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Why Kavanaugh's Confirmation is Critical to the Future of Constitutionalism

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HUGH HEWITT: Morning glory, America. Bonjour, hi, Canada. Hugh Hewitt in the mobile ReliefFactor.com studio in Aspen, Colorado, where the Aspen Security Forum enters into its third day-- actually its fourth day. And I am surrounded by deep-blue audiences. And most of the panels are pretty blue as well.

But luckily, I have the Hillsdale Dialogue to revitalize me. Each week at this time, it's Hillsdale.edu, where you get all that you need from Hillsdale, including a free Imprimis subscription. If you sign up at Hillsdale.edu, you'll get Imprimis delivered to you every single month, a speech digest that brings you the very best in conservative thinking.

And each radio last hour of the week is the Hillsdale Dialogue, where I talk with Dr. Larry Arnn, president of Hillsdale College, or one of his colleagues about one of the issues that matters, the big picture for a long time. We go up to 30,000 feet in the Hillsdale Dialogue. They're all collected at hughforhillsdale.com.

And this week, I'm pleased to welcome back Dean Paul Moreno. He's the William and Bernice Grewcock Chair in constitutional history. He's a professor of history and the dean of social sciences at Hillsdale.edu, back from his exile to Washington, D.C., to the land of Michigan. Dean Moreno, welcome back. Good to talk to you.

PAUL MORENO: Thanks so much for having me on the show, Hugh.

HUGH HEWITT: Let's go back a little bit and explain to people what you teach at Hillsdale, what you did at the Kirby Center, so we can ground them in how great it is to have you available during the Kavanaugh hearing drama, which is about to begin to unfold.

PAUL MORENO: Yes, I teach constitutional history. And at Hillsdale, we have a course that's taught by our politics department, Constitution 101, that's required for all students. We’re very fortunate to have Justice Stephen Markman of the Michigan Supreme Court, who teaches a course in constitutional law for us. So I do a two-semester course, starting with the Constitution and explaining how we got from the Founders to today.

HUGH HEWITT: You know, Dean Moreno, I've been teaching con law for 22 years. And I reject-- I've always rejected-- the idea that that course should begin with Marbury versus Madison. And I make the students look at the date of it. Why do you think it should not begin, if you agree with me-- maybe you start your con law course with Marbury v. Madison. I don't. How do you do it?

PAUL MORENO: No, I do it chronologically. So I really start-- really, I give some background in the Greeks and Romans and the Hebrews, a lot of what we do in our Western Heritage course about the idea of natural law and the rule of law. But you're right.

I mean, Marbury against Madison is one of the most exaggerated myths in all of US history. And it was a deliberate concoction by lawyers and judges to inflate the importance of the Supreme Court. And yeah, usually when law professors teach con law, they start with Marbury as the basis for Brown versus Board of Education. And that's really the birth of constitutional law for them.

HUGH HEWITT: That is exactly right in a nutshell. And I always begin con law, you know, the first day, it's all who are you. Second day is a brief history of nearly everything. I call it that. And I begin-- and I think you've got to know the Jews, the Greeks, the Romans, the English. And then you get to the American system.

And then you start with the Revolution, and then you've got to go to the Federalists after the Constitutional Convention. And then you can start talking about what the Supreme Court is or isn't.

I'm just curious. We've never discussed this. Is that your pedagogy as well?

PAUL MORENO: Absolutely. The other course is that politics, people teach it essentially as a course in political theory, and constitutional law, it will take a subject area like the First Amendment or something like that and bring it from the beginnings up to the present. But I try to cover the context especially-- the politics, the economics. I get quite a bit into public policy in these courses, and a lot of the history of law, not just public law, but private law, things like torts and contracts and how they've shaped the development of America. So I try to be as broad and contextual as possible.

HUGH HEWITT: I think, Dean Moreno, you and I approach this the same way. And that's why I agree so much with your Washington Examiner piece, "The GOP has to act to confirm Kavanaugh before it's too late." I know you don't pick the headlines. But before we go into how Kavanaugh arrives at a particular time and place at the Supreme Court, tell us why you think there's urgency.

