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President Abraham Lincoln and War Powers
Abraham Lincoln and War Powers
| President Abraham Lincoln |
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| Full-length portrait of President Abraham Lincoln, ca. 1863. LOC. |
Introduction
From 1861 to 1865, President Abraham Lincoln had imposed martial law and imprisoned
thousands, he had rendered both the Supreme Court and Constitution as impotent and irrelevant, and he had silenced
Freedom of Speech and had repudiated Due Process, and by 1865, as a result of Lincoln's war, the nation's vanquished
had totaled more than 620,000 souls. Meanwhile, Lincoln had never declared war.
The powers of the President of the United States are set forth in
Article II of the Constitution. The President is the head of the Executive Branch and his job is to approve the laws
that Congress creates. When the Senate and the House approve a bill, they send it to the President. If he agrees with the
law, he signs it and the law goes into effect. The Supreme Court, not the President, decides if a law or government action
violates the Constitution.
(Right) Unretouched Full-length Portrait of President Abraham Lincoln. Titled:
"He towers above the head clamp. Photograph by Alexander Gardner, Washington, D.C., Sunday, August 9, 1863. Visible behind
Lincoln's legs are the tips of the iron stander which supports the rod holding the head clamp, or 'immobilizer,' designed
to keep the subject motionless during the exposure. A draped box about a foot high was placed under the stander to lift the
immobilizer to the President's six-foot, four-inch height." Library of Congress.
Historically,
to avoid a vote by Congress and a formal declaration of war, past U.S. presidents have used semantics to circumvent
an outright declaration of war. The office of the presidency has avoided the Congress with numerous precedents
and under the guise of euphemisms such as: the United Sates is currently "suppressing a rebellion," and the U.S.
is employing "limited military action," or, here are the most common two words from former American presidents -- the nation
is currently involved in a "humanitarian mission." Without the consent of Congress, President Abraham Lincoln is a prime example
of going to war without declaring war. Lincoln, without congressional authorization, mobilized the military -- in what
was known as Lincoln's Call For Troops (1861) -- and marched it into the Southern states (1861-1865) and fought a bloody four
year Civil War that resulted in the death of at least 620,000 Americans, including men, women, and children. See also What was the Main Cause of the Civil
War? A Study of Slavery, States' Rights, Secession, State and Federal Governments, Constitution, Supreme Court, and President
Abraham Lincoln.
War Powers
Chief Justice of the United States Supreme
Court Roger Brooke Taney personally administered the oath of office to Lincoln, his most prominent critic, on March 4,
1861. When the Civil War commenced, he continued to trouble Lincoln during the three years he remained Chief Justice. After
President Lincoln suspended the writ of habeas corpus in parts of Maryland, Taney ruled
as Circuit Judge in Ex parte Merryman (1861) that only Congress had the constitutional authority and power to take this action. Lincoln
allegedly made an aborted attempt to arrest Taney himself in response to his habeas corpus decision. Lincoln also ignored
the court's order and continued to arrest prisoners without the privilege of the writ, though Merryman was eventually released
without charges.
Taney referred to
Lincoln's suspension of habeas corpus as an unconstitutional act and despotism. Lincoln and the U.S. military closed
down anti-war newspapers; censored telegraphs, sermons and sheet music; unlawfully arrested thousands for expressing anti-Lincoln
or anti-war sentiments (including in the Northern states); and declared Civil War on the Southern states.
The United States Constitution was created with checks and balances and with each of the
three branches of government limited in its power.
Article I, Section
8, Clause 11 of the United States Constitution, often referred to as the War Powers Clause, vests in the Congress the
exclusive power to declare war, in the following wording: [Congress shall have Power...] To declare War, grant Letters of
Marque and Reprisal, and make Rules concerning Captures on Land and Water[.]" Notice that the Executive branch, the President,
is not reserved the power to declare war, period.
