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Dr. Larry Arnn’s Hillsdale Dialogue on the Constitution – Article I, Sections 1,2,3

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HH: That music means it’s time for the Hillsdale Dialogue. The last radio hour of each week is devoted to a conversation with Dr. Larry Arnn or one of his colleagues from Hillsdale College. All things Hillsdale are available at www.hillsdale.edu, including the remarkable courses on the Constitution, on progressivism, many wonderful dialogues. All of our conversations from the Hillsdale Dialogues dating back to 2014, I believe, are collected at www.hughforhillsdale.com. And you ought to at least go and sign up for Imprimis, which is absolutely free, the speech digest that Hillsdale College sends out every single month, much loved by those who have been reading it for decades. Dr. Larry Arnn is my guest this morning. Good morning, Dr., good to talk to you.

LA: How are you?

HH: I am terrific. We are going to talk about today, finally begin our Constitution series on what’s actually in it, because it’s such a rare thing for the media to know that this is our remedial MSM course on what’s actually in the U.S. Constitution. Do you think they know, by the way?

LA: Now there are two things that are not known – the details and the general meaning.

HH: (laughing) The general meaning.

LA: (laughing)

HH: Let’s start with Article I. And by the way, it matters the order in which these articles come, does it not?

LA: So the first thing you confront with is the, with which one is confronted, is the Constitution is written in parts. There are seven parts to the original Constitution. And the first three parts set up a branch of government. And the order in which they do that is important, and the fact that they are separated into articles, they’re called, seven articles in the Constitution, is important, because we’re going to say more than once what we talk about the Constitution. James Madison says the most important thing about the Constitution, its most effective thing, is its structure, the way it arranges the powers between branches.

HH: Now last hour, I talked with one of the members of one of these branches, Senator Chris Coons, who is a Democrat. And I argued with him about the appropriateness of the practice known as blue slips. That is the practice whereby a senator from a state, in this case Delaware, can block the advance to a hearing of a judicial candidate by refusing to return what is known as a blue slip. It’s a blue piece of paper that says go ahead and proceed. This is being employed against Justice David Stras of the Minnesota Supreme Court, the grandson of Holocaust survivors, I like to note, a Clarence Thomas clerk, one of the youngest justices on a state supreme court in the United States, and an absolutely brilliant man. And I chided the senator and asked him to go please talk to Al Franken about this, that this was wrong. And he replied I am not in a hurry to change a procedure that gives us control over home state nominees. And I pointed out it’s not in the Constitution. Neither is the filibuster, but at least the filibuster is in the rules that are made allowed to by the Constitution. But the blue slip isn’t. What do you make of such traditions which are not even in the penumbra of the Constitution, Dr. Arnn?

LA: It’s the tendency of powerful people to entrench themselves. The blue slips, by the way, my colleague Matthew Spalding has got an article coming out about that. And come to find out that practice, which as you rightly say is not in the Constitution, and also it’s not really hallowed in time, either. It’s been, it’s a courtesy provided by the committee chairman up to his discretion, and it has been only inconsistently provided in the past. So the real thing is the chairman of the Judiciary Committee, but that committee has got some Republicans on it who keep defecting, so that weakens the chair. He could just look over at the minority and Al Franken, and say you know, we’re not going to do this, as many of my predecessors have said to many of your predecessors.

HH: That’s exactly, and to do so would be to return to the original regular order, because I’ve heard that term so much. And what we’re going to talk about now is the regular order as Madison, Hamilton and the framers in Philadelphia intended in 1787. They didn’t leave a lot to guess, right? They laid out a pretty complete scheme.

LA: They did, and that’s, you’re right, and the first thing we’ll encounter is the grandest violation of regular order. And you want to talk about the first sentence now?

HH: Yup. Yeah, go ahead.

LA: So the first sentence reads all legislative power herein granted, let me get my specs on and make sure I read it exactly as it is, because it matters. All legislative power herein granted shall be vested in a Congress of the United States. Now Article II, which sets up the executive branch, doesn’t begin that way. It says the executive power shall be.

HH: Yeah.

