We continue our leisurely stroll through The Federalist with an extended look at Federalist numbers 47 through 51, which explain the key concept of the separation of powers—a phrase that is nowhere found in the text of the Constitution, but which is clearly implied by the design and structure of the text. But Madison and Hamilton leave nothing to chance, citing “the celebrated Montesquieu” as a theoretical authority, but drawing also on the mixed experience of the early state constitutions.

Next week we’ll take a detour and explain why the Progressive movement singled out the separation of powers as their chief point of attack on the Constitution.

This classic format episode features a conversation with Dan Lowenstein, professor emeritus at UCLA Law School and, more importantly, the impresario of UCLA’s Center for the Liberal Arts and Free Institutions (CLAFI), which he founded, along with one of our favorites at Power Line, Jean Yarbrough of Bowdoin College. Prof. Yarbrough was in town for three days to deliver a fabulous lecture comparing Lincoln and Tocqueville on slavery, and then a small seminar on Democracy in America. (Her lecture will eventually appear on CLAFI’s YouTube channel.)

I decided to catch up with Jean and Dan to walk through one of my origin-story podcast formats, tracing out their intellectual roots and changes in perspective over the length of their careers, and then discussing the parlous state of the liberal arts today. Along the way we learn more about Prof. Yarbrough’s encounters with Hannah Arendt, and how the Sacramento Bee once described Prof. Lowenstein as a “sartorial eyesore.”

This week’s raucous episode, recorded well after conventional happy hour ends, ranged from Biden’s dementia to the failed Dobbs leak investigation, to Kevin McCarthy’s (relatively) good week, the post hockey ergo propter hockey fallacy,  bidding good riddance to one of the premier COVID cultists, a defense of cat-calling (even when it’s done to our Lucretia), and then . . . a big fat argument about Ukraine.

The vigorous disagreements among our three barkeeps on this subject were flying fast and hard, and did we settle the issue? No, we did not!

This week’s class resumes our leisurely stroll through The Federalist starting with Federalists #33 and #37, and the “partly federal, partly national” character of the Union under the proposed Constitution—a subject that remains as confusing and contentious today as it was then. Lucretia walks us through how the issue began to settle out starting with the landmark 1819 case of McCulloch v. Maryland. We also have a lively discussion of the “necessary and proper” clause that is often thought the source of much mischief from the federal government today, along with the “general welfare clause.”

From here Steve takes a deep dive into the mis-applications of the “general welfare clause” by looking at the passage in Federalist #45 where Madison says the powers of the federal government are “few and defined,” laying it next to our current federal government whose powers are nearly unlimited and undefined. This is in service of the question: Was Madison wrong about how our government would work? Maybe not; it turns out, as Steve explains, that the complete disregard for constitutional limits we see today is of relative recent origin, and that in fact Madison’s views on the proper limits of government held up longer than we might think.

John Yoo is away this week, so Hillsdale historian Richard Samuelson joins the Three Whisky Happy Hour for an extended discussion of the passing of Paul Johnson, and especially why he deserves to be considered one of the premier historians of all time.

But first we rummage around in Joe’s garage (Joe Biden that is), where the lyrics to Frank Zappa’s tune by that name seem appropriate:

Yesterday’s third class session of Power Line University went through Federalist 11 through 23, drawing out in particular some of Hamilton’s reflections on taxation that remain relevant to some of our tax debates today (especially Lizzie Warren’s proposed wealth tax), and also Hamilton’s very spirited attack on European politics (and colonialism!) that none of today’s ridiculous “de-colonizers” ever reference because they don’t know about it, and wouldn’t like in any case once they see the principles behind Hamilton’s critique.

We also have a lively argument about whether or why Hamilton’s thoughts about how the new national government would not be interested in usurping or commandeering the power of the states, or in regulating in detail the lives of citizens, might have been mistaken, which has fresh relevance at the very moment the federal government was talking about taking away our gas stoves. Lucretia also let Steve sneak in some Scottish Enlightenment material from David Hume as background to the “extended republican” hypothesis.

Only the 3WHH bartenders could possibly draw the connecting thread between the subjects of the passing of Pope Benedict XVI, the drama over the next Speaker of the House, and Thomas Hobbes. But with the help of a little fine whisky, we’re up to the job!

Steve and Lucretia give the Protestant John Yoo a tutorial (the first of two this episode) on why Benedict may have been the most serious theologian ever to serve as Pope. It might be summarized in two words—”Regensberg Address“—but there is much more to that story, including the lingering mystery of why Benedict abdicated the papacy ten years ago.

