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Hugh Hewitt Book Club

Dr. Larry Arnn On Totalitarianism and the Courts

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HH: It is the last radio hour of the week on this Friday, August the 26th. The Hillsdale Dialogue is upon us. Each week at this time, I talk with Dr. Larry Arnn, the president of Hillsdale College, about matters which are neither passing nor of small importance, although occasionally, we’ll work in the news of the day. But we are focused on totalitarianism last week and for the next many weeks, because it coincides with the seminar that will be unfolding at Hillsdale College. All things Hillsdale that we refer to are available at www.hillsdale.edu, including your opportunity to enroll in the Imprimis speech digest, which will arrive in your post office box free of charge. I emphasize free if you will merely sign up for it. All of the online courses on the Constitution as well as progressivism, as well as, I hope, some version of this course on totalitarianism. And all the dialogues that we have been doing since 2013, I believe, are all collected and available at www.hughforhillsdale.com for your binge listening pleasure. Dr. Arnn, a good Friday to you.

LA: Good Friday to you.
HH: I want to begin before we turn back to the totalitarianism seminar with a larger question about, that I’ve run into repeatedly this week on the Trump/Clinton argument. And it has to do with the United States Supreme Court. Many of the NeverTrumpers reply to my concern about the direction of the Supreme Court under Hillary Clinton with the simple response, you can’t trust Donald Trump. And my response to them that there is a 100% certainty that Hillary Clinton will appoint justices who will destroy originalism versus a great certainty that Donald Trump will not, and at least a near probability of 100% that his appointments will be better than her appointments within difference. To what do you attribute their indifference to this argument?

LA: Well, I’ve been puzzled by it. I don’t, I mean, first of all, it looks simple to me for the reasons you just stated, right? Let’s say you can’t trust Donald Trump. Well, you can trust Hillary Clinton. So if you like what she’s going to do, then you should vote for her. But if you don’t, then there is a chance, you know, even, I mean, I think, I don’t know anybody who doesn’t think that there’s a chance that Donald Trump will do different things than what she will do, including especially about the Supreme Court, where I think he has been more explicit about the kind of person, even suggesting who he would appoint, than other candidates for president.

HH: I also believe, and I just want to test my theory, that because he has laid out his list of 11, he has empowered Senate Republicans to filibuster nominees who if they are not on that list specifically, if they depart from the qualities of the people on that list, he has empowered Republicans to filibuster them appropriately, whereas Hillary would not be empowering them, because she is running as an anti-originalist. And it will be a verdict of the people on who ought to be on the Court.

LA: Yeah, there’s a piece of common sense we need, and I perceive some of it in Trump, by the way, and that is that the political battles of tomorrow are going to happen tomorrow. And so what you say today, you know, I mean, like Paul Ryan and Donald Trump seem to disagree about the entitlement state. Paul Ryan wants to reform it. Donald Trump says that he wants to reform it, but with no cuts in existing benefits, or the way, no diminishment, not even the elimination of anything that’s there now, or its diminishment. Well, I think Paul Ryan has the better of that argument, but the truth of the matter is they’re getting ready to argue. If Donald Trump wins and the House remains in Republican hands, and Ryan remains the Speaker, they’re getting ready to work that out, right, because they differ on it, and they’re going to argue about it. And they each have their powers. Well, the Court is like that, too. And so what Trump is doing, actually, is empowering, he will be in a much stronger position having, you know, if he picks on of these 11, he will be in a stronger position for sure, because he can say the American people have elected me with this name in mind.

HH: Yeah.

LA: But the danger that you cite is also there, but I think the way he will deal with that is he has been very careful to say, never, I think, said anything except people like these. And then he will just say it would have been wrong of me to say I will pick one of these, because first of all, I’d be promising an office under the government to a group, a small group, and they could all, it would affect their behavior. No, I said people like these. This man or woman is like these. So I think that’ll, you know, that’s a battle for tomorrow. It can’t be had now, and it will be powerfully affected, I mean, decisively affected by how people vote in November.

