Mark Levin’s liberal constitutional arguments

Jack Hunter Contributing Editor, Rare
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Mark Levin is one of the most intelligent talk radio hosts in the business. He is also one of the most philosophically inconsistent. This is especially true when it comes to interpreting the U.S. Constitution. It is even truer when Levin criticizes Ron Paul.

Last week, Levin told The Daily Caller’s Jamie Weinstein that if Paul won the GOP nomination and faced President Obama in November’s general election, he “would have to write somebody in because Ron Paul’s foreign policy is so antithetical to traditional conservative foreign policy.” He added: “I have other problems with [Paul]. I don’t think his interpretation of the Constitution is always accurate …”

Being within the Republican mainstream on foreign policy is not the same thing as being a constitutionalist. Ron Paul’s foreign policy position is that of the Founders — not necessarily the Republican one, or the Democrat one, but the constitutional one. There was a time when the constitutional position on anything was also considered the conservative position.

Levin’s willingness to circumvent the Constitution when it doesn’t jibe with his foreign policy views was highlighted well last year when the talk host defended President Obama’s “right” to send troops to Libya without consulting Congress.

When Obama decided to intervene militarily in Libya, some Capitol Hill leaders in both parties decided to question whether the president had the authority to do so. Ron Paul was one of them. Not surprisingly, when George W. Bush was president, Obama was one of them too. In 2007, then-Senator Obama said, “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

The Constitution clearly states that only Congress can declare war. The notion that the commander in chief, a title designated to the president by the Constitution, can command military action freely without any checks on his power not only negates the letter of our nation’s founding charter but betrays the very nature of American government. In fact, the Founders thought it particularly dangerous to give the president such power, a point James Madison reiterated in a letter to Thomas Jefferson in 1798: “The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the legislature.”

When Obama took military action in Libya, Levin let everyone know he disagreed with Madison. When members of Congress — many of them conservative Republicans (Representatives Ron Paul, Jeff Flake and Michele Bachmann, Senators Rand Paul, Mike Lee and Jim DeMint) — began to question the president’s authority to wage war without their consent in the wake of the Libya bombings, Levin said on his radio program: “I don’t believe in politicizing the Constitution. I believe the Constitution is the rock of this society. So all this talk about the attacks on Libya are unconstitutional because we don’t have a declaration of war, that’s ridiculous. That’s absolutely ridiculous.”

Levin defended his position by saying that not every military action is necessarily full-blown war and arguing that there are numerous examples of American presidents operating outside of the constitutional provisions concerning warfare. In a column entitled “The phony arguments for presidential war powers,” New York Times bestselling author Thomas Woods answered Levin’s latter justification:

This argument, like so much propaganda, originated with the U.S. government itself. At the time of the Korean War, a number of congressmen contended that “history will show that on more than 100 occasions in the life of this Republic the President as Commander in Chief has ordered the fleet or the troops to do certain things which involved the risk of war” without the consent of Congress. In 1966, in defense of the Vietnam War, the State Department adopted a similar line … the great presidential scholar Edward S. Corwin pointed out that (with the exception of John Adams’ quasi war with France in which he did indeed consult Congress, despite portrayals to the contrary) this lengthy list of alleged precedents consisted mainly of “fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border, and the like.” To support their position, therefore, the neoconservatives and their left-liberal clones are counting chases of cattle rustlers as examples of presidential warmaking, and as precedents for sending millions of Americans into war with foreign governments on the other side of the globe.

Woods is correct about the relative insignificance of these military excursions. However, there is also a larger and more crucial point to be made about those who argue toward this end — particularly the arguments of those like Levin who still promote the neoconservative, hyper-interventionist foreign policy that defined the GOP in the 2000s (something the host inaccurately equates with Ronald Reagan’s comparatively restrained foreign policy), while downplaying or patently ignoring the plain language of the Constitution that would impede this agenda.

Consider when then-House Speaker Nancy Pelosi was asked by a reporter what part of the Constitution gave Congress the right to mandate nationalized healthcare. She responded by saying, “Are you serious? Are you serious?” The reporter replied that he was indeed serious, but Pelosi simply ignored the question. When asked about it again later, a Pelosi spokesman reiterated that “It was not a serious question.” Pelosi’s view of the insignificance of the Constitution isn’t unusual and was also repeated by Congressman James Clyburn on Fox Business. When asked by “Freedom Watch” host Judge Andrew Napolitano what gave Congress the constitutional authority to administer healthcare, Clyburn admitted, “There’s nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do.”

Clyburn deserves credit for his honesty. The U.S. Constitution is where each branch of our government is supposed to derive 100% of its authority, but today’s federal government has operated outside its legal bounds for so long that constitutional questions are often considered an afterthought, if they are even considered at all.

Liberals often argue that the modern world demands government action that could not be foreseen by the Founders, and might even cite the lack of constitutional authority to enact government programs such as Social Security or Medicare as justification for a program like Obamacare. Liberals’ typical rationale for the legitimacy of such programs is the implementation and political acceptance of older, similar government programs. But their justification is historical precedent, not legal authority. Indeed, the federal government has operated in this virtually lawless manner for so long that liberals find it quaint or “not serious” when anyone dares challenge them on legitimate constitutional grounds.

This is similar to the argument of conservatives like Levin in their defense of presidents who wield extra-constitutional powers when waging war. Levin might cite the Korean War or Vietnam as examples of such executive power, in much the same way liberals cite Social Security or Medicare to defend Obamacare. The actual constitutionality of each takes a backseat to the ideologies being promoted, whether the interventionist domestic government welfare state so many Democrats desire or the interventionist foreign warfare state (as opposed to actual national defense) endorsed by so many Republicans.

Despite the Constitution stating explicitly that President Obama acted unlawfully in ordering a strike on Libya without consulting Congress, Levin found this contention “absolutely ridiculous” — much in the same way Pelosi asked “Are you serious?” of anyone who dared challenge Obamacare’s constitutionality. No doubt, both Levin and Pelosi claim that they “support the Constitution,” but their personal, mostly imaginary constitutions are simply projections of what each respective liberal and neoconservative ideologue would like them to be, not what the Founders actually wrote and ratified.

For conservatives, such constitutional hypocrisy poses a crippling problem.

American conservatives’ primary critique of today’s federal government is that most of what it does is not only intrusive, inefficient and expensive, but that if we were only to follow the Constitution again such statism would become a moot point. Liberals do not have this problem as their philosophy is based, in practical terms, on an ever-expanding statism. Conservatives nearly uproot their entire argument for limited government, both domestic and foreign, when they concede the need for operating outside the Constitution in areas some right-wingers find necessary or desirable — per neoconservatives’ seemingly permanent push for perpetual war through unlimited executive power.

It was worth noting that Levin is not necessarily a neoconservative, but on foreign policy — that group’s primary, if not only, concern — Levin’s views are generally indistinguishable from those of neoconservatives.

In this light, Levin constantly says Paul is wrong about foreign policy and the Constitution. One can argue that Paul’s insistence on declaring war is wrong, just as one can argue that America not having universal healthcare is wrong. But arguing the constitutionality of either is an entirely different matter. Just because something sounds to you like good policy doesn’t necessarily mean it’s constitutional.

All in all, we either have a Constitution or we do not — and if we do not, as both Pelosi and Levin unwittingly concede from their own perspectives, there truly is no definable limit as to what destruction of liberty or imposition of tyranny our federal government is capable of.

Jack Hunter writes at the “Paulitical Ticker,” where he is the official Ron Paul 2012 campaign blogger.