Thomas E. Woods, Jr., is the New York Times bestselling author of 11 books, including The Politically Incorrect Guide to American History and Meltdown (on the financial crisis). A senior fellow of the Ludwig von Mises Institute, Woods has appeared on MSNBC, CNBC, FOX News, FOX Business, C-SPAN, Bloomberg Television, and hundreds of radio programs... (Read More)

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Mark Levin Wrong on War Powers

26th March 2011      by: Tom Woods     

Yes, I’m as shocked as you are.  Let’s go down the list of fallacies:

“We’ve been involved in many military engagements; we’ve had very few declarations of war. And I’m including military engagements that were involved in by people you consider Founders of this nation. It’s because they’ve never, ever, required as a requisite—to defending this country, or even certain military actions—of getting Congress’ approval.”

Totally misleading.  Everybody knows we’ve had few declarations of war. But Congress has also authorized countless lesser military actions — including the ones Levin obviously has in mind when he refers to “people you consider Founders of this nation.”  Adams did not confront the French without congressional approval; same for Jefferson and the Barbary pirates.  I’ve explained this.

“The language was originally ‘Congress shall make war.’ The framers rejected that. And instead replaced ‘make’ with ‘declare.’”

I’ve covered this, too.  It doesn’t even come close to meaning what Levin wants it to.

The constitutional convention was “never going to give war-making power to Congress.”

Sure. Just ignore all the testimony to the contrary.  Of course, Levin could be referring to the power to defend the country in an emergency, but even FDR went to Congress after the U.S. was attacked at Pearl Harbor!

“As for declaring war, if you actually understand the original intent of the framers, and the environment they were living in, the declaration of war was a declaration to the world that we are in a state of war with ‘X, Y, Z,’ country. More than anything else it was also a diplomatic statement of fact—Congress declaring war.”

This is the classic John Yoo argument, and also wrong.  In the 18th century a “declaration of war” could just as easily mean the initiation of hostilities itself.  This, too, is addressed in my overview.

“And as Hamilton pointed out, it’s the ultimate power—the power of the purse.”

Here Levin is trying to claim that the power of Congress over warmaking is confined to the power to de-fund presidential wars.  But as long as Levin wants to quote Hamilton, let’s quote Hamilton, from Federalist #69:

“The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.”

Hamilton elsewhere says that the president’s war powers consist of “the direction of war when authorized or begun.”

Well, that’s pretty much the opposite of Levin’s view.

“You think my view is odd? Well that’s funny, because every single president of the United States has embraced this view—every damn one of em’, from Reagan to Obama.”

Yes, it is simply unthinkable that the two political parties could both defy the Constitution in the same way for 30 whole years.  I mean, we have no precedent for such a thing elsewhere in government, where both parties have scrupulously observed constitutional limits for decades and decades.

UPDATE: Levin replied to this post on his Facebook page.  I have since issued a challenge to Levin to put up or shut up.  Here is that challenge.

UPDATE II: I now have a page containing all the links to our exchange.

Unlearn the Propaganda!

  • http://pulse.yahoo.com/_TTNEUYBHZN6TGPT3BEKE6M4AFQ Micky

    That is usually a response that you get from an elementary student.

  • http://pulse.yahoo.com/_TTNEUYBHZN6TGPT3BEKE6M4AFQ Micky

    Sammy, really?

    You probably don’t want to start throwing that out, because you don’t have the capability of articulating that, but I do to people that aren’t DRONES OF ANARCHISM, like yourself.

  • http://pulse.yahoo.com/_TTNEUYBHZN6TGPT3BEKE6M4AFQ Micky

    You did say that supporting small government is “statist”, right? By your definition, non-contextual version of it because you aren’t honest, that supporting any government makes a statist. What do you support? It is funny there are definitions of both statism and federalism, and you seem not to be either. What is it that you support? If you support the Constitution, you aren’t a statist, but a federalist, in the context used. If you don’t support the Constitution then you are an anarchist, by definition. Actually, you’re an idiot.