HH: So now that brings me to the bigger question. Why the folks who will not admit this obvious, I mean, this obvious distinction between the candidates and results in their success? And there are two paths in front of us. One is very bad for the originalism, one is precarious, but better. One is certain destruction of originalism, and a number of different areas, not just the 2nd Amendment, not just the 1st Amendment, not just federalism, but I’ve actually listed a dozen different decisions. Primarily, the biggest threat comes in Justice Breyer’s decision. He wants, his biggest regret is not being able to get five votes to meddle in reapportionment. He wishes to engage the courts in second guessing reapportionment on partisan grounds. And so we’ll have Democratic plans upheld and Republican plans overthrown. This is obvious. So I’m going to ask you to psychoanalyze, and I know you don’t like to do that, and neither do I. But why won’t people admit this, because it is obvious. Why will NeverTrumpers not admit this?

LA: So I have to give two answers. The first is a story real quick. So one of my great teachers, Harry Jaffa, I was once in his house, and the guy came over from next door to borrow some pool supplies. And Professor Jaffa was talking his ear off. And he looked at his watch and he said I’ve got to go. And he said I’ve got to go to my analyst. And Professor Jaffa said you go to an analyst? And the guy said yeah. And Jaffa said you must be nuts. (laughing)

HH: (laughing)

LA: So what do I think about that? First of all, I think the Court is not special in regard to this argument. In a great range of things, I mean, look at the platform of Donald Trump is these main things – control immigration and build a wall. I support that. Deport 11 million people? He’s always waffled on that, and he’s been waffling about that lately. I don’t think we should do that, myself. So there’s some different, right, maybe a partial difference. He wants to cut the regulatory state. Check, one of the single most important, one of the few most important things, right? He wants to cut taxes. Check. He wants to cut the expense of the federal government generally. Check. He, now these are just things he says, right? Maybe he won’t do them, but the difference between him and Hillary Clinton is he does say them. He wants to keep the entitlement state as it is, at least as it is. I think that’s wrong. But her position is she’s going to expand it all. He’s going to fix Obamacare. Check. In other words, you go down the list, and there’s like 20 checks, and I can find like three, now free trade, I’m for free trade. I stand with Churchill. Trump stands with Lincoln, George Washington and Alexander Hamilton. Am I going to call him a despot because of his position? I’d have to call them that. So it just looks to me like whether you think he’ll do it or not, it makes it more likely that he will do it, because he says he will do it.

HH: And so John Bolton comes on this show this week and says this is a not a hard call, Hugh. I’m voting for Donald Trump. John Bolton.

LA: Yeah.

HH: And there are many people like that. So again, I go back to the people that need the analyst. Why do they fear Trump so much that they not only will not vote for him, but they will deny the obvious differences? It’s that latter part that bothers me. I think I know the answer, but I want to hear what your suspicion is.

LA: Well, I know, I can list, I will probably forget some of them, but I can list the things that have been said to me, and they are chiefly two. One is Donald Trump will wreck the conservative movement. Not only will he break its relation with the Republican Party, but he will change the movement into something else, and the conservative movement is the treasure of the nation. And my response to that is if the conservative movement depends on its connection with the Republican Party, and if Donald Trump being the leader of the Republican Party is a disaster, well, that’s already happened, right? Donald Trump got close to five million more votes than anybody else. And you know, you and I were in Switzerland in these times. I will say, I voted for Ted Cruz, and when it got to Michigan, prudential call, right? If it had been a different, if Michigan had been a different month, I probably would have voted for Cruz, because I know him and I like him. But you know, I will tell you, I was torn about that, and I was very tempted to vote for Trump. And I didn’t, because he’s new, and because there was this NeverTrump going on, and I wanted to be able to say, because I knew I wasn’t going to be NeverTrump, but I wanted to be able to say I voted for Cruz.

HH: Stand by. I want to continue the second reason with Dr. Larry Arnn, president of Hillsdale College. He does not, by the way, speak for Hillsdale here, but for himself. But it’s important for people to understand it. Stay tuned.

