and brown are the colors of the Cleveland Browns. How about scarlet and gray? That’s the Ohio State University colors.
LA: The colors are blue and white, so you can have blue, red, yellow or light blue.
HH: I’ll take them all. I’m going to be doing a lot of media. I’ll be happy to wear the Hillsdale College tie all the time.
LA: You’ll get them Monday morning, and I just want the audience to know that I know you too well to be giving you ties, but for this special reason, I will do it.
HH: (laughing) But I’m leaving, I’m going to Colorado for four months, so I despair that you’ll send them to my home and I won’t get them. And I’ve got to have them in time for the Reagan Library debate. By the way, blue and white are the colors of Hillsdale College, but what do you put on the Hillsdale die? Is there an H for Hugh and for Hillsdale?
LA: H, yeah, we’ve got a pretty H, and I’m proud to say that my wife and one of my daughters designed the tie.
HH: Well, Hugh Hewitt wearing an H tie makes perfect sense to me, but you haven’t got orange and brown?
LA: What are you talking about?
HH: (laughing) All right, let’s get to the first inaugural. This is serious stuff when Lincoln takes the oath. The country is literally falling apart. I mean, 9/11, George W. Bush rose to the occasion. Pearl Harbor, FDR rose to the occasion. But here, Lincoln, it’s a crisis the day he gives his address, let me get the date right, it’s March 4th, 1861. He looks around, and in fact, the country is literally falling apart. It’s a crisis.
LA: He, well, first of all, the thing to know is that it’s like Lincoln in so many ways. He, the main mood of the speech is conciliatory and careful. He doesn’t bluster or threaten in any way. And the speech is powerfully sympathetic, and so that’s the first thing about it. The second thing about it is it’s a reasoning speech. Here, and in his later, in the same year, annual message to Congress, Lincoln makes the Constitutional case against secession.
HH: And Roger Taney, by the way, administers the oath, the man who brought about the crisis by authoring the Dred Scott decision.
LA: That’s right, and Lincoln speaks to the Supreme Court decision, and the authority of the Supreme Court, in one of his clearest places in this speech. So the second thing about it is, it’s a reasoning speech. And the third thing about it is the firmness of the speech, which is derived from high principle, the things we have to love. And Lincoln could appeal to those as few have ever done, and it’s the reason why so much, he is remembered so well, that and the Civil War. And so it’s one of his masterpieces, and it is, it’s an extensive speech, unlike the second inaugural, where it’s just a beautiful freedom, religious poem.
HH: Okay, so conciliatory, reasoning and firm. That’s Lincoln’s first inaugural. And let me in fact put it in context of what he has to say, Larry Arnn, as he begins, “Fellow citizens of the United States, in compliance with a custom as old as the government itself, I appear before you to address you briefly, and to take in your presence the oath prescribed by the Constitution of the United States to be taken by the president before he enters on the execution of this office.” And then Lincoln goes on. So he begins, Larry Arnn, with the Constitution.
LA: That’s right, and it’s, the mood of the first paragraph is like the mood of Reagan’s first inaugural, which I encourage everybody to go and read. It’s an obedience, right? The first point is obedience. Obedience to what? Obedience to the Constitution and the people. And that runs through the whole speech. And that’s right. So he begins by submitting himself. I’ve quoted it before, but I’ll do it again. Bill Clinton’s first sentence as president is we meet here in the depth of winter, bleak of winter, but by what we say in the faces we show the world we can force the spring. So you know, that’s a kind of global warming point. But it’s an assertion of authority to begin with.
LA: And Lincoln begins with an assertion of submission.
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HH: It’s an eight minute segment, Dr. Larry Arnn. We’re talking about Lincoln’s inaugural. I’m not even sure how long it went. Did it go eight minutes?
LA: I don’t know the question. That could be. It could be ten. It could be as long as that. It’s, let me count the pages, it’s one, two, three, four, five, six, seven, not tightly spaced pages.
HH: Okay, it might be 15 minutes, then.
LA: Yeah. Yeah, it’s longer, by the way, than they typically are. That’s a fact. You know, it’s amazing how the form of first inaugurals is one of the key forms of the government since George Washington. They swear an oath, which is stated verbatim in the Constitution, and then they turn and they give an address. And the address is general in form, but this one is less that, because half, you know, seven states have seceded from the Union.
LA: And they actually have people in Washington seeking appointments as ambassadors to negotiate their departure with Lincoln, when he’s refused those already. So he turns from that beginning to address immediately the fears of the people of the Southern states. He says that there’s a threat from his administration to their property, peace or personal security. And he repeats what he says over and over in the Lincoln-Douglas debates, and in other speeches. I have no purpose, directly or indirectly, to interfere with the institution of slavery in the states where it exists. I believe I have no lawful right to do so. And I have no inclination to do so. So that’s powerful.
LA: And he has explained that at great length in the Lincoln-Douglas debates where he says that the Republican Party is born to recognize A) the evil of slavery, and B) the powerful fact of its existence among us.
