Abraham Lincoln on Executive Options for Unauthorized, Preemptive War

(Crossposted from American Constitution Society :: Columbia Law School)

On October 10 and October 11, 2002, the House of Representatives and the Senate, respectively, passed a joint resolution that came to be known as the Authorization for Use of Military Force Against Iraq Resolution of 2002. This resolution, signed by President Bush on October 16, 2002, specifically authorized the President to use our armed forces to "(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq." At the time of the resolution, the Executive Branch wanted a resolution authorizing military action throughout the Middle East, however, the Joint Resolution only authorizes military action in Iraq.

Current bellicose bluster from administration officials, direct White House involvement with intelligence assessments, military brass presentations, and aggressive troop movements in the Persian Gulf indicate that the Executive Branch may be interested in provoking a military or paramilitary response from Iran.

Beyond merely provoking an Iranian response, other sources close to the current administration claim that the Executive Branch may contemplate a preemptive, unprovoked strike against Iran, even without Congressional authorization.

If the Executive Branch's behavior were to constitute a first strike in a shooting war between the U.S. & Iran, Abraham Lincoln would likely consider the behavior unconstitutional at best and anti-republican at worst. He wrote this letter to his law partner, William Herndon, shortly after the culmination of the Mexican-American War. In an earlier letter, Herndon had argued that the President could initiate war against Mexico without Congress's prior authorization.

WASHINGTON, February 15, 1848.

DEAR WILLIAM:--Your letter of the 29th January was received last night. Being exclusively a constitutional argument, I wish to submit some reflections upon it in the same spirit of kindness that I know actuates you. Let me first state what I understand to be your position. It is that if it shall become necessary to repel invasion, the President may, without violation of the Constitution, cross the line and invade the territory of another country, and that whether such necessity exists in any given case the President is the sole judge.

Before going further consider well whether this is or is not your position. If it is, it is a position that neither the President himself, nor any friend of his, so far as I know, has ever taken. Their only positions are--first, that the soil was ours when the hostilities commenced; and second, that whether it was rightfully ours or not, Congress had annexed it, and the President for that reason was bound to defend it; both of which are as clearly proved to be false in fact as you can prove that your house is mine. The soil was not ours, and Congress did not annex or attempt to annex it. But to return to your position. 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 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. If to-day 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."

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. But your view destroys the whole matter, and places our President where kings have always stood. Write soon again.

Yours truly,
A. LINCOLN.

Letter from Abraham Lincoln to William Herndon (Feb. 15, 1848), in The Writings of Abraham Lincoln - Volume 2: 1843-1858 (Arthur Brooks ed., 1923) (emphasis added).

Hat tip to Andrew Sullivan.