LA: And Article III, so Article III, which sets up the judiciary power, does not say all judiciary power. So this all is an interesting point, why all herein granted? Well, if you go to Locke’s Second Treatise, you find a section which he says that the people alone have the power to set up the form of the government. And to whomever they give the power the legislate, that body cannot give it to anybody else, because that would change the form of the government. And since the legislative power is the strongest of the powers, then for them to delegate to somebody else would place in the government the power to rearrange effectively the Constitution of the United States. Now the reason that’s important is that last year, the Congress passed something like 150 laws, something like that. It varies from about 80 to about 300. And it’s been in that range, you know, for 150 years. But last year, the Obama administration through executive rulemaking in the independent agencies, they’re called, regulatory agencies, added 87,000 pages to the federal register.

HH: Wow.

LA: So that means that Congress, and this is, so this is the first thing we encounter, is shocking. And it’s the central problem in the republic today, in my opinion, in domestic policy. North Korea as well.

HH: It is. I also want to underscore for people that Section 1’s first line writes all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives. They are clearly not granting all legislative power. You made that point by referencing Article II, which does grant all executive power to the president, Article III, which does grant all judiciary power to the courts that are established therein, but not here. What’s the significance of that?

LA: Well, we will get to Article I, Section 8, and that’s really important and great, and it grants, what, in 17 clauses, I think there are, it grants what the Congress may do. And what’s not in there, the Congress is not supposed to do. And there’s a lot, and all of that, one thing to know about this, by the way, is that we have very extensive records, they’re not perfect, of course, because no human records are perfect, but we have very extensive records about all of this, about why this was done. We have Madison, especially, but also other people’s notes taken during the federal convention while they debated all this. And…

HH: You know, wouldn’t you have loved to have had a video? I’ve been to the room a few times in the company of the late, great Jack Templeton, and where Madison set himself up was square smack in the middle, right in front of Washington, who said very little, but with the best acoustical reach of anyone in the room. And he scribbled away furiously, and I don’t think he missed a day, did he?

LA: No, he did not miss. He was one of the most faithful attenders, and there were a few who didn’t miss. And he was very important in the discussion, and one of the things is that the notes show, is that he and others change their minds a lot as they heard each other’s points. And one thing, you know, we tend to teach our children now to look at this document as a set of compromises among various interests. And that’s, there’s, that’s not a good way to understand it, because what it is, there is plenty of that in there, by the way, but what it really is, is the product of a months-long deliberation by some extremely talented people. And one of the reasons, we know that for two reasons, or I think that for two main reasons. One is so many of them change their minds about important things after they got there. And then the second is after it was over, the main ones of them went to the state ratifying conventions, and they were brilliant in defense of the Constitution, and helped to get it passed. And they all went and did that from various parts of the country to various states. So…

HH: It’s remarkable. When we come back from break, we’re going to continue this conversation about what it means. Dr. Arnn, if you have time during this, I’d like you to visit Hughhewitt.com and read quickly the transcript of my conversation with Chris Coons…

LA: Okay.

HH: A Democrat Senator, because therein, I urge that they get together, people like he and Senators Cotton and Perdue and actually deliberate on issues like immigration and infrastructure so that a similar persuasive process occur. It can’t be done in public, though. I mean, it just can’t be done on the cable shows. It has to be done in quiet. I’ll talk about that with Dr. Larry Arnn when I return in just a moment, America. Stay tuned.

— – – — –

HH: Dr. Arnn, during the break, did you have a chance to review the conversation with Chris Coons?

LA: I did. Weren’t you nice?

HH: He’s one of the good guys. He’s one of the good guys on that side.

LA: Yeah.

HH: Do you think it is possible that we could return to regular order, but facilitated by quiet conversations in closed rooms between smart senators?

LA: Well, a big thing is needed. And here, I think, there’s so far, I’m hoping it will turn around, a Republican failure in the Congress. People should understand the breathtaking thing that’s happened. If it’s true that the legislative power, which is the largest power in government, has been delegated out to permanent bureaucratic agencies, then Congress has done something that Madison predicted it would not do, which is give up its main authority. And it got something for that. What it did was it turned the job of a senator and a congressman into something new. Now, everything in Washington is a big, complex, bureaucratic operation, lots of processes. And congressmen and senators inject themselves into various places to influence those processes, and by the way, it means that when there’s something really hard that has to be done, some hard decision, they can delegate that to some faceless, nameless agency and not take responsibility for it. So congressmen and senators are used now to acting like soul agents, so both the blue slip thing and the filibuster thing, those are old things that never operated so much or so perniciously in the past. But they’re like everything else today. they convert every, especially senator, into a soul agent.

