 This is Mises Weekends with your host Jeff Dice. Ladies and gentlemen, thank you for joining us. Welcome back once again to Mises Weekends. And our guest today is Alan Mendenhall, who actually lives here in Auburn, Alabama, is joining us in studio. He's a longtime friend and a scholar associated with the Mises Institute. Alan runs the Blackstone and Burke Center for Law and Liberty at Faulkner University in Montgomery. He is a prolific writer on all things related to liberty and culture. He is an attorney and also a PhD in English. And we're very pleased to have him join us as we try to give some sort of new post-mortem spin to this election that happened last week. Alan, how are you today? I'm doing very well. Thanks for having me. It's sort of disorienting to be here in studio at the Institute and have you be somewhere else. Yeah, well, I'm on the road today, ladies and gentlemen. But let me give you sort of a devil's advocate setup. And I'd like to get your response. If you had told progressives, let's say five years ago, there's going to be a Republican president after Obama. But this hypothetical president is not going to be from Texas or Oklahoma. He's going to be from New York. He's going to be a sophisticated elite guy who's had a succession of beautiful wives. He is going to be very comfortable with gays and lesbians having worked his entire career in New York real estate. Similarly, he's going to be very comfortable with Jewish folks having some of them married into his family and having worked and had colleagues who were Jewish. He's going to be someone who's not animated by social issues like abortion, who's not a religious ideologue in any sense, and who, at least on union-type issues, is going to be a populist protectionist. Don't you think liberals would have said, man, if we have to have a Republican president, make it that guy? Yes, that's the short answer. I think they absolutely would have said that. But Trump is so unusual. He's somebody that nobody could have predicted. Alexis de Tocqueville, when he was touring America, wrote, you know, a great democratic revolution is taking place among us. Everyone sees it, but not everyone judges it the same way. And I think that description really captures our own moment. People are viewing Trump's rise to the presidency in very different ways, even among people who are libertarian. My own view is sort of that this is a good thing for a few reasons. Number one being that Trump, I'm not sure, is beholden to anyone, at least not in the same way that your sort of standard cookie color politician has been. There is a sense of alienation and disempowerment and disenfranchisement that people are feeling. And Trump tapped into that successfully. When Papua Can and the night before the election wrote an op-ed, he said something to the effect of, you know, whatever happens tomorrow, we can at least say for sure that Trump has changed the course of American politics. And the philosopher Slava Gizek said something like that, that this is a moment of awakening. This is a major transformative moment in American politics. And I think when the way American politics has been for so long, any sort of transformative moment like this should be met with caution, yes, but also with eyes open to the possibilities that it creates. Well, right, libertarians have gone around and around about Trump. There have been, you know, sensible libertarians who thought he was great, sensible libertarians who thought he's horrible. But here's what I don't get, Alan, is that we've got a guy who came out of nowhere and basically put a shiv in the Bush crime family. We're never going to hear from them again politically. He basically put a shiv in the Clinton crime family. We're never going to hear it from them again politically. And we're somehow, as libertarians, not supposed to see any upside in this, simply because he's not a libertarian. But, you know, hating the state also, I think, implies hating the political class that controls it. I agree. Rothbard, and if you can find this in the irrepressible Rothbard book, he says he talks about how can we mobilize the mass of Americans to undercut and short circuit their domination by a small number of opinion-molding leaders. And I think we just got our answer, not because somebody planned or designed it, but it just kind of happened. Nobody predicted this. Nobody drew it up in their playbook. And I think, you know, the results, no matter what Trump's policy positions are, and really, quite frankly, I don't know what Trump's going to do. I don't really know what policies he's going to implement. But what he's done already simply in his campaign and exactly what you say, knocking off sort of establishment figures and establishment institutions is already a success. Well, let's talk about the rights reaction a little bit. Obviously, there was a huge Never Trump movement led by people, let's say, at National Review. There's already an article in National Review about resisting Trump. Let me give you a quote from that. Conservatives would be happy to live in comfortable exile. It's a condition with which they are familiar. I mean, it sounds so defeatist. I mean, what's the GOP or the conservative posture with Trump as president? Well, I guess it's sort of like what you say. You know, it just kind of depends on which conservatives we're talking about. And you know, part of the nature of conservatism, I'm thinking of people like Russell Kirk, is to look more locally and to look at associations and mediating institutions at the local level, churches, families, communities, clubs, little league sports. These are the relationships among people that are most important in our lives. And the change that comes, the major shifts in culture are usually due to spiritual matters, entrepreneurship, technology, and these sorts of things. They don't follow necessarily a person or a political party. And I think that conservatives have been too invested in national politics in a way that has come at the expense of just basic associational life at the local level. Well, it's true. But