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The Rule of Law; Article 1, Section 8; and Slavery

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HUGH HEWITT: And for the Hillsdale Dialogue with Dr. Larry Arnn, President of Hillsdale College. All things Hillsdale are located at hillsdale.edu. All of our conversations dating back to 2013-- I was going to say 1813, but that would date us-- are collected at hughforhillsdale.com. You can sign up for the free speech digests that Hillsdale College makes available by going to hillsdale.edu. Find Imprimis and give me your email, your mailing address, your snail mail address. It is absolutely free. It is a wonderful addition to your reading material.

And Dr. Larry Arnn, I begin with an obvious-- we're going to do Article I, Section 8, Paragraph 4 in just a moment. But Sarah Sanders last night, the press secretary, tweeted out “just spoke to POTUS and General H.R. McMaster. Contrary to reports, they have a good working relationship, and there are no changes at NSC.”

The world is full of “McMaster out” at the Wall Street Journal, the New York Times, the Washington Post. And it just must be wearying to people to have to feed the media parlor game of musical chairs when they're trying to get their work done.

LARRY ARNN: Yeah, yeah. So Trump's fired a lot of people, I guess, or several have quit. And in general, the changes have been an improvement, right? I mean I, think the Secretary of State thing is great, and I think the CIA thing is great if they will confirm her. And, you know, the rumors about McMaster-- and that's all they are, rumors-- is that it will be John Bolton. Well, that wouldn't be the end of the world. But McMaster's a good guy, and I hope he stays.

HUGH HEWITT: Well, there is-- my sources tell me McMaster wants his fourth star. And there's only so much time you can stay as a three star without getting your four star, so he's got to move on. And there are some complications here, which people talk about, but their civilian-military gap. You retire as a three star if you don't move on. To get a four star, you've got to have somewhere to go. To go somewhere, you've got to move aside the guy who is currently running US Army Pacific or the guy who's running Army Korea. They've been told to be on standby because the President likes McMaster, but that doesn't fit the narrative, right?

So the narrative in Washington, D.C. is chaos when in fact what it ought to be is, after a year, Trump knows what he's doing, knows who he likes, wants to replace Shulkin, wants to replace maybe Ben Carson, maybe wants to replace Zinke, but I watch things like bad press for Scott Pruitt. He loves Scott Pruitt. He thinks Scott Pruitt's doing a hell of a job, and they make up stories about Pruitt's travel, which is necessary for him given the crazies on airplanes. They make up stories about his phone booth, which is nice. He's a friend. My son worked there. Everyone knows I've got a conflict, but take that as it is. But they put in a skiff because you can move markets with an EPA phone call.

And it's just as Chuck Todd admitted on this show yesterday, there's an institutional bias against property rights people at the EPA. And so they're out after Pruitt with knives, but it really is dishonest reporting, deeply dishonest reporting, to report chaos where there does not exist chaos, and people are out with the president when they are, in fact, up with the president. And they know better, Larry Arnn.

LARRY ARNN: Yeah, I think so. If the election were today, I hear and read that we would get hammered. The Republicans would get hammered. And you know, Trump-- that would be bad for Trump. And all that's true, and it's plausible that one could run against Trump being for many of the things he's for, but without the drama. And you know, Trump does provoke a lot of drama, and I think he does it on purpose. And then, that's inflamed by the media, and it makes a great story, right?

But this thing with Tillerson, he appointed-- you know, there's been messes in the White House. There always are. And Trump is a newcomer, right? Who does he know? And he appointed a great cabinet. And he got the judges right from the get go. And now, he's making adjustments, and I bet he makes some more. But I don't know about McMaster.

HUGH HEWITT: Well, I remember Reagan-Haig, and that just did not gel, all right? He was going to be the vicar of foreign policy. That's what he appeared on Time magazine. At the assassination, he appeared in the press room. “I'm in control here.” Of course, he wasn't. That was because Meese-- so I was with General Meese this week. He was with Meese, Baker, and Deaver at the hospital. He wasn't in control there. He's just trying to project calm, and he did the opposite. But he was gone after a year. And then Schultz stayed for seven. And I don't know how long Pompeo stays, but he gets along very well with the president, and our mutual friend Tom Cotton gets along very well with the President. He's figuring out who his friends are, right? And that matters to a President.