PAUL MORENO: Yeah, the ability of a party to keep control of both the presidency, who chooses the judges, and the Senate to confirm them often doesn't last very long. And so, I mean, it's, I think, extremely unlikely that the Republicans are going to lose the Senate in the midterm elections. But the time frame is usually pretty short.

And if you look at the last three presidents' appointments, they've all been crammed into one election cycle, one period in which they had both the presidency and the Senate-- at the very beginning of the Clinton administration, before the 1994 landslide, at the very end or sort of the middle of the George W. Bush administration, and then at the very beginning of the Obama administration. So this is Trump's sweet spot, the first half of his first term. I hope his first term.

HUGH HEWITT: And you know, Dean Moreno, you came up with something I had not thought about in your article. Clarence Thomas is now the only Supreme Court justice nominated by a president of one party and confirmed, albeit narrowly, by a Senate controlled by the other party. I had not thought of that. You're absolutely right.

PAUL MORENO: Yeah, when Scalia, Justice Scalia, passed away, the amazing thing about him, of course, is that although he was confirmed by a still Republican majority Senate, but it was unanimous. You know, it wasn't that long ago that even somebody as consistently conservative as Scalia could get a pass like that. So much more is at stake now in the Supreme Court. And the parties have become so much more polarized that the idea of seeing something like that again is inconceivable.

HUGH HEWITT: So now let's put this in the context of a story I did last hour. Mitch McConnell threatened Democrats today that he would keep them there all October if they slow-walk the Kavanaugh nomination over demands for documents that will require elaborate declassification because of Kavanaugh's time in the White House. And I tried to warn the White House about this. That's why I wanted, among other reasons, Ray Kethledge of Michigan to be nominated, because I just saw this coming. And they're going to do it.

And Brett Kavanaugh is a fine nominee. But they're going to fight every inch of the ground. It's going to be political trench warfare. How does it turn out, do you think, Dean Moreno?

PAUL MORENO: Well, yeah, I was-- when the Scalia vacancy opened up, I was really-- I doubted that McConnell was going to do what he did-- you know, say that we're not going to hold any hearings about this until after the election. But he stuck to his guns. I was really doubtful that he would use the nuclear option for the Supreme Court after Harry Reid had done it for the D.C. Court of Appeals, but he did that. So he's really turning into sort of a modern-day Lyndon Johnson in the way that he's using the Senate rules to get results. So I'm pretty confident now in McConnell.

HUGH HEWITT: I agree. He has been magnificent, although yesterday Ryan Bounds had to be withdrawn because he's lost two Republicans. And when you've got a 50-49 Senate, with the ailing John McCain recovering in Arizona, you can't have any margin for error. And Ryan Bounds went down late. Do you think there's any possibility of that happening to Brett Kavanaugh?

PAUL MORENO: I haven't heard anything about any of the Republicans, apart from Collins and Murkowski. And I think the big question is can you pick up any of the red state Democrats, Manchin and Heitkamp? And well, all you need is 50. So everything that I've heard, everything I've read, indicates that it should go through. So I'm pretty confident.

HUGH HEWITT: Now, he arrives at a particular moment--

PAUL MORENO: I'm sorry. I've been wrong about everything I've predicted with regard to President Trump, except for his Supreme Court appointments.

HUGH HEWITT: Welcome to my club. OK, you and I can have dinner together. And we'll just talk about how wrong we are about everything. But we are right about the courts. And Mitch McConnell confirmed 23 and 24, I think, this week, even with Bounds being withdrawn, as federal appeals court judges. How do you put the impact of the president and the Republican majority in the Senate in terms of on the overall federal judiciary at this point, Dean Moreno?

PAUL MORENO: Yeah, the stuff that's going on below the Supreme Court is in some ways even more important, because the court today only hears about 70 appeals a year. So in the vast majority of cases, it's the courts of appeals that have the last word on really important constitutional questions. And I think we've seen the way in which federal district courts, by imposing nationwide injunctions, are also having a tremendous impact. But I think Congress really needs to do something about that because that's a real abuse of power. So the lower federal courts matter a great deal.