  • http://pulse.yahoo.com/_TTNEUYBHZN6TGPT3BEKE6M4AFQ Micky

    The “military boondoggles” was not why the federal reserve was created. It was created to place all the losses onto the taxpayer, in when the creation of Fannie and Freddie were created, they were the hedge so that the Fed can lose nothing, ever.

    YOu have a lot to learn about the fed, and your shortsightedness is why Tom Woods is happy to have you, because to him you’re a useful idiot.

  • http://www.crew38.com pete838

    I’m truly surprised by Dr. Levin’s position, especially now that he’s written a book titled “Liberty and Tyranny,” an excellent book describing presidential and congressional abuses of power against the Constitution. I expected him to be on the other side of this issue, and was disappointed that he is not. In his book he leads the charge against the statist.
    As for both sides calling each other names suggesting that the other is un/undereducated and the like, I find it counterproductive to the cause of liberty and republicanism (little ‘r’ intentional), but I’m sure it generates interest in each side’s audience.
    I disagree with Dr. Levin on this one, but I’m not ready to call him an idiot.

  • http://statesmansentinel.com Classical Liberal

    Can’t even describe how lucky we are to have you defending the Constitution and the truth in such a scholarly and professional manner. Thank you, Tom!

  • http://twitter.com/FREEDOMMM Dustin Howard

    Don’t fight girls, you’re both pretty!

    I think egos are crowding out the facts here. I’ve listened to Levin for 5 Years, and he doesn’t open fire on fellow Constitutionalists. I don’t think he was insulting you; rather, I think he fired back at some of the more unruly posters. When words like “Statist” or “liberal” start flying because someone interprets the Constitution in a different way, I think we are losing focus.

    I would remind readers that there is a coalition of voters out there that want NO defined limits on the government; these internecine quarrels only serve THEIR purpose.

    Keep your eye on the prize, gents.

    P.S. While I agree with Mark’s central point, your presentation was certainly better.

  • http://www.facebook.com/people/Gemini-Storm/1053604787 Gemini Storm

    As a listener of both Levin and Church (hence, Woods and Gutzman), I find myself siding with the Woods on this matter, which is to say that the original intent of the FFs was to restrict and separate the powers to engage in a war and to also persecute that war. Necessarily, it seems that the Congress, the holder of the pocket book, would decide that a war was feasible, warranted or in the best interests of the citizenry, removing an individual’s (the CinC) ability to commit to something as a nation without the backing of the people.

    My only thought is that perhaps Levin, upon failing to find evidence to support his position, fell back on historical precedent. I hope he comes forward to admit his mistake(s), apologize to Dr. Woods and perhaps clarify his position. Levin is an awesome host, and I usually find him to have the sharpest mind on radio, he is able to break apart the policies, rhetoric and intentions of the left like no other (although, Wilkow is nearly his equal in that regard) and has a keen legal mind.

    Unlike a few posters here, I don’t think Levin is representing anything but his own (knowledgeable) views based upon his experience in ‘Leviathan’ under Reagan/Meese and his knowledge of how leftists/statists work and think. This one small area of contention is not sufficient to disregard any party in the discussion. Dr. Woods has the expertise in this particular area and should continue to be highly regarded for his knowledge, but that doesn’t disqualify Levin in all other matters and there are probably far more topics on which they agree completely. Conservatives often disagree with each other on a few topic and the world goes on.

    In other words, let’s hurry up and get over this and get back to blasting statists. Not even Mitter Church imagines that we’ll be rid of ‘Leviathan’ any time soon, so we need to work within the framework presented and work to get to some semblance of what are country was supposed to be…

  • http://www.mises.org Mechanized0

    Regardless, the United States was never a target of Islamic terrorists until after the former’s imperial-style foreign policy was implemented against those nations, whether brought about by staged coup d’etat, bombing, economic sanctions, or outright invasions.