Yesterday we held our second class session of Power Line University, this time taking up the famous Federalist #10, drawing out key points of James Madison’s views on how an “extended republic”—long thought impossible—was a solution for the perpetual defects and eventual failures of republican governments. His views on equality and property come in for special attention.

For those who may wish to take in the slides we used online, you can watch the whole class session at this YouTube link.

The response to COVID is arguably the single greatest public policy mistake in American history, which in turn became a global catastrophe since so many other nations followed the United States with foolish lockdowns, school closures, and other authoritarian measures that were ineffective and heedless of adverse tradeoffs.

Dr. Scott Atlas of Stanford’s Hoover Institution has been vilified for his dissent from the party line on COVID, most fully explained in his book, A Plague Upon Our House: My Fight at the Trump White House to Stop COVID from Destroying AmericaIn our conversation here, Dr. Atlas reviews the failure to consider the tradeoffs of our COVID policy, which stems ultimately from a perverse and even dangerous groupthink by our “public health” establishment.

John Yoo serves as lead bartender for this gala new year’s eve edition of the Three Whisky Happy Hour, though he was nearly deposed for arriving late and then taunting us with pics of his Korean new year’s feast (see nearby). To ring out 2022 and look ahead to 2023, we cover some new whisky choices (which in John’s case included some very old port by special exemption discovered in the emanations and penumbras of the 3WHH common law), correct the mispronunciations of “Islay,” and give a tutorial of sorts on how to extract old and fragile corks from wine or brandy bottles. (Hint: don’t use a traditional corkscrew by itself. . .)

Lucretia got a head start on the whisky, and thus had her feisty-meter turned up to eleven as we reviewed the Supreme Court’s manhandling (can you say “manhandling” at Stanford?) of Title 42, and from there we finally get to the traditional new year’s eve task of nominating our picks for the most important news story or event of the year, which prompted new arguments (shocker!), and then our favorite reading over the past year. Naturally Steve brought up a book by an obscure German author (Volker Weidermann’s Dreamers: When the Writers Took Power)  which elicited the usual contempt from Lucretia, while John merely noshed another Korean pork rib.

Finally, we ended up with an argument about Hamilton, Madison, and our perspective on The Federalist. Turns out John is jonesing to crash Power Line University. Money quote from that exchange: “You know Lucretia, oleomargarine pairs perfectly with kale.” Happy new year!

“Human rights do not exist,” claims an anonymous dissident conservative writer, but when he (at least we’re going to identify the author as a “he”—heh) added some animadversions about our pal Michael Anton, the fight was on! Anton has responded at length to this provocation with a true tour de force over at American Greatness, entitled “Natural Right and the Traditional Reproach.” I do encourage interested readers to take in the whole thing, as it a succinct tour through the history and philosophical tradition of natural right, especially as it matches up to our desperate scene today.

Of course, denying natural right is a capital offense for our Lucretia, so she joins us for our spirited discussion of this subject, in which I play devil’s advocate and press some difficulties with Michael’s position and analysis. We also take in Paul Gottfried’s polite response to Michael, which left us more puzzled than anything.

Lucretia and I held the first “classroom” for PLU (Power Line University) yesterday, with 110 people ultimately tuning in live for our first formal session on The Federalist Papers. We had a couple of technical difficulties—for some reason we kept failing to get the Chat window working right—and we had some hiccups admitting some live questions and comments from viewers, but we hope to have these ironed out for our next session which will likely be mid-week next week. Anyway, here is the podcast version for those of you who weren’t able to join us live.

Our first session got off to a bit of a slow start—like the Federalist Papers themselves—with a look at numbers 1 – 9. (We had planned to include the famous Federalist 10 in this first session, but are putting it off to the next session.) The first few papers review at length the case against the disunity of the infant nation if the Constitution was not ratified and the United States split into three or four regional confederacies. Things really get hopping with Hamilton’s high-spirited Federalist 9, which is where we had to break off for the day.

Who knew that John Yoo is a total science fiction geek?! I’m going to have to go back and scour his law review article footnotes to see if I can detect esoteric references to Sci-Fi classics, which, it turns out, he has thoroughly familiarity.

Ken Green channeling Jayne Cobb.

As you may have heard, Stanford “University” embarrassed itself this week by issuing a list of 160 words or phrases that you shouldn’t use because they are not sufficiently “inclusive” or sensitive, including even “trigger warning,” because, Stanford helpfully explained, “The phrase can cause stress about what’s to follow. Additionally, one can never know what may or may not trigger a particular person.” And although “American” is among the terms Stanford disapproves (which prompted Steve to break precedent and quaff Maker’s Mark instead of Scotch whisky, because damnit), strangely the phrase “Merry Christmas” does not appear on the list of “Harmful Language.” Must be an oversight, or perhaps Stanford’s geniuses are among those ignoramuses who deny that Die Hard is a Christmas movie.