With
the Mexican-American War looming in 1846, (then) Congressman Lincoln believed and stated that only Congress possessed absolute
authority for war powers or war-making power. He referred to any president who declared any war without the consent of Congress
as an oppressive and tyrannical king. Congressman Lincoln then moved for a Resolution issuing the President (Polk) interrogatories
(questions) so the Congress could determine and declare war against Mexico. Years later as president, Lincoln, however, without
the consent of Congress, declared war on the rebellion in the Southern states.
“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.” --1846, Congressman
Abraham Lincoln addressing President James Polk
Separation of Powers
Governmental power and functions in the United States rest in three branches of government:
the legislative, judicial, and executive. Article 1 of the Constitution defines the legislative branch and vests power to
legislate in the Congress of the United States. The executive powers of the President are defined in Article 2. Article 3
places judicial power in the hands of one Supreme Court and inferior courts as Congress sees necessary to
establish.
Though in this system of a "separation of powers" each branch operates independently of
the others. However, there are built in "checks and balances" to prevent tyrannous concentration of power in any one branch
and to protect the rights and liberties of citizens. For example, the President can veto bills approved by Congress and the
President nominates individuals to serve in the Federal judiciary; the Supreme Court can declare a law enacted by Congress
or an action by the President unconstitutional; and Congress can impeach the President and Federal court justices and judges.
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(Left) Abraham Lincoln was a strong proponent of the Union and he thought
secession unlawful and that it was also his oath as president, as well as his constitutional duty, to preserve it at all cost.
The U.S. Supreme Court, according to Article III of the U.S. Constitution, however, stands as the ultimate authority
in constitutional interpretation. The Supreme Court had exclusivity and sole responsibility to interpret the Constitution
as it related to secession, while the office of the president and the executive branch was not reserved that right or power.
Lincoln, nevertheless, thought otherwise, and he justified many of his actions as necessary during an armed insurrection that
threatened the Union as well as the existence of the Constitution itself. Presidential authority and powers during times
of conflict are still being debated from the floors of Congress to the nation's law schools.
| Abraham Lincoln visiting with George McClellan |
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| Commander-in-Chief Abraham Lincoln, Sept. 1863, National Archives. |
War
and Euphemisms
What is the difference between a war, a surgical strike, engaged in hostilities, humanitarian
mission (with the employment of bombs and missiles as part of the mission), aiding the so-called freedom fighters (by also
using bombs and missiles), limited military action, or suppressing a rebellion?
A few ways to examine it:
1)
Any nation or party on the receiving end of any of the above scenarios is in a position to consider it an act of
war. The nation or party under attack may very well declare war, or a formal declaration of war against the nation that
attacked it, and subsequently does it convert from a humanitarian mission or limited military action to a "war"
for or by both parties?
Or
2) The stated phrases are all merely euphemisms for war.
(Right) President Abraham Lincoln visiting
with Major General George B. McClellan days after the Battle of Antietam. Antietam Battlefield, September 1863, National Archives.
U.S. Constitution
Article I, Section 8, Clause 11 of the United States Constitution,
sometimes referred to as the War Powers Clause, vests only in the Congress the power to declare war, in the following wording:
"The Congress shall have Power...To declare War, grant
Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"
According to the Constitution, the President does not have
the power to declare war.
Judicial
Branch
The Judicial Branch of government is established
in Article III of the Constitution with the creation of the Supreme Court. This court is the highest court in the country
and is empowered with the judicial powers of the government. There are lower Federal courts but they were not created by the
Constitution. Rather, Congress deemed them necessary and established them using power granted from the Constitution. Courts
decide arguments about the meaning of laws, how they are applied, and whether they break the rules of the Constitution. A
court's authority to decide constitutionality is called judicial review.
War Powers Resolution, November 7, 1973
More than one century after the American Civil War, with the
War Powers Resolution, separation of powers and checks and balances ceased to exist, because with ambiguity the resolution
transferred war making power solely to the Executive Branch, the President.
In 1973, with the War Powers Resolution (the law is frequently referred to
as the "War Powers Act") the Congress reinterpreted the Constitution and the President's war powers. That was a mistake. The
Congress committed an unconstitutional interpretation, because interpreting the Constitution is reserved exclusively for
the United States Supreme Court.