  • http://www.facebook.com/people/Gemini-Storm/1053604787 Gemini Storm

    Yes, I don’t think Levin agrees with going to war on a whim, but that the CinC has historically done so. Although, I think that “consulting” with Congress is the norm. Also, I don’t think Levin is in the neo-con camp, nor an idiot. At least, you can’t read Liberty and Tyranny or Men In Black and think so (or maybe it’s just me?).

  • http://www.facebook.com/people/Gemini-Storm/1053604787 Gemini Storm

    Having read his book, you do realize that Levin has led the charge on the “statists”? Perhaps Limbaugh garners more attention from the left, but Levin has been calling out the statists for years now and has been taken a lot of flak for it. I find it curious that you would refer to him (Levin) as a self-professed expert when he obviously has a lot of experience fighting the left (look up Landmark Legal) and has done so successfully. Lastly, “supposed” best-selling book? The book was #1 or #2 on the NYT’s for something like 20 weeks.

  • http://www.facebook.com/people/Gemini-Storm/1053604787 Gemini Storm

    Levin doesn’t defend Obama other than to say that he isn’t doing anything ‘wrong’ by attacking Libya without a declaration of war from Congress just like many PotUS before. Levin differs greatly on the reasoning for doing so, and constantly derides Obama for not stating our goals and purposes with this attack. Levin also attacks Obama on going in as a puppet of the UN, instead of considering first and foremost (only?) the defense of interests of the US. He (Levin) believes we should stand behind our allies (Mubarak), but thinks that we shouldn’t be diving into Libya because we don’t have any reason to support the rebels. The only reason that Levin thinks we should be in Libya is because he thinks (as do I) that we owe (kill him) Gaddhafi (sp?) for ordering the murder of our citizens. He doesn’t believe we should be in the business of ‘regime change’, so perhaps you aren’t familiar with Levin’s positions?

  • http://www.facebook.com/people/Gemini-Storm/1053604787 Gemini Storm

    Levin doesn’t manage his Facebook page himself, he has an administrator that does it. Levin already spoke about how “RonPaulians” were doing disruptive things to spam his social sites and that the administrators of those sites had to take action to repel the disruptions. Levin followed up by telling his audience that while Ron Paul was a fine person, his on-line supporters were some of the worst when it comes to interactions on the internet. You were probably scooped up in the clean-up work that saw many posts get deleted. I seriously doubt he was trying to censor you simply because a bunch of people hit the ‘Like’ button…

  • http://twitter.com/ThomasEWoods Thomas Woods

    I have substantial testimony from people who say they went out of their way to be as courteous as possible, and they not only had their posts deleted but they were actually banned from the page. I appreciate that you are a Levin fan, but that doesn’t strike you as a bit of overkill? How about the head of a southern California Tea Party who respectfully proposed that Levin and I debate at the Reagan library, and they would raise the funds to cover it? That person was banned.

    You know, you can be a Levin fan and still say this was a ridiculous overreaction. Though I wouldn’t say so on his FB page. I hear people get banned for that sort of thing.

  • http://www.facebook.com/people/Gemini-Storm/1053604787 Gemini Storm

    1. Don’t take it personally, Levin (and Church) use nicknames for lots of public figures; Schmucky Shumer, Frankenfeinstein, Little Dick Durbin, etc. it’s entertainment.

    2. I see most conservatives fall into two camps; non-interventionists and world-police. To some degree, our hand was forced post-WWII with intervening since we were the only ones in a position to do so. While I hate to see our lives and treasure be destroyed by military actions overseas that have little to do with national “defense”, I’d also hate to see what would have happened if we had not opposed the USSR. Can we be so callous as to let violent authoritarian governments run rough-shod over our allies? Surely we must stand for something, even if it is not outlined in our Constitution, we are based on a moral society, and as such we should take action where we can. On the other hand, have we become that which we hate most? If so, then we deserve to fall and must rebuild with the knowledge that attempting to intervene, police and inject our mores into other societies must surely lead to our eventual destruction.

  • http://www.facebook.com/people/Gemini-Storm/1053604787 Gemini Storm

    I would beg to differ.

