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Chapter 3 - The Constitution and Civilian Control


In 1787 the Constitutional Convention met in Philadelphia,
Pennsylvania, to draft a constitution for the newly independent United
States. George Washington was chosen to preside over this gathering.
Those assembled sought to strengthen the central government without
compromising the liberties for which the nation had fought during the
Revolutionary War. Representatives of the states produced a document
that has remained in force since 1789.
     
The Constitutional Convention devoted considerable attention
to the question of national defense. The Founding Fathers sought to
balance the need to provide the central government with the power
necessary to ensure national security against the desire to uphold
civil and political liberties. James Madison of Virginia, who later
became known as the "Father of the Constitution," wrote: "A standing
military force, with an overgrown executive, will not long be a safe
companion to liberty. The means of defense [against] foreign danger,
have been always the instruments of tyranny at home....Throughout all
Europe, the armies kept up under the pretext of defending, have
enslaved the people."
     
Several structural devices chosen by the Founding Fathers to
guard against an unduly powerful central government affected the
military provisions of the Constitution. These include:

* Federalism. The division of important powers between the state
governments and the central government.

* Separation of powers. The division of the responsibilities of the
central government among the executive, legislative and judicial
branches.

* Checks and balances. The allocation of power among the different
branches of the government such that each is protected against the
others--and the people against all--by requiring the approval by one
branch of certain decisions made by the others.

By far the most important military clause in the Constitution is found
in Article II, Section 2. It provides that "The President shall be
Commander in Chief of the Army and Navy of the United States, and of
the Militia of the several States, when called into the actual Service
of the United States." Given his dual roles of chief executive and
commander in chief, the president heads both the civil government and
the military services. His powers include appointment of officers of
the armed services. This arrangement ensures that the civilian chief
executive stands at the head of the military chain of command; through
command authority, he ensures civilian control over the making of
military policy.
     
Civilian control not only guards against military subversion,
it recognizes that military strategy is a servant of national
political goals established by the civilian government. President
Woodrow Wilson once summarized this idea in noting that the Founding
Fathers "realized that the president would seldom be a soldier." The
president was made commander in chief of the Army and Navy because
"the armed services of the country must be the instruments of the
authority by which policy was determined. It is for that reason that
we can so truly say that our organization is in no sense militaristic
and can in no sense be militaristic."

Although the executive branch plays the predominant role in
maintaining civilian control, the legislative branch of government has
a strong influence in military affairs, reflecting the principle of
separation of powers. Article I, Section 8, of the Constitution states
that "The Congress shall have power to...provide for the common
Defence...of the United States." A list of specific powers follows,
the most important being the powers "To declare War," "To raise and
support Armies, but no Appropriation of Money to that Use shall be for
a longer Term than two Years," and "To provide and maintain a Navy."
Congress also gained the authority "To make Rules for the Government
and Regulation of the land and naval Forces." These provisions
preclude the executive branch from making war without the consent of
the legislature.
     
The legislative branch was also granted considerable influence
over the state militias. It was vested with the authority "To provide
for calling forth the Militia to execute the Laws of the Union,
suppress Insurrections and repel Invasions." Although the state
governments were expected to administer the militia, the Congress
retained the power "To provide for organizing, arming, and
disciplining the Militia, and for governing such Part of them as may
be employed in the Service of the United States." The Founders assumed
that the principal source of manpower in emergencies would be the
state militias, when called into federal service; this reflected the
traditional reliance on citizen-soldiers instead of on a standing
army. These constitutional provisions for the militia illustrate the
application of federalism to divide power and thwart arbitrary
government.

Continuing widespread popular concerns about threats to civil
liberties led, in 1791, to the adoption of the first 10 amendments to
the Constitution, known as the Bill of Rights. This charter of liberty
included two items of considerable importance for the military. The
Second Amendment reemphasized the role of the citizen-soldier: "A
well-regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed." The Third Amendment protected U.S. citizens from what had
been a British practice during the pre-revolutionary period: "No
Soldier shall, in time of peace be quartered in any house, without the
consent of the Owner, nor in time of war, but in a manner to be
prescribed by law."
     
