 This is Mises Weekends with your host Jeff Deist. Ladies and gentlemen, welcome back once again to Mises Weekends. I bet a lot of you are going to be familiar with our two guests. We're joined in studio by Alan Mendenhall. Alan is an attorney, also a PhD. He runs the Blackstone Center at Falkner Law School right here in Alabama. Brian McClanahan is a professor, a historian, also a PhD, and his latest book is called How Alexander Hamilton Screwed Up America. I guess you're especially focused on the founding period and the founding fathers in American history. So we have two guests who are very well equipped to talk about the Constitution today. And what I especially like to talk about from sort of a devil's advocate perspective is how libertarians should think about and view the Constitution and whether we should consider it a libertarian document that's been worthwhile or not. So we're going to get into some history. We're going to get into some jurisprudence and hopefully get to the bottom of this if that's possible in a brief podcast. Speaking of devil's advocacy, let me throw out sort of an initial question. A lot of libertarians are not big on the implied social contracts. And I would consider myself amongst them and say there's no such thing. The Constitution attempts to be sort of an express written contract of sorts, but the two big libertarian objections are, of course, one, not too many people at the time signed it, a relatively tiny percent of the then existing colonial population. And two, you cannot draft a valid contract that binds future generations. So with those two sort of broad objectives in minus parameters, give us both of you your sort of overarching thoughts about whether in general the Constitution has been a libertarian document. I'll let you go first down. Okay, sure. Well, I think Rothbard's position on this is that the Constitution was a noble experiment, but ultimately I think he called it an abysmal failure. The reason being that many violations of individual liberty had occurred under the constitutional system, which means that the U.S. Constitution either failed in preventing those violations or otherwise gave those violations the stamp of constitutional approval and therefore legitimized or validated those violations. The Constitution is the longest surviving charter of its kind as one of those sort of byproducts of 18th century thought and that emanated from social contract theory. So, I mean, I don't personally think that its longevity is necessarily a measure of its success by any means, but there are areas within the Constitution, say the First Amendment, we do still care about freedom of speech and freedom of association, and we do worry about these ideals. The Constitution was designed to enshrine principles of liberty, principles such as the separation of powers and checks and balances, and these are good things, I think, and I do think we have a lot of residual respect for that sort of stuff, and even though the breakdown and the separation of powers seems to be almost complete at this point, we still have a notion that those are good things. Okay, Brian? Well, I think there's some things to think about the Constitution when you think about the construct of the Constitution. First and foremost, when you talk about a social contract, this is a document that was between the people of the state, so it created a federal structure. So, when we talk about this thing as a document that created a national environment, it really didn't. I know there was some discussion about that and many of the founding generation were nationalist, but when you look at Article 7, for example, it says this is a Constitution between the states or ratifying the same, and when you talk about this idea that very few people signed it, that's true, but it was ratified in popular elected conventions. So, the people did have input into it, the people of the states, and when you look at the Constitution, you try to find meaning. You look at those ratifying debates, you look at the pamphlets and essays that were written at the time. This is what they said it meant. And so, I think when you start talking about this overarching structure where it's some type of national document, that's getting beyond what it was. In fact, I could make the case the original Constitution was ratified in the Washington administration with Hamilton, that's my point. Hamilton went in and lied in 1788 and then undid everything he said was going to happen when the Constitution was ratified once he was Secretary of the Treasury and had some input in the government. So, as far as if it's a libertarian document, no, it's really a frame of government between states, and I actually believe it is a contract and so that's why I argue that you can legally secede from it if you want to as a state. So, you know, the Bill of Rights was not intended to be applied to the states. I mean, there's so many things, the conceptions of the Constitution that we have that are just invalid. And I think that's the greatest problem with the Constitution. We believe it is what it isn't. And I think that's where we get into these issues that we're going to talk about today. Well, elaborate a little bit on the Hamiltonians and how there was a tension from the beginning and how the Hamiltonians screwed up things from the get-go. Right. So, you know, when Hamilton was arguing, first of all, 1787, June of 1787, he makes a speech in the Philadelphia Convention, very famous speech, Forest McDonald actually said it, turned the tone of the convention. Well, that's a lie because nobody really, I mean, people thought it was a great speech, but nobody acted on it, acted on it. So, Hamilton wanted things like an elected king. He wanted senators for life. He wanted to reduce the states to corporations. He actually used that term. And so, once the Constitution was written, finalized and then voted on, of course, goes to the states, they really have these ratification debates. And in those debates, Hamilton becomes a whole different person. He starts saying, yeah, I didn't mean all those things. In fact, at Poughkepsi in New York, he made a very famous speech where he started talking about, I believe, in the states. And John Lansing of New York actually called him out on this and said, no, wait a second. And just a year ago, just one year ago, you said you wanted to reduce the states to corporations. And so, now you're saying they're vital? Well, I didn't say that. He says, yeah, you did. So there's this big argument that takes place, almost leads to a duel. And this is one of the stories that I bring out in the book that nobody really knows about. But Hamilton was lying. And of course, he lied as an author of the Federalist Essay. So when he gets in the general government, he starts acting the way he would have if he had gotten what he wanted in June of 1787. Advocating implied powers. Advocating a presidency that had much more power than what he said it would have in Federalist 69. So when you look at the Hamiltonians, what they did was basically say, I know we said all these things, but we really want these things. We want a president that has almost unlimited power. We want a Congress that can do anything it wants. And we don't really care if the states have any objection to this or not. It's irrelevant