LARRY ARNN: Yeah, just friends and also who produces, you know? The pressure at the VA comes in part from the fact that the VA might not be right yet. And, you know, Trump wants it done. When I think of him, I don't know him. I mean, I've met him, but you know I don't know him. But when I think of him, I think of something Napoleon always said. Generals who'd come in if they'd lost a battle, and they would explain why they lost it and how they just you know this, and that, and the next thing. And he'd always say, you know, I need generals who are lucky.

HUGH HEWITT: They would be lucky if they sent Jim Talent over to VA. I don't know if Jim Talent wants that job. I expect Pompeo will offer him a job, but if they wanted someone with ethics, and smarts, and the credibility of the Senate, and that place needs to change. And I thought Shulkin's a good guy, but if you really want to change a place, you have to put someone with some ties to the Senate in.

Larry Arnn, let's go to the Department of Justice. I had the Attorney General on. I like Jeff Sessions a lot. And he came on to talk about nationwide injunctions, how little tiny district courts can enjoin the President of the United States and not just the person before their court, how not one of those had occurred for 175 years. And up until Trump, only 22 it occurred in the time between 175 years and Trump. And in the first year of Trump, 22 of them had occurred. And so we have an out of control district court bench populated by Team Obama radicals. And Jeff Sessions talked about the rule of law, and this has to change. This, I think, is clearly not in keeping with the Constitution in Article III. We're going to go to Article I, Section 8 after the break, but let's talk a little bit about this. District court judges are not supposed to be running the United States.

LARRY ARNN: No. And you know, the rule of law, it depends on the separation of powers. And if a general order from one judge puts a stop to things, then there is the executive branch. And half the time, they're our legislative branch too. So that's dangerous. And I will tell you something I learned this week. Because of the 30 hour rule in the Senate-- that they debate every district trial judge at the federal level for 30 hours-- they're actually more vacancies now than they were a year ago. And friend of mine told me we'll never catch up at this rate.

So one thing about these things we're talking about is that Congress is in a stalemate, and I would love to see them do something about the filibuster because the way we do the filibuster today, it's worth making the distinction. The filibuster is an old thing. It comes from Britain, so before America. And it is a rule that in the House of Commons in Britain, and Lords in Britain, and then in the Senate of the United States, never the House, as long as there's somebody there with something to say that's pertinent, the debate will continue. And then, when there's no longer anybody with something to say that's pertinent, then they have a vote. And that means that the Senate is a great debating society, and all of the senators famed for eloquence come from the time before they changed the filibuster in two ways.

And one way was they said you don't actually have to be there talking. You can just tell the clerk. And then it takes cloture vote to move on. But then the second was the Senate can then go on with other business. And that means that something never gets to the floor. In other words, the filibuster has been converted into a thing that stops all debate.

HUGH HEWITT: It's an aberration, and Mitch McConnell can fix this by using the Reid rule thanks to Harry Reid. But I want to comment on something you said. There are 17 vacancies in the Appeals Court right now. Seven nominees are pending. Three are pending for future vacancies. So that means that there are seven to 10 that are open. There are 121 district court vacancies, only 45 nominees.

Do you realize California does not have one nominee for a district court because Dianne Feinstein has been given an extra-Constitutional authority? Senators love to give each other power. Shouldn't we just stop this, Larry Arnn? The Constitution does not give the Senate the right to nominate. It gives the president the right to nominate.

LARRY ARNN: That's right. And see, that's all-- and the case that I make when I go to Washington, and visit the Kirby Center, and talk to important people a fair amount. And I very seldom talk to them about whatever's in the news this week. I see things like that, right? Because just remember, it's not just getting on and voting. We have to remember we're supposed to be reasonable, and that means they should argue things a lot, and then vote.

HUGH HEWITT: And they should argue the right to nominate judges, and they should vote on these judges. I would do an entire slate. By the way, I could come up with 121 nominees in my sleep tomorrow. So could Leonard Leo. So could Don McGhan. But we need Mitch McConnell and the Senate to actually act. This stuff matters. I'll be right back on Larry Arnn talking about the states in America.

