Mandeville, LA – Exclusive Transcript – I want to go to the Dude Maker Hotline and say hello to my dear old friend Andrew C. McCarthy, who, if you didn’t see it yesterday I had posted it in our Pile of Prep and tweeted it out a couple times. I lauded some praise onto Andy’s piece dissenting from his editors and their endorsement or embrace of the Obama administration’s and now the Senate Judiciary Committee’s embrace of warlike activities against Syria. As I told you last hour, Andy’s piece was thoughtful. It’s historical. It takes us back to the days of the founders and what their intent was. Check out today’s transcript for the rest…
Begin Mike Church Show Transcript
Mike: I want to go to the Dude Maker Hotline and say hello to my dear old friend Andrew C. McCarthy, who, if you didn’t see it yesterday I had posted it in our Pile of Prep and tweeted it out a couple times. I lauded some praise onto Andy’s piece dissenting from his editors and their endorsement or embrace of the Obama administration’s and now the Senate Judiciary Committee’s embrace of warlike activities against Syria. As I told you last hour, Andy’s piece was thoughtful. It’s historical. It takes us back to the days of the founders and what their intent was. Rather than me read it, I’d rather him explain it. Hello, old friend. How are you? Welcome back.
Andy McCarthy: Hey, Mike, how are you? Good to be here.
Mike: Your essay is some of the best work you’ve done.
McCarthy: I can’t thank you enough. You’ve been very kind about it and I appreciate it.
Mike: You’ve merited it. The backstory is a story that I have been telling my listeners here for quite some time. Some of the things that you brought up I hadn’t read. If I had, I had forgotten them. The case that you make here on the constitutional authority, in my mind anyway, it’s just airtight. Let’s start at the beginning. What is it that the editors of National Review said that got the ball rolling as to why you decided you wanted to dissent?
McCarthy: Well, we’ve had disagreements on the magazine. There’s a corporate position on the magazine and then there are a variety of people who’ve dissented from it. I think in terms of what the traditional mission of National Review is, I think we’re actually doing a pretty good job in the sense that we’re having a robust civil debate in which both sides are being pressed to back up their plan and their case. My point, of course, is that I don’t think there’s much of a plan in Syria at all. It’s been pretty incoherent from what I can determine.
I guess what really bothered me was — you point out that this goes back to the history of the founding. What we’re talking about in particular is this idea of the ability of the executive branch, the president, to conduct international affairs, including warfare, unilaterally. I actually come at this from a different perspective. I recall the arguments that we had throughout the Bush years. A lot of those arguments involved the left intentionally conflating two different and important doctrines. One is the unitary executive and the other is separation of power. They’re kind of analogous ideas but they’re very, very importantly different.
The unitary executive was the framers’ idea that all the power of the executive branch should be reposed in one individual, that is to say the president. In other words there was, in the debates over the Constitution, suggestions precisely because the framers were worried about too much power, too much clout in the executive branch, they thought about diluting the power, which is really the theory that strings throughout the Constitution, this idea that the way a free people can safely assign power to government is to divide it up and give the competing actors an incentive and ability to check each other. The idea with respect to the executive branch was that it couldn’t be effective if you did that, because the nature of executive power is such that it needs to be able to act when you need it to act. The framers ultimately decided to repose all of the power in the president. The Constitution explicitly says that all of the executive power is reposed in one President of the United States. We don’t have a set of consuls like the Romans did. We don’t have an assembly, a committee.
My beef with the left during the Bush years and my beef with the editors in the editorial over the last few days is that you can’t conflate the idea that all of the executive power should be in one official, the unitary executive, with separation of powers, which is the idea that the president has to be checked, he just can’t be checked internally in the executive branch. He has to be able to be checked by Congress and to some extent by the court. What I think the left did during the Bush years as attempt to confuse these two doctrines in order to tie down the president in situations where the framers would not have intended the president to be tied down. I think what our editors did, unfortunately, in the editorial was sort of the opposite thing. They used the unitary executive theory to eviscerate the very important separation of powers checks on the president, which are precisely intended to do what I think needs to be done in Syria, which is stop the executive branch from doing something it not only shouldn’t do but doesn’t have authorization, at least at this point, to do.
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Mike: Bingo. With us is Andy McCarthy from National Review Online, Pajamas Media and what’s the other blog?
McCarthy: Folks can find everything on my own website, which is AndrewCMcCarthy.com. Mike, how could I get it all on a door? It’s easier to put it all in one place.