because what we need is a strong central government. And Hamilton's mind, and there is this argument, libertarians who like Hamilton, well, that would preserve liberty. That was the point. We'd have the strong central government to preserve liberty because the states can run roughshod all over all this stuff. But on the other hand, that was the exact opposite of what they said they would do when they ratified the Constitution. There was a lot of concern about the strong central authority and that it was going to destroy the states and the people of the states being able to govern the way that they saw fit for their own political community. Maybe that duel should have happened. Maybe we'd be looking at things differently. We might have a different musical. But I think your point is valid. But also, Lysander Spooner made this point. And I think it goes to when you say the failing of the Constitution is sort of our failure a couple hundred years later to understand it for what it was. That's right. And so in that sense, it hasn't endured in its original meaning or its original purpose. But on the other side, there are groups out there today calling for a new constitutional convention, which is authorized in Article 5. And I think most libertarians rightly are terrified of this prospect because things could be a lot worse, right? We could get together and then social justice warriors and progressives and even diluted neo-conservative right-wingers could get together and create new constitutional amendments that are much worse than what we've got. So that implies or argues that there is some libertarian value to it. Well, I think that if it were an Article 5 convention the states are generally much further to the right than the federal government. So if it were an Article 5 convention the states controlled by the states, I mean, we don't know how, as you say, we don't know how this would play out. But I do think that having the states give that end around, I would imagine it wouldn't be... It's one of these things that both the left and the right have their advocates and have their opponents. I'm not as pessimistic and afraid of the Article 5 convention of the states as maybe some other people are. But I don't know, Brian, you may have a different opinion. No, I actually think it's a pretty good idea because of your point. The states... Look, I had a friend say, what we need to do is repeal and replace Washington D.C. Why not just repeal? Forget about replace, just repeal. The states can do that. It actually puts all the power back in the states and we're talking about this. We're starting to recognize federalism. And I think that's such a beautiful thing because so long we've talked about, no, I mean, the general government has all this power and this national structure, but now we start talking about the states being able to go in and change this thing. And I think your point, if you look at what some of the amendments that we might get out of this and some of the things have been proposed, we have much more conservative, libertarian leaning states than we do... We don't want to go and vote in that process, right? So how much damage could they actually do? If you took the states that would actually want an SJW situation, it's going to be a fraction. We're going to have more states that are going to say, no, we don't want all that garbage. Let's get rid of some of these things and you could get some neoconservative influence. I think that would be the most dangerous part because so many conservatives and libertarians are...I mean, our side is unfortunately the minority in that group. And so that would be a danger. I think overall, it's a beautiful thing to start talking about the states in this regard again and what the states can actually do to that general government. They could abolish the executive branch. They could abolish the Supreme Court. I mean, they could do all kinds of things that we would say, well, yeah, let's do it. And I think that would be a great discussion to have. But to your point, we don't have... We don't have the same sort of educated leaders that we may have had in the founding era that would be leading it. And that's what concerns me is that most people are so constitutionally infirm that the people we send to this process would be the same people who right now go to your local zoning meeting on a Tuesday night or who run your HOA. That's my concern. So I'm going to have to disagree with these two August gentlemen and say, I think it's a terrible idea. But it's interesting that it took Trump to get our friends on the left to start talking about federalism again. And I was very pleased to see Angela Cotavilla at Claremont, who is a neo-conservative guy but a serious scholar, not a partisan hack, give some sort of grudging respect to the idea of sanctuary cities and saying, maybe this is the way we've got to go. I think that's fleeting, though. The left is only going to subscribe to this so long as they're not in power. And the right does it, too. Once they're out of power, oh, yeah, we love federalism. Once they're in power, no, we don't like that. Well, I think the right has embraced federalism because it suspects correctly that it's losing. It's losing culture wars here, certainly. So we've talked a little bit about the original document. I'd like to move on to what was at the time sort of an addendum to the Bill of Rights. Interesting that George Mason refused to sign the Constitution and even the Bill of Rights wasn't enough to allay his concerns. I don't like the Bill of Rights. I think the incorporation doctrine has been bad for liberty. But I'd like both of your thoughts on the Bill of Rights and whether a document itself within the Four Corners should have been tighter and our understanding of federal power should have been robust enough that a Bill of Rights wasn't necessary. Well, I inclined more toward the anti-Federalist position. It was the anti-Federalists who wanted to include a Bill of Rights and the Federalist's concern was that if you enumerate these rights, then you potentially leave out other rights. And by specifying which rights are there, you risk saying, okay, anything that's not there is not there. But what I guess where I have a problem is not necessarily with the Bill of Rights, but as you say, it's incorporation against the states. And that's done through the 14th Amendment. And I find that to be problematic. And I know that many libertarians disagree with me on that point. But it's my view that we ought not to empower the federal judiciary to be making these determinations about rights, defining rights for us. In many cases, inventing rights. I heard a commentator on the radio recently talking about, you know, trying to discover these rights, rights to subsistence, rights to basic income, rights to these kinds of things. And, you know, you can't discover those things in the 14th Amendment. They're just, it's, you know, that. So I tend to think that the Corporation Against the States is a bad thing for liberty. And I think Brian agrees with me on that point. Absolutely. And in fact, in the Hamilton book, The Last Chapters on Hugo Black, who's the main villain in incorporation. But the Bill of Rights is an interesting document. Most people don't understand that preamble to the Bill of Rights expressly