Welcome back, America. It's Hugh Hewitt With Dr. Larry Arnn, president of Hillsdale College. All things Hillsdale at Hillsdale.edu. Dr. Arnn and I also have our conversations dating back with he and his colleagues all the way to 2013 collected it hughforhillsdale.com.

Dr. Arnn, Article I, Section 8. It's the legislative power under Section 8 there are listed a group of 18 paragraphs. Paragraph four provides, “Congress shall establish an uniform rule of naturalization and uniform laws on the subject of bankruptcies throughout the United States.” Now, it's interesting to me that both naturalization and bankruptcies are put here because you really can't have two sets of rules for either of them, or people will shop between the states. And therefore, the Federal government is clearly committed the deal on naturalization. We are in charge at the Federal level, and so these sanctuary cities, and now, California, a sanctuary state, are in essence seceding from the Union, are they not?

LARRY ARNN: Yeah. And, you know, we who live in the Midwest-- me, a former Californian-- look on that with mixed feelings.

HUGH HEWITT: Yeah, they're going to be bankrupt and drag us all to the black hole. But they are-- it's not just that California, but Denver. I mean, all these posturing peacocks of local politics are playing local politics, unaware that they are in essence recreating what the southern states did to defend their institution of slavery.

LARRY ARNN: That's right. And, you know, the law, right? The laws are, to quote James Madison, "voluminous and changeable." And what that means is nobody obeys them. There are so many laws now, right? And then the idea that these cities can decide who's an American citizen effectively, it’s just, on its face, obvious that won't work.

There's a lot of ranting in politics now. And so, you know, old rules like ex post facto laws, right? You can't punish somebody for a law that didn't exist when he committed the act. There's lots of calls to waive that about whatever the latest rage is. Just lately, #MeToo and all that. And the truth is human beings are not to be punished except through the standards of the law. And that means the Legislature passes a law, and the Executive enforces it. And judges determine whether you're guilty or not and whether the law is constitutional or not in your case. And those are separate acts.

And so the city of San Francisco doesn't have a place in that process.

HUGH HEWITT: The city of Berkeley, when it announces that ICE is preparing to conduct arrests of people in the country illegally, is hampering the federal government in the same way. And I want people to-- it's as though South Carolina seized Fort Sumter. It is no different. It is different in kind, but is not different in nature. And the states that passed dope laws to make marijuana legal are contesting the federal government's supremacy clause.

And I want to skip down to paragraph 18-- “Congress shall make all laws which shall be necessary and proper for carrying and execution the foregoing powers and all powers vested by this Constitution of the government of the United States or any department thereof.” The Necessary and Proper Clause is there to give us additional congressional-- they are allowed to have an ICE as a result of that. They are allowed to have a Schedule I prohibited drug as a result of that. I think we're illiterate, Larry Arnn. I think we've become constitutionally illiterate.

LARRY ARNN: And I think constitutionally indisposed, right? Lots of people listening-- well, maybe not listening to your show-- but lots of people in California, lots of educated people will say, what does that even matter, that argument you just made? We should just do what's right. And that means each entity of us should be allowed to do what is right, they say.

And it is certainly true that every American, you and me included-- and we may have to assert that sometime in the future-- have a right to rebel against the government if it oppresses our right, but that's not a constitutional or a legal right. That's a right of revolution that exists in the law's nature. So the problem with the South, you mentioned, is they wouldn't talk about that because the slaves were listening.

HUGH HEWITT: Yes, and when we come back, in fact, we'll go to Section 9. Larry and I are back on our march through the Constitution. Article I, Section 9 is the first of the no, and it has to do with the slaves who were listening. Stay tuned Americans to the Hugh Hewitt Show.

Welcome back, America. I'm Hugh Hewitt with Dr. Larry Arnn, president of Hillsdale College, All Things Hillsdale, including an application to attend this overwhelmingly popular now institution are available at Hillsdale.edu. And you will find at the Hillsdale.edu a course in the Constitution. But Dr. Arnn and I are making our way leisurely through parts of it in order that they occurred so as to elucidate why you might want to take the whole course and be smart.