— – – – –

HH: But the end of the last segment, Larry Arnn, I made the president of Hillsdale College, Dr. Larry Arnn is my guest if you’re just tuning in, I made it very clear that when we talk politics, you speak for yourself, not for the college.

LA: I do, and let me add about the NeverTrump thing, because it’s, you know, it’s not my purpose in life, by the way, to be a partisan, except of the Constitution and the laws of nature and of nature’s God. And lots of friends of mine are NeverTrump people. And you know, I haven’t, I’m not, I have never criticized them, well, in public, I’ve never. Sometimes, I’ve criticized things they’ve said in private. And I don’t, one of them has criticized me prominently for things I’ve said on this show. And I don’t criticize him back, right? And God bless him. And I even say I do understand, because what I thought about Trump until about September, August last year, I thought, and this is what I would say, because I’ve never attacked Donald Trump in public, either. And you know, people criticize me for being too gentle when I say things about Obama, because, and Hillary Clinton both, because I think that both of them, according to their lights, are honest people trying to serve the cause in which they believe. I believe that of both of them, right? I don’t like what they do, but you’ve got to give them credit, right? They put up with a lot, and they’ve given their careers to this kind of thing, and I believe they’re honest about it, right? Anyway, people don’t like me talking like that. But about Trump, you have to realize if Trump is elected president, he will be the first person elected to that old, maybe oldest, by one way of reckoning, Constitutional office as his first public service. Of course, there’s reason for doubt. And I give them that, right? I can see, right? And I understand. I do think that this judgment is simpler than they think it is. But you know, now, right, because now, we’ve got two contenders, and if you’re for limited government and the Constitution and the old practices, and you’re against the bureaucratic state, and I’m against those things, Trump talks against those things.

HH: But now, let, that segues us to the seminar. Isn’t there real fear, sometimes articulated, not often, sometimes they say they are afraid of his judgment with the button, the nuclear button within his reach? But more often than not, they’re really hinting that he’s a totalitarian. Isn’t that what they’re really hinting?

LA: Yeah, but I don’t, yeah, some people think he will be lawless. Well, I think we’ve got a lot of lawlessness right now. And I know that in some prominent places, Trump has criticized that intelligently. And so I’m worried about that. I’m worried about the country, and the future, right? Maybe that’s a sign I’m getting old. As you have less life left, young people think they’re immortal, and they take more risks, and they’ve got more at stake than somebody who’s 63, which is what I am.

HH: Yup.

LA: But anyway, so yeah, I worry about that, right? And I can see that people are worried about that, and think that, and that’s the second argument, that Trump will bring this into the party that we have been members of for a long time. And then there’ll be no force left to oppose this in the future. And that is a real argument with some seriousness behind it. And I agree that it’s a serious argument. And so you don’t have to psychoanalyze them. If they give that reason, it’s a guess, in my opinion, because I don’t think they know him better than I do, and I’ve met him one time in my life. He says he won’t do that. And you know, so…

HH: And I know him pretty well. I’ve had 20 conversations with him.

LA: Yeah.

HH: …which is a lot. And he isn’t a serious authoritarian figure. He just isn’t. He’s not sinister in the way that many people attribute to him sinister motive. More coming up, and we’re going to talk about totalitarians, the real kind, when we come back.

— – – –

HH: As I was closing the last segment, I made a statement that I’m already hearing about, saying that Donald Trump is not sinister. And by that, I mean I do not see in him the shadow that I saw in history books over, from the very beginning, people like Stalin and Hitler, and even Mussolini, though to a lesser extent in Mussolini. I never saw it in Franco, though I know that some people will say to me that I’m blind not seeing it in Franco. Larry Arnn, that shadow that I’m talking about is a deep desire for unlimited power over everyone in every sphere. And that brings us to the subject of your seminar on totalitarianism. Do you agree with me, with my assessment, by the way, about that sinister shadow?