explains what these things were there for. They were restrictive clauses on the general government only. And so when you look at the Bill of Rights, this is the problem with it. They think, well, you know, if my, if I am given a red light ticket in my city, I'm going to, I'm going to go ahead and file a suit in a federal court to take care of that. Well, that's completely backwards. You know, this is in your city government. But we think that these rights, well, these are my rights are codified there. But as Alan points out, it's federal judges who have created all this mess in the 14th, the corporation, the 14th Amendment. One thing I want to say about, you know, the Bill of Rights and anti-federalists and federalists in those terms. I actually hate those terms because we had proponents and opponents of the Constitution. The anti-federalists were the real federalists. The federalists were the nationalists. And so, I mean, I think that's, that language kind of skews what was going on here. And also Mason didn't just refuse to sign the Constitution. He would rather cut off his right hand than sign the Constitution. Because that's a much more powerful statement. I don't want to, I'm not going to cut off my hand if I have to sign this thing. But, you know, the Bill of Rights, I think, you know, as far as the argument, as Alan pointed out, Roger Sherman said, you know, well, if we have a Bill of Rights, then if we don't put anything in it, then we're going to create problems because then some rights are not going to be there. So that's what the Ninth Amendment was for. But I think the real issue with it is not the Bill of Rights itself, but the incorporation of the Bill of Rights. We're going to drizzle at the most when we start talking about these creation of, you know, guaranteed income or right to food or right to clothing or whatever we want to talk about today that we say, my God, there's no way that you can even find that there. But that's the real issue. If we applied it only to the general government and said these are restrictions on the general government only, which is what it was designed to do, I think it's actually a very good thing in that regard. Because it would stop if you believed in it. I mean, you can't hold it up as a shield, you know. But if you believed in it and people believed in it, it would stop some of the abuse of power that we can see in Washington. But again, this what I consider unfortunate libertarian fetish for nationalizing things. Because we might imagine there's an ill-libertarian result at a state or local level. I mean, call me a simpleton. I read the First Amendment says Congress shall pass no law. And the Scalia types are always ventilating about textual, plain meaning. I don't see how you can possibly say, regardless of the 14th Amendment, that the First Amendment has any bearing on whether UC Berkeley allows Milo to come speak. I think UC Berkeley should allow Milo to come speak. And the California Constitution may well require that. But it says Congress shall make no law. How does that apply to states under any coherent interpretation doctrine? I thought you were going to take this one. I have a very short answer. You got me, right? But this is the problem with it. Of course, Black in the 1960s came up with this idea that John Bingham, who was the author of the 14th Amendment, that they firmly believed that that incorporated the Bill of Rights against the states. Or, you know, you could apply it against the states. And if you read those debates at that time, and Rao Berger actually has a very good book on this, Government by Judiciary. But if you read the debates, what you find is that the Republicans and the Congress at the time had a very interesting conception of the Bill of Rights. They said it was already incorporated against the states because it's part of the Constitution. The Constitution works against the states. And so it's already part of it. And so at the time, people said, wait a second here, didn't Baron V. Baltimore go against that? Oh, yeah, you're right. But, you know, it doesn't matter anymore. So I think when you look at the intent of the 14th Amendment, and when you finally get that thing through the Congress, the intent was pretty clear it wasn't supposed to apply to the states. But black made it happen. For, I think, nefarious reasons. You know, he was trying to prevent Catholics from having any type of religious liberty. Or, you know, to be able to use state funds for busing and schooling and things like that. And he was very anti-Catholic. But I think that, you know, the fact is there's no way, if you look at the historical record, you can conclude that the 14th Amendment should have applied the Bill of Rights to the states. It's just, it's a stretch to say the least. Well, yeah, I agree with Brian on that point. And I find it very problematic that you would want to empower federal judges. Keep in mind that these are people that graduate from our American law schools and go through that type of legal education process. And these are very illiberal thinkers who are as, you know, non-libertarian. They're not necessarily liberty-friendly people. And that you would want to vest them with all these powers over states. And I find that to be just a wrong move from the get-go. Right, right. Well, how hard would it be to say neither Congress nor the respective states shall, in other words, amend the First Amendment? We haven't done that. We could do it through an article 5 convention So while we're still on the topic of the 14th, it's a bit tangential, but the due process rights language contained in both the 5th and 14th Amendment do mention property. Now, we haven't stuck to that too well in the post-Lockner era. And people who follow Judge Napolitano, who will be here at Mises You this coming week, know about the Lockner decision and economic substantive due process. You can go look that up on your own. But we haven't respected property in our federal courts the way we've respected life and liberty. But the fact that the founders wrote the word property in there, does that go to the balance side of their libertarian bona fides? Well, it's actually... The 14th Amendment has been used to actually cut against private property rights. I mean, if you look at... If you're trying to find state action, you can find it. And there are examples of federal courts finding state action by private businesses that are looking... It's an issue of whether the government's going to prohibit, say, discrimination against some suspect class, whether it's race, gender, whatever it is. And it raises big questions about whether private businesses ought to be able to do that and whether there is any kind of state action that would allow the federal government to come in there and control the activities of private businesses. And that does implicate property rights, but not in the way of preservation, but in the way of destruction of those property rights. Because you have small businesses at risk of all these accusations under federal law that federal law really shouldn't be touching. Right, absolutely. Do you think due process is held up a couple hundred years later? Property or otherwise? That's a very good question. I think just piggybacking on what Alan said, when you look at this idea of property and what's happened