    Non-anarchist is not synonymous with statist. A statist is a person who believes that the government/state is a solution and controls the citizen, an entity that directs the citizenry on behaviors, economies, and interactions. Most common, a statist is one that believes that their ideologically pure government could form a utopia through the proper implementation of social engineering. In short, the government shapes and controls the society.

    In contrast, a properly formed representative republic based upon individual liberties and freedoms guaranteed by a non-governmental force (our Creator, in our legendary document), the citizenry would be close enough to the reps that the state would never have more (unaccountable) power than the citizenry. The citizenry would shape and control the government and impede its power from anything beyond its defined boundaries. In short, the very existence of the government is tenuous, and its powers are limited to the protection of the citizenry where they are unable to do so for themselves. Obviously, our government has slipped far afield from this form.

  • http://www.facebook.com/people/Gemini-Storm/1053604787 Gemini Storm

    Oooo, I’ll take that bet! Levin has already addressed where he differs from Ron Paul (many times back in 2007), and the removal of the Fed wasn’t one of them, so I’m willing to bet based upon my memory of those broadcasts….Dude, would you really bet $100 where you obviously have no knowledge whatsoever (from what I can tell) of Levin’s positions?

  • http://www.facebook.com/people/Gemini-Storm/1053604787 Gemini Storm


    Maybe he said it was ‘successful’, but I must have missed it when he said it was, “great”. There may be a discussion about whether or not the Marshall Plan was the cause of the European recoveries, but looking at the countries swallowed up by Soviet Russia should be enough of an indicator that whatever ‘we’ were doing was better than if the Soviets had gotten their mitts on them, which might have been pretty easy if we weren’t toting around an a-bomb to threaten others with…considering that Levin was anti-stimulus from the start, I seriously doubt that Levin said that the Marshall Plan was, “great” in the context in which you mean it.

    He has the last 2 months of audio available for free at his site, if you can just give me the day, I’ll listen to the 1:54 to hear for myself your assertion.

  • RFN

    I’m not sure I follow. My, nor most others, problem is not towards Muslims. It is toward Islamists. Pretending otherwise is naive. History, and most notably Muhammed’s earliest biographers, tells us the scourge of Muhammed and early Islam.

  • http://profiles.yahoo.com/u/6YNRUHQHLTD6OYQB6GRXVB3MOY ThomasC

    This is false. Any mention of Thomas Woods not only gets deleted, but the poster gets booted. It has nothing to do with Ron Paul.

  • http://www.Pressforfreedom.com Uncle_Rahn

    You stand on the shoulders of giants and yell at the pebbles on the ground.

  • Johnson Childress

    Mark Levin = Neocon, Entertainer

    Tom Woods = Patriot/Freedom Fighter, Intellectual

    Mark Levin lives inside a false left right paradigm and entertains to the market that wants to hear about the right (not correct just opposite of left). The people in this market are nonthinking individuals who just follow a radio personalities line of thinking without thinking about things on their own. As Tom states he once was a neocon himself who started to think on his own and was brought out of that darkness into the light of reality (As was I and as did I). I used to listen to Levins show. Only neocon rhetoric came from him during the show and that was about as valuable in content as a leftist hollywood movie. Never any mention of anything even remotely valuable. End the warfare state and the welfare state neocons and liberals! That also means its time to end the FED! Limited government is for the idealistic. If Murray were here he would suggest anarchocapitalism baby! Its the only way to go. Tom Woods 1 Mark Levin 0 and its only going to get worse from here! I even think Levin should have -1 based off the lack of integrity he dislayed but I guess everything he is about in this regard has been lacking. The intellectual argument, any integrity whats next! We will see.

