The Constitution (Article I, Sections 1-3)
By Hillsdale College Online Courses August 11, 2017
Dr. Larry P. Arnn, President of Hillsdale College, joins Hugh Hewitt to discuss the Constitution.
HUGH HEWITT: Morning glory, America. 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 hillsdale.edu, including their remarkable courses on the Constitution on progressivism.
Many wonderful dialogues. All of our conversations from the Hillsdale Dialogue dating back to 2014, I believe, are collected at HughForHillsdale.com. And you want to at least go and sign up for Imprimis, which is the absolutely free. The speech digest that Hillsdale College sends out every single month, much loved by those who've been reading it for decades.
Dr. Larry Arnn is my guest this morning. Good morning, Doctor. Good to talk to you.
DR. LARRY ARNN: How are you?
HUGH HEWITT: 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-- This is our remedial MSM course on what's actually in the US Constitution. Do you think they know, by the way?
DR. LARRY ARNN: Now, there are two things that are not known, the details and the general meaning.
HUGH HEWITT: The general meaning. Let's start with Article One. And by the way, it matters the order in which these articles come, does it not?
DR. LARRY ARNN: So the first thing 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 when we talked about the Constitution, James Madison says the most important thing about the Constitution, it's most effective thing is its structure, the way it arranges the powers between branches.
HUGH HEWITT: 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 Stross of the Minnesota Supreme Court, the grandson of Holocaust survivors, I'd like to note. And Clarence Thomas Clark, one of the youngest Justices on the 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 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?
DR. LARRY ARNN: 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 we've 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 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, at 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.
HUGH HEWITT: 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.
DR. LARRY ARNN: They did. And that's-- you're right. And the first thing we'll encounter is the grandest violation of regular order. And do you want to talk about the first sentence now?
HUGH HEWITT: Yep. Yep. Go ahead.
DR. LARRY ARNN: So the first sentence reads, "All legislative power herein granted--" Wait. 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 powers shall be." And Article III. So Article III, which has the judiciary part, 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 in 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 to 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 it 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 rule making in the independent agencies-- they're called the regulatory agencies-- added 87,000 pages--
HUGH HEWITT: Wow.
DR. LARRY ARNN: To the federal register. So that means that Congress-- and so 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 and such.
HUGH HEWITT: I also want to underscore for people that Section I, 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?
DR. LARRY ARNN: Well, we will get to Article I, Section 8. And that's really important and great. And it grants in 17 clauses, I think, what the Congress may do. And what's not in there, the Congress is not supposed to do.
And 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 you know--
HUGH HEWITT: Wouldn't you love 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?
DR. LARRY ARNN: No. He did not miss it. He was one of the most faithful attenders. And there were few who didn't miss. And he was very important in the discussion.
And one of the things that the notes show is that he and others changed their minds a lot as they heard each other's points. And one thing we tend to teach our children now is to look at this document as a set of compromises among various interests.
And that's not a good way to understand it because what it is-- there's plenty of that in there, by the way-- what it really is is the product of a months-long deliberation by some extremely talented people. And we know that for two reasons. Or I think that for two main reasons.
One is so many of them changed 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--
HUGH HEWITT: 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 to visit HughHewitt.com and read quickly the transcript of my conversation with Chris Coons, Democrat senator. Because therein, I urge that they get together-- people like he and the Senators Cotton and Perdue-- and actually deliberate on issues like immigration and infrastructure so that a similar persuasive process occurs.
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.
If you want to go read what Chris Coons and I talked about it, it's at HughHewitt.com. Go and take a look. Stay tuned.
Welcome back, America. It's Hugh Hewitt joined by Dr. Larry Arnn, President of Hillsdale College. We have begun diving deep into the Constitution of the United States because of the problem of constitutional illiteracy.
Dr. Arnn, during the break, did you just review the conversation with Chris Coons?
DR. LARRY ARNN: I did.
HUGH HEWITT: He's one of the good guys. He's one of the good guys on that side.
DR. LARRY ARNN: Yeah.
HUGH HEWITT: Do you think it is possible that we could return to regular order, but facilitated by quiet conversations in closed rooms between smart senators?
DR. LARRY ARNN: Well, a big thing is needed. And 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 to 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 sole 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 sole agent.
HUGH HEWITT: Yes.
DR. LARRY ARNN: And give him a lot of power. And so now the president has 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 hearings start. Right? It doesn't confirm anybody.
HUGH HEWITT: Right.
DR. LARRY ARNN: It just lets the hearing begin. So we need the-- right now is the first opportunity since the birth of the bureaucratic state in the '60s to roll it back and 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 each other too much, 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?
HUGH HEWITT: 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 of Democrats now, how are you going to bring them in on things like infrastructure?
DONALD TRUMP: Well, we'll have to see. I'm not sure that we will bring them in. 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.
HUGH HEWITT: 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 block 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. Ditto immigration. But they've got to sit down. And it doesn't matter if they like each other. I mean, Burr and Hamilton didn't like each other.
DR. LARRY ARNN: 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 block grant thing that that's the first step. Because if you do that, 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.
HUGH HEWITT: Yes.