through the 14th Amendment is that people now have become the state. I think that's a hard concept for people to understand, but if I am... And this was actually pointed out in the 19th century where there was a dissenting opinion where the Supreme Court Justice said, but look, what you're doing here is saying that... I believe this is in the slaughterhouse cases. You might... I'm trying to think here, but there was a dissenting opinion that if you do this, if you say that you can't discriminate because you own this... You're making someone an agent of the state. So, for example, if I walk from Alabama to Georgia, I've just committed interstate commerce because I am now the state, but that's not what the intent was in all of these things. We have this very strange concept of state action now and who is the state, and I think the 14th Amendment has done that. When you look at... You're asking about due process. We have different... There's procedural due process, which is not something we really believe in anymore. Now it's substantive due process, so it's preventing state action, but that's not what due process actually meant. I mean, when you look at the founding generation, what they were concerned about was procedural due process. Did someone follow all the proper procedures to be deprived of their life, liberty, or property? And not just to, you know, say, we're gonna do these things to prevent any of this stuff from happening. So, we have to understand what due process actually meant in the 18th century rather than, you know, what we want it to mean or what we think it should mean because when you get away from procedural due process, you can create all kinds of nasty little problems, as Alan just talked about, and that's where the property rights. Well, Alan, I'd like to shift to the idea of judicial review found nowhere in Article 3, by the way. That's right. The judicial power. Marbury versus Madison comes along and we get this concept that seems to me and made the Supreme Court not only supreme over lower federal courts, but supreme over the other two branches of government. Constitutional jurisprudence is not the Constitution. Are we living under some sort of ersatz constitutional jurisprudence at this point that is, rather than the Constitution itself? The answer is yes and I want to qualify that answer by backing up to the separation of powers again. So under Montesquieu's conception of the separation of powers, you have an executive branch, a legislative branch, and a judicial branch. The executive branch enforces the law, the legislative branch makes the law, and the judicial branch interprets the law. And under that scheme, if any one branch irrigates to itself powers belonging to the other branch, then political liberty has become non-existent in that state. It really is a system whereby each branch is a check on the other. Now, judicial review is not in the Constitution and quite frankly, even in Marbury versus Madison, it's not in there in the way that we talk about it today. And basically, judicial review is a product of these 18th century constitutions because historically, judicial opinions were we'll put it this way. Sir Matthew Hale, 17th century jurist, William Blackstone, 18th century jurist, they talked a lot about judicial opinions if they were Lex non-script, unwritten law. The common law is generally traced back to the 12th century under Henry II's rule, and opinions were issued orally. And then from the 13th to the 15th century, some opinions were transcribed in French and compiled in yearbooks. And then 15th and 16th century, you had some lawyers writing down opinions, like writing them down. So they're transcribing. Imagine taking notes for a minute in a classroom. You can't do it. So these are just opinions written down loose hand. But you do have this establishment of the idea of precedent and stare decisis that precedent will have the authority of law and lawyers are citing cases as authority in court rooms. But even when Sir Edward Cook wrote Institutes of the Laws of England, at that point there were no court reporters. Cases weren't getting indexed in an official corpus or written down in a digest. No, this is I think that the idea of basically that written opinions are an American innovation and that they have something to do with the fact that we have a written constitution. That there was a felt need to write down these opinions. Now, when we first were talking about around the time after the Judiciary Act of 1789, our justices are still issuing seriatum opinions. So each one is writing an opinion, each justice. And that makes it very difficult to discern what the law is from the case. I actually kind of like it. There's no majority opinion. Yeah, there's not somebody writing for the court. But you would find you'd have to hold the opinion side by side and figure out where they connected, where they disconnected, to just figure out what happened in this case. It was really hard. I think that would be a good thing to make the justices a little busier so they can't do as much damage now. But the idea that the Supreme Court's opinion constitute law is a complete collapse of the separation of powers. Courts cannot make law. An opinion is just that. It is an opinion about the state of what the law is. I mean Ed Meese has an interesting law review article I believe it was in the Loyola Law Review where he was talking about Cooper V. Aaron and he says basically a legal opinion is not on par with the Constitution itself. If it were, the U.S. Supreme Court could never overrule itself because it would just be up there pronouncing laws that were immaculate and perfect. But opinions were traditionally treated as evidence of law that would bind the parties to the case. And if that law were going to apply in inferior courts, then the inferior courts would have to look to Supreme Court precedent and incorporate that position within their own decisions, but it didn't just automatically, the minute this U.S. Supreme Court issued a ruling apply always and everywhere and just bind everyone. So it was instruction to the lower courts and evidence for the lower courts, but it was just not automatically the law of the land. The Constitution is the law of the land. The body of cases that interprets the Constitution is what we call constitutional law, but it is always supposed to be subject to the Constitution. Well, when you talk about this American concept of writing down legal opinions, I guess I wasn't aware that that was sort of a purely American notion, but Judge Napolitano talks about this sort of organic process of discovering common law versus positive law enacted by legislatures. And it sounds like we have a legal positivism as well, where courts are writing down things and they're not, they're creating precedents that apply bizarrely across different fact patterns in the underlying case. I think we've struggled from the beginning to incorporate the common law tradition into a constitutional system of federalism with states and a national government. It's been an uneasy fit to say the least. I mean the idea of the common law being this organic process that is bottom up rooted in custom and tradition whereby the rules are antecedent to any government promulgation and they sort of trickle up into the political institutions has