Gutzman, Church – The Constitutional Response to the Murder Of James Foley

Mandeville, LA – Exclusive Transcript – “Let’s bring Professor Gutzman in here. How did President Jefferson respond to those actions of what we know today as the Barbary pirates? Kevin: This was not really a matter of any dispute among the people who made the federal governments.  It’s not surprising that Jefferson and his friends in Congress, along with their opponents in Congress, thought this way, and that Jefferson’s actions against the Barbary pirates, again, were in pursuit of policy that had been enunciated by the Congress.”  Check out today’s transcript for the rest….

Begin Mike Church Show Transcript

Mike:  Let’s bring Professor Gutzman in here.  I want to make sure that we have the president’s statement on the record here so we all know what we’re talking about.  Kevin, good morning.

Kevin Gutzman:  Good morning, Mike.  How are you?

Mike:  You’re up early and I appreciate that.

Gutzman:  Now I see how the other half lives.  Good morning to you.

Mike:  Let’s get right down to cases here with this.  You just heard the president speak.  You’re an eminent authority on much of what the framers of the Constitution and the men that we call founding fathers, of their legislative acts and behind the scenes of what they thought about them.  You’re writing a book about Thomas Jefferson.  The story about how Jefferson dealt with the Barbary pirates, unfortunately, has become a subject that is more urban legend than it is fact.  You and I and Professor Woods and others have worked to try to undo some of that damage.  When I heard the president speak — first of all, when I saw the news about James Foley yesterday, and then when I read the president’s statement yesterday, which we just heard a clip of, and I heard him talking about vigilance and bringing people to justice, I just thought this is very similar to some of the things that happened to American merchant sailors on the high seas at the hands of the Barbary pirates.  President Jefferson, I don’t believe, actually went out seeking any justice, but he did respond, and that’s where you, old friend, expert, come in.  I’ve already set this up that this began even before TJ took office.  He knew that he was going to have to deal with this.  Let’s just proceed from there.  How did President Jefferson respond to those actions of what we know today as the Barbary pirates?

Gutzman:  Well, of course, he understood what was going on as an attack on American shipping or a series of attacks essentially coordinated by a state in North Africa.  He asked permission from Congress to use the navy in defense of American shipping.  Ultimately this resulted in essentially freelanced behavior, authorized freelance behavior by American naval captains in the Mediterranean, including attacks on Tripoli, and essentially an end to piracy that had been practiced on American shipping.  People say this is Jefferson behaving like Bush the younger, intervening in a foreign country.  It was anything but.  It was the president defending American shipping in pursuance of a policy that had been enunciated officially by Congress.  It was not anything like the claim to inherit authority to make war or anything like that.

Mike:  I found a paper online last night after a lot of searching.  It was written by, and I’m sure you’re familiar with this, Louis Fisher, who wrote a lot of papers about war powers back in the ‘90s.  He wrote one called, “The Barbary wars: Legal precedent for invading Haiti?”  Professor Fisher was saying at the time — I guess you were probably just out of law school at that time.  Professor Fisher was saying: No, you can’t send troops into Haiti, President Clinton, because you think it’s a good idea, you have humanitarian purposes or whatever.  You don’t have the authority to.  Fisher went and said: Here’s why and this and that.  He built his case around the case of the Barbary pirates.  What I find most fascinating about this — I actually sent this to you so you can have it for your records.  I was actually able to find the page of the annals of Congress where they debated this in 1801.  To a man, as they’re discussing this — regardless of whether you’re a Federalist or Republican — they seem to all have concurred that Congress had to act and authorized TJ to do these things.  They saw it as their duty to do it and they did so, correct?

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Gutzman:  Right.  The contemporary idea associated with John Yu and President Bush the younger, that the president essentially can do whatever he wants with the military as long as he claims that in some sense it’s defensive or at least defending American interests, was totally foreign to the people who made the U.S. Constitution.  They thought that Congress was the legislative body and the president was the executive, that is, he was to execute policies made by the legislative body, the Congress.  This was not really a matter of any dispute among the people who made the federal governments.  It’s not surprising that Jefferson and his friends in Congress, along with their opponents in Congress, thought this way, and that Jefferson’s actions against the Barbary pirates, again, were in pursuit of policy that had been enunciated by the Congress.

Mike:  If I could, Kevin, just for a moment, this is precisely what was said on the floor of the Congress as recorded by the secretary, under the heading “Barbary Powers.”