Mike: A couple things you said in reading your essay “On Syria, I Respectfully Dissent”:
While I disagree with a number of his conclusions, a law review article by Valparaiso’s D. A. Jeremy Telman ably recounts the relevant Constitutional Convention debates. Pierce Butler, he notes, actually proposed that the power to initiate war be vested in the president. The notion was roundly rejected, with Butler upbraided by Elbridge Gerry, who exclaimed that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.”
Mike: When I got to that part of your essay, I started beaming from ear to ear because I had just looked this up last week. I was going through Farrand’s records and using the index page by page looking for certain terms. I can even tell you the date. This is from 17 August 1787 when this came up. They discussed it for another three days. Gerry’s outburst, Madison only describes it in the one sentence you quote. I think McHenry also describes it. It must have been quite the scene because they had a vote on it. They had a vote on it and couldn’t get anything done, so they tabled it.
There’s another interesting point here that you raise about the unitary executive. In the convention, Edmund Randolph suggested, and the Virginia Plan, I believe, originally entertained the idea, that there could be a council of executives. You mention the supreme council like the Roman tribunal or what have you. Randolph had thought there could be six, that you would have six Obamas or six Bushes or six Clintons or whatever. They amongst themselves would have to have a council meeting and then vote and however the council voted, they could have their say so. They had more power than the final version of the Constitution ultimately granted them.
I think this is where the editors and where so many people get off course in thinking that precedent has now become Constitution. Just because somebody gets something wrong doesn’t mean — we all agree, this is what troubles me, we all agree that that court in 1971 totally botched the Roe v. Wade case. They fabricated this whole three trimesters of pregnancy and the whole thing reads more like a medical journal than it does a case on whether the Constitution grants this power. We all agree that precedents, many of them are rotten and they’re not part of the Constitution. Yet when it comes to making war or when it comes to extending the power to the executive to go have his way with our military like he’s got a giant Stratego board across the planet, then we don’t seem to mind the precedent. I just think you need to be consistent on this.
McCarthy: Can I suggest something maybe slightly different? I always think the important thing, and maybe this is my lawyer antennae, but I think the important thing is to understand whether you’re dealing with law or politics. In my mind, the use of precedent is important in the law because lower courts are bound to follow the precedent of superior courts. They really have the force of law. To the extent that courts apply precedents, including precedents where we think the courts have gotten it wrong, the discipline is the only court that can reverse an incorrect precedent is either the Supreme Court, which struck it in the first place, or a superior court can reverse an inferior court. In the legal setting, precedent has to work almost like statutes work, otherwise you have chaos. I think the precedent in the political arena is at best a guideline. In politics, unlike in law, first of all, you’re not bound to follow precedent. Secondly, no two situations completely replicate each other. No two sets of political conditions replicate each other. I think precedents are useful in terms of arguing about what we should do, but I don’t think in politics we ever ought to feel like we’re bound to follow them.
Mike: I think that’s a fair point to make. If you’re going to say, in lawyer speak, that the president sets the stage for lower courts so that we can have some consistency and not have chaos, in the separation of powers as it was envisioned and sold, the Constitution also vested the Congress with the power to impeach judges. A Supreme Court could get it wrong theoretically.
McCarthy: I would go further than that. The idea that the Court is the final say on what the law is is not in the Constitution. That’s something the Court came up with. In my mind, there is nothing that says, especially in a country which is supposed to be a free people determining its own destiny, not ruled by lawyers and judges, there is nothing that says you couldn’t have a statute which says we’re now going to review Supreme Court decisions. For a certain length of time and by a certain congressional margin, if you could get both houses of Congress to do it, Supreme Court decisions could be reversed. Again, judicial review, particularly in statutes, is something the Supreme Court came up with on its own. It’s certainly not in the Constitution. The Constitution has been interpreted to say, where it says the judicial power is reposed to the Supreme Court, that that’s part of the judicial power, but I think that’s a pretty extravagant reading.
Mike Church Show Transcript – Secretary Of State Kerry And Senator Rand Paul Debate Military Intervention In Syria
Mike: It also says inferior tribunals, which Congress may from time to time create. Technically speaking, legally, literally, or as you lawyers say the Congress could declare that it’s de jure that you only actually have to have one federal court, a tribunal of three judges.
McCarthy: In fact, I read somebody said if Congress wanted to read it literally, they don’t have to permit anything other than Chief Justice Roberts and a lamp.