not really been easy to square with the system whereby a constitution which is necessarily bottom down is setting the parameters and controlling the institutions within its prescribed jurisdiction. I mean the interesting thing about all new constitutions is that they're unconstitutional because there's no that they don't derive from a pre-existing constitution that authorize their creation. It's kind of an interesting thing to think about. Well Brian, getting back to the structure of the document, the original intent behind it Article 1 Section 8 was supposed to rein in Congress and say look this document isn't authorizing you to do things. It's on the contrary it's constricting you and it is listing a few express powers as you well know virtually every law Congress passes exceeds the bounds of Article 1 sectionally at least from our perspective it's extra constitutional. Isn't that another way of saying illegal? Is the Constitution Black Letter law? I believe so. Again you have to find, and this is where I go back to the ratification debate, you have to find the meaning out of that because Madison said look the only thing that gives the Constitution meaning are these debates and what people said it was going to mean when it was going to be ratified and one thing going back to judicial review for a second they actually did talk about it and I think there was some my Marshall said this I think that the Supreme Court will have a judicial review type of system and there were others that made these points too in Connecticut and other places so the first time we actually had a judicial review process was 1791 and Hamilton was behind that too and he argued for the United States and the Supreme Court found the law constitutional, they didn't invalidate it so this was something that was actually openly discussed. The problem is though that the appeal from the you can appeal a state court decision to the federal court system. That's the real issue and I think that when you talked about the Judiciary Act in Section 25 that was the one that everyone criticized because you could go right from a state and appeal right to the federal government and that's the one I was talking about before, I get a speeding ticket in Alabama and then I just say this is unconstitution I'm going to go appeal to a federal court well that's ridiculous but the Judiciary Act allowed that to happen but when you look at Article 1 Section 8 you look for meaning. One of the important phrases in Article 1 is that all the powers herein are granted now who's doing the granting? Well the states are obviously. The ratifiers. That's right and so the people of the states and so a granted power if I was to grant you the power we were in a classroom and I said Jeff I'm going to give you the power to grade your own tests and so okay I'm going to grade my tests I get it all back and they're all 100s and I start looking at it and say well you made some mistakes here so I'm going to rescind that power I'm going to take that back because obviously you've abused it and so because I granted it I can rescind that power and so the people of the states have that authority and the meaning of those powers the enumerated powers in Article 1 Section 8 were defined by the people of the states at the time of ratification so yes what we've seen is an expansive projection of those powers people in Congress don't even know what those words are anymore they talk about things like the good and welfare clause now I have searched high and low in the Constitution I've never found the good and welfare clause ever where's that you know the good and welfare clause is that a Pelosiism or a maximum it was Conyers of Georgia right so Conyers was saying we can do it because the good and welfare clause where's that Conyers has been in office forever hasn't he yes these guys they never they never get unelected or it was it's not just the Democrats several years ago there was a town hall meeting in New Jersey and they Lobiondo was represented there and somebody stood up and said representative Lobiondo what does Article 1 Section 1 say and he said oh you mean that says Congress shall make no law no no what does Article 1 Section 1 say and it's up court that that sets up the legislative branch he didn't even know Chuck Schumer was on CNN a few years ago and he said the three branches of government the President the House and the Senate no mention of judiciary right so these people are just completely oblivious to the Constitution themselves so how can you expect this is to your point how can you expect people to follow the Constitution when they don't even know it's in it and they've never probably cracked one book about the ratification they might have glanced over the Federalist essays and they think they know about the Constitution Madison and Jay and Hamilton said it but there's volumes and volumes of these ratification debates and you rarely even had these things presented in a federal court you know this is what the ratifier said it would mean you did have it Luther Martin actually brought it up in one case but that was in the 19th century so how can we expect these people to follow something they don't even know it's in it it's a shame yeah but apart from Congress I wager that a significant perhaps minority the U.S. population would say the Constitution has no bearing on what we're doing here and we ought to disregard it well that raises an interesting point because if we're talking about the effectiveness of the Constitution I mean constitutions are only as good as the people they purport to govern if I mean Justice Scalia like to say the Soviet Constitution protected all kinds of liberties but no you know if the operative norms and values of the people are not liberty friendly then the Constitution is just going to be a piece of paper it's not going to it's not going to be able to check power grabs and unjust government control so really it's a cultural thing in that sense there are institutions always seem to follow culture and if you don't have a general cultural understanding or civic literacy you are going to lose the institutions that that follow from that that's my opinion well speaking of constitutional literacy Brian I'd like to ask you about this democracy scam it never goes away I heard Biden of all people bloviating the other day about our democracy I suspect he's gearing up to run against Trump in three years the word is not contained in the Constitution it's not contained in the Declaration of Independence in the some of our founders warned against it in the Federalist Papers in the Constitution actually talks about a Republican form of government why are we saddled endlessly from I guess grade school civics on with this idea that the U.S. Federal system is a democracy it feels good right it's a nice it's equal we're all equal we can all vote we all take part in the system I think that it comes down to feelings it's a motivism that's a very dangerous thing but I think that's the basis of it and I remember years ago I was talking to my grandfather about this he accused me of not believing in democracy I said I really don't in many cases he was a midwesterner and he grew up in the Civil War two generation he just he couldn't believe that he said I can't I can't see how you don't believe in democracy but when you