The Constitution states that only Congress has the power to declare war, so the
War Powers Resolution is therefore unconstitutional. The ambiguity of Section 3 of the 1973 War Powers Resolution states
that the "President in every possible instance shall consult with Congress before introducing U.S. armed forces into
hostilities..."
"SEC. 3. The President in every possible instance shall consult with
Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities
is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until
United States Armed Forces are no longer engaged in hostilities or have been removed from such situations."
According to the Constitution, the President does not have the power to consult with Congress after he
has introduced the U.S. military into hostilities. Also, according to the 1973 War Powers Resolution, the President,
if possible, will consult with Congress before U.S. forces are engaged in hostilities. Consequently, the resolution
transfers war powers to the President because it states that if it is not possible, or impossible, the President may
introduce our nation's armed forces into hostilities or war and subsequently consult with Congress. In other
words, the President may mobilize the armed forces, engage in war, and afterwards consult with the Congress.
| Abraham Lincoln |
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| Abraham Lincoln Quote |
Supreme Court
The United States Supreme Court is the final arbiter in
interpreting the U.S. Constitution and which law or government action violated it.
The Constitution established the Supreme Court
as the highest court in the United States. The authority of the Court originates from Article III of the U.S. Constitution.
One of the Supreme Court’s most important responsibilities
is to decide cases that raise questions of constitutional interpretation. The Court decides if a law or government action
violates the Constitution. This is known as judicial review and enables the Court to invalidate both federal and state laws
when they conflict with the Constitution. Since the Supreme Court stands as the ultimate authority in constitutional interpretation,
its decisions can be changed only by another Supreme Court decision or by a constitutional amendment.
Judicial review puts the Supreme Court in a pivotal role
in the American political system, making it the referee in disputes among various branches of the Federal, as well as state
governments, and as the ultimate authority for many of the most important issues in the country.
The Supreme Court exercises complete authority over the
federal courts, but it has only limited power over state courts. The Court has the final word on cases heard by federal courts,
and it writes procedures that these courts must follow. All federal courts must abide by the Supreme Court’s interpretation
of federal laws and the Constitution of the United States. The Supreme Court’s interpretations of federal law and the
Constitution also apply to the state courts, but the Court cannot interpret state law or issues arising under state constitutions,
and it does not supervise state court operations.
| War Powers invoked as Southern States Secede |
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| President Lincoln, Southern Secession, and War Powers |
Why
didn't the Supreme Court interpret the Constitution and address War Powers and
Secession?
Because
President Lincoln (1861-1865) thought otherwise, and he also opined and stated that: "Now, therefore, I, Abraham
Lincoln, President of the United States in virtue of the power in me vested by the Constitution and the laws, have "thought"
[emphasis by the writer] fit to call forth, and hereby do call forth, the militia of the several States of the Union, to the
aggregate number of 75,000, in order to suppress said combinations and to cause the laws to be duly executed."
With
the preceding proclamation by Lincoln, the president not only overstepped his executive power (Article II of the
Constitution) by interpreting the Constitution (according to Article III the Supreme Court interprets
the Constitution), but Lincoln also mobilized
a massive army and marched it deep into the Southern states, fought a four year war without congressional approval (violation
of Article I, Section 8, Clause 11), and caused the greatest
loss of life in the history of the United States.
Lincoln's
comment that "the power in me vested by the Constitution and the laws, [I] have thought..." is most troublesome, since no
such power was vested in him by the Constitution. Article II of the Constitution, furthermore, does not vest that power
in the office of the presidency.
Separation
of powers and checks and balances, according to Lincoln, nevertheless, were meaningless because, as president,
he "thought" that he held the ultimate authority and power to interpret the Constitution, and that his "thought" was
final, even though, according to Article III of the Constitution, he had no constitutional right or power to act. Lincoln
would also suspend the writ of habeas corpus, impose martial law, and imprison thousands without due process, even
when, according to the Chief Justice, Lincoln lacked authority to do so.