One of the things I mention in Jonah Goldberg's book, Dr. Arnn, 4 out of 10 American high school students cannot name one of three branches of the federal government, and the same percentage cannot name one of the rights enumerated in the First Amendment. Now, that used to be fifth grade civics, right?

LARRY ARNN: Yeah, yeah, yeah. It's so bad it's almost hard to find words for it. To not know because, if you don't know that, by the way, forget that you don't know the Constitution, you don't know what government does and what you think is. Things are just decided by agencies you never heard of by some process that's never explained. So one of the reasons people don't know that any of that stuff is because the government so often doesn't work that way anymore.

HUGH HEWITT: Yeah, I befuddle my law students by saying if you present yourself at the Department of Motor Vehicles, and you ask for a license, and the person across the counter says to you, no. What are you going to do? And they're dumbfounded, right? They depend upon the regular operation of a non-arbitrary bureaucracy, but the bureaucracy is often arbitrary. They just don't see it. And the DMV is often slow, and they understand that, and maddening, but if they just turned you down, what would you-- they have no idea about how you would check an abusive agency. And it's because they don't know about our Constitution.

Let's go to Article I, Section 9. This first paragraph is one of the most important paragraphs in the Constitution, very little understood. “The migration or importation of such persons as any of the states now existing shall think proper to admit shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importation not exceeding $10 for each person.”

Now, Larry Arnn, that is an odd clause. And only you and I know why it's there. Would you explain to people why it's there, what it tells us, and what it doesn't tell us?

LARRY ARNN: So there are three places in the Constitution that have to do with the institution of human slavery. Madison in the Federalist Papers and on the convention floor makes the point that we're not putting the word slave in here because we don't want that word in the Constitution. And we don't want, ultimately, to protect that thing. Well, this is one of the three, and I'll mention what the other two are. One is the Fugitive Slave Clause, which says that persons held service or labor in one state fleeing to another will be returned. And the other is the Three-Fifths Clause that says that slaves will be counted as three-- note it doesn't say slaves-- as 3/5 of a person.

And all three of those are much misunderstood. The first one is it is too bad it's in there. The second one is to reduce the power of the slaveholders, who were effectively voting for their slaves. And this one is to preserve the slave trade for 20 years, and that's what it does. And, by the way, when the 20 years elapsed, on the day that it elapsed, the slave trade was abolished.

HUGH HEWITT: And Larry, I like to point out, this emanates shame. And there it is. You've made this point many, many times. In the founding generation, there was no Calhounism. They were aware of the moral stain that slavery was. They understood it. They would not refer to it. They knew they had to limit it. And there is a practical problem of how to kill it off. But one way to kill it off, of course, is to secure the cessation of the importation of impressed people.

LARRY ARNN: That's right. And so eventually, the great policy of forbidding slavery to spread into the land not yet incorporated states was the thing that really provoked the Civil War because that was going to be effective, right? It couldn't go anywhere else anymore. And I'm proud to say that that policy was invented partially here where I work. So this thing, and this is-- so there are three places, right? And every, as you rightly point out, everyone is uneasy about this.

Right now, we're in Section 6 of the Constitution Reader. I'm teaching the Constitution class this term. And the next section is about what the founders thought about slavery. And you'll just find that there's just, as you say, no Calhounism. Everybody treated it as an evil that had to be got rid of. And, of course, they did get rid of it in more than half the Union quickly. And then, the first time when Michigan, and Ohio, and Wisconsin, and five states came in the Northwest Territory, the first time a free government ever grew by a novel method that didn't treat them as colonies, slavery was forbidden in the Northwest Territory by the Northwest Ordinance of 1787. And that was on the motion of Virginia, which gave up the land, a slave state, and led by Thomas Jefferson, a slaveholder.

HUGH HEWITT: You know, I'd love to go back and read Cooper Union. Lincoln makes an argument as to why the framers knew that slavery was evil, and they knew what they were doing. And they voted for the Northwest Ordinance as the Congress-- not the United States Congress, but it's the Continental Congress-- and they voted for this shame-infused document. They all knew, Larry Arnn. And that's so important for people to understand.