look at what's you're exactly right the structure of the federal government was never designed to be democratic in fact they designed it purposely not to be democratic you have the electoral college you have the senate which were elected by the state legislatures so you have this system in place where the people don't have a whole lot of control over the government itself they do at the state level though they did believe in democracy at a more localized level and what they could do with that there because they were protecting communities and the culture of a community but they didn't want Massachusetts governing South Carolina or vice versa people in Massachusetts if you look at the ratifying convention in 1788 they were very concerned that these slaveholders in the south these people that were not like them would have any control over their government in Massachusetts and they were promised why are these people in South Carolina going to control you and the same thing was happening in the south so that's where we have to get these terms right what we have is a federal republic it's not a republic it's not a singular republic like France it's a federal republic we have 50 republics and in those republics you can have more democratic systems and that's fine if that's what the people want there but if you look at say Virginia in the 1780s it was very undemocratic and Charles Sudnor wrote a great book on this and he pointed out that Virginia so undemocratic had more concern for civil liberties than any other state that had more democracy so we have this belief that democracy is going to be this panacea it's going to save all our liberties it really doesn't in fact what you find over time is that more democracy often leads to less civil liberty than more but you have to believe in this concept of civil liberty and protecting that and also in the founding generation we have to understand there were different conceptions of liberty you had the Celts that were very much individual liberty you had the Quakers which were reciprocal liberty if I say you need freedom of speech well then I demand that you give that to me as well you had the Puritans which believed in this kind of community liberty which is Franklin Roosevelt the only thing we have to fear is fear itself where these as long as the community was safe then we didn't care if we trampled all over civil liberty and then you had the Virginians which very much believed in what was called David Hackett Fisher called hegemonic liberty from the top down but that top down liberty would actually protect the people below them too in the common law tradition as if the center passed something that was unconstitutional to the people in that county they would just ignore it I mean that's nullification and so that's something we have to understand when you brought up common law before we are playing two different ball games often times we've got one team playing football in this field and one team playing baseball in this field and we're trying to make these things work and they often don't we're playing football and the common law tradition can make that work at the state while we have restrained on the center so we have to start thinking in these terms and unfortunately we're fighting and we're going way uphill in this case but I think we can we're making headway slowly but surely well let's touch on the first amendment it's under fire hate crimes laws are being considered hate speech laws are being considered is the first amendment still something that separates us from the rest of the west does it protect us do we still have a relative degree of free speech in the US I think so I think that we haven't gone as far as I mean there's some European countries that are very controlling on speech and hate speech and certain types of speech and we have not gone that direction we have not drifted that far I mean the first amendment is a big animal there are a lot of different moving parts to the first amendment but I think again it goes back to this idea of the culture if we stop valuing freedom of speech for what it is and why we have it then we will risk losing it because institutions do tend to follow and who knows Obama's appointees to the federal courts are just they're just all terrible and they really don't know a whole lot about constitutional law and I say that without any irony intended I really mean that and they are the types that look at things like empathy as a guiding principle of jurisprudence that can control decisions and cases and if you have a lot of federal judges populating the federal judiciary that think like that that really disregard the document that they swear an oath to uphold then you might see some weird tinkering with first amendment you might see some weird presidents coming out and you know Obama remade some conservative circuits the 11th circuit the 4th circuit I mean I might get in trouble for saying this but he really he really did a number on our federal judiciary and populating it with people that in my view don't really have a very strong understanding of a the constitution Western jurisprudence Anglo-American legal tradition common law tradition they just sort of know a lot about feelings and you know they know about a lot about American history from say the 1960s forward but for them the 1960s was the founding era for them in American history so maybe I'll get in trouble for saying that but it's a you're getting in trouble for expressing your opinion doesn't sound like free speech well not from the government trouble but you know well we're all the government now let me make a couple of points about this first of all I think free speech in America has never been better in some ways we're here on this Mises podcast this would not have been possible 30 or 40 years ago to do this and all the people that are going to listen to this are voting on podcasts now and all over the internet we have so much free speech and if we were talking about before we started recording how annoying that can get at times because your Facebook feed seems to be all these police gosh somebody talk about their babies instead of all this stuff so I think free speech has never been better and plus we have to understand that every state constitution has a first amendment is that the case every state has some form of protection for freedom of speech so my first line of defense is actually the state constitution of Alabama where I can say look the state of Alabama cannot bridge my freedom of speech nor can the general government because of the first amendment but when we look at this concept I think in some ways free speech has never been better and I think that overall I don't think we're losing it I mean I do think that you have the federal courts that could come in and create some problems but the other dirt a little secret about the federal court system is Congress could abolish the 11th circuit if they wanted to Congress could abolish the 4th circuit they could just say you know what take all these courts out and in fact I think Newt Gingrich of all people made this point one time when we were complaining about one of these circuits he said look Congress can just get rid of it of course they're not going to but if we had enough people that knew that and everyone complains well the courts the federal courts