You could hardly ask for a more entertaining Christmas gift than Stanford’s list. We thought to make the list a drinking game for this episode, in which we take a shot every time each of us used one of the terms from the list, but we quickly realized that we’d all be passed out within five minutes.  Of the 160 terms or phrases on the Stanford list, your 3WHH bartenders managed to use 108, (several of them multiple times), which we expect will get us banned from campus henceforth.

We get a steady stream of emails from readers and listeners who want to know if any of my or Lucretia’s college courses are webcast or otherwise available online, and unfortunately the answer is No, partly for legal reasons but also for some technical reasons (streaming live classes is not as easy as it might seem, and the recording quality is often poor). But we have for the longest time been thinking about offering some of our class content on Power Line in an organized fashion, and so with this episode, we are pleased to inaugurate a new feature, “Power Line University.”

The first PLU course will be devoted to the Federalist Papers, or, as we like to call it, “the owner’s manual for the Constitution.” For this first trial episode, Lucretia and I decided that each of us would share three favorite passages from The Federalist, and explain why these passages in particular are significant or relevant to our current moment. (If you want to follow along at home on this first episode, the passages we selected are from Federalist #s 1, 10, 43, 31, 55, and 57.)

What do you do when you wake up and see the news story of how the University of North Carolina is once again violating the Civil Rights Act of 1964 with a scholarship that specifically excludes white students from eligibility? Your first thought is that you need to call Mark Perry, except he’s already on the job! Perry, professor emeritus of economics and finance at the University of Michigan/Flint, filed a formal complaint with the Department of Education’s Office of Civil Rights, and within a day UNC had rescinded its exclusion of whites from scholarship eligibility.

Mark Perry has made a speciality of this kind of citizen-driven civil rights enforcement (which is explicitly allowed in civil rights statutes), having filed hundreds of similar formal civil rights complaints, most of which meet with success. In this conversation we review how he took up this cottage industry, along with broader work he is doing tracking the explosive growth of “diversity, equity, and inclusion” bureaucracies in higher education.

John Yoo is back at last from yet another Italian junket—yes, Lucretia let him back across the border unharmed!—and hosts this week’s episode in which we clarify some of the over-hasty arguments from last week’s highly thymotic episode about exactly when and how it is legitimate to contest the Supreme Court over the application of the Constitution.

This opening elided nicely into the sequels from this week’s news, in this case Kari Lake’s election litigation in Arizona, and the Biden Administration’s litigation against Arizona for the sin of actually trying to plug the gaps in the border fence that the Biden Administration won’t. Why is Arizona suddenly at the center of things?

We live in a time of “crisis addicts,” in which the left cannot shake its addiction to what might be called “crisis porn.” Remember Rahm Emanuel proclaiming in 2009, “Never let a good crisis go to waste”? He was merely stating openly what has been obvious for a century now—that governments use a “crisis” to expand its power and reach permanently, never entirely relinquishing new powers and higher spending after the crisis has passed.

COVID was the ultimate crisis for progressives, because it was global in scope and allowed an appeal to “science” to bolster the vast new claims of authoritarian power over entire populations. The World Economic Forum called for a “Great Reset,” in which our globalist elites would undertake to use the COVID pandemic to effect a wholesale restructuring of the world’s economy, always along the dreamy utopian lines of failed socialist experiements everywhere.

Hoo boy, this week’s happy hour very nearly descended into a full-scale bar room brawl, even though we recorded in the morning over coffee instead of single-malts because John Yoo is still over in Rome! (And may not come back after this episode!)

After noting a few late breaking news stories, such as Harvey Mansfield’s retirement and Sen. Kyrsten Sinema’s surprise announcement that she’s becoming an independent, we get down to the main event: Steve and Lucretia decided to contest John’s recent National Review article that argues the states (such as Texas) have no power under the U.S. Constitution to prevent illegal immigration at the southern border. (See also Ed Erler’s spirited attack on John here.)

With the new Supreme Court term under way, and with several potential landmark oral arguments already in the can, I decided to catch up with Ilya Shapiro, director of constitutional studies at the Manhattan Institute, and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. It turns out that the kind of confirmation battles that have become famous ever since Robert Bork in 1987 are not entirely new.

In addition to reviewing the main themes of his book, we talk about the recent controversy involving Ilya at Georgetown University’s law school, which, to put it mildly, did not cover itself with glory in caving instantly to the woke mob. And we also review the most recent Supreme Court term and preview the new one just under way.

In addition to Ilya’s fine book, you can keep up with him regularly on his Substack channel, “Shapiro’s Gavel.”