By Hillsdale College July 12, 2019
HUGH HEWITT: Morning glory, America. Bonjour. Hi, Canada.
Greetings to everyone watching on HughHewitt.com, listening via the HughHewitt.com app or the podcast or in the universe. Wherever you are, welcome. That music means it's time for The Hillsdale Dialogue. Once a week, we talk about a big issue in big terms, constitutional and historical terms, with either Dr. Larry Arnn, president of Hillsdale College, or one of his colleagues up there in Michigan or at the Kirby Center in Washington, DC.
I always remind people at the beginning of this broadcast, all things Hillsdale are found at Hillsdale.edu, including all of their magnificent online courses. And you can find every conversation I've had with Dr. Arnn and his colleagues dating back to 2013. These dialogues found collated in the correct order at HughForHillsdale.com.
And so you can go to those places. Dr. Arnn, a good morning to you. I hope your July is off to a good start?
LARRY ARNN: It is. Thank you. Good morning to you too.
HUGH HEWITT: Did you have a fine celebration of independence on July the Fourth?
LARRY ARNN: We did. We had some of our children home who are not customarily here. So we had our patriotic readings, and we had our fireworks, and we had everything we needed.
HUGH HEWITT: Do students inhabit the college in the summer and risk burning things down?
LARRY ARNN: Yeah, we can't get rid of them. There are two short summer school— this is a very old-fashioned college, so not a lot of summer school. But we have two short three-week summer school sessions right at the start of the summer. And they kind of go all day. And you get three hours of credit in a quick amount of time.
But then after that, they hang around. They look for jobs. Some of them work in the college. They get all kinds of jobs here. And they get jobs in town because they don't want to go.
HUGH HEWITT: Then they will be up to no good on the night of July 4.
LARRY ARNN: Yeah, as part of our chapel, now nearly done, we're building a fountain in front of it, very beautiful. And it's a restoration of a fountain that was on the campus here for about 70 years. But in about 1910, in a student prank, it was dynamited.
HUGH HEWITT: What?
LARRY ARNN: So we haven't had that for a long time.
HUGH HEWITT: That's a whole new definition to student prank.
LARRY ARNN: I'll tell you.
HUGH HEWITT: I mean, you'd have the FBI and the Department of Homeland Security. Everybody would come. Is there a write-up on the blow-up of the fountain? That's a novel.
LARRY ARNN: Oh, yeah. Because the fountain is a recreation of the old one— it's bigger and it's going to be very pretty— there's a pine cone at the top, which is a Christian symbol. Anyway, because of that and because the senior class helped raise money for the thing, everybody knows the story now. I've got my agents checking on all the local outlets for dynamite to make sure they're not mining.
HUGH HEWITT: Well, I'm just checking. Will you be etching a couple of sticks of the dyno into the base of the fountain just as a memorial to its once and future existence?
LARRY ARNN: I'll take that down as a suggestion.
HUGH HEWITT: All right, so taking down a suggestion, let's talk about suggesting census stuff. Yesterday, the president ordered the census to include a citizenship question on Thursday afternoon. How it gets to the Supreme Court, when it gets to the Supreme Court, is going to be much debated over the next few days. I want to debate something differently. I want to debate whether or not the president was right to do so.
Let's begin with the Enumerations Clause. And actually, let's begin, Larry Arnn, for the benefit of the Steelers fans— the Constitution divides the federal power into three distinct branches. What are they? And why did they do that?
LARRY ARNN: Article I is where everything begins. It's the legislative power and a just government's pursued through laws. And the laws are written in the legislative branch.
Laws are meant to be general prescriptions of how people are to behave in the future without respect to particular persons. They're supposed to be general in their nature. They're not supposed to even know who they're going to affect in the future.
Then the laws are executed— that's to say enforced, implemented, the people educated about what they mean— through an executive branch, headed by a president. The spirit of the executive is executive. It executes.
The spirit of the legislative is deliberative. It thinks. It argues. It talks. It's not on any really tight schedule. So those two are separated.
And then the third thing is the courts judge disputes that arise under the execution of the laws. And it is one of the most important things about the Constitution that the judges are independent. That means they cannot be removed nor their salary changed once they're nominated by the president and confirmed by the Senate, in the case of federal judges.