[reading]

The House resolved itself into a Committee of the Whole on the State of the Union, the following resolution being under consideration:

“Resolved, That it is expedient that the President be authorized by law, further and more effectually to protect the commerce of the United States against the Barbary Powers.”

[end reading]

Mike:  We know then that someone must have requested the use of the power.  It would be very refreshing if the president, in moving forward and dealing with this, would actually request of Congress for the use of power to deal with this.  This is the other part of this discussion that I really wanted your knowledge and your expertise on.  It is possible that, since we are dealing with American citizens that are performing some manner of commerce, certainly not shipping, but they are reporting and being paid for it, it is possible to draw a line between 1801 and 2014.  Congress could authorize the president to specifically either protect American citizens performing said commerce from ISIS, or Congress could also authorize an offensive action.  Then we have the letter of marque and reprisal, which I’ll let you explain.  You can take it from there.

Gutzman:  You’re exactly right.  If we still had a constitutional system, the president would be asking Congress for authority to take whatever steps and to enact whatever general policy it is he thinks is in the interest of the United States.  Instead, what he says is: I have authority to do this, whatever I want to do and I’m going to go ahead and do that as circumstances may indicate.  This, I think, is, again, contrary to the model of government that was supposed to be established by the Constitution, which, unlike the British constitution at the time, gave all the power to make decisions about committing the military to the Congress.  That is, at the time that the Constitution was ratified in Britain, which was, of course, the other country whose political system was most familiar to Americans, it was the king who decided to declare war.  It was the king who made treaties.  It was the king who made peace.  The federal Constitution intentionally gave all those powers not to the chief executive but to the Congress.  Why?  Well, because of a couple things.

Number one, they thought that in a representative government, it should be the representative branch that made these kinds of decisions.  That was the republican principle.  The other thing was, of course, that they thought if you gave a king, a prince an army, he would find a war to fight.  Of course, this is something that we hear all the time.  There’s this constant talk of the idea that, as President Bush (the older) said: Well, I saw something bad happening and I thought, ‘I have an army; I can use it.’  That’s how President Bush the elder explained the original American intervention in Somalia, that he turned on CNN and saw starving kids in Somalia and thought: I have an army.  He’s not supposed to “have an army” in the sense that he’s free to do whatever he wants with the U.S. military.  It’s supposed to be, as you’ve pointed to Jefferson’s allies’ thinking in Congress, it’s supposed to be for Congress to make the decision whether he has the army, in the sense that he’s free to use it to intervene to take whatever steps he thinks are necessary in the American interest or in defense of American assets and individuals in Syria or Iraq or anywhere else.  But, again, he’s not going to do that.  I’m certain he’s not going to do that.

We know that the vast majority of Republicans in Congress aren’t going to ask him to do that or insist that he do that.  Of course, none of the Democrats in Congress are going to assist him do that.  This is why Tom Woods and I entitled one chapter of our book, Who Killed The Constitution, “From Chief Executive To Prince.”  Now he’s a prince.  He’s in the position of George III.  He’s free to use the military in any way he wants.  All the unanimous Democratic caucuses in Congress will say that he has a right to do that.  Probably Bernie Sanders will disapprove, but basically all of them will agree that he has a right to do that, or else it’s silent as he does that.  The majority of Republicans will concur silently that he had the right to do that, certainly John Boehner thinks so.  A constitutional response is not going to be forthcoming.

You mentioned letters of marque and reprisal.  Those, I think, are ideally suited for this kind of situation.  We have several hundred or a few thousand Islamic criminal nutballs operating in Syria and Iraq against American interests and with the stated goal of wreaking as much mayhem as they can.  What a letter of marque and reprisal would authorize private individual Americans to do is to seek out such people and exterminate them, kill them in the American interest, or to attack particular military assets of the Islamic State and Iraq and Syria, as this terrorist group calls itself, and eliminate them.  The beauty of that is, of course, that the Congress could state what reward it was going to confer upon people in case they eliminated particular assets or achieved particular military successes.  Absent achievement of those successes, no payment from Congress would be forthcoming.  Then, of course, the people who ended up doing these things in Congress’s name would be compensated only to that extent.  We wouldn’t have the kind of open-ended financial commitment that we’ve become accustomed to in case of America’s deployment of the military in the last 20, 30 years.  Instead, we’d have a real free market in military service when, again, private individuals would seek out these people and show them what they deserved.

End Mike Church Show Transcript