And in the early part of the Trump administration, I'd heard a lot of people saying that he was going too slow about this, that they weren't confirming justices quickly enough. And now I've seen complaints from the left that they're outstripping the Obama administration and they're sort of railroading these nominees through, which is fine with me.

HUGH HEWITT: Yeah, they are not-- it's fine with me too. They are not railroading. They are acting as a Senate majority ought to act. And let's pause there before the-- Senate majorities are what were empowered by the Constitution to act.

The filibuster is an extra-constitutional device. The blue slip is an extra-constitutional device. The Senate has a majoritarian flavor. And I just wonder, if they had wanted supermajorities, the Constitution's framers used them in other places, Dean Moreno.

PAUL MORENO: Absolutely. It's very explicit in the few cases where you want that. And as Lincoln said in his first inaugural, minority rule as a permanent arrangement can't work. There's no substitute for constitutional majority rule. And I know there are some conservatives who still preserve the idea of the Senate as being sort of the more deliberative, sort of wiser upper chamber and would like to maintain the filibuster, at least the 60-man filibuster, for ordinary legislation. But I'd like to see it go across the board and have it be-- yeah.

HUGH HEWITT: We will come back. And we'll talk about that with Dean Paul Moreno of Hillsdale in the Hillsdale Dialogue. All things at Hillsdale.edu. Stay tuned, America. It is the Hugh Hewitt Show.

Welcome back, America. It's Hugh Hewitt from the ReliefFactor.com mobile studio in Aspen. It is the Hillsdale Dialogue, our weekly dive into something that matters big and forever. This week with Dean Paul Moreno. He is the William and Bernice Grewcock Chair in constitutional history and dean of social sciences at Hillsdale College.

Dean, before we get back to your column in the Examiner and the Kavanaugh fight that is brewing, I'm thinking about at Hillsdale there are occasional gatherings of conservatives to discuss originalism in the Constitution and first principles in political philosophy. Is it three or four times a year that hundreds of people gather there for that sort of exercise?

PAUL MORENO: Yeah, four times a year we have what's called the Center for Constructive Alternatives. So it's a lecture series. One of them is usually devoted to economics and economic theory. One is about culture-- movie, theaters, music, things like that. And the other two are generally about politics. So yeah, two in the fall semester and two in the spring semester.

HUGH HEWITT: I have occasionally come and participated in that. I want to get your reaction. I'm at the Aspen Security Forum, which is put on by a nonpartisan think tank. But 90% of the people here, I think, voted for Hillary. It's a deep-blue gathering.

Can you imagine what it would be like to drop Thomas Friedman into the Hillsdale gatherings? That's what I'm feeling this week. It's discombobulating.

PAUL MORENO: In the past, we have had what we might call a diverse group of speakers at these CCAs. These have been going on for longer than I've been here, over 20 years. And so we do try to bring in some people who sort of mix things up.

HUGH HEWITT: Oh, there's a diverse group of speakers here. But the audience isn't diverse. I mean, and it's probably 90% blue and 10% red. And I think-- and the reason I bring this up-- we are going to see votes on Kavanaugh and opinions on Kavanaugh divide not by his jurisprudence, but by people's opinion of Trump. Do you agree with me on that?

PAUL MORENO: Oh, absolutely. In fact, I think going back to many of these other especially Republican appointees who were rejected by the Senate, almost everybody admits in historical perspective that they were extremely well-qualified for the office. An exception, maybe, of a couple of the Nixon ones.

HUGH HEWITT: Yeah, the second. Haynsworth was good, but the second guy was terrible.

PAUL MORENO: G. Harrold Carswell was the--

HUGH HEWITT: There you go.

PAUL MORENO: The mediocrity.

HUGH HEWITT: Yeah.

PAUL MORENO: So yeah, I think everyone understands this is partisan. This is ideological. Kavanaugh was just a sterling nominee by every conventional standard. And I think, again, I'm pretty confident they're going to fail and that he'll be confirmed.