So you set up these three things that are different from each other and separated from each other. And yet their work radically depends on each other. And Madison says that the structure of the Constitution is the most important thing about it.
HUGH HEWITT: Why?
LARRY ARNN: Well, first of all, the obvious point— it prevents the concentration of power into the hands of just a few or one. In the Declaration of Independence, God appears as the legislature and the executive and the judicial in various namings of God— for example, Supreme Judge of the World. And then the lesson is, if it were a divine being, then he could be trusted with all that power.
So the first purpose is to make the government safe. But the second is to make it better. And "better" covers a wide range of things.
One of them is, the division of labor is obvious and obviously can have benefits. When you're busy deciding what to do as a general rule for a long time in the future, that's one kind of activity. And then another kind of activity is what do you do right now today in this stuff that's going on. That's the executive.
And then the third thing, the judges, they come after the fact, after it's done. And then they look at it and see, what are the rights and wrongs of this? And so obviously, if you divide those three things, then they can proceed unencumbered and we can be better at them.
And then the final reason is probably the most important reason. And that is, if the powers are divided and yet required to be coordinated, that sets up a deliberative process that goes on in all of the parts of the government and that involves us every two years at election. And therefore, the Constitution is an engaging thing that invites even the citizen body into it, like us talking about this ongoing time-urgent fight about the census.
HUGH HEWITT: Now, I also want to put onto the table for context purposes the size of these three branches, because it matters. The Article I, Congress employs a total— they have 100 senators and 435 members of the House of Representatives, but they employ between 20,000 and 25,000 people to conduct their business, and run the Library of Congress and the Congressional Budget Office, and to staff the committees in their offices. Between 20,000 and 25,000 people work for Article I.
Fewer people work for Article III than work for Article I. I don't have the exact number. But there are only 190 judges on the circuit and Supreme Court and another three times that many in the district court. And they all have two or three clerks, and they've got some marshals, et cetera. But they're well below the legislative branch.
By contrast with the 25,000 people working in Article I and roughly that number in Article III, Article II employs 2 million people that work for the president. Why is it 25,000, 2 million, and 25,000, Larry Arnn?
LARRY ARNN: Well, of course, all of those numbers are too large.
But the ratio among them, not so much. Because why?
Because the legislature is supposed to be involved in a deliberative activity. It's supposed to be a bunch of people thinking. And they have to think on a schedule. They have to do a lot. And there are crises that come up that they have to legislate regarding.
But the main thing is, just remember, they're doing work in advance of the effect of the work. And so they move at a different pace. And it's a thinking job.
Now, the executive branch, that's all over the country. The laws apply everywhere. They have to go everywhere.
There are too many laws right now. But there are bound to be quite a few of them. And so they've got a lot to watch and a lot to do.
And of course, they need force because if you come to arrest someone— think of the meaning of that word. It means that they're on their course and you stop them. And they might not like it. And so you've got to have force. And so that's the nature of that activity.
And of course, if you include— you're talking about the civilian employees of the president, the majority of which, by the way, don't effectively really work for him.
HUGH HEWITT: Yes.
LARRY ARNN: But then the military is—what—about 1,200,000, I think—
HUGH HEWITT: Correct.
LARRY ARNN: —in all the branches of government.
HUGH HEWITT: Correct.
LARRY ARNN: And that's the archetype of the executive agency.
HUGH HEWITT: And they carry guns. When we come back, we're going to talk about why the executive agency gets to execute the census. By the way, there's just one practical point.
It takes about 2 million temporary employees to execute the census. Try imagining the legislative branch actually running that. That's why it has not done so.
That's why it is committed to the executive branch, the enumeration part. But we'll explain that when we come back. Don't go anywhere, America. It's The Hillsdale Dialogue with Dr. Larry Arnn and me, Hugh Hewitt, right here on The Hugh Hewitt Show.
Welcome back, America. It's Hugh Hewitt. The Hillsdale Dialogue is underway. Will President Trump's attempt to put the citizenship question back on the census succeed?
I'm joined by Dr. Larry Arnn, president of Hillsdale College. All things Hillsdale are collected at Hillsdale.edu. Dr. Arnn, yesterday, Chuck Todd was on with me, and he said that this issue is viewed by the Latino community as a political ploy against them.