LA: Yeah, I, well, first of all, totalitarianism is the modern word for tyranny, and it changes, it refines that word. It’s still tyranny, but now, totalitarianism uses the tools of science to attempt to control everything. And that means it takes over the education of your children, and one of the things it does is teaches them to report on things you say around your dinner table, right? Everything is controlled and pried into. And you need modern science to do that, because you need societies to be wealthy enough for a large part of the population to be about that work, and because you need snooping and organization and records and dossiers and all that, right? And those are all modern inventions. So, but the modern totalitarians, by the way, the great ones, and you know, up to and including the mullahs in Iran, they announce what they’re doing, right? Jo Stalin said that it was his purpose to control everything in the Russian society, to force changes in the people, including by mass starvation, to which he confessed to Winston Churchill, and he was shy about it a little bit, because he said eight million died, and we now know it’s much, many, many more.

HH: Yeah, 60-plus million. And Hitler as well declared in Mein Kampf exactly what he was about.

LA: That’s right. That’s right. And they, you know, and they claim that this thing that they’re going to do is good, and that the people will benefit from it. But they announce that they are going to, I mean, Hitler accepted from Hindenburg on the second or third time of asking, Hindenburg was the great World War I hero, the senior general, became the president of the Weimar Republic. And he has all the distinction that a German could have. And Hitler was a corporal. And then the next thing you know, it’s 1931-32 and ’33 is when this happened, ’32 and ’33, he’s sitting in the president of the German Republic’s, chancellor, I think he was called, excuse me getting my details wrong, office, the great general, and he says I want you to be chancellor. That’s what Hitler became. And Hitler said I won’t do it, first time, he turned it down, I think the second time, too, unless you will support me in appealing to the people for a plebiscite on an enabling act. And what this act would do was suspend the law and let Hitler do whatever he pleased. And reluctantly, Hindenburg eventually agreed to that. And by a narrow margin, the people did vote for it, you know, in an atmosphere, by the way, of tremendous agitation, including violence in the streets by the Nazi Party and its storm troopers. And so Hitler would not, he made it plain he would not rule with any limits on his power. And we’re not there, yet, right? I don’t believe that Barack Obama or Hillary Clinton or Donald Trump intends such things or say such things. I think of modern liberalism in general, and its move toward comprehensive administration of the state the way Winston Churchill described it, that it will lead to a very bad place, just precisely the place we’re talking about, but that it’s not the intention of the people who are advocating it today to do that.

HH: And that is why I’ve become so agitated in the Supreme Court, because what people don’t understand is when the Court majority falls, with it falls structural federalism, which is the great check on that. And better than the Bill of Rights, actually, is structural federalism. And the FDR Court began to wipe it away, and a Hillary Clinton Court would destroy it comprehensively. I believe that to be true, Dr. Arnn. Do you?

LA: Well, I, I believe that that and the several things that are like that can do that. I actually think that if we’re dependent on the Court to save us, it ain’t going to do it. It’s never been able to do that. Hamilton argues it doesn’t really have the power to do that. But what it is, is a check. And if we lose that check on the unrestrained force and scope of the government, then that’s one more. And it is some check.

HH: Oh, it cannot save us. What it can do is slow down and impede the consolidation that the modern state allows.

LA: Better put, and that’s exactly what I think.

HH: Yeah.

LA: Yeah, I do think that.

HH: And that is what’s so scary to me. The indifference of our colleagues on the right to the checking power of the Court on so many of the projects of the left is just astonishing to me. They deny it.

LA: Well, to be fair to them, some of them argue we’ve really lost that anyway. And so there’s no down side there. It’s already gone.

HH: But we know from Hobby Lobby that that’s not true. We know from Citizens United that that’s not true. We know from the reapportionment cases that that’s not true. From Heller and McDonald, we know that that’s not true. There is no evidence that we’ve lost it. There is lots of evidence that we would under Hillary Clinton as a president.

LA: Well, more, right? And you know, if Hillary Clinton wins in November, the world won’t come to end, you know, on the day after she’s inaugurated.

HH: In December. It won’t?

LA: No, it won’t. Well, I don’t know. I actually think that God will be in charge of that schedule. And so you know, but, as I say, I want to repeat, I don’t think it’s her purpose to do…

HH: Of course not, no.