HH: Yes.

LA: And give him a lot of power. And so now the president’s got to call Al Franken or somebody and say you know, what diamonds and gold do you want for your district, your state, to let this guy go through? And remember, what a blue slip does is it just lets a hearing start, right? It doesn’t confirm anybody.

HH: Right.

LA: It just lets the hearing begin. So we need, you know, this, right now, is the first opportunity since the birth of the bureaucratic state in the 60s to roll it back and to resume the Congress to resume its power of making the laws. And because Trump keeps announcing out loud he will sign things, and they’re busy squabbling with these other too much, and they haven’t got enough done. But there’s a magical opportunity right now for the Congress to recover its ancient function and authority, and only because of that authority and its doing the hard job of doing that as well as they can, do they deserve any respect?

HH: Let me play a little bit of President Trump yesterday on this point, cut number 10, the beginning of it. I’ll cut it off after we go a little bit, cut number 10:

Reporter: Mr. President, given your harsh criticism by Democrats now, how are you going to bring them in on things like infrastructure or…

DT: Well, we’ll have to see. I’m not sure that we will bring them in. I mean, maybe we’ll bring them in, maybe not. I think the infrastructure bill will be bipartisan. In fact, frankly, I may have more support from the Democrats. I want a very strong infrastructure bill.

HH: So Larry Arnn, harsh criticism, the media misunderstands, has got nothing to do with whether or not you legislate. What matters is whether or not you can persuade to a common purpose. And that’s why bloc grants make the most sense if they just give the money to local government and get out of the way, they will actually accomplish something.

LA: Yeah.

HH: Ditto immigration, but they’ve got to sit down and put, it doesn’t matter if they like each other. I mean, Burr and Hamilton didn’t like each other.

LA: That’s right. Well, first of all, you make that point nicely in your interview with the senator from Delaware. But you know, I’ll add to the bloc grant thing that that’s the first step, because if you do that, you know, that was an old Nixon idea that was a good idea. And if you do that, then the second step would be that you cut taxes at the federal level, and leave room…

HH: Yes.

LA: …for states to collect revenue and resume their proper authority over the stuff that concerns mainly them.

HH: Amen. I’ll be right back. Dr. Larry Arnn is my guest. And we haven’t, we’re still in Section 1 of Article I. Maybe we’ll get to Section 2 in the next segment. Don’t go anywhere, America. That doggone House of Representatives stuff, they were put first for a reason. Stay with us.

— – – – —

HH: As if often the case, I have been diverted by breaking news, Dr. Arnn.

LA: Ooh.

HH: You are occasionally nimble for an aging college president of unknown physical ability.

LA: Yeah.

HH: You can move quickly. David Brooks, your friend and mine, has written a column this morning which just came across my desk. Sunday Pichai Should Resign As Google CEO. He writes there are many actors in the whole Google diversity drama, but I’d say the one who’s behaved the worst is CEO Sunday Pichai. He reviews it all, and he includes this line of Conor Friedersdorf who writes for the Atlantic. I cannot remember the last time so many outlets and observers characterized so many aspects of a text everyone possessed. This is quite a remarkable moment for David Brooks and the New York Times to call for the resignation of Google’s CEO, and the underlying controversy has to do with words. I wonder if you’ve been following this, and if you are surprised by that Brooks would lead the charge against the politically-correct police of Google?

LA: Well, he, so he’s a surprising guy all the time, so no, I would be surprised if I were not surprised. But I think he’s got a point, right? I mean, this guy made an argument. One part of the argument is not very good. But he just made an argument, and I think he made it in part to tempt them to do something to him, because goodness, isn’t corporate America incredibly politically correct these days? And isn’t the tech industry the worst of it all, right? They’re, you just go read in their press conferences and their earnings calls, they’re so politically correct, and they’re all on one side. So good for him.

HH: Yeah, that is good. That is very important that it happened. The second important thing that happened is predicated by something Donald Trump said yesterday, and I want to play for you, and then I’ll tell you what happened. This is Donald Trump yesterday, cut number 6:

Reporter: Mr. President, are you going to increase the U.S. military presence in Asia?