And I told him this is a lot like the elephant and the blind man because, among the Federalist Society people that is part of the president's base, its view as an Article II question, and never shall those two views cross because we're concerned with different things. I'll come back to how it ought to be viewed by the Latino community. But how do you view this question as an Article II issue versus Article I?
LARRY ARNN: Well, it's obviously an executive kind of thing. The Constitution demands that, every 10 years, there be an enumeration of all the people. And understand, this is not a survey. They go to every household—
HUGH HEWITT: It's a headcount.
LARRY ARNN: They count every household in America.
HUGH HEWITT: It's a headcount.
LARRY ARNN: That's right. And so that's a big operation, and an executive operation, and the kind of thing the executive branch would do. And the Congress may surely make laws about how it's to be done, as long as they don't violate the Constitution, which is, you've got to get a headcount. But the president's going to have to do it.
And then the question arises when we go on, who writes the questions? Well, it turns out the history of the questions is interesting. Because they changed a lot.
First of all, every census, except for, I think, three in the 19th century and the 2010 census included the question, in some form or another, are you a citizen of the United States? But the censuses have grown longer. In 1970, they bifurcated the census, and they introduced a long-form census that went to a random sample.
Everybody got asked the short questions, which number, as a rule, through American history, 10-20 questions. And of course, if you think about it, they can't be longer than that. Because if somebody walks up to your door, and you open the door, and they start asking you questions, they can't ask you 100.
HUGH HEWITT: No.
LARRY ARNN: So it's going to be a few. In 2010, they abolished the long form, and they much shortened the short form to 10 questions. And they started something called the American Community Survey.
And that's a sampling. That's not a headcount. And that goes on every month. And about 3 and 1/2 million people a month fill it out in some way or another.
And so they're gathering an enormous amount of data now. The description of the American Community Survey, which I was reading this morning— curse you, Hugh Hewitt— is 156 pages long.
HUGH HEWITT: Wow.
LARRY ARNN: And so they ask a lot of questions. Well, they ask a few questions about citizenship on that. But the headcount questions, the number of them, is going to be between 10 and 20. And it has been not uniform but customary in the overwhelming majority of cases that they ask if you're a citizen of the United States.
And so I myself don't see why this should even be controversial. Now, 2010 is the first modern census where they didn't ask that question.
HUGH HEWITT: And to our neighbors to the north, I would like to acknowledge, since we're on up there, we know that you ask for citizenship data on the Canadian census. And we know you ask a country of origin question if you are a non-Canadian born. "Yes, we Canada" up there. They can. That's from Toy Story 4. Yes, we Canada do it. And I am curious. I just have to assume, Larry Arnn, that the world over, where censuses are conducted, they try and find out who's a citizen and who's not.
LARRY ARNN: Well, wouldn't that be first or second? The first question is, how many humans live in this household?
HUGH HEWITT: Yes.
LARRY ARNN: And we don't need the name of the dogs. So the first question is human. And then the second question is, what is your status in relation to the United States of America?
HUGH HEWITT: That is, it seems to me, obvious. When we come back from break, it is not obvious to many people, but the Constitution is obvious. That's an executive function.
Don't go anywhere, America. I'll be right back with Dr. Larry Arnn, president of Hillsdale College. All things Hillsdale, including your free subscription to Imprimis, available at Hillsdale.edu.
Welcome back, America. It's Hugh Hewitt. It's Friday. That means The Hillsdale Dialogue, the must-listen-to, whether by podcast or live, weekly conversation with one of the team at Hillsdale College, the lantern of sweet reason in the north. even if it is in Michigan, we love the place.
Hillsdale.edu. If it's in DC, it's the lantern of sweet reason in the shadow of the Capitol over there at the Kirby Center, which a new program— new ants are moving about, worker-like. New winds are blowing through open windows. New programs are about to launch. Is that enough of a hint?
LARRY ARNN: At Hillsdale?
HUGH HEWITT: Yeah.
LARRY ARNN: Yeah, well, OK. Yeah, Hillsdale is—I don't know who's running it, but somebody let it go crazy. We're going to have a soft launch. I'm not supposed to talk about it—
HUGH HEWITT: You're not? A soft launch is nothing.
LARRY ARNN: —of a branch of the school of government on Capitol Hill in Washington, DC. It will be called the Van Andel School of Government. And we may be about to expand it through another way to include a national security program. And we're thinking about a master's degree program in classical education so we can have people help command these charter schools that we have many of now and that are rolling along.