what we forget is that with just a couple hundred thousand votes difference, you know, scattered across the various electoral college states, conservatives would be singing a very different tune today, right? I mean, conservatives like Rod Draher were talking about Hillary presidency and the Benedict option of having to retreat into enclaves in the face of this culture that's inalterably hostile to Christianity. I mean, I'm not sure that this changes that. You know, it may or it may not. It really will depend, I think, on the people Trump surrounds himself with. I see a lot of chatter about John Bolton serving as maybe secretary of state, and that bothers me. If I had Trump's ear, I would immediately tell him, no, please don't do that. I would give him Andrew Basavich as an alternative to John Bolton. I think he would be much better in that position. But, you know, I think a lot of that really depends on the people Trump delegates responsibilities to because I'm not sure Trump has settled on policy matters. And I'm not sure he knows exactly what he's going to do on one. He's made a lot of promises about what he's going to do on day one. You know, I just quite frankly not sure what a Trump presidency is going to look like. And I think we'll learn a lot when we start seeing his appoint. Well, let's talk a little bit about where this leaves a left. You know, the left has become an elitist party, a Wall Street party, a party that's obsessed with social justice issues and identity politics. It's not your grandfather's blue collar factory organizing party any longer. Do you think the left maybe overplayed its hands on some of the social issues this cycle and that it came around to bite them? That's probably so. I think that there is definitely a disconnect between what I'll just call sort of clumsily our ruling elites and the average American. What Judge Napolitano called in his op-ed yesterday, the forgotten man. There's a major disconnect there. And obviously, Trump realized that and Trump is not part of that sort of leftist elite. He has been at times, but he didn't represent that on the campaign trail. But I do think there was probably an overplayed hand on some of those issues. I think I'm thinking in particular of Hillary Clinton coming out and listing just the parade of horribles saying Trump supporters are, you know, Texas homophobic, xenophobic, and the list I think went on. But what she was doing was essentially demeaning half of the country. And I don't think that that is a very good political strategy. I mean, you have the Republicans winning states like Michigan for the first time in a really long time. And I think some of that has to do with people getting insulted by one of the two major candidates. I mean, in a certain sense, you have to almost say that the left has chosen identity politics. For instance, the transgender issue. This affects a tiny percentage of Americans. And the fact that Obama has been so out in front on this, when it's not really necessarily a winning electoral strategy, most people are sort of indifferent or maybe hostile even to transgender folks. In a weird way, maybe they almost put that principle ahead of their own electoral success, because it sure seems like they were running an elite identity issues campaign in a year when populism won the day. I think that's exactly right. Do you think that this actually means that the American electorate has shifted? Do you think Trump has brought something out in people that wasn't there before? Do you think he's just a reflection of an electorate that was always there, but maybe just not animated to go vote for a dull guy like Mitt Romney or a crazy guy like John McCain? Well, two things. I think in a way, yes, he is sort of reflective of views that were already out there. But I do think there is a new sense of anger at sort of the Wall Street bank bailout culture, tarp and all these kinds of things. And I think Trump tapped into that resentment as did Bernie Sanders. I think there are a lot of different ways of channeling that anger. Some people are going to look at the Bernie Sanders, Elizabeth Warren people, but there's an alternative. I mean, there's certainly a Rothbardian view on these sorts of things. We're diagnosing the problem. I think we would agree on the problem. It's the solutions. I think even someone like Cornell West that obviously identifies the problem, but we just sort of disagree about means and what the solutions are. I think a lot of people, without knowing really what they thought about the solutions and not having a coherent theory about it, just saw the problem, got angry and voted against the problem. And Hillary sort of represented that problem. Everything from the Clinton Foundation to our Wall Street connections to our corruption to the cronyism. People are just sick of that and fed up with that. Well, let's talk for a minute about the Supreme Court. First of all, the current situation. If I'm correct, there is a historical precedent for having fewer than nine justices as few as six. And presumably there's no chance now as a lame duck that Obama makes any more hay about nominating Garland or anybody else. In other words, we're going to wait until the new year. Do you agree? Oh, yeah. Garland's off the table and we definitely have precedent for smaller Supreme Court. The Judiciary Act of 1789 had six justices. Article III doesn't actually specify how many justices we need to have. And we've had three. I think in 1807 we had seven. We had nine in 1837, 10 in 1863. I think we've had nine since about 1869, but there's nothing that mandates that we have nine. And FDR's court packing plan was so controversial because he wanted to fill the court with new deal people. He would have had up to 15 and he would have added a Supreme Court justice for every justice that reached 70 years and six months. He would have added a new justice there who would have been more inclined to his new deal program. And we have state Supreme Court. The Alabama Supreme Court right now currently only has eight with the Chief Justice being suspended. The