HH: And so now he holds the rod, and still he says I will not take yours.
LA: That’s right. And it comes up twice more in the speech, this sentiment, because in the next paragraph, he reads from the platform of the Republican Party on which he was elected, which he says is a law to him and his administration. And then it comes up a third time when he says that he’s aware that there are moves to amend the Constitution to guarantee that that power is not in the federal government, and that although he thinks that the power is not there as it is, he would not resist such an amendment.
HH: But he does go on to say that I hold in contemplation of universal law and the Constitution of the United States it is perpetual. He is, he’s making an argument that they cannot leave.
LA: That’s it, and he says that you can look at that one of two ways. One is he doesn’t think that any organic law, including this one, has ever included a provision for its dissolution of a government. And this one doesn’t. and then he says you may look at it as a contract between the states, which some people even today do, although, say, James Madison did not. He says in that case, can one party to the contract break it? And in the annual message, which comes a few months later when Congress comes back into session, he says just think of the difficulty of separating and breaking up the contact, if that’s what it is, because for example, we have bought Louisiana all together, and we have a big debt for that.
LA: Who’s going to pay that debt? And all kinds of things like that, see, so his argument is that there isn’t any way for one party of a contract to break it if that is the case. But also, he quotes from the beginning of the Articles of Confederation, which say, articles of perpetual confederation. And then he says that the Constitution says that it is to form a more perfect Union. And if it were to disturb the perpetuity of the Articles of Confederation, then it would be a less perfect Union. And then he says if the individual states can break the contract, where’s the authority for that, you see?
LA: Because they’re supposed to be strict constructionists, right? And the document doesn’t say that.
HH: He also says we cannot, physically speaking, we cannot separate. He has a long argument. He’s appealing to their reason.
LA: And see, he mentions early, and then develops it later in the part you’re talking about, the fugitive slave clause, and he says that my administration agrees that persons held in the service of slavery in one state escaping to another state shall be returned. We agree with that. And when we want to do it, we will do it. And we want to do it in a way that protects the civil liberties of all. There has to be some due process here. And the fugitive slave clause had passed in previous times where if you captured somebody that you claimed was your slave, you took him to a justice of the peace. And if the justice of the peace found him a slave, he was paid ten dollars. And if he found him free, he was paid five dollars. So things like that, Lincoln, you know, those are notorious things. And then Lincoln later develops that argument and says is that going to get any better if we’re making treaties with each other instead of laws of friends, because those borders are still going to be just what they are.
HH: Right. I’m coming right back with Dr. Larry Arnn for our last segment of this week’s Hillsdale Dialogue, because the end of this speech is so powerful. I want Dr. Arnn to read it to you, so don’t go anywhere, America. How did Lincoln begin his most enduring presidency with words, words that last through the century? Stay tuned.
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HH: Dr. Arnn, three minutes, how did Lincoln wrap up his initial appeal to the country as president?
LA: Well, this is, you know, very famous words. Lincoln has called, by this point, that secession is the essence of anarchy. And the reason it is, is that on the Constitutional questions that are alive, we promise to do nothing that violates the Constitution. On these subordinate questions, they can only be decided by majority rule. And so if the minority is to secede, unless they get their way, then they either leave, or they are now ruling the majority. And you’ve set a pattern that will break up your own union and every union that follows.
LA: So then he says, he gets to the end, and that’s the sentimental part, right? He says, he has said in the firm part, by the way, at the beginning, he says I’m going to take care that the laws are faithfully executed. That’s my duty. I don’t have any power from the people to negotiate any settlement about anybody leaving. I have these laws to enforce. And that’s immediately followed by a whole bunch of ways in which he’s going to be kind of loose about that.
LA: He’s not going to force officials on places that are resisting them, and he’s not going to force the mails to go through if people reject them. But then he gets to the end, and he says, you want me to read the last paragraph?
HH: Yes, please.
LA: I am loathe to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic cords of memory stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land will yet swell the course of the Union when again touched, as surely they will be, by the better angels of our nature.
HH: Geez, that’s great.
LA: Isn’t that awesome? Yeah, and you see, he’s, so you think of graves at Arlington, and flags flying, and the sacrifices that have been made, north and south. And…
HH: From the cow pens to Boston, and from Yorktown to Saratoga.
LA: Oh, yeah, that’s, and see, he, it is, it’s amazing. If you just think about it, he’s been hearing for some days with people who say that the breakup of the Union is an accomplished fact, and we are empowered by our government to negotiate with you. The Capitol is nigh to being surrounded, and they don’t have a serious army. He’s been getting cables about preparations for war in the South. He doesn’t bluster at all. He appeals all through this speech.
HH: More next week, America. Don’t miss the next Hillsdale Dialogue. They’re all available at www.hughforhillsdale.com. Thank you, Dr. Larry Arnn, I’ll look for my ties. Stay tuned, America.
End of interview.