And so there's a lot going on. And we're about to admit. It looks like it's going to be the best class we ever admitted. And that seems to happen annually these days. So we're going to have college again next year is my summary of the state of Hillsdale College.
HUGH HEWITT: That's not much of a soft launch. That's actually a declaration for which I am not responsible when Matthew Spalding comes around to scold.
LARRY ARNN: Mm-hmm. Yeah, well, he's a whining dog.
HUGH HEWITT: He is. He's going to scold me for—
LARRY ARNN: Oh, yeah.
HUGH HEWITT: —revealing the fact that this is launching. And people ought to go—well, they can skulk about the Kirby Center if they want to find out more. That's what I would tell them to do. Follow Kirby Center on Twitter, right?
LARRY ARNN: Yeah, there you go.
HUGH HEWITT: All right. Let's get back to the census. When we went to break, we had described the Enumeration Clause is in Article I. It's an enumerated power in the Constitution. It exists in a limited government.
And we discussed that the Census Act, most recently amended, I think, in the '80s, but it could have been in the '90s, confers specifics on how to conduct the census onto the Department of Commerce. But as we know, the Department of Commerce does not belong to the Congress. It belongs to the president. So Dr. Arnn, would you explain to people, everyone with those census forms is working for the president?
LARRY ARNN: That's right. We forget that these days, and to our cost. It's one part in the breakdown of the separation of powers that you mentioned at the outset of this conversation. It is the idea of the unitary executive, which has shown how far we wandered.
There's a recent film, I'm told about—well, I know about the film—of Vice President Cheney called Vice. And apparently, throughout the film, one of the arcs is, it presents this idea of the unitary executive as an innovation.
HUGH HEWITT: Does it really? I wouldn't go see the movie because I like Dick Cheney, and I'm not going to see him slimed.
LARRY ARNN: Yeah, they thought up this crazy idea of the unitary executive. Where did that ever come from? Well, it comes from the first line of Article II of the Constitution of the United States.
And it was controversial, as everything was about the Constitution. And the Anti-Federalists didn't like this. And the Federalists defended it. But what they both agreed was, this sets up a unitary executive. And by the way, the advantage of it has never been more apparent than now. Because the advantage of it is, if something goes wrong in the executive branch, you know who to blame.
HUGH HEWITT: Yes.
LARRY ARNN: Except today, it's hard to know who to blame. Because any local judge—you talk about an intrusion of Article III over Article II—can delay or stop forever a national action, even a law passed by the Congress and signed by the president. And inside the executive branch, there are 150, roughly, rule-making, law-making enforcement and judging agencies that are ostensibly part of the executive branch, but kind of not.
And then finally, there is the cabinet, now, of course, much bigger than it was in the time of the founding. And the Secretary of Commerce, with the other cabinet members, do report directly to the president. And he can fire them.
And so in the reality of things as they are, this is as close to actually being employees of the president as we have today, except for one thing—the specific people—about 5,000 or 6,000— who work in the immediate offices of the president—the White House, and the old executive office building, and the new executive office building. And so in the structure of things, the Commerce Department is very much part of the executive branch. And the census has always been performed by the executive branch. Because laws are always executed by the executive branch, this one included.
And the census, the first one was taken in 1790 by Thomas Jefferson, President Thomas [Jefferson]— no. Yeah, Secretary of State. Was he Secretary of State then? Yeah. And so it was in the State Department in the beginning.
But so the point is, it has to be an executive branch thing. And it can't be Congress writing the questions. The short form questions, the 10-20 questions, the Congress could legitimately write those questions, but the executive branch would only be compelled to ask those questions if the president signed the bill.
HUGH HEWITT: Yeah.
LARRY ARNN: Because they don't have a power to order him to execute in a specific way, except with his agreement or the agreement of one of his predecessors. And so the division of powers, it's obvious.
And see, the reason this thing is a storm in a teacup—it's one of these silly things that bespeaks huge disputes, right?
HUGH HEWITT: Yes, yes!
LARRY ARNN: First of all, it can't really be controversial, can you ask a person if they're a citizen on a question on the census?
HUGH HEWITT: But fundamental things are afoot, to quote Larry Arnn, in this debate.