are out of control well just take section 25 of the judiciary act out and strip the take out some of these circuits just say you federal judges no longer have a job go find go work in McDonald's right because that's about that's about all your worth right so go there and do that but they could do this and if enough people understood that and I made this point I think it was on gosh what radio program it was on doctor what's the guy name out and he used to be on the oh gosh can't remember his name but anyways I brought this up to him he has a big program out in California I've never heard that before I've never heard someone say that you can just get rid of the federal courts people think the federal courts are created and they're just there forever in perpetuity we're going to have these federal courts and they're just going to rule on high the congress could take all of that out that's true that ninth circuit would be a good starting point if we wanted to and so if people understood that the courts would not be as abusive as they are because there will be some fear if we go if we start making these decisions that are so obnoxious the congress just cut us out and that would be great and actually make the Supreme Court judges ride the circuit again they don't do that anymore if you made the Supreme Court and it was required to be in the city of the lowest population in the state of the lowest population meaning it had to change locations the justices couldn't wear robes they had to ride circuit they had to ride an opinion in every single case you would get a change to the Supreme Court for sure but to your opinion about the freedom of speech is a good starting point because you know we like to glorify the founding generation and often rightly so but you think about the alien sedition act we have nothing like that now and so maybe there are a lot of things we do take for granted you pointed at the sedition act one thing that was actually pointed out when that was passed is that now this law is unconstitutional for the federal government but there was actually points made well this is what we want just let the states pass it because the state of North Carolina could pass this unconstitutional law Massachusetts can pass one if they want but the federal government cannot and that was the whole point about that argument this law is unconstitutional at the federal level it's not unconstitutional at the state level this is an abuse of power by the general government and we're just not going to enforce that law in our state so with Virginia and Kentucky so the states have a lot more leeway but again my civil liberties are first protected by my state constitution and I bring this up with gun rights advocates all the time too so we're going to talk about that but your first line of defense is going to be your state constitution if you don't like that don't always appeal to the center because you're going to get disappointed if the supreme court today says everyone can carry a firearm next year they can say everyone can't carry a firearm you're putting your liberties in the hands of nine people and that's dangerous so I think that this is when you look at freedom of speech it's so much better than it ever has been for things like this well let's elaborate on the Second Amendment and the state of it there's not a lot of Second Amendment jurisprudence by the way but we were talking off camera about how in your view there's this misconception that the Second Amendment in effect federalized gun rights and gun laws and so California can't really have more restrictive gun laws than Alabama so give us your take on the Second Amendment because of Article 1 Section 8 Article 1 Section 8 very clearly says the general government can arm and discipline the militia so the fear was during the ratification debates well if we can arm the militia then we can disarm the militia so that's why the Second Amendment if you look at some of the original drafts of the Second Amendment they were much more elaborate than what we got and much more detailed but the Second Amendment was there to ensure that if the general government's going to arm the militia which they actually did in 1792 they said every man has to have a musket a certain amount of powder a certain amount of ammunition then they can't say you can't have these particular firearms but the states at the time some of them did have more restrictive laws Pennsylvania for example did so the idea was that the general government cannot disarm you but if the state of Alabama wants to say you can't carry this particular firearm then you can't my position has always been if the general government can't even tell me I can't own a tank or an F-16 fighter jet you can't have a tank on you can't drive a tank to work sometimes we want to on the interstate but you can't drive a tank to work so I think that this is the problem when you look at it again it's incorporation when you look at that structure and you start saying well the center has to tell me what I have that is at the whim of federal judges and you don't want that you want a protection somewhere else and if you have that at the state level already then appeal to that Alabama has a very strong quote unquote second amendment so does Georgia so does Florida all the states around here some states don't Iowa does not California can do what they want the state of Illinois does not have a very strong second amendment so you need to understand your first line of attack is at the state level don't appeal the center I believe all federal gun control legislation is unconstitutional but on the other hand I think that the states can do what they want in that regard at the time that the Constitution was signed both the signers and the public would have thought the second amendment doesn't apply to states absolutely I mean there was that was actually Madison actually tried to have an amendment put into the bill of rights which would have what we would call incorporate the bill of rights against the states and he was rejected outright and take the first amendment if people believe that the first amendment applied to the states then you wouldn't have three states at the time with state established churches and they did after the bill of rights were ratified they still had state established churches so how does that apply to the states we talk about this idea no prayer in public schools you can't have a moment of silence my gosh we had daily Bible readings in public schools until the 1960s all through the 19th century in fact some states were prohibiting Catholics from serving as teachers they didn't want Catholic Bibles in the schools well if all that's unconstitutional if all that flies in the face of the first amendment how are these states doing it because they understood how are the states the states could do these things and we would look at that and say well that's bad but that was the political community and so you have to fight at that level first and foremost right well look as an ex-Californian we beat up on California a lot and I know I get emails there are plenty of libertarians and conservatives in California but it is true that the urban centers LA San Diego San Francisco Bay Area in California are very left and very blue I mean just to say here's one thing I sometimes disagree