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Abe Lincoln and the war in Iraq

In an op-ed in yesterday’s New York Times, former Secretaries of State James A. Baker and Warren Christopher advocate for a law, drafted by a commission they co-chaired, that Baker and Christopher believe would clarify the division of war powers between the president and the Congress.

As far as I can tell, their proposed law would basically ratify the current division and therefore reinforce the unofficial (and unconstitutional) repeal of the congressional power to declare war. To be more precise, Congress would still have the power to declare war but it would be fairly meaningless. Baker-Christopher would officially (and still unconstitutionally) grant the president the power to start a pre-emptive undeclared war and to keep it going indefinitely unless a two-thirds majority of each house disagreed.

I say a preemptive war, but that is really a euphemism for a war that the president starts on a claim, possibly a because-I-say-so claim, that the country he is attacking would otherwise attack us.

As the framers designed the war powers, if the United States is attacked or invaded, the president (as commander-in-chief) has the power to respond militarily, until Congress has a chance to consider a declaration of war (which, under the attacked or invaded scenario, methinks would have a good chance of passing).

And Congress has the power to declare a war whether the United States has been invaded or not.

The trouble is that the vast majority of U.S. wars started with NEITHER an invasion of the United States NOR a congressional declaration of war.

Abraham Lincoln, in an 1848 letter to his law partner, explained his view of the division of war powers in the U.S. Constitution thus:

“The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”

Lincoln was then in his one term as a congressman from Illinois. He was an outspoken opponent of President James K. Polk’s decision to start the Mexican-American War (although the war was very popular and added vastly to the territory of the United States).

In that case, there was a preexisting dispute between the United States and Mexico over the precise boundary between Mexico and the formerly Mexican territory of Texas (which had recently gained U.S. statehood). Because of the border dispute, both countries could claim that their soldiers were on their own soil.

The United States had been trying to buy, from Mexico, the territories of New Mexico and California, but Mexico wasn’t selling. In the war, the United States acquired those territories (and yes, I am open to the interpretation that the U.S. was motivated more by its desire for those new territories than by a desire to clarify the Mexican-Texican border).

Lincoln on pre-emptive wars
Anyway, President K. Polk authorized military action, without waiting for a congressional declaration. In the letter, Lincoln explains the dangers of a pre-emptive war:

“Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at his pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. [Herndon’s prior letter had argued that the president can invade a country to prevent an attack, and that the president can decide on his own whether such a threat exists.]

“If today he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him, — ‘I see no probability of the British invading us’; but he will say to you, ‘Be silent: I see it, if you don’t.’ But your view destroys the whole matter, and places our President where kings have always stood. Write soon again.”

Y’just gotta love Lincoln’s way with words. You can read the full letter here.

Iraq war resolution
Anyway, I guess I haven’t mentioned the current preemptive war down in which the U.S. is currently bogged. To me, the Iraq case makes Lincoln look pretty smart (although you won’t find much argument about the Lincoln smart part).

The Iraq war is kind of a double mess on this war powers issue. By the time Pres. Bush invaded, Congress had passed, by pretty hefty margins in both houses, a resolution authorizing the use of military force in Iraq. It’s not unreasonable to argue that this resolution stands in place of the declaration of war. I’d be a little sympathetic to that argument, although you’d want to consider whether the Congress can constitutionally delegate its constitutional war-declaring power that way.

But it is also worth recalling (as far as I can tell, this is usually forgotten) that the Bush administration took the position that the congressional authorization was politically helpful but not legally necessary, a fairly blunt assertion that the president can attack anyone, anywhere, on no say-so other than his own. This is inconsistent (and I think Congressman Lincoln is with me on this) with the constitutional scheme. But that, so far as I can tell, was treated in irrelevant in 1846 and still is today.

What would happen if the next president offered to respect the Constitution on this point?

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Comments (8)

  1. Submitted by David Brauer on 07/09/2008 - 03:44 pm.

    Craig – you’re telling me Ron Paul wouldn’t speak in a stadium if he could afford it and draw the crowd?

    Given that he’s renting Williams Arena, capacity 15K or so, what’s the magic non-Nazi number? 20K? 30?

    Look, JFK did this 40 years ago, in the wake of Nuremberg, relatively speaking, and I doubt anyone went the full SS on him.

    All that said, I do agree that laws, not men, are the best check against abuse.

  2. Submitted by John E Iacono on 07/10/2008 - 05:33 pm.

    Lincoln’s points, as usual, are very apt.

    It seems to me that the president’s authority in the Constitution is a reasonable response to the need to act quickly in the event we are attacked. Congress can always be out of session, or locked in partisan deadlock while Rome burns.

    In the case of the Civil War and the Second World War (at Pearl Harbor) we were. The question however, becomes muddy. Is an attack on our allies an attack on us (England, Kuwait, NATO,the UN, Taiwan…) an attack on us, or must our terriory occur? And how long after, and how closely associated with, an attack may the President respond (09/11 and Afganistan). And if we DO know an enemy is contemplating an attack, must we wait until he is at the door? These muddy issues can extend Presidential authority quite a lot.

    Abuse of that authority, however, is easy, which is, I believe, the reason why only the Congress has authority to declare war — or not.

    I believe, in order to maintain the balance envisioned, all that is necessary is for Congress to assume the role it has been assigned.