LARRY ARNN: That's right. Because it's silly, right? First of all, of course they can. What is your relation to the government that I'm here to represent?
HUGH HEWITT: Yes.
LARRY ARNN: And second, they almost always have—almost always, without controversy. But don't we live in an age—where is the fuel for this dispute? Where is that?
HUGH HEWITT: Let me tell you where it is. And then let's analyze the source of it. The fuel comes from experts within the Bureau of the Census who have opined that to ask the question will scare members of the public who are not in the country with permission. And because they will be scared, they will not answer, and that, therefore, the actual number will be depressed. And therefore, we are better off not asking, but, in fact, extrapolating from that other document that you talked about.
That is their argument. It is an argument from expertise. It is an argument from the soul of the progressive movement.
LARRY ARNN: Right. Because in our country, why does it matter who the people are? Well, in our country, it matters because they are the governed, and they have a right to control the government. And in order to control the government, in order to—
They may not be governed except with their consent. For that to be meaningful, there have to be procedures by which they can be regularly consulted. Those procedures can't even begin unless you identify who the people are.
And that means that the nation-state, like it or not, since classic times, human beings live under law. And that's because they are political animals in their nature. And they have reason and speech, writes Aristotle.
So the nation-state needs to know who its people are, especially if they are to be in control of the government. Because the government needs to know whom to consult. But in the new understanding, first of all, citizenship doesn't matter. And that's because the title to rule— what makes it legitimate for someone to rule? And increasingly, that legitimacy comes from some kind of expertise.
The one who knows— the scientist, the public policy expert— they are the people who can design the way the country should work. And it will be for the benefit of us all when they do it. And they have an authority to do it that inheres in their knowledge. So you see, in the old and— I regard as— proper understanding, humanness and loyalty (or membership) in the regime are the two titles of sovereignty.
HUGH HEWITT: Yes.
LARRY ARNN: And everybody who's got that has sovereignty as a member of the sovereign body. In the new understanding, it's the one who knows, which, in a funny way, is kind of going back to Socrates. He's always making the argument, the one who knows gets to decide.
HUGH HEWITT: Yes, yes.
LARRY ARNN: Except knowledge is not the same thing as what he was talking about. He was talking about the difficult kind of knowledge to have that is, however, available to us all. Everybody can get it if they pursue wisdom, which is a lifelong task, and difficult.
But this new kind of knowledge is specialized. Everybody can be a specialist. But not everybody can be a specialist in the same thing, you see? And so one of the features of the old understanding of government is, the key questions of government are available to us all to understand and decide.
In the new understanding, there aren't any questions that we as a body can decide because only specialists can decide. And by definition, on each subject, there's only a few of them.
HUGH HEWITT: And I want to remind people now, if you go back and listen to The Hillsdale Dialogues of a couple of years ago, Dr. Arnn and I spent a few weeks talking about a book by C.S. Lewis called That Hideous Strength, the central plot feature of which is an institute that's satanic, actually, that gathers experts and to whom deference must be paid because they are experts. It is almost exactly the argument we are confronting that they make often in That Hideous Strength about the need to defer to experts on this census, even though it's counterintuitive to everything we believe and know, Larry Arnn.
LARRY ARNN: That's right. And so the greatest statesman to live in this age where these arguments are dominant, which is the age of the bureaucrat and of the modern sciences, the age in which we live— and the greatest man to live in that is Winston Churchill. And one of the most telling things he said is, there is no room for this house, in the House of Commons, for expertise. We are not experts. We are British worthies, representative of a people and their rights. Do you see?
And he believed that the debates in the House of Commons, where the laws should be made, should and must necessarily be of a tone so that everybody can hear them and participate in them and understand them. And it's that same spirit that made James Madison write that if the laws are so voluminous and changeable that nobody knows what they say, it doesn't matter if they're made by some kind of legitimate process. It's still not the rule of law.
HUGH HEWITT: It's not the rule of law. When we come back, we'll pick up on that point in the last segment of today's Hillsdale Dialogue.
Welcome back, America. It's Hugh Hewitt with Dr. Larry Arnn, president of Hillsdale College, all things Hillsdale. All right, Hillsdale.edu. Sign up for Imprimis. Watch the terrific courses. All of our conversations for your binge-listening pleasure dating back to 2013 are collected at HughForHillsdale.com.