The Constitution did not mention judicial oversight of the
military, but by 1803, the courts successfully claimed the power of
judicial review--including the authority to decide the
constitutionality of legislative and executive actions. Judicial
review led to important decisions that upheld the civil liberties of
the American people--including members of the armed services--both in
peacetime and wartime.
 
Two developments during the early years of the new American republic
strengthened the legal-institutional basis for civilian control of the
military. The first was the appointment of a secretary of war by
President George Washington in 1789 and of a secretary of the navy by
President John Adams in 1798. The professional soldiers and sailors
who headed the Army and the Navy were made responsible to these
civilian officials. The two service secretaries became members of the
president's Cabinet, which did not include uniformed military
officials. There soon appeared the War Department and the Navy
Department, organizations created to provide civilian management of
the armed forces.

The second development took place in 1792, when the Congress adopted
the Militia Act, which provided statutory guidance for the state
militias. Each state was required to enroll all able-bodied white
males between the ages of 18 and 45 in the militia and to equip and
train them. Congress incorrectly assumed that the state militias would
provide all necessary manpower in time of war. In practice, the
principal method used to augment the armed forces during the first
century of United States history was the volunteer system, which had
been used during the colonial period. However, this modification of
early expectations did not compromise civilian control, because the
volunteers, like the militiamen, were citizen-soldiers who served only
during an emergency. The nation's reliance on the citizen-soldier, and
the consequent identification of the whole American people with the
nation's armed forces, is a distinguishing characteristic of the U.S.
system of national defense.

New nations are typically weak and often face serious external threats
during their early years, but the United States was largely an
exception to this rule. In 1789, shortly after the new United States
Constitution came into force, the French Revolution began. It soon led
to general warfare in Europe that continued for a generation. Thus,
the great powers that might have compromised American
independence--especially those with considerable naval power, such as
Britain, France and Spain--were engaged in warfare elsewhere in the
world.

Unfortunately, during the last phase of the Napoleonic struggles, a
dispute over maritime rights of neutral nations on the high seas in
time of war involved the United States with the European conflict. A
dangerous war with Great Britain began in 1812. Britain's eventual
defeat of France in 1814 - 1815, however, led to a negotiated peace
between Britain and the United States--the Treaty of Ghent--which
restored the status quo. Despite their failure to attain a clear
victory in the War of 1812, the American people decided that existing
constitutional and statutory arrangements were adequate to ensure the
common defense.


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SIDEBAR: Citizen-Soldiers to the White House

Curiously, despite a traditional suspicion of the military as an
institution, the American people historically have rewarded their
military men with high office, especially the presidency. Fifteen
military men have been nominated to compete for the highest office in
the land.

Of this group only seven were military professionals (Zachary Taylor,
Winfield S. Scott, John C. Fremont,George B. McClellan, Ulysses S.
Grant, Winfield S. Hancock and Dwight D. Eisenhower), and only three
of them (Taylor, Grant and Eisenhower) were successful at the polls.
By contrast, of the eight nonprofessional military men who sought the
presidency (George Washington,Andrew Jackson, William H. Harrison,
Franklin Pierce, Rutherford B. Hayes, James Garfield, Benjamin
Harrison and Theodore Roosevelt), all won office.
     
Only one military man, Dwight D. Eisenhower, gained office
during the 20th century. With the exception of Bill Clinton, every
president since 1945 served in the armed forces before taking office.
All participated in World War II, with the exceptions of Harry S.
Truman, who fought in 1918, and Jimmy Carter, a graduate of the United
States Naval Academy, who served during the Korean War era.
     
Significantly, the American people have politically rewarded
only those military heroes, whether or not professionals, who left
their military baggage behind and lent strong support to civilian
control. Those military heroes who aspired to the presidency but who
did not cultivate a civilian image, notably Admiral George Dewey and
General Douglas MacArthur, failed even to win nomination.
     
This result reflects the continuing influence of the ideal of
the citizen-soldier who rises to the defense of the country in
troubled times but puts the sword aside at the conclusion of
hostilities.