DR. LARRY ARNN: And leave room for states to collect revenue and resume their proper authority over the stuff that concerns mainly them.
HUGH HEWITT: Amen. I'll be right back. Dr. Larry Arnn is my guest. We're still in Section I of Article 1. 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.
Welcome back, America. It's Hugh Hewitt. It is the Hillsdale Dialogue. All things Hillsdale are available at hillsdale.edu. All of my conversations with Dr. Larry Arnn, my guest today, President of Hillsdale College, or one of his colleagues are collected at HughForHillsdale.com. You ought to be supporting this lantern in the North.
As is often the case, I have been diverted by breaking news, Dr. Arnn. And you are occasionally nimble for an aging college president of unknown physical ability. You can move quickly.
David Brooks, your friend and mine, has written a column this morning which just came across my desk. Sundar Pichai should resign as Google's CEO. He writes, "There are many actors in the whole Google diversity drama. But I'd say the one who has behaved the worst is CEO Sundar Pichai."
He reviews it all. And he includes this line of Connor Friedersdorf, who writes for The Atlantic, "I cannot remember the last time so many outlets and observers mischaracterized 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 that Brooks would lead the charge against the politically correct police of Google?
DR. LARRY ARNN: Well, so he's a surprising guy all the time. So 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?
Just go read in their press conferences, in their earnings calls. They're so politically correct. And they're all on one side. So good for him.
HUGH HEWITT: 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 that I'm going to play for you. And then I'll tell you what happened. This is Donald Trump yesterday. Cut Number Six.
REPORTER: Mr. President, are you going to increase the US military presence in Asia?
DONALD TRUMP: We are going to look at what's happening in 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're 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 with North Korea. 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 a whole new ballgame. And he's not going to be saying those things. And he's certainly not going to be 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 has seen before, what will happen in North Korea.
REPORTER: And when you say that, what do you mean?
DONALD TRUMP: You'll see. You'll see. And he'll see.
REPORTER: Is that a dare?
DONALD TRUMP: He will see. 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.
HUGH HEWITT: Now, Dr. Arnn, four hours after the president said that, The Global Times, a semiofficial newspaper in the People's Republic of China, published an editorial that began, "The US 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 clear that, if North Korea launches missiles that threaten US soil first and the US retaliates, China will stay neutral."
That seems to me to be the effect of Donald Trump's statement. In other words, deterrence works.
DR. LARRY ARNN: Yeah. I also 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 will 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. 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.
HUGH HEWITT: That is long term thinking. And it is of 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 this show yesterday and said this. Cut Number 16.
LINDSEY GRAHAM: 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.
HUGH HEWITT: Now, that is clarity because Lindsey Graham is no friend of Donald Trump. He has said such hard things about Donald Trump. But what he's speaking here is their institutional responsibilities at this point 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.
DR. LARRY ARNN: Yeah. First of all, I don't care if politicians say bad things about each other. First of all, if I did care, I'd be a nervous wreck. 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 so a lot of what's 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 bureaucracy puts a big rule in, it's so insensitive if they don't pass it and the president sign it. They should do that. 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. You know, Barack Obama 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 because he had criticized that before.
And what I thought about that is, we're fighting a bunch of really bad people. Let him do it.
HUGH HEWITT: 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 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?
DR. LARRY ARNN: Well, remember. Section 1 establishes separation of powers by just giving the legislative powers somewhere. Section 2 sets up bicameralism. There are two bodies.
In fact, the deal over the Constitution probably could not have been made if there 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 is deliberation.
Now, I haven't 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 recur to the people often, the Senate not as often. And second, that's a bow to the states because states set up elections. 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, once 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. There is a constitutional struggle about that right now, and a case going before the Supreme Court soon, about whether the federal government and the federal courts can intervene and establish 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 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.
HUGH HEWITT: That is the key distinction, the distinction with the difference. And when we return after break, we're going to tell you about that Article I, Section 3. What the bicameralism also does is establish a Senate which is inherently inequal. 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.
When we come back, Dr. Larry Arnn and I talk about Article I, Section 3. Because you need it. You need it very badly. You need to be as smart as the Framers were, or at least understand that they were indeed very smart. Stay tuned.
Welcome back, America. It's Hugh Hewitt. 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, very smart, 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, yep. That's exactly what they intended.
Why did they intend that?
DR. LARRY ARNN: Well, they there were two reasons. Two kinds of reasons. One is reasons of interest. The states existed. Right? They existed first as colonies united in their responsibility to London. They were never separate, by the way.
But then they got the 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 interests. They don't want to give up their power. And people are used to them. And what's this new thing going to be?
But then the second reason is the Federalists, meaning the people who made up that party, especially Madison and Hamilton, they thought some things through. And we talked about their writings 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 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.
HUGH HEWITT: And we are going to drive that home. Because the Senate has got to stay the same. And this idea that it is somehow inequal 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 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. Think on that.
DR. LARRY ARNN: Great idea.
HUGH HEWITT: 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--
DR. LARRY ARNN: [LAUGHTER]
HUGH HEWITT: 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. Just something to chew on. Something to chew on. Thank you, Dr. Arnn.