HUGH HEWITT: But let's look beyond that, because eventually the Senate is going to go back to the Democrats. It always does. When that happens, if President Trump is still president, whether he's re-elected or in his first term, I don't think they're going to confirm a single judge, much less a justice. Do you agree with me?

PAUL MORENO: That could be. In fact, one of the reasons I think that Anthony Kennedy decided to step down was the prospect of the court being divided four to four and just being dysfunctional because of the number of justices and the prospect of something like the Scalia vacancy continuing and becoming a permanent thing. Because there was a time when Scalia was absent where some people said, well, the court doesn't have to have a full complement.

In some ways it's preferable, because in a way you need a supermajority in order for the court to do anything if its numbers are even. And in fact, the first Congress established a Supreme Court of six justices, which essentially meant you needed four out of six to form a majority. So I think Kennedy didn't want that. He didn't want to see that. He wanted a court that was able to function more easily.

HUGH HEWITT: But now that, assume-- and I've got a pretty high degree of confidence, barring a black swan, meaning a senator drives off the cliff or something happens that disturbs the 50-49 majority. And it might even get better if Senator McCain can return to the fray soon. But assume for a moment that the Senate does flip and we have paralysis.

Well, I'll tell you what. We'll come back after the break and talk about that. Do you foresee that inevitably happening, Dean Moreno?

PAUL MORENO: Unless there's a partisan realignment, unless Trump can really change the electoral map in a fundamental way, a la FDR and the New Deal, which I-- again, I've been surprised at a lot of what Trump's been able to do. But to realign the party system like that might be a bridge too far.

HUGH HEWITT: Think about this during the break. Eventually, believe it or not, everybody dies or retires. And so eventually the Supreme Court is going to have nine more vacancies. And eventually the country's going to have to figure out what to do when the Supreme Court is partisan-- not the people on it, but the process for putting people there.

I'll be right back with Dean Moreno. Stay tuned, America. It's the Hillsdale Dialogue on the Hugh Hewitt Show.

Welcome back, America. The ReliefFactor.com studio in Aspen, Colorado. I am Hugh Hewitt.

The president of the United States has tweeted somberly, "My deepest sympathies to the families and friends of those involved in the terrible boat accident which just took place in Missouri. Such a tragedy, such a great loss. May God be with you all!" I'm pretty sure that everyone in my audience-- red, blue, purple, and no color at all-- agree with the president about that.

I'm joined by Paul Moreno. He's dean, of course, of the Hillsdale College department of social sciences. He teaches constitutional history there. And that brings us back to Brett Kavanaugh and why this matters so much. Dean, would you explain to the audience-- I've done it a lot, but let them hear from a fresh voice, a fresh pair of legs, if you will-- about why this seat matters so much in the history of the Constitution?

PAUL MORENO: Well, we were facing a situation when Justice Scalia died that if President Obama had been able to fill that seat, we would have had a solid liberal majority for the first time since 1969. It would have returned to the days of the Warren Court and the old liberal judicial activism. So keeping the Scalia seat just kept the court where it was, assuming that Neil Gorsuch is going to be much like Justice Scalia. And I think that will be the case.

But this is replacing Anthony Kennedy, who had been essentially the swing vote. He had been the number five vote in almost all the close calls in the last couple of years. In effect, he was the Supreme Court. And that made him, because the court is so important in terms of telling us, claiming to tell us what the Constitution means, he was pretty much the sovereign of the United States.

So this one was the one that I think liberals were really concerned about turning over. The fight for the Scalia replacement really wouldn't have changed very much.

HUGH HEWITT: No. I like to point out to people as well, they really don't understand how big a change this will be, because they don't understand the rule of four. And when the chief justice, who is deeply an originalist, in my view-- he is also an institutionalist, which may explain some of the decisions that upset our friends in the originalism school. But that, if I'm right and he is actually a deep originalist and institutionalist, what changes because of the rule of four, Professor, going forward?

