The Optional Constitution

President Bush’s recent speech at West Point contained a remarkable claim that deserves more attention than it has received. “If we wait for threats to fully materialize, we will have waited too long,” he said. Therefore the U.S. Government will take “preemptive action when necessary.”

Bush was alluding to Iraq. He is still sending out signals that he plans to attack Iraq on the mere suspicion that Saddam Hussein is supplying terrorists with weapons with which to attack the United States. As he said in his state of the Union speech, “I will not stand by as peril grows closer and closer.”

“I,” not “we.” Bush assumes he has the authority to make war on Iraq on his own, without a declaration of war from Congress. Apparently he thinks the vaguely defined “war on terrorism” authorizes him to take any steps he personally deems “necessary” to fight terrorism, however tenuously related to the September 11 attacks. In other words, he claims the right to attack any country on earth, so long as he chooses to do it in the name of fighting terrorism.

Nobody seems to be demanding evidence that Iraq is actually helping terrorists. We are to take Bush’s word for it that he has proof — privileged information he can’t share with us — and that he has evaluated it intelligently. These are large assumptions.

A healthy suspicion is in order. In 1847, Abraham Lincoln, then a freshman congressman from Illinois, accused President James Polk of making war on Mexico “unnecessarily and unconstitutionally.” Polk had claimed that Mexico had started the war by firing on Americans; Lincoln demanded to know where and when. Polk didn’t deign to answer.

Lincoln explained to his friend and law partner William Herndon that the U.S. Constitution had been crafted to prevent the power to make war from being exercised by any single man. Kings had traditionally had this power, and had constantly involved their subjects in wars on the pretext of serving “the good of the people.” But the American Republic had been designed to give the people themselves the war-making power, through their elected representatives in Congress. According to Lincoln, Polk had craftily usurped this power, and was acting as a tyrant.

Lincoln’s argument backfired. Not only did it have no effect on Polk; the Illinois press smeared Lincoln as a “traitor” and a “Benedict Arnold” for opposing the president’s war. He had behaved honorably; his reward was the loss of his seat in Congress. His political career appeared to be over.

Unfortunately, Lincoln drew the wrong lesson from this experience. He learned that in wartime, a president can get away with anything and opponents of war can easily be smeared and silenced. He made a brilliant political comeback and became president in 1860; during the Civil War he far outdid Polk in usurping power and cracking down on critics. His best biographer, David Herbert Donald, acknowledges that the Lincoln administration was the worst period for civil liberties in American history.

Generations later, Woodrow Wilson and Franklin Roosevelt would also realize that a president could virtually suspend the Constitution during wartime. Suppressing dissent, violating the Bill of Rights, even persecuting ethnic minorities, could be justified in the name of “defense” — or, as we would now say, “homeland security.” Today’s fear of terrorists was foreshadowed by fear of ubiquitous saboteurs.

Time and again, wars have given presidents enormous personal latitude and discretion, and the Constitution has been trampled by the very men who were pledged to see that the laws were “faithfully executed.” But at least President Lincoln was forced to argue, however tortuously, that he was not really acting unconstitutionally when he appeared to be. Later presidents have simply ignored constitutional questions, as President Bush is doing.

How odd that Americans, and not just their presidents, have come to think of their Constitution as something separable from the government it’s supposed to constitute. In theory, it should be as binding on rulers as the laws of physics are on engineers who design bridges; in practice, its axioms have become mere options. Of course engineers don’t have to take oaths to respect the law of gravity; reality gives them no choice. Politics, as we see, makes all human laws optional for politicians.

Joseph Sobran