LA: And I think she would be rightly offended if we ascribe that purpose.

HH: Do you know, I have a very…

LA: I just say it’s the long term effect, like…

HH: I have a very old friend who is married to the governor of California, Anne Gust Brown, sat next to me in my law school classes in the first year at University of Michigan. I’ve known Anne Gust Brown for a long time. And I’ve known Jerry Brown for a long time. I debated him a lot when he was in his exile between governorships. And I find them to be very pleasant and wonderful people. They have no more intention of destroying Constitutional checks than the man in the Moon, but they have appointed to the California Supreme Court, and I say they, because I think Anne advises Jerry on this quite closely, three academics, three very liberal, government expansionist people, the consequence of which is that there are fewer limits on governmental power.

LA: That’s a fact.

HH: And that happened.

LA: And that is what happens.

HH: That’s what happened. They don’t intend anything. They think they’re nice, smart people, and won’t, what they could possibly do wrong, and then they rule that, as they did just this week, that the California teachers are perfectly acceptable doing what they’ve been doing, which is stamping out dissent and crushing any means to move towards competitiveness in the public education arena.

LA: That’s, yeah, that’s true. All that’s true, in my opinion, and you know, I mean, go back to Stephen Breyer, right? What he sees is that the redistricting process in many places is corrupt, as it has been of old. Where I differ from him is that I wouldn’t expect him and his colleagues to be anything but partisan about that, effectively. And I think, I actually think it’s known what to do about that. You know, there was a very great center in Claremont, I think it’s probably still there, called the Rose Institute. And for years, they were the foremost people working on redistricting. And what they preferred above all was just a set of rules that would require you start up in one corner of the state, and you work your way down getting the population you need, with a few simple rules. All the districts have to be contiguous, they have to be even in shape. There’s like six rules. And he’s modeled that, as Alan Heslop used to run that, and he’s modeled that, you know, six ways to Sunday. And what you get is you get fair reapportionment.

HH: Well then, listen to what Justice Breyer told me and tell me if you think that’s what he has in mind. Here’s what Justice Breyer said.

HH: In terms of the regrets, you write in Making Our Democracy Work, very surprising, that one of your greatest regrets is the Pennsylvania reapportionment case. You wished it had come out the other way.

SB: Yeah, I do.

HH: And they want to know, and we’ll talk about that, because I was surprised by that. I was very surprised by that. What are the other ones?

SB: I know everyone wants to know that, and to be really honest, I just put in three, because I didn’t think I should have one.

HH: Okay. So what’s number one of the three?

SB: And the number one, the reason that I was, it was a question of whether with extreme gerrymandering, extreme gerrymandering of Congressional districts, the Court could get into that and say this is a very unfair system. And I thought it was possible to figure out a workable system there.

HH: All right, so do you agree with him, Larry Arnn, that it is possible to figure out a workable system and have the Court supervise it?

LA: Yeah, I just don’t agree with him that’s what the Court does.

HH: (laughing) So you agree with me that we don’t want them to do that.

LA: No, no, and there’s a big reason why that’s not what the Court does. I think Breyer, whom I understand from people who know him is a splendid person.

HH: Oh, he’s a wonderful, gracious, funny…

LA: Yeah.

HH: In fact, we’ve got to go to a break. When we come back, let’s finish this in our last segment. Wonderful, gracious, super guy, and I’ll be right back with Dr. Arnn to discuss that in just a moment. Don’t go anywhere, America.

— – – – —

HH: Dr. Arnn, I want to go back to Justice Breyer. He would, he would be appalled if he thought that either of us were attributing to him totalitarian motives, and we’re not. I want to be very clear that we’re not. What we’re attributing to him is an almost childlike naiveté about the natural order of institutions that find their power growing.

