Andy McCarthy, James Madison and Me

Mandeville, LA - On today's radio show I spent almost all 3 hours laying out my case for why the current version of the NDAA bill S. 1837 (full version is here) is 1. Unconstitutional and 2. Is dangerous to liberty even if it were Constitutional. To support my case for the UnConstitutional claim I relied heavily on James Madison's "VA Report of 1799 & 1800" which summarized the debate in the VA Assembly of December 21, 1798. In that debate, Federalists argued the constitutionality of the Adams Administration's Alien and Sedition Acts while none other than John Taylor of Caroline, chosen personally for the task by Thomas Jefferson, argued the opposing point of view. The resulting resolution of the VA Assembly and the Kentucky Assembly are what gives the claims of legitimacy to what we fancy today as "Nullification and Interposition".

UPDATE I - I am watching debate LIVE on CSPAN 2 (audio to follow) and John McCain just demanded to know how"we can take out Al Alawkisitting in a foreign jurisdiction with a Predator drone but the same citizen doing the same thing in Charleston SC is entitled to a trial!? It doesn't follow, I've been here 22 years, this doesn't make sense." - So McCain can't wait to drop American ordinance on American citizens on American soil!? My, oh my, this crew is making arguments that I bet could be heard during the debate over the 14th Amendment in 1867

UPDATE II - I dug this up from the late George Frisbee Hoar, Senator from MA in regards to invading the Philippines, slaughter her people and imposing American rule on the island - debate in U.S. Senate in 1902. "Gentlemen tell us that the Filipinos are savages, that they have inflicted torture, that they have dishonored our dead and outraged the living. That very likely may be true. Spain said the same thing of the Cubans. We have made the same charges against our own countrymen in the disturbed days after the war. The reports of committees and the evidence in the documents in our library are full of them. But who ever heard before of an American gentleman, or an American, who took as a rule for his own conduct the conduct of his antagonist, or who claimed that the Republic should act as savages because she had savages to deal with? I had supposed, Mr. President, that the question, whether a gentleman shall lie or murder or torture, depended on his sense of his own character, and not on his opinion of his victim. Of all the miserable sophistical shifts which have attended this wretched business from the beginning, there is none more miserable than this. 20

Mr. President, this is the eternal law of human nature. You may struggle against it, you may try to escape it, you may persuade yourself that your intentions are benevolent, that your yoke will be easy and your burden will be light, but it will assert itself again. Government without the consent of the government—an authority which heaven never gave—can only be supported by means which heaven never can sanction."

UPDATE III - Andy McCArthy, in his characteristic, gentlemanly fashion, responds. "Very much appreciate the debate and the thoughtfulness that's gone into it. Listening to the McCain/Paul debate has convinced me to address the broad issue of how limited government conservatives who vigorously reject the insane Islamic democracy building project but believe we must invoke law-of-war principles to protect the nation (since civilian criminal justice cannot effectively neutralize foreign jihadists) should think about this debate. I have written a very long column for Saturday, that I'm polishing up now. Maybe once you've digested it, I can come on and we'll talk about where we agree and where we disagree. Best, Andy

Mike: I look forward to a robust discussion on the show sometime next week! - MC

Madison took the proceedings of the debate and condensed them into a summary and added his own sentiments, this is what is known as the Report of 1799-1800. In his Report, Madison leaves no room for modern Federalists to argue that even the AUMF is a legal extension of the Constitution. Nor is the "Patriot Act" and certainly this weeks usurpation delight the National Defense Authorization Act. While my honorable friend Mr. Andy McCarthy does not mention me by name my arguments are similar to Judge Napolitano's that are the subject of Mr. McCarthy's piece on this matter titled "Andrew Napolitano's Mistake".

"I really hope tea-party groups resist taking legal counsel from hysterions such as Fox News’s resident constitutional “expert,” Andrew Napolitano. On Tuesday morning, “the Judge” could be heard on the news railing about the McCain-Levin amendment to the defense-authorization bill (an amendment strongly supported by Senators Lieberman, Graham, Ayotte, and others). Napolitano contended that Congress is proposing to turn the entire globe into a battlefield and give President Obama the authority to have the U.S. armed forces swoop down on American cities and towns, arbitrarily detaining U.S. citizens on the mere say-so that they are enemies of the state. These contentions are absurd.

The only real question about the McCain-Levin amendment is whether it is necessary at all. It does not change existing law in any meaningful way. Essentially, it reaffirms the authority Congress conferred on the commander-in-chief in the Authorization for Use of Military Force (AUMF) that was enacted days after the 9/11 attacks.

Most Americans will recall that those attacks killed nearly 3,000 of our fellow citizens in the course of suicide-hijacking strikes on the financial district in New York City and the U.S.-military headquarters in Virginia, as well as an attempted decapitation strike against U.S. political leadership in Washington. Most Americans will recall that, from coast to coast, cities and towns have been targets of numerous attempted enemy attacks in the ensuing decade. We’ll also remember that these plots against our country have occurred against a backdrop of al-Qaeda attacks in Europe, Asia, and Africa.
That is to say, no act of Congress turned the United States and the globe into a battlefield. Al-Qaeda did that. The terror network declared war against America, threatening our interests and citizens throughout the world. Its tactic of choice is terrorist atrocities — carried out at any time in any place against any target, civilian or military."