PAUL MORENO: Well, the four votes that it takes to grant search certiorari and to decide what cases the court is going to decide is really the most important procedural matter of all, because in the old days, 100 years ago, the Supreme Court had to hear any appeal that anybody brought. If you had the time and the money, you were entitled to have your case heard by the Supreme Court. So they heard hundreds. And they rendered hundreds of decisions, many in very, very trivial cases every year.

Since the 1920s, they've been able to control their docket. And now they pick only the really important cases. And they leave, as I said earlier, most of the other day-to-day stuff to the circuit courts and the district courts. So now they are deciding only the really prominent, high-profile, and often very controversial decisions. So yeah, deciding which cases the court is going to hear is another important part of the court's power.

HUGH HEWITT: And if Justice Kennedy did not want to tackle an area, it was not tackled. And if he did, the chief justice had to decide which way to go in order to assign the opinion. Therefore, he wanted a jurisprudential change when it came to same-sex marriage, and he got it. But he was reluctant to dive into the redistricting thicket.

Now, I had an extraordinary interview a few years ago with Justice Breyer. He came to my studio. We spent a couple of hours. And of course, justices won't talk about pending cases, and they won't talk about politics. And I know the rules of the road, so I respected it.

But he did make the admission-- I wonder what you think about this, Dean. I asked him what his greatest disappointment was. And to my surprise, he said the redistricting cases. And I thought long and hard about that since then. Why do you think that is Stephen Breyer's greatest regret?

PAUL MORENO: I don't associate that as an issue that Breyer is particularly concerned about. I think of it more in terms of administrative law. Of course, he's very solidly on the liberal side when it comes to the social and religious issues.

But that one, I think, is one that-- when the court entered the whole business of considering redistricting back in the 1960s, the one-man, one-vote decisions, that was really the beginning of sort of Warren Court. That's what made the Supreme Court such a controversial institution, because that is touching directly upon the power of the legislature to do what legislatures do. It's not just the court overturning legislation, but managing the legislative process.

And I think that-- I think the court is way too powerful already. And if it got into supervising gerrymandering and districting, apart from racial issues, that would make it even more so. There would be not a single political question that the court didn't have its finger in if it went down that path.

HUGH HEWITT: Exactly. Now, the transcript of my conversation with Justice Breyer is posted. You can read it if you want. I went away from that. I puzzled over it for a long time. He is an old-school liberal Democrat, and he is very smart. And he's also quite a nice gentleman.

And he understands that if you get redistricting, and you get it under the control of a liberal majority on the court, Republicans will always lose the maps that favor them, and Democrats will never lose the maps that favor them. And eventually, the legislative lower house and all of the state legislatures will go blue if they are involved in partisan supervision of partisan exercises. That's why the partisan Stephen Breyer was disappointed.

PAUL MORENO: Well, the liberals like to complain about Bush versus Gore as an example of conservative political judicial activism. But when you consider what Bush versus Gore was like in the Florida court system, you can see the kind of manipulation that you're talking about, where you only count the votes that are doubtful if they're going to favor Al Gore was essentially the Florida court's ruling.

HUGH HEWITT: Yep. So redistricting with a solid originalist majority will never come back except where racism tinges it. But let's also talk about what will also not come back. We will see the end of affirmative action, because the chief justice has written the way to end racial discrimination is to end racial discrimination. It's a very clear line in the sand for him. And I think with the arrival of Kavanaugh, goodbye Michigan v. Bollinger-- Bollinger v. whatever the case was.

PAUL MORENO: Gratz and Grutter.

HUGH HEWITT: Gratz. Yeah. Do you agree with me on that?

PAUL MORENO: Yeah, in fact, and also what I really like is that the Trump administration is doing things on the executive side of affirmative action. A large part of that is just the Labor Department's government contracting provisions. Affirmative action, what people call affirmative action, is composed of so many different parts, so many different policies. And yes, I do think that if the court gets back-- and Justice Scalia and, I think, Justice Thomas were moving in this direction-- to say that it's just a flat-out violation of the 14th Amendment, that will sweep it away entirely.