LARRY ARNN: A lot of Lincoln's speeches are very beautiful, but some of them are wonderful pieces of scholarship. And that's one of the two best ones because he takes the number of people in the Constitutional Convention, and he divines from their record and things they said, what did they think? And he gets almost all of them acting, speaking, or both, in condemnation of slavery. And the ones that he doesn't get, they didn't say anything about it that he could find.

HUGH HEWITT: And what's interesting about that, Larry, is no one had done that before.

LARRY ARNN: Yeah.

HUGH HEWITT: And that is a work of scholarship to go and find an important argument, and to sit in front of a large crowd, hold their attention, and leave them without a reply.

LARRY ARNN: Oh yeah. There's a wonderful account, one of the very best accounts of a Lincoln speech by somebody who saw it. And he talks about how unimpressive he was when he walked out on the stage. He looked shabby. And then he starts speaking in this high voice. And there's few gestures. But then, after a while, and soon, it's step by step, it becomes mesmerizing. And he says that you began to see that although he didn't move very much, his body was moving precisely on the motion of the words he was saying.

And then as he continued, and as he got toward the end, his hands began to come up parallel with each other. And they got up to where they were-- sort of his hands were at the level of his shoulders, and then you could watch his body move with each word. And he said that, throughout that speech, you could hear a pin drop, right? And at the end, the audience just sat there in silence when it was over because it was so powerful, right?

And much of the speech is parsing out these guys and how many of them did this and how many of them did that. And it's just somehow riveting the way he does it.

HUGH HEWITT: Well, you're being bulldozed. I had occasion to reread it a couple of weeks ago. And to be bulldozed by the logic. I mean, you cannot stand there afterwards and argue that slavery was intended to spread and endure.

Let me go to Section 9, Paragraph 2 because this is also an amazing thing that many people do not understand. “The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, the public safety may require it.” Now, habeas corpus means to produce the body. The writ of habeas corpus means to produce the body. And this is revolutionary. Jonah brings it up quite a lot, and I teach it always in Con Law that you could be disappeared from many places in the world. And it's sadly true. Putin disappears people. Dictators in Syria disappeared 500,000 people. You cannot be disappeared in the United States, Larry Arnn.

LARRY ARNN: That's right. And, you know, if you think about that, of course, this became controversial in the Civil War too, but this is one of the great achievements of the common law and British law. Habeas corpus became a thing in British law. And that just meant that the king, who at various points, would dominate courts and put courts together that would do what he said. And they took that power away from him step by step. And then one of the points is you get arrested, and you get put in the pokey, and you don't even know where your loved ones are, and you get yourself a lawyer, and you go to court. And the court issues a writ bring me that person. Let me see that person. He will be here, right? And judges don't have armies, right? And so that's a great exercise of the rule of law, and it works.

HUGH HEWITT: And does it work. And they drive courts crazy because writs of habeas corpus-- right now, there is an individual being held in Iraq, an unknown individual of American descent. And the United States Army does not want to deliver them up to the courts, and the ACLU is demanding access to them, arguing that the writ of habeas corpus cannot be exercised. And because it's on foreign soil, and it's an unlawful combatant, there's some interesting legal issues. But if you and I are disappeared tomorrow, well, no one will go looking for you, but my family will come for me. And they will find me.

LARRY ARNN: Yeah, that's right. I won't be missed. Where's he? Who is he anyway?

HUGH HEWITT: And you put yourself in peril because everyone in Hillsdale can say you're in D.C. at the Kirby Center, and everyone at Kirby Center can say he's in Hillsdale. And so you put yourself at real risk. And I would worry about it.

When we come back, we're going to talk about Section 9 Paragraph 8 because it's the perfect place. We've been talking about the President of Hillsdale College, not the King of Hillsdale College, not the Baron of Hillsdale College, not the Duke of Hillsdale College, but the President of Hillsdale College. Larry, quickly, did we invent the word president? I mean, were we the first government to use it?

LARRY ARNN: You have to repeat that question.

HUGH HEWITT: Was the President of the United States the first time that the head of a government referred to as a president?

