My Challenge to Mark Levin

Last week 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 Levin.

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.

Nowhere does 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 the kind.

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.

The very 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 book Who Killed the Constitution?) and little else.

Now it’s 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.

So forget 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.

Incidentally, 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?

In fact, 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.

Levin says 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.

Perish the 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.