Article
III of the Constitution states emphatically that the Supreme Court stands as the supreme authority in constitutional
interpretation.
The Constitution established the Supreme Court as the highest court in the United
States, and one of the Supreme Court’s most important responsibilities is to decide cases that raise questions of constitutional
interpretation. The Court decides if a law or government action violates the Constitution. This is known as judicial review
and enables the Court to invalidate both federal and state laws when they conflict with the Constitution. Since the Supreme
Court stands as the ultimate authority in constitutional interpretation, its decisions can be changed only by another Supreme
Court decision or by a constitutional amendment.
| Abraham Lincoln and Separation of Powers |
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| First photo of President Abraham Lincoln. Touched. LOC. |
If secession and war were constitutional or unconstitutional then it was the Supreme
Court, through judicial review, who should have addressed it.
By 1861, regarding war powers, President Abraham Lincoln had utterly disregarded
his own words in his 1846 address to President James Polk:
“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.” --1846, Congressman
Abraham Lincoln addressing President James Polk on war powers
(Right) The first
photographic image of Abraham Lincoln as president. Abraham Lincoln. Salt print.
Ostendorf O-55. The earliest presidential portrait of Lincoln. Dated between March 1, 1860 and June 30, 1860. Library
of Congress.
During the Civil War, the deadliest war in the nation's history, Lincoln continuously circumvented the law and in many
cases suspended the Constitution of the United States altogether. In doing so, Lincoln denied the rights of citizens he was
sworn to protect. He suspended the writ of Habeas Corpus, closed courts by force, and arrested thousands of citizens and elected
officials without cause. Lincoln also raised troops without the consent of Congress, invaded the neutral Border States and
imposed martial-law, and closed-down newspapers whose writers displayed any dissent to U.S. policy.
Chief Justice Taney opposed every presidential wartime initiative and openly challenged Lincoln's
suspension of the writ of habeas corpus. Taney even accused the president of assuming dictatorial powers in violation
of the Constitution. Lincoln, who ignored Taney's protests and brushed aside the Supreme Court, was convinced that
only his sole actions and decisions were both constitutional and necessary to preserve the union. Because of Lincoln's
actions, separation of powers and checks and balances had been repudiated and replaced by despotism.
Conclusion
While Lincoln was in office, his actions had rendered both the Supreme Court
and Constitution as impotent and irrelevant. Lincoln had also ordered the arrest of prominent citizens such as Baltimore
police Chief George P. Kane, police commissioner Charles Howard, as well as fellow commissioners: William H. Gatchell, John
W. Davis, and Charles D. Hinks. Baltimore Mayor George W. Brown was arrested and sent to Fort McHenry. The men were incarcerated
because they dared to publicly disagree with Lincoln and refused to carry-out the President's tyrannical orders.
Fort McHenry, in Baltimore, Maryland, is a coastal star-shaped fort best known
for its role in the War of 1812, when it successfully defended Baltimore Harbor from an attack by the British navy in Chesapeake
Bay during September 13–14, 1814. It was during the bombardment of the fort that Francis Scott Key was inspired
to write "The Star-Spangled Banner," the poem that would eventually be set to the tune of "To Anacreon in Heaven" and become
the national anthem of the United States. During the Civil War, Key’s grandson, Francis Key Howard, was imprisoned at
McHenry because, according to President Lincoln’s policy, he was deemed a Southern sympathizer along with 2,000 political
prisoners, including 28 newspapermen, 31 members of the Maryland General Assembly,
and the mayor of Baltimore. See also Maryland Civil War History.
As President Abraham Lincoln had imposed martial law and imprisoned thousands,
he had rendered both the Supreme Court and Constitution as impotent and irrelevant, and he had silenced Freedom
of Speech and had eliminated checks and balances and Due Process, and by 1865, as a result of Lincoln's unconstitutional and unconscionable
four year war, the nation's vanquished had totaled more than 620,000 souls (equivalent to 6,000,000 today). Meanwhile,
Lincoln had never declared war.
See also
Return to American Civil War Homepage
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