LARRY ARNN: Yes. Preside, it's a Latin word, right? They didn't have them in Rome. I think so.

HUGH HEWITT: I think so. They had dictators. They had councils. I don't think they had presidents. And it's a uniquely civilian term. And when we come back from break, we'll talk about the Title of Nobility Clause and why we have such terms for Larry Arnn as president, and provost, and dean. We do not have dukes, and baronesses, and marquis. We do have a jefe. Duane is a jefe, and so we have jefes. Don't go anywhere, America.

Welcome back, Americans. Hugh Hewitt. Horrible news. Seven U.S. servicemen dead in a helicopter crash on the Iraq-Syria border. It follows by a day the loss of two Naval aviators off of Key West. It's just been a bad week for the American military, and we will grieve for all of them. On Monday, I'll bring you details as I did of the two, the lieutenant commander and the lieutenant who died in Key West.

Dr. Larry Arnn, you've got a lot of the veterans coming out of Hillsdale, so I know that hurts. We'll put the details in.

I do want to bring up Section 9 Paragraph 8. “No title of nobility shall be granted by the United States, and no person hold any office of profit or trust under them shall without the consent of the Congress except any president emolument, office, or title, or any kind whatever from any king, prince, or foreign state.” Now, the emolument clause is the latest reason to try and impeach Donald Trump. And if the Democrats win back the House, they'll impeach him. I mean, they will use the emolument clause. But I'm more interested in why no title of nobility? What would the framers thinking when they did this?

LARRY ARNN: Well, they didn't like kings and stuff. “No man is born with a saddle on his back nor others booted and spurred to ride in by the grace of God,” right? And so we're not going to go around like a bunch of pompous toads and decorate ourselves. I was, by the way, in a-- first time in my life-- I was in a swearing-in ceremony of Russell Vought, who's become Deputy Director of the Office of Management and Budget. And Mike Pence in White House conducted this ceremony. And it was very dignified. And it was republican in its nature, that is to say, he was getting a chance, an obligation, and an opportunity to serve. That's what he was going to do.

And so, you know, they tried to figure out what to call the President. You made a point in the break about the term President, which I've looked it up since we made that point in the very great Online Etymology Dictionary. And it's the first time, you're right, in the Constitution that the chief of state is called the president.

HUGH HEWITT: Really? OK. That was a guess.

LARRY ARNN: Yeah, that's right. And so how are you going to-- by the way, people should know about the Online Etymology Dictionary, which is a very handy thing. Look up words, and you'll find out where they come from. Anyway, how are we going to call him, you know? What are we going to call him, you know? Not highness, majesty. And so John Adams proposed, his majesty. And so the rest of the founders began to mock John Adams by referring to him as His Rotundity.

HUGH HEWITT: They're not unlike Hewitt and Arnn. It was mutual and not just in one direction.

LARRY ARNN: Very much so, yeah. And they had a lot of fun at each other's expense. And sometimes they were mean. Anyway, Mr. President, see? His distinction is the holding of a civil office that he holds as a steward for the people who give it to him. And that distinction-- and just think the manners. You know, Canada is a great country and an excellent neighbor, I hasten to say. But I used to marvel because Winston Churchill would go to Canada and the United States mostly on the same trips. And he once took a great train ride across Canada and then back across the United States, 1929. And everybody he's meeting in Canada is Sir Something and Lord Something. And he gets down here, and it's all Jim and Fred.

HUGH HEWITT: And that is a great thing, and he was half-American and reveled in that great thing. That's a good thing end on.

Next week, on to Article II. That is about the Executive. Dr. Larry Arnn, thank you, my friend. President of Hillsdale College. All things Hillsdale at Hillsdale.edu. Go sign up for Imprimis right now. Enrich your mailbox every month with a copy of a speech given on the campus of Hillsdale College. All of our conversations about the Constitution and everything back to Homer.

And indeed, perhaps, someone said to me the other day, Larry Arnn is going to be best remembered-- I disagree with this-- but I was told he would be best remembered as the one political commentator who understood Trump from the beginning and throughout his presidency. And there's a good argument that he is. And all of those conversations are also included at hughforhillsdale.com.

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