I posted "The
Phony Case for Presidential War Powers," an essay that
examines and then refutes all the major claims advanced on behalf
of the US president’s alleged right to commit troops to battle
without congressional authorization. Shortly thereafter, radio
host Mark Levin launched into an attack
on Congressman Ron Paul’s views – identical to mine, as far as
I can see – on presidential war powers. (On FOX Business he referred
to Congressman Paul as "RuPaul," an example of disrespect
the gentlemanly and civilized Dr. Paul would never even consider
returning in kind.) I in turn replied
To my surprise,
Levin replied to me – sort
of. Read through the links above if you are so inclined and
then see Levin’s response. Notice something? He refutes nothing
I said, and then declares himself the winner. Nice.
I see nothing
in what Levin thinks is a reply that should make any of his supporters
proud, or that should cause me to abandon my constitutional views.
I am accused of misusing the Constitutional Convention, the Federalist,
etc., but Levin does not condescend to share any specific examples
of this alleged misuse. We are to be satisfied with his ex
cathedra pronouncements alone.
he address my refutations of his arguments, whether regarding
the real eighteenth-century meaning of "declaration of war,"
the intentions of the Framers, or the cases of unilateral presidential
warmaking Levin wants to cite that I have shown were nothing of
And no wonder:
there is no evidence for his position at all. People coming to
a discussion of war powers and the Constitution for the first
time may assume, understandably, that Levin can probably cite
some sources, I can cite some sources, and the whole thing is
probably a stalemate. But Levin can cite nothing.
Wait, I take
that back. He can cite Pierce Butler’s view at the Constitutional
Convention in support of "vesting the power in the President,
who will have all the requisite qualities, and will not make war
but when the nation will support it." Unfortunately for Levin,
Butler’s motion did not even receive a second.
fact that Levin thinks this issue is even debatable, in light
of how abundant are the citations against his made-up position,
indicates how far in over his head he is. He has evidently read
John Yoo (whose positions Kevin Gutzman and I dismantled in our
Killed the Constitution?) and little else.
true that Levin cites unnamed "scholarly links" that
support his position, though he does not share them with me. Were
my position so easily refuted, you’d think he’d just go ahead
and do it, instead of handing me an unspecified reading assignment.
But you know
what? To heck with the scholarly links. They’re probably to John
Yoo, whose work on war powers is of exactly zero value. Then I’ll
link to the work of Louis Fisher, and Levin will dismiss him,
and we will have made no progress.
the secondary sources. Let’s get to the primary sources. Mark
Levin, here is my challenge to you. I want you to find me one
Federalist, during the entire period in which the Constitution
was pending, who argued that the president could launch non-defensive
wars without consulting Congress. To make it easy on you, you
may cite any Federalist speaking in any of the ratification conventions
in any of the states, or in a public lecture, or in a newspaper
article – whatever. One Federalist who took your position. I want
his name and the exact quotation.
If I’m so
wrong, this challenge should be a breeze. If you evade this challenge,
or call me names, or make peripheral arguments instead, I will
take that as an admission of defeat.
To be sure,
Levin could claim that the fact that many presidents have ignored
the Constitution amounts to an implicit amendment of the Constitution,
but I doubt that kind of left-wing argument is one a self-proclaimed
"originalist" should be eager to embrace.
I was amused to see, in the comments section beneath Levin’s piece,
several of Levin’s followers assume I must be a "liberal
revisionist" historian because I hold the constitutional
view of presidential war powers. The traditional conservative
position, as Russell Kirk and others made clear, recoiled at a
strong and independent executive, a fact that years of neoconservative
reeducation of the masses has done much to obscure. I suppose
Senator Robert Taft, known in his day as "Mr. Republican,"
was likewise a "liberal revisionist" for making, in
1950, the very same arguments I am advancing against Levin today?
when Taft denied that Harry Truman could commit troops to Korea
without congressional authorization, his major intellectual opponents
were left-liberal historians Henry Steele Commager and Arthur
Schlesinger. Levin listeners, this is the side your host has
placed you on: against the Senate’s great twentieth-century
conservative, and in support of the left-liberal historians who
hated him. But here’s the difference between them and Levin: years
later they had the decency to admit they had been wrong on the
facts, and that Taft had been right.
he is "embarrassed" for me, so transparently have I
allegedly prostituted my historical scholarship on behalf of my
political ideology. He must have an acute sense of embarrassment
indeed, since it appears to paralyze his ability to respond with
specifics when his position is completely destroyed. And indeed
so non-embarrassed am I that I heartily encourage all the world
to read all the original sources, mine and his, linked at the
beginning of this essay.
thought, but could it be that it is Levin, who supports the bipartisan
foreign-policy consensus with such gusto, who has cherry-picked
evidence from the historical record to suit his political
position? That could be, but I doubt it. For that to be the case,
there would have to be some evidence in the historical record
to cherry-pick for his position in the first place.