    But it has been singularly unwilling to do this, probably because of the political consequences of acting promptly, even if it can.

    Because it seems to me that this has been the core problem since WW II, I would support the bill being proposed, BECAUSE it mandates just such action.

  3. Anonymous Submitted by Anonymous on 07/09/2008 - 10:59 am.

    “As the framers designed the war powers, if the United States is attacked or invaded, the president (as commander-in-chief) has the power to respond militarily, until Congress has a chance to consider a declaration of war (which, under the attacked or invaded scenario, methinks would have a good chance of passing).”

    It would be nice if we had the luxury of waiting for our enemies physically to attack us. Unfortunately, that became rather impractical when a pre-emptive strike could destroy us completely. Are you even willing to trade a major city like New York or San Francisco for the luxury of saying we were attacked first? This is also Israel’s dilemma. The country is small and one atomic bomb delivered by an Iranian missile could wipe them out in a single strike. The US constitution is not a suicide pact.

  4. Submitted by Craig Westover on 07/09/2008 - 01:52 pm.

    Good post, Eric, but you’re still putting the onus in the wrong place by expecting (or hoping) that the next president offers to respect the Constitution on a point of presidential power. You’re making the mistake of Baker, Christopher and every commentator I’ve read so far on this issue – we need a law or some kind of consensus or a willing president to do what Congress already has within its power to do, and that is take back its Constitutionally authorized war-making authority (and by the way the accountability that goes along with it).

    What’s interesting, here, Eric, is that we have a president with approval ratings at historic lows and congress – liberals and conservatives – aren’t willing to step up and defend the Constitutional authority of their own branch of government. If they won’t do it now, when will they? This ought not be a partisan issue — except, maybe, that conservatives ought to be leading the charge.

    What’s more, you have Democrats, who are making a living out of decrying the Bush “imperial presidency,” holding a coronation for their nominee for president in the Nuremburg-like pomp of a 75,000-seat stadium. That’s a lot of pomp and circumstance for a federal employee whose constitutional function is to execute the laws originated and passed by Congress.

    The point is whether the presidential vision is spreading democracy at the point of a gun or spreading equality of opportunity through regulation and taxation (also, ultimately, at the point of a gun), such visions are beyond the scope of presidential authority under the Constitution.

    Doesn’t the messianic adoration of Obama, a man that might become “the most powerful man in the world,” worry liberals just a little? Where is the equivalent of the Ron Paul revolution on the left that is willing to challenge the liberal establishment’s usurpations of authority and expansion of governmental authority with the vigor Paulites have challenged Bush administration erosions of liberty from the right?

    We can’t realistically expect reining in of presidential power to Constitutional limits to come from a president, especially one that fills stadiums with the power of a preacher. Congressional candidates from both parties should be grilled on separation of powers issues and asked if they have the cajones to stand up to their own parties in defense of the Constitution.

  5. Submitted by Ron Gotzman on 07/09/2008 - 05:32 pm.

    I like Lincoln’s policy regarding military tribunals.

  6. Submitted by Craig Westover on 07/10/2008 - 02:39 pm.

    It’s a mute point – Without the anti-war message from the right, Ron Paul would have a hard time filling a stadium based on a campaign to do the federal equivalent of filling pot holes.

    Ron Paul is not preaching “unity” or “change” or any grand vision other than returning America to its constitutional roots. He’s not telling us how to raise our kids or how to educate them, or what moral values we ought to hold or advocating that we impose through force our culture on the rest of the world. To be honest, at a Ron Paul gathering there are a lot of whacky ideas floating around in the crowd – but that’s the point. As the saying goes, you don’t get ballet without brothels – in a free society you suffer a lot of whacky (or morally reprehensible) ideas to cull the good ones that sustain the nation.

    The danger of progressivism (whether the values come from the right or the left) is that it is always one charismatic leader away from mob rule. Obama has a vision – not of a necessarily free society, but of a society that functions in a certain way to achieve specific ends. (With less consistency, so does McCain.) To achieve that end, at some point, necessarily precludes individual freedom (one is not free, for example, to opt out of paying in and opting out of collecting benefits of social security; we are moving toward a health care system where one has limited choices, but one is not free to opt out for other choices or to create other choices and test them in the market; NCLB moves us toward a single, national education system).

    A perfect or aspiring to be better society cannot tolerate the imperfections introduced by individual choice. Tolerance for the imperfections introduced by individual freedom to choose will never produce a perfect society or an envisioned better society. It’s only fair to acknowledge the tradeoff.

  7. Anonymous Submitted by Anonymous on 07/10/2008 - 07:11 am.

    Iran’s Missile Threat
    July 10, 2008; Page A14

    Myriad similar examples could be cited.

  8. Anonymous Submitted by Anonymous on 07/10/2008 - 06:52 pm.

    Scientist to Congress: U.S. risks ‘catastrophe’ in nuke EMP attack
    Expert says growing threat posed by Russia, China, North Korea, Iran, terrorists
    Posted: July 10, 2008
    6:22 pm Eastern

    © 2008 WorldNetDaily
    WASHINGTON – A top scientist today warned the House Armed Services Committee America remains vulnerable to a “catastrophe” from a nuclear electromagnetic pulse attack that could be launched with plausible deniability by hostile rogue nations or terrorists.

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