HUGH HEWITT: I also believe, and I want to hear because you study this the same way I do, with a view on the long haul of where the court is slouching towards, to use a famous Borkian term, I think that we're going to see the Free Exercise Clause resume its robust intention, that Smith versus Employment Division, Justice Scalia's great error-- the only one I really can point to-- will be reversed and that the Free Exercise Clause is going to grow its teeth back. What do you think?

PAUL MORENO: Yes. And also what I'd like to see is even worse than the-- when Congress passed the Religious Freedom Restoration Act, and the court struck that down, saying that only the court can be the one who interprets what our rights are under the 14th Amendment, I thought that was another great moment in judicial supremacy. And this court, I would expect to take a more sensible attitude towards that.

HUGH HEWITT: So let's talk about when and if this will reveal itself. How long does it take the court to shift towards an originalist point of view?

PAUL MORENO: Well, the big one, the one everyone's talking about, is Roe versus Wade. And I wouldn't expect that to be explicitly and clearly overturned any time soon, if ever. But I think the court is going to, step by step, just allow the states a lot more latitude about how they regulate abortion, which the states were already in the course of doing before Roe versus Wade. In fact, The New York Times had a story yesterday or the day before about how New York passed a very liberal abortion law, although not as liberal as Roe versus Wade, in 1970 and became sort of the Mecca for women who wanted abortions.

So abortion and what you said, affirmative action. And those two, I think, were the most important policy impositions of liberal judicial activism. They were the two issues that, when the American people had the opportunity to vote on them, almost never voted in favor of affirmative action or liberalized abortion. So returning those to the people and to the states, I think, will be the most important ones.

I think another really big one is in the field of regulation and administrative law. That's really obscure and complicated. And it's hard to get across to people why that's so important. But that's why I thought Neil Gorsuch was such a great pick. He, I think more than just about anybody on Trump's list, understood the problem of the administrative state. And Kavanaugh has already under his belt some opinions that recognize a good originalist understanding of those issues. So I think those will come more rapidly but probably won't cause so much controversy because they're more difficult to understand.

HUGH HEWITT: There was already the move to the major rule doctrine. And I don't want to geek out too much here. But the courts had grown weary of being told to defer to administrative agencies. So some of the lower courts were finding a way around what is known as Chevron deference. And I think that's going to accelerate, Paul Moreno. What do you think?

PAUL MORENO: Yeah. In fact, this all goes back. Really, John Marshall gave one of the first decisions about this, about what kinds of questions or details are important enough so that the courts have to take notice of them. Because everyone understands that there's some degree of delegation to the administrators is necessary. Congress can't write a law that's going to be foolproof and perfect in every case. And just having some sensible idea of what the degree of deference has to be to these agencies.

The court is moving in the direction to realize these are big, important political decisions that these agencies are making. These are not just interpretations of details. And I think that's exactly the way that John Marshall saw it. And this court is going to get bent back in an originalist, sensible view of what the discretion that administrators can exercise.

HUGH HEWITT: We can hope. When we come back, I'm going to finish with Dean Moreno on where I think the real revolution is coming when Kavanaugh is confirmed. And he is going to get confirmed, America. Please understand that this Alamo stance that is being taken by the Democrats is going to end up just like the people inside the Alamo did-- over, done, dead, because Brett Kavanaugh is supremely well qualified to be on the Supreme Court. When we come back, where the real revolution is coming.

Welcome back, America. It's Hugh Hewitt from Aspen, the ReliefFactor.com mobile studio. I'm at the Aspen Security Forum and looking forward to another day of very high-minded debate and talk about where we are and where we're going as a country, and tomorrow as well.

But I'm concluding today's Hillsdale Dialogue-- all things Hillsdale are at Hillsdale.edu-- With Dean Paul Moreno of the social studies. He's a constitutional historian. He's dean of the social studies at Hillsdale and a marvelous expert to have on about the Kavanaugh hearings.

Dean, the Constitution has a Fifth Amendment, the end of which provides that private property shall not be taken for public use without just compensation. It isn't quite a dead letter. But if you got five people who really believed in the original intent of the Constitution, this could rev up, I think, into a revolution in the way Americans' liberty is protected from a grasping government at every level.