DT: We are going to look at what’s happening Asia. We’re looking at it right now. We’re constantly looking at it. I don’t like to signal what I’m going to be doing, but we are certainly looking at it. And obviously, we’re spending a lot of time looking at in particular North Korea. And we are preparing for many different alternative events if North Korea, if, he has disrespected our country greatly. He has said things that are horrific. And with me, he’s not getting away with it. He got away with it for a long time, between him and his family. He’s not getting away with it. This is a whole new ballgame. And he’s not going to be saying those things, and he’s certainly not going to doing those things. I read about where in Guam, by August 15th, let’s see what he does with Guam. He does something in Guam, it will be an event the likes of which nobody’s seen before, what will happen in North Korea.

Reporter: What do you mean?

DT: You’ll see. You’ll see. And he’ll see. He will see.

Reporter: Is that a dare?

DT: It’s not a dare. It’s a statement. It has nothing to do with dare. That’s a statement. He’s not going to go around threatening Guam, and he’s not going to threaten the United States, and he’s not going to threaten Japan, and he’s not going to threaten South Korea. No, that’s not a dare as you say. That is a statement of fact.

HH: Now Dr. Arnn, four hour after the President said that, the Global Times, a semi-official newspaper in the People’s Republic of China, published an editorial that began the U.S. and North Korea have both ramped up their threatening rhetoric. Some people in Guam have expressed panic. It goes down to say, again, it’s a semi-official newspaper of China, China should make sure that if North Korea launches missiles that threaten U.S. soil first, and the U.S. retaliates, China will stay neutral. That seems to me to be the effect of Donald Trump’s statement. In other words, deterrence works.

LA: Yeah, I also, I think that’s exactly right. And what would you want him to say except that you’re threatening to bring nuclear destruction down on people who are American citizens or in an American protectorate? It is our responsibility to defend them. And don’t do that. That’ll be really bad. And also, you wouldn’t want him to say exactly in what way it would be really bad. You want them to guess. And I think that’s right. First of all, I think that North Korea is a client of China. They, China has a lot of control over their resources, and they’re the big neighbor next door. I think it’s convenient to China to have an independent, crazy-acting North Korea, because it complicates our calculations in Asia. And I think that Trump didn’t say, the big thing he could say, which is he should mention the term Taiwan, because that’ll upset China no end. And that’s a kind of bargaining chip of a parallel nature. And I’m told by yours and my favorite senator, I won’t name him right here, yesterday that if we had a war with China, a naval war or another kind of war, we would win that war at this stage. Well, we don’t want a war with China. That’s terrible, right? But we don’t want them to bully us out of Asia, either, because that will lead to a war that will be more terrible yet.

HH: That is long term thinking, and it is the sort that our media does not quite grasp. Now back to Article I. Lindsey Graham, a member of the Article I body, the Senate called for in Article I, appeared on the show yesterday and said this, cut number 16:

LG: I wish a Democrat would take their hatred of Donald Trump and park it, and realize that on Donald Trump’s watch, because of everyone else’s failure, he’s run out of the ability to kick the can down the road.

HH: Now that is clarity, because Lindsey Graham is no friend of Donald Trump. He has said such hard thing about Donald Trump. But what he’s speaking here is their institutional responsibilities at this point.

LA: That’s right.

HH: …when we have been threatened by a madman, and I’m not sure, Chris Coons lived up to those institutional responsibilities today. But boy, they seem to have largely vanished from the politic.

LA: Yeah, they want to, you know, a lot of this, first of all, I don’t care of politicians say bad things about each other, you know, and first of all, if I did care, I’d be a nervous wreck.

HH: Yeah.

LA: But they should do their jobs, right? And that was very good, see, because the executive power is in the presidency. And this is an executive matter. And a Congress, so a lot of what goes on, I’m a little upset with the Republicans in the Congress, and I’ve got my ones that I’m mad at, but I’m not going to name any of them. But they should get on with their job of legislating. They should, by the way, do a lot of legislating to take back the power to legislate. They should do that Raines Act so that if a big, if a bureaucracy puts a big rule in, it sunsets if they don’t pass it and the president sign it. They should do that, and they should get on with that. They have the votes to do that, or they should have. But about this North Korea, that’s right. It is the business of, you know, when Barack Obama, you know, he dropped, he was a great user of drones and missiles against enemies of ours. And a lot of people said that he was so ruthless about that, and that that was a contradiction, and because he criticized that before. And what I thought about that is we’re fighting a bunch of really bad people. Let him do it.