with other libertarians about it would it be so terrible if California said you can't own you know X Y and Z guns here X Y and Z magazines here and Alabama said come on down you can have an Uzi and the minute you're a mile outside the city limits you can shoot at hay bales all day long and drink moonshine while you're at it is that so awful why do why do libertarians insist on this universal perspective when in fact as a tactical or strategic measure we might do better with a localism mentality well and enabling that to variety and diversity letting people be sovereign in their own politically communities I think is important and one danger behind that tendency toward universalism is also a tendency toward coercion because once you start saying that we ought to universalize things what you're also saying is you're you know you're also presupposing some sort of coercive mechanism to make somebody else who is not in compliance therefore comply and that is very problematic well it also comes to comes back to bite you executive orders grow as a phenomenon throughout the 20th century and then some day Trump is president you don't happen to like Trump it's awfully hard to argue against executive orders although hypocrisy in politics has not yet been criminalized in this country I'd like to wrap up this discussion with something that's very near and dear to my heart I really believe that vast social democratic welfare states especially those that are multicultural are a recipe for disaster and strife and maybe even civil war and I don't like breezy talk about civil war and shooting each other I think that's very unlikely and we ought to consider it unlikely but I think the only thing that might save America from a shooting war at this point would be a mindset of subsidiarity and localism and real federalism as envisioned under the 9th and 10th amendments and the federal system itself is there hope for this I mean with Trump as president our friends on the left waking up is there hope for real federalism again in this country well I mean I'd like to think so but my hope before before we get to federalism on the national scale that it is now is a program of devolution and decentralization so that you have federalism at a smaller scope and scale I mean I think that we talked about constitutions and whether they're successful the more localized a constitution is the more likely it is to succeed I mean we have bylaws and companies that operate as constitutions we have restrictive covenants in HOAs that operate as constitutions and so far as I know for the most part people aren't going out and going to war over these things I mean people understand if I violate whatever bylaws of my church organization then I'm either going to be excommunicated I can go to church somewhere else war doesn't break out feelings are hurt all that kind of stuff but you don't have mass violence and you certainly don't have the giant public sort of displays and parades that we have with our sort of at this point farcical political scene but so you know yes I guess there's hope for it and I just I would think that federalism on a smaller scale would be a better direction to move in I think there's a lot of hope for it and I point to several things in 1994 we would not be having this discussion because no one was talking about federalism in 1994 I mean you would have it you would have people say we have the federalist society but nobody really talked about real federalism here we are in 2017 and this is an active discussion that people are having all over the country in a variety of different ways you've got a number of organizations that are pushing a federalist message real federalism you've got a number of educational institutions like Mises Institute pushing that kind of message so I think that I have a lot of hope you have hundreds of students that are going to come to the Mises University next week and they're going to get a variety of ideas but they're also going to hear federalism at some point I'm sure it's going to be brought up and this is what we need to think about you've got the 10th amendment center out in California you've got to associate with the Abbeyville Institute we do that kind of stuff in smaller scale so you've got a number of groups that are really talking about this you have an active secession movement in California I mean that's made national news so that's great people are actually waking up and saying you know what maybe the problem is we can't have a top down structure for everything we can't say this is it's my way the highway because that creates a tremendous amount of political conflict maybe the better situation is saying you know we're California and we're going to go our own way and the people that don't like it can move out and Texas will say come on into Texas and there's actually this is going on right now leftist Texans are moving to California and conservative California is moving to Texas a huge migratory pattern that way so I think people are waking up to this and saying you know we can't have we can't govern 320 million people with 535 congressmen and a president and nine supreme court judges it's just impossible so can we do this in a better way and I often point out to my students you know the state of Alabama today has as many people as the entire United States in 1790 and if in 1790 we could have states that were much smaller function effectively why can't the state of Alabama do it itself why do we have to think we need 320 million people to have a country why can't we have 4 million people why can't we have a million people and you look around the world you look at Switzerland and other places that are much more decentralized and how much happier the people are and we often talk about social democracies and people point out yeah but what about the Scandinavian countries they're happier well they're much more homogenous and so I think that when you start looking at these megastates they're coming apart because of all the stress and people are finally starting to say you know I want to have the community the way I want and this is my when I do my podcast stop thinking about the center instead of you know think globally act locally think locally act locally act in your own community do the things that you think are due to preserve liberty and sweep around your own doorstep that's a very southern tradition and not worry about what everybody else does and we'll you know we'll be better off for it and these are great conversations and more people are having the day than ever before so I have hope I mean that's just I have hope that this is going to get better in the future to finish I would just encourage people to go look at the Swiss government website and look at their explanation of federalism that's a small country with less than 10 million people and they can actually vote locally on things like immigration whether to allow someone to stay whether they're a good neighbor with that I think we've taken too much of your time already Brian McClellan thank you so much Alan Mendenhall thank you so much we'll post both your Twitter feeds so you can find out more about the gentlemen and their most recent books and ladies and gentlemen have a great weekend if you want to see more of our videos go to www.misses.org or listen on mises.org and YouTube