Six important minutes here, Dr. Arnn. The rule of law is what we left off on. I believe this census question is vital to the rule of law. And I think the chief justice agrees with me and laid out, in his opinion, a way for the president to put this question on there. What did you think the chief justice was doing?
LARRY ARNN: Well, first of all, I thought more than you thought, I will remind you, that what he was doing was making a mess.
HUGH HEWITT: Yes, I did.
LARRY ARNN: But the nature of the mess you're asking about is, he did indicate that they can do this, if they want to. They just have to give a consistent reason. He didn't even quite say a reason we regard as legitimate.
HUGH HEWITT: Correct.
LARRY ARNN: He said, you've got to give a reason that's not provable on its face to be false.
HUGH HEWITT: And actually, even less than that— that is not contradictory to another reason. You can give cumulative reasons. But one may not be the opposite of the other. You may not say “A and not A support the census.”
LARRY ARNN: Yeah, and that's silly. And in all of this—when I say this a huge bunch of things depending on a little thing, I want to give something to these experts in the Commerce Department. As far as I can see and understand, the census is not used as an enforcement mechanism.
We're not identifying where are the illegals or who are the people who've got too many dogs in their house or anything. We're using it as data, and that's all. And what it does is help us—the most critical thing it does is it helps us draw lines of representation.
So it is true that they're apparently asking lots of questions about citizenship, or some questions about citizenship in this American Community Survey. You can get the information another way. But having said that, really, the argument that it's wrong even to ask the question, when it's always been asked, is just silly.
And then for the Supreme Court to step in and stop the question because they gave the answer A and answer not A in different places about why they were doing it, I don't think that was right. But you're pointing toward something in your recent Washington Post articles, under the firm tutelage of great judge Mike Luttig, that it's easy to see how they can fix that. Have a meeting, write a memo, give the reason, and put the question on.
HUGH HEWITT: Yes. It's just not that hard. And I think maybe it comes from managing things. It's just not that hard.
And they got Honey Badger. The Attorney General Honey Badger is out there. And Barr is going to give them that memo. I don't know if it'll be in the form of an executive order. I don't know if it's going to be a memorandum. I'll have to wait and read it carefully this evening and over the weekend. But once that's done, ought not the court to recede from the field?
LARRY ARNN: Yeah. Courts, they have to be shy. They have to be shy about interfering in the work of the other branches.
HUGH HEWITT: Yes.
LARRY ARNN: Because their particular power is really absolute. Once a thing gets to the Supreme Court and decided there, that's it in regards to that thing.
And I'll show you most dramatically in one of the most dramatic court cases in the world, in history, is Dred Scott v. Sandford. And Dred Scott was a slave. And he was taken into a free state, and he sued for his freedom because he'd been taken into a free state. And Justice Taney, one of the worst ever in the history of the Supreme Court—
HUGH HEWITT: Maybe the worst.
LARRY ARNN: Yeah— ruled that he's a slave. Now, he ruled a whole bunch of other trash in that thing, like there's no power in the Congress to forbid slavery anywhere, stuff like that. But Lincoln says in protesting against that case—and he establishes the model for protesting against bad Supreme Court cases—he says, "as regards to the particular issue, poor Dred Scott is a slave. And nothing can fix that. No force on Earth can change that."
And so having that power ultimately to dispose and having the nature that they are not a legislative body forward-looking—they are actually backward-looking. And they look at two things. There's been a law that happened in the past, and there's been an action or enforcement or something, and that happened in the past, and we ought to compare those two things. And that's the nature of their job. And that means they make a very poor legislative body.
HUGH HEWITT: Very poor, and they ought to be humble. And I want to end on that. They ought to be very, very concerned with the preservation of their authority, their capital, their ability to command. Because if you use it too often, it's gone.
Dr. Larry Arnn, it's always a pleasure. The Hillsdale Dialogue will be posted as usual over at HughForHillsdale.com and everything Hillsdale at Hillsdale.edu. Dr. Arnn, have a fine weekend.
We'll be back to talk more about the census and matters big and small in next week's Hillsdale Dialogue. Thank you, Adam. Thank you, Generalissimo. Thank you, Ben. Thanks to all of you for listening. I'll talk to you on Monday on the Hugh Hewitt Show.