That the AUMF is a Constitutional exercise in my mind is dubious and can only be claimed and supported by rejecting original intent AND the almost soothsayer like prescience of James Madison himself. That Al Queda exists and has attacked Americans is not at issue or in dispute, what is in dispute is what should be the response and must that response gain sanction by the U.S. Constitution? As Madison says herein "The Constitution is the ORACLE" in these matters (emphasis mine) Turning to The Report we see Madison accepting the Federalists argument that alien enemies (and friends) are in our midst, they mean us harm and therefore because Congress can declare war then Congress can make up any statute it favors to execute said war. Not so says Mr. Madison...

"It is said, that the right of removing aliens is an incident to the power of war, vested in Congress by the Constitution.

This is a former argument in a new shape only; and is answered by repeating, that the removal of alien enemies is an incident to the power of war; that the removal of alien friends, is not an incident to the power of war.

It is said, that Congress are by the Constitution to protect each state against invasion; and that the means of preventing invasion are included in the power of protection against it.

The power of war in general, having been before granted by the Constitution, this clause must either be a mere specification for greater caution and certainty, of which there are other examples in the instrument, or be the injunction of a duty, superadded to a grant of the power. Under either explanation, it cannot enlarge the powers of Congress on the subject. The power and the duty to protect each state against an invading enemy, would be the same under the general power, if this regard to greater caution had been omitted.

Invasion is an operation of war. To protect against invasion is an exercise of the power of war. A power, therefore, not incident to war, cannot be incident to a particular modification of war. itnd as the removal of alien friends, has appeared to be no incident to a general state of war, it cannot be incident to a partial .state, or a particular modification of war.

Nor can it ever be granted, that a power to act on a case when it actually occurs, includes a power over all the means that may tend to prevent the occurrence of the case. Such a latitude of construction would render unavailing every practicable definition of particular and limitedtpowers. Under the idea of preventing war in general, as well as invasion in particular, not only an indiscriminate removal of all aliens might be enforced, but a thousand other things still more remote from the operations and precautions appurtenant to war, might take place. 'A bigoted or tyrannical nation might threaten us with war, unless certain religious or political regulations were adopted by us; yet it never could be inferred, if the regulations which would prevent war, were such as Congress had otherwise no power to make, that the power to make them would grow out of the purpose they were to answer. Congress have power to suppress insurrections, yet it would not be allowed to follow, that they might employ all the means tending to prevent them; of which a system of moral instruction for the ignorant, and of provident support for the poor, might be regarded as among the most efficacious."

Mr. McCarthy is basically making at least part of his current argument based on what lawyers call "precedent" but if, as can be demonstrated, the prior statute should never have breathed the life of Constitutional harmony then this act, drawing heavily on and indeed "re-authorizing" most prior transgressions must be void as well. This is to say nothing about what Napolitano and I protested so mightily against*, Sections 1031 and 1032 of the bill which DOES authorize detention of American citizens by military officers acting on military authority, suspects who are then to be tried by military tribunals. Again, Madison insists that no Act of Congress can alter the form of the separation of powers and may not combine those powers either (*nota bene, I am assuming for argument here that the military acts in this law's regard under orders of the CIC and thus as an extension of Executive Power):

"2. It is next affirmed of the alien act, that it unites legislative, judicial, and executive powers in the hands of the President.

However difficult it may be to mark, in every case, with clearness and certainty, the line which divides legislative power, from the other departments of power, all will agree, that the powers referred to these departments may be so general and undefined, as to be of a legislative, not of an executive or judicial nature; and may for that reason be unconstitutional. Details to a certain degree, are essential to the nature and character of a law; and on criminal subjects, it is proper, that details should leave as little as possible to the discretion of those who are to apply and to execute the law. If nothing more were required, in exercising a legislative trust, than a general conveyance of authority, without laying down any precise rules, by which the authority conveyed should be carried into effect; it would follow, that the whole power of legislation might be transferred by the legislature from itself, and proclamations might become substitutes for laws. A delegation of power in this latitude, would not be denied to be a union of the different powers.

To determine, then, whether the appropriate powers of the distinct departments are united by the act authorizing the executive to remove aliens, it must be inquired whether it contains such details, definitions and rules, as appertain to the true character of a law ; especially, a law by which personal liberty is invaded, property deprived of its value to the owner, and life itself indirectly exposed to danger.

The alien-act declares, "that it shall be lawful for the President to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable ground to suspect, are concerned in any treasonable, or secret machinations, against the government thereof, to depart," &c.

Could a power be well given in terms less definite, less particular, and less precise? To be dangerous to the public safety; to be suspected of secret machinations against the government: these can never be mistaken for legal rules or certain definitions. They leave everything to the President. His will is the law."

Again, my honorable friend, who done his country great service, serving as U.S. Attorney and successfully prosecuting actual terrorists like The Blind Sheik, is proceeding from the viewpoint of settled law as adjudicated by the SCOTUS and other inferior tribunals. My aim here is to simply point out that the entire edifice is flawed from The Patriot Act to today and that in my view, hysterical reactions in the Media by Napolitano, others and myself are lame even tame when compared to the legislative mountains moved by Jefferson, Madison, Taylor et al in opposition to the Alien and Sedition Acts. I have compiled a full section of James' Madison's VA Report of 1799-1800 here. You can read the entire debate in the VA Assembly over the Resolutions of 1798 here.