PAUL MORENO: Oh, absolutely. In fact, the Kelo case, which would need to be overturned, was a very unpopular decision in a lot of states. Even my own state of Michigan, which is not particularly conservative, beefed up its own takings laws to protect people against that kind of rent seeking and economic manipulation, that we have to return to the idea that public use means public use-- things like roads and things that are open and accessible to everybody, not just part of some politician's idea of economic development. Again, I think you need to have a national standard that would protect property rights everywhere in the United States. And yes, that would have, I think, very positive effects on the economy.

HUGH HEWITT: You went to the second part of it, the public use. And we can overturn Kelo and Midkiff and all that so that the government acting-- but I'm more concerned with regulatory takings. And one of the first cases the court hears is about the critical habitat designation of the Endangered Species Act. It has the immediate effect of devaluing property, the immediate effect of taking a property that was worth, say, $1,000 an acre and making it worth $100 an acre, because people won't deal with endangered species. And it makes it a felony to touch an endangered species, even though under common law, the species on your land belong to you.

Now, it's fine for the federal government to do that. I've always said they have the authority to do that, maybe, under the Interstate Commerce Clause. But if they do it, they should pay for it, Dean. And that they can't just steal people's property.

PAUL MORENO: Yep. Just compensation. And a lot of this is even before, a while before the Fifth Amendment was applied to the states. And here, the courts would often be able to overturn state regulation of that kind through the due process clause of the 14th Amendment. 100 years ago, when the court had a much more robust sense of property rights, it was able to find other parts of the Constitution that would have the same effect. The revival of the Takings Clause by people like Richard Epstein in the 1980s, this is just another route to achieve the same object.

HUGH HEWITT: But it was never completed. It was begun, right, with a few cases. It was sort of like the Commerce Clause limits began to come up out of nowhere. And they made a run at it. And they had to retreat. They made another run at it, and it got some teeth. It showed up even in Sebelius in the Obamacare case.

I think we're going to see real limits on federal power and real demands that individual liberties be respected. I'm really an optimist about this. How excited are you, just as a matter of the change we have long waited and worked for coming to fruition?

PAUL MORENO: It's certainly moving in the right direction. And I think you got at the right idea, that this stuff isn't going to be able to come down instantly. We had a Constitution that worked very well for 100 years, protecting property rights and doing a lot of other things, maintaining self-government. And it was eroded and chipped away at, mostly starting with the New Deal. And now we have these enormous barriers to self-government.

And it's true that people and institutions have arranged their lives in such a way as to depend upon this new system. So you can't just restore the original Constitution in a day. But dismantling it piece by piece, I think, in a prudent kind of way, is what the agenda of this court should be.

HUGH HEWITT: And last question for you, Dean Moreno. What is your advice to Brett Kavanaugh, who may very well be listening-- a lot of judges listen to the show every day in D.C.-- on these hearings? Should he stick with the Ginsburg rule, or should he be more expansive in his theory of the Constitution?

PAUL MORENO: I think he's got nothing to hide. His opinions are well-regarded. People think they're just wonderfully crafted. I don't think they're going to be able to lay a glove on him in terms of anything substantive, other than just making the assumption that he has these prejudices that they're going to try to get him to express. Because I haven't seen anything. I mean, this stuff about the beer buying in college, I mean, that's pretty thin gruel. I don't see that the--

HUGH HEWITT (LAUGHING): We're all convicted.

PAUL MORENO: I think Schumer and the Democrats made a really big mistake in even attempting the filibuster for Gorsuch, because as I said, replacing Scalia wasn't going to change anything. If they had exercised some judgment and some goodwill for this challenge, they might be in a better position. But again, I think that Trump picked somebody who was just so perfectly qualified that they really have a very daunting task ahead of them. Like you said, it's going to take a black swan or some bombshell revelation. And that's why, getting back to my original point, McConnell has got to make this happen as quickly as possible.

HUGH HEWITT: Dean Moreno of Hillsdale College, thank you for joining us. A great piece in the Washington Examiner. A wonderful Hillsdale Dialogue.

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