LA: Yeah, so what the Court, you know, an independent judiciary is utterly necessary to free government. That is to say if the state arrests you, and you know, somebody, the state passes a law and then the executive arrests you, then somebody not dependent on them has to decide whether you did it or not, and decide the penalty under law, right? So that’s the basis of the independent judiciary. And you can’t have freedom without that. That means you can’t be making the judges constantly relying on the will of the people. I don’t even think judges should be elected myself, but never mind that. A lot of people disagree with me about that. At the state level, many of them are. But then why do you have judicial review, because Hamilton writes this in the Federalist Papers, because the Constitution is the supreme law of the land, and laws that contradict it are not laws. And so if you’re prosecuted under a statute that violates the lower law, I’m sorry, the higher Constitutional law, then the Court is duty-bound to let you go, because they take an oath to the supreme law of the land. And that means that in cases that come before them, and that’s what they do. The heart of their function is to decide cases between two parties in front of them.

HH: But they decide too many of them, and they…

LA: Yeah, well…

HH: They reach for power. They always have reached for power.

LA: And they, the cases, the decisions have implications generally, right? And that is irresistible. On the other hand, the idea that Justice Breyer sees an injustice and says we’re the ones who could fix it, that is not what judges are supposed to do. They could say in this case, we find that so and so is a violation of the Constitution, including unfair redistricting and potential. But that is, you know, that is a political matter for the people to figure out through their representatives. And he, you know, I mean in that quote, in that bit you played, he is speaking with the tone of a legislator.

HH: Oh, is he ever.

LA: And that’s not his job.

HH: We’re going to post then entire 72 minutes with Justice Breyer so we can talk about it. I have two quick questions in our last three minutes. Why did judicial review, in your opinion, not make it into the Constitution, but made it into Federalist 78? And number two, in these totalitarian regimes that we’re going to be studying. What is the inevitable approach of the totalitarian to the judiciary that existed prior to their taking power?

LA: Well, you can find that. So first of all, why not in there? It’s like their argument about the Bill of Rights, which they resisted in the Federalists, and then those who wrote the Federalists later put it in. But this is a different case. They said it’s obvious, right? It has to be this way. And they didn’t want, you know, I don’t know, so beyond that, I don’t know. What they said was it’s obvious. But it’s possible that what they were thinking was we don’t, in fact, want to give these judges a Constitutional explicit role, because the next thing that you know, they’ll be legislating.

HH: Yup.

LA: And that, by the way, was one of the claims of the anti-Federalists…

HH: Yup.

LA: …of which they were responding.

HH: Yup.

LA: And you know, it’s gone very far now, right? Now they regard, I mean, you know, Justice Kennedy writes that the purpose of America is for, and what freedom means, he says, is for, is everybody gets to define their own existence. And that is deeply contrary to the documents of the American Revolution.

HH: Amen.

LA: …including the one to which he took an oath, right? And I don’t think Justice Kennedy is a bad man. I just think he ought to have gotten himself more education.

HH: And in on, what do totalitarians do with the judiciary, because this will bait the hook for next week. We have a minute left. What do they do with the judiciary?

LA: Well, that’s in the middle of the Declaration of Independence, you see, because one of the things that the King did that led to the creation of the United States of America, in the list in the middle of the Declaration of Independence is he has interfered with the judges…

HH: Yeah.

LA: …because of course if you want to rule everything, then you can’t courts independent of you, or people will rely on them for their salvation.

HH: Do you have any hope that the liberal judges will develop, 30 seconds, Larry, that Obama and Clinton appointees will develop an independent resistance to their aggrandizements of the executive authority?

LA: Well, they have shown some of it in, when Obama’s been president, because they’ve overruled a bunch of stuff he did. It didn’t make a lot of difference, one of my points about the Court. But they have voted, you know, by unanimously…

HH: On a couple of occasions.

LA: Well, I think there are nine or ten, and yeah, I hope, by the way, Hugh, I hope for everyone, because I think that freedom and limited government are beautiful, and everyone in potential can see that.

HH: I hope you’re right. We’ll keep working on it here on the Hillsdale Dialogue. Dr. Larry Arnn of Hillsdale College, thank you. www.hillsdale.edu, www.hughforhillsdale.com, and go to Hughhewitt.com for the reading list that you’ve got to have at your side for next week.

End of interview.

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