HH: Exactly. Now I want to go back to Article I, Section 2. This is the House of Representatives. They are elected for two-year terms. You have to be 25 years old. And it says when vacancies happen, the executive’s authority of the state wherein they count shall issue writs of election to fill those vacancies. The House shall choose their Speaker and other officers, and have the sole power of impeachment. It will go on later. It’s got a lot of details in it. Why two years? Why do the states get to pick how to replace vacancies?

LA: Well, it, so the, remember as Section 1 establishes separation of powers by just giving the legislative power somewhere, Section 2 sets up bicameralism. There are two bodies. In fact, the deal over the Constitution probably could not have been made if they hadn’t been two bodies, a House and a Senate. But second, everybody wanted the two bodies anyway, because if a law has to pass through two separate sets of debates, it will be more deliberate. And the purpose here deliberation. Now having said that general thing, why is this body elected so often? Well, the answer is this is the body that represents the people, and that means that they get, they recur to the people often, the Senate not as often. And second, that’s a bow to the states that the states, you know, because states set up elections, or later in the Article I, that’s all set up. And in the House, they go mainly to represent people, but under a system established and maintained by the states. And then it’s curious, because the state certifies somebody to be a member, then the House has the ability to judge is that really so. But they can’t set up the election. That is back, and there’s a Constitutional struggle about that right now in a case going before the Supreme Court soon about whether the federal government and the federal courts can intervene and establish all the, well, many rules for elections. They have done some. So anyway, the point is in Section 2, what you find out is there’s a body that represents us, and then in Section 3, there’s a body set up that represents states – us through our states that we own also. So that’s the distinction.

HH: That is the key distinction is the distinction with the difference. And when we return after break, we’re going to talk about that Article I, Section 3, what the bicameralism also does, is establish a Senate, which is inherently unequal. The House of Representatives is inherently equal, one man, one vote per state, and they can gerrymander. But the Senate inherently unequal, and we’ll talk about why that is when I come back.

— – – – —

HH: Truncated last segment of the Hillsdale Dialogue with Dr. Larry Arnn, but it’s important, because it’s about Article I, Section 3, two senators per state. That’s not equal. Senator Cotton, my friend, Chuck Todd, says in 20 years, 30% of the country will have 70% of the senators, and 70% of the population will be represented by 30% of the senators. And I say yeah, that’s exactly what they intended. Why did they intend that?

LA: Because well, there were two reasons, and some of them, two kinds of reasons. One are innate reasons of interest. The states existed, right? They had, they existed first as colonies united in their responsibility to London. They were never separate, by the way. But then, they got these state constitutions through, and they’re marvels, and some of the best constitutions ever written are the state constitutions. And they are functioning and thriving, unlike the federal government’s Constitution, which is not very good until the Constitution of the United States. So they have interest, right? They don’t want to give up their power. And people are used to them, right? And what’s this new thing going to be? But then the second reason is, the federalists, with, you know, meaning the people who made up that party, especially Madison and Hamilton, they thought some things through, and we talked about their writing leading up to the Constitutional Convention. And one of the things they thought through was if you added a stronger central government, that would add further division of power, and you could do it along lines that made the federal government strongest in national matters, and state governments strongest, in fact overwhelmingly strong, in local matters. And so they favored it, because they thought it would make for more freedom, and they were observing that states were violating people’s rights quite a lot, right? And so they wanted to fix that. So the Senate, and that means, by the way, that the Senate is not created finally for the benefit of small states or large states or rural people or urban people. It is created for the liberty of us all, and that’s what Chuck Todd has to understand.

HH: And we will, we are going to drive that home, because the Senate is, it’s got to stay the same. And the idea that it is somehow unequal has got to be strangled in the cradle. Dr. Larry Arnn of Hillsdale College, my great thanks to you. We will pick up with Article I, Section 4 next week, and I’m going to talk to you about your friend, the Vice President. He is the president of the Senate, and the powers of the president of the Senate are not well known, but I think he might find a way to actually expand them if he is consulting with you in ways that might end the blue slip. Think on that.

LA: Good idea.

HH: Think on that. Just, yeah, the president of the Senate, it doesn’t say what his powers are. I think he ought to just declare and aggregate them to himself and say there will be no more blue slips. The President that they knew was the president of the Convention. That was George Washington. He said very little, but he did a lot, and just something to chew on, something to chew on. Thank you, Dr. Arnn.

End of interview.

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