West Virginia Supreme Court of Appeals just has five members. So there's nothing that there's no magic number, I guess. It doesn't have to be an odd number. In fact, the benefit of having an even number is that if you do get a 4-4 split, then the issue goes back down to the circuits. It allows for sort of dispersal or diffusion of power, sort of some pluralism and diversity that inheres in the system, which I think is constructive. Well, you've had a chance to look at Trump's proposed list of Supreme Court nominees. We were speaking off-camera about how it's actually pretty geographically diverse and it's not weighted as heavily towards the Northeast and Ivy League pedigrees. So what do you think of his list? Well, I think it's a pretty good list. I mean, I like the fact that he has state Supreme Court justice on there. I like the fact that he has Mike Lee, a senator on the list. Obviously, when we're talking about the Supreme Court and our constitutional system, I'm speaking sort of within the system that we've inherited, within the system we've got, this isn't a conversation about social contract theory and the validity of the Constitution, which I'm actually very sympathetic towards some of these views and whether constitutional government has been a success or whether something like common law or private ordering, work that Ed Stringham does and Bruce Benson and Todd Zwicky will do in private ordering is better. But the conversation I guess we're having is within the constitutional system. What kind of justices do we want to have? And I think Trump's list is very good. I think if he wanted to appoint somebody that were in the mold of Scalia, his best option is probably Justice Pryor over in Birmingham on the 11th Circuit. I think Pryor most embodies the Scalia form of textualism and originalism. But there are some exciting names on the list, including Justice Don Willett from the Texas Supreme Court who does have some libertarian leanings. And this raises actually a very interesting fault line, which will probably be part of the Senate confirmation hearings no matter who Trump chooses to nominate. And that's this divide among people on the right and even within libertarian circles about the views on say the 14th Amendment, substantive process, privileges and immunities and on judicial engagement and standards of review and sort of the powers of the federal judiciary, issues of federalism, issues of checks and balances. These are not issues that the right sort of has a uniform view on. The views are diverging widely on a lot of these issues. And I think that in the confirmation hearings, you may see some interesting questions along these lines sort of getting right at that fracture on the right. Well, yeah, he certainly doesn't come across as a civil libertarian in style or tone. In other words, he's a guy who's been used to sort of running his own corporations and having a lot of people say yes when he tells them to do things. I wonder sometimes whether conservatives and libertarians make too much of the Supreme Court. Nick Gillespie tried to make this argument in his debate with Walter Block a week or so ago that the Supreme Court doesn't matter as much as we say it does and that it's an overblown concern. Would you share that? No, I think I wish that were the case. I guess is the way I would answer that question. I wish that were correct. I do feel that the Supreme Court has quite a bit of power and you don't see sort of the institutional resistance to Supreme Court decisions that you might have seen in the early republic. So, you know, I am a little bit fearful about what Supreme Court decisions might mean. I mean, I think Chief Justice Roberts' opinion on the Affordable Care Act is a case in point. I mean, when he held that the individual mandate is a tax and upheld it on that basis, that affected a lot of people. Now, fortunately for us, the Affordable Care Act is just sort of unraveling on its own terms because it just was not a sustainable model. So, no matter what whoever the president was going to be, whether it were Trump or Clinton, somebody was going to have to do something about the Affordable Care Act. You know, the mantra on the right is sort of repeal and replace, maybe just repeal and do nothing is the better strategy. But I do think the Supreme Court wields a lot of power and maybe the issue is not trying to therefore fill it with people who are like-minded so that you can exercise your power over the other side. But maybe we need to really step back and think about the nature of that power at all, whether that power is justified or legitimate or good. And that may be the way we need to look at this conversation. What can we do? There's jurisdiction stripping and there are all kinds of mechanisms that are constitutional that we could look at. But I do think the Supreme Court is a powerful institution and I have no doubts about that. I think the federal judiciary has come a long way from when Alexander Hamilton said it was the least dangerous branch and that's coming from an art nationalist. And I think he would never have been able to conceive of the federal judiciary as it exists now. I mean, since 1950 the size of the federal judiciary has more than tripled. Matters that the Supreme Court undertakes seem to be increasingly invasive and controversial. I don't think the Supreme Court was always as active as it is today. Well, if there's one thing we can always count on from Alexander Hamilton, it's to give us the most illiberal view of any situation. With that, ladies and gentlemen, we are out of time. You really need to be following Alan Mendenhall on Twitter if you're looking for someone who basically curates for you the intersection of law and libertarianism and culture and even literature. He's got a great Twitter feed. I tend to get caught up reading a couple of articles that he sends me virtually every day. You can reach him via Twitter at Alan, A-L-L-E-N Mendenhall, M-E-N-D-E-N-H-A-L-L. And Alan, I appreciate your time. Thank you so much for joining us. Ladies and gentlemen, have a great weekend.