South Capitol Street

When Obama decided to go to war with Libya some Capitol Hill leaders in both parties decided to question whether the President had the authority to do so. When George W. Bush was president Obama once posed the same question, stating in 2007: “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 and it falls upon the Executive branch to direct that war once declared. 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 negates not only 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.”

Nationally syndicated radio host and best-selling author Mark Levin disagrees with Madison. When members of Congress began to question the President’s authority to wage war without their consent in the wake of 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 said that there are numerous examples of American presidents operating outside of the Constitutional provisions concerning warfare. In his recent column “The Phony Arguments for Presidential War Powers” bestselling author Thomas Woods answers 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 examples but there is also a larger point to be made about those who argue toward this end—particularly the arguments of right-wingers like Levin who push a neoconservative, hyper-interventionist 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 simply replied “Are you serious? Are you serious?” The reporter replied that he was indeed serious and 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 US 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 endorsed by so many Republicans.

Despite the Constitution stating explicitly that President Obama is unlawful in ordering a strike on Libya without consulting Congress, Levin finds this contention “Absolutely ridiculous,” in the same way Pelosi asks “Are you serious?” of anyone who dares challenge Obamacare’s constitutionality. No doubt, both Levin and Pelosi rhetorically 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 necessarily 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.

But 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.

The American Conservative