  • http://profiles.google.com/crossofcrimson Ryan Wills

    “Where in he Constitution does it state that the President CAN’T”

    Clearly a Constitutional scholar here…

  • Al

    No, that’s not correct. I was a member of Levin’s page at the time all of this went down and the most belligerent comments were coming from his pet disciples. I watched it closely for a couple of days before I became so repulsed by it that I unjoined. You can go there right now, pull up any of the posts about the issue and see them foaming at the mouth. What Levin claimed didn’t happen. He was getting rid of anyone who even mentioned the Woods debate. Sorry, he’s a revisionist propagandist and a liar! I know it and God Almighty knows it!

  • John Barleycorn

    I trust you have source to back your conjecture?

  • http://www.facebook.com/people/Andrew-C/35006467 Andrew C

    They were pirates who used religious rhetoric as a justification for their crimes. They were engaged in raids for slaves and loot. Using the promise of paradise, and more importantly of additional financial benefits, for bravery is not the same engaging in an action for religious reasons.

  • http://www.facebook.com/people/Andrew-C/35006467 Andrew C

    It’s as in much the interest of oil producing companies to sell us oil as it is in our interest to buy the oil. If Libya, for example, refused to sell us oil then they would also have to refuse all those countries that didn’t agree to refuse to sell us oil as well in order for the policy to be effective. An oil-producing country would have to be suicidal to try to effectively stop the US from purchasing oil, or other natural resources from it. But let’s imagine that a country is that idiotic and suicidal; the price of oil goes up a bit and people adjust their behavior accordingly. In the case of the 1973 oil crisis the government made it worse through price controls, and ordinary Americans were beginning to respond by purchasing more fuel efficient cars. http://recession.org/history/1970s-oil-crisis Of course the US government screwed things up by bailing out Detroit. And in terms of food; if food prices go up then there will be more pressure for regulations to relaxed, if not eliminated and people will start to adjust their diet accordingly. Perhaps more people will start growing their own food etc. In short there would be no civil war if we decided to remove our military footprint from the World. You’re conflating criticism of neo-mercantilism with isolationism. The answer to your question is that the doomsday situation you wish us to believe in would not happen if we were to engage in a non-interventionist foreign policy. And the fact that you seem to repeatedly conflate isolationist with non-interventionist, despited repeated attempts to dissuade you of this notion, shows that you’re either intellectually dishonest or a troll.

  • http://www.facebook.com/people/Andrew-C/35006467 Andrew C

    O God, if we don’t spend a trillion dollars a year on our military to engage in neo-mercantilism them the Chinese will never sell us sneakers.

    Yes, this is your argument in a nutshell. Food and energy shortages happen when the government steps in, either in an idiotic attempt to help or to hurt (see famine).

  • http://www.facebook.com/people/Andrew-C/35006467 Andrew C

    Calling Levin Hitler isn’t appropriate.

  • http://www.facebook.com/people/Andrew-C/35006467 Andrew C

    Real capitalists USMC… umm, a state funded institution are the real capitalists??

    And it’s non-aggressive violence, not simply non-violence.

  • http://www.facebook.com/people/Andrew-C/35006467 Andrew C

    War brings with it the expansion of the state and the restriction of civil liberties during wartime. So how would reducing our military’s presence abroad empower the government to take it away? And the answer to your doomsday predictions are elsewhere in the comments section. Not using our military to secure energy abroad, for example, would at worst lead to a shift away from oil. And assuming that everybody in the world refused to sell us food, which wouldn’t happen, we would just adjust our diet and start growing our own food. In any case people as individuals are much better than the government at responding to such situations. Government responses tend to be price controls and rationing. If you aren’t a statist then why do you believe in the inability of individuals to address crises without the government? Because I can’t see how you can believe in the doomsday scenario you propose without being a neo-mercantilist. And if this is the case then you don’t believe in free trade, and therefore don’t believe in the ability of individuals to make decisions and engage in trade, and therefore your faith in the individual is less your faith in the state.

    Or correct me if I’m wrong. And a full explanation please as opposed to your ” You can’t even see” line.

  • Malpass_9

    I have lost respect for Levin. I was surprised he made the arguement he made and then he goes on to call someone who, as elitists as this sounds, is his superior in terms of scholarly knowledge of history and economics a neo-confederate!

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