Mike: I want to fast forward to the latter part of your essay. This is where it really warms the cockles of my heart:
The editors apparently believe this void can be filled by what I’ve called the “Vacuum” fantasy. This narrative, popular among neoconservatives and Beltway Republicans, holds that our problems in the Middle East stem not from the region’s Islamic supremacist culture but from the vacuum supposedly created by what the editors call “Obama’s policy of passivity.” It is this policy, we are to believe, that has caused the Syrian opposition to become “more radical.” Apparently, if the administration had been more engaged, the Muslim Brotherhood would have melted away – although, given that Obama’s idea of engagement is to promote the Muslim Brotherhood, it’s not altogether clear how this would have worked.
In reality, the Assad regime’s most powerful opponents – like Mubarak’s, like Qaddafi’s – have always been Islamic supremacists.
Mike: Let’s just stop right there. By the way, if you’re looking for a good primer on Islamic thinking and jihadist thinking, there’s no better book you can read than Andy’s The Grand Jihad. In that book, as you explain, we imported many of these people into the United States. They became radicalized as we became more involved in their home countries’ affairs. They made it part of their quest — you know this because you deposed the “blind sheik” and you actually heard him tell you this — they made it as part of their existence, some of them, that they basically became a quasi-religious operating entity in the U.S. that could and in some instances did turn violent, and they used Islam as their shield. That’s why some of these cases draw our attention when they have to do with impositions of Sharia law in the United States. Over there where we’re talking about in Syria and Egypt and Libya, the irony of the whole situation is [mocking] “We don’t like dictators. The last time I checked, a dictator hasn’t actually offered a declaration of war against the United States since the emperor of Japan did it back in 1941. Aren’t we kind of being hoisted by our own petard? Just flesh that out a little if you would.
McCarthy: Well, there’s a lot there. I think we need to understand the region as it is. The dominant ideology of the Muslim Middle East is Islamic supremacism. I think we on the right are quick to accuse Obama and blame Obama for everything. I think one of the things you can’t blame him for is the dysfunction of the Middle East. An American president, just because of the nature of our country, is capable of making any situation worse. You can’t always necessarily make it better, but you can make things worse. I think by embracing and in many ways empowering anti-American Islamic supremacists, Obama has made things considerably worse. It’s a different way to say he can make things worse than that he’s responsible for the problem.
America’s problem in the Middle East, whether people in Washington want to face up to it or not, is that upwards of two-thirds of the population is from a different civilization and do not want to have anything to do with Western liberalism. It’s not because they’re ignorant or they don’t understand it; they don’t want it. They have a different culture. They think their way of doing things is better. That’s not just a handful of Al-Qaeda knuckleheads. It’s basically two-thirds of the population. To say if only Obama had acted here, there and everywhere there would have been leadership and we could have pulled pro-American — as I always say Jamal al-Madisons just waiting to happen — pull them out of a hat and there would have been tens of millions of pro-Western secularists is just a fantasy.
The fact of the matter is, the Muslim Middle East is not in tumult because the United States has failed to act and therefore it’s become radical. The Muslim Middle East is in tumult because what has clamped down on the radicalism all these decades are dictators, which have repressed the supremacist tendencies of Islam in that part of the world. You didn’t need to know much more than the history of Turkey to understand that. Ataturk, who was himself a Muslim, understood the supremacist tendencies of Islam and decided that if he was going to take his country in the Western direction, the only way you could do that would be to repress the political supremacist tendencies of Islamic supremacism.
What we’re seeing in the Middle East in the last number of years is that as we pressured –– we’re not the only ones who did this but I think we’re the principal ones who did this, and again this is not an Obama policy. This goes back to the Clinton administration and it was all the rage in the Bush administration. We pressure these dictators to give their people more determination in their own everyday affairs, thinking that everybody is just like we are. The fact is, everybody is not just like we are. If you let these people choose how they want to be governed, they’re going to vote for Islamic supremacism. When you move the dictators out, you’re empowering the Islamic supremacist elements. That’s what’s happened here. It’s not a leadership vacuum. It’s that we have basically undermined the one thing that kept the Islamists in check all these years, which are the dictators.
Mike: Very intriguing and I think salient and I also think correct. Final notes here, I did read somewhere in your essay the term non-interventionist, which I was happy to see. I think that with the events of the last 50 years, or we can go all the way back to Truman’s escalation of activities or whatever we choose to call them in Korea, we have demonstrated that this projection of American power ultimately, I think it can be argued, begets the need for a greater or similar projection of power. It’s just a never-ending cycle. I am not of the view that that has made the geopolitical world a more stable and a safer place to operate.
Mike Church Show Transcript – The Holy War Waged On Muslims Comes From American Exceptionalism And Moral “Authority”
That’s not to say we shouldn’t have open dialogue, diplomacy, trade, or if somebody is stupid enough to fire on an American ship on the high seas or if somebody is stupid enough to park a frigate or destroyer off the coast of San Diego that we’re not going to respond, or if we have a territory we have claimed where there are actual American interests or American commerce on the high seas like oil leaving North Africa, for example, that we don’t have a role here and that we don’t want to be engaged in the world. I think the arrogance or the false premise, I believe this is the same premise that most big-government types operate under domestically, that there’s always this Machiavellian tendency that you have control over the outcome, that if you just do this right you can control the outcome. We can’t control the outcome in Detroit.
McCarthy: I wouldn’t call myself an interventionist, and I really do actually resent or reject the way that, in this debate, people who want to get involved in Syria have used non-interventionist as if it were an epithet. I think our default position ought to be non-intervention. We shouldn’t be afraid to intervene when important American national interests are at stake. The problem with the other side is they think we should intervene whether American interests are at stake or not. Listen to Obama yesterday when he was reversing himself on whether he had drawn a red line or not. He claimed, as you pointed out in your remarks before I came on, that it was the world’s red line. Well, if it’s the world’s red line and this is such an international norm, why is he having so much trouble making a case that something needs to be done here? Why is the rest of the world not interested in intervening? Only Obama seems to be interested in intervening.
I think the other side wants to get involved in things even when there are no American interests. They so want to get involved in things that in order to invent American interests where they think they need to do that rhetorically in order to make the case that we need to get involved, they paint an imaginary picture of the world. You have Kerry there yesterday saying as the days go by, the opposition in Syria gets more moderate. If you read the accounts of the people that actually know this stuff, the fact is that the opposition is rife with Al-Qaeda and Muslim Brotherhood elements and they couldn’t succeed without them. Then you have McCain who just gets more mindboggling by the day. He sees a piece of film with a jihadist shooting a plane out of the sky with a shoulder-fired missile and screaming “Allahu akbar,” and he says: Oh, come on, that’s just like a guy saying “Thank God,” just like your average American Christian. You get the feeling at a certain point in time that Washington has gone crazy. I find lately that even in situations where I think we should intervene, we can’t be trusted to do the right thing when we intervene, so we ought to stay out on the basis of prudence. If we don’t have a government that can conduct itself as if it’s assimilated to the real world.
Mike: Let me ask you one final question. John Kerry, presidential candidate in 2004 did not win the election, obviously, did not become president. His views on foreign policy at that point in time were not salient and supportable enough to gain him the electorate that he needed to gain the office of the presidency. Do you think at some level this is John Kerry saying: Finally, I’ve got my chance to be president and I am more than happy, Mr. President, to act like you, as your mouthpiece and I will do this? This is as visible a role for Secretary of State — he is not Henry Knox, the first Secretary of War. He is Secretary of State. He’s supposed to be the diplomat in the room, not the guy standing atop the rampart yelling “Charge!” Where am I wrong?
McCarthy: I don’t want to psychoanalyze Kerry. If I started saying I understood the operation of his mind, there probably would be something wrong with my mind. I do think that Kerry, like most of the people in the Obama administration, is a transnational progressive of the post-sovereign bend, which is almost transnational progressivism by definition. In some ways I think the position of Secretary of State to such a person is in many ways more attractive than the position of president. That’s not to say I don’t think he’s got these grandiose ideas that you suggest, but I think he likes the idea. I think Secretary of State is probably as tight a fit for his vision of who he is as he could have had, even if he’d become president. I think this is, for somebody of his set of beliefs, particularly with respect to the importance of the international system and how it in many ways trumps our constitutional system and how we ought to be governed by these transnational progressive pieties, he’s in the perfect position for himself.
Mike: Interesting. Andy McCarthy, AndrewCMcCarthy.com, as always, thank you very much for your time. You’ve been very kind and very gracious. I appreciate it. Keep writing that great stuff.
McCarthy: Thanks, Mike. Thanks for having me.
End Mike Church Show Transcript