CIVIL–MILITARY RELATIONS

The Constitution has a twofold impact on civil-military relations: first, through its specific provisions on this subject: and second, through the overall structure of government and division of powers it prescribes.

Several provisions of the Constitution deal directly with civil-military relations. The second clause of Article I, section 6, prohibits members of Congress from simultaneously holding other federal office. Article I, section 8, gives Congress the power to declare war, to grant letters of marque and reprisal, to make rules concerning captures, to raise and to support armies, to provide and to maintain a navy, to make rules for the regulation of the armed forces, to provide for calling the militia into federal service, and to provide for organizing, arming, and disciplining the militia. Article I, section 10, limits the military powers of the states. Article II, section 2, makes the President commander-in-chief of the armed forces and authorizes the appointment of officers. The second amendment protects the right of the people to keep and bear arms, in order to constitute a "well-regulated militia." And the third amendment severely restricts the quartering of troops in private homes.

These provisions constitute only a skeletal framework for the relations between civil government and military forces and between the military and society. Some of them (for example, those dealing with the quartering of troops, the two-year limit on appropriations for the army, the incompatibility of congressional and military office) have become obsolete, meaningless, or unobserved in practice. When written, however, these provisions reflected a broad consensus, expressed in the debates and actions of the constitutional convention and the state ratifying conventions. Three key views underlay that consensus. The Framers believed that military power and military usurpation should be feared, that soldiering should be an aspect of citizenship, and that control of military power should be divided between state and national governments and between President and Congress.

The "supremacy of the civil over the military," said Justice frank murphy in duncan v. kahanamoku (1945), "is one of our great heritages." At the time of the framing of the Constitution, everyone agreed on the need to insure civil authority over the military. One of the indictments of George III in the declaration of independence was that he had "affected to render the Military independent of and superior to the Civil Power." Several state constitutions, including the Virginia and Massachusetts Bills of Rights, contained declarations that the military should in all cases and at all times be subordinate to and governed by the civil power. charles pinckney vainly proposed inclusion of similar language in the federal Constitution, and the lack of such a provision was the target of much criticism in the state conventions. Objections were also raised because the Constitution had no provision guarding against the dangers of a peacetime standing army.

In practice civil supremacy prevailed for two reasons: the deeply ingrained antimilitary attitudes continuously prevalent in American political culture, and the equally deeply ingrained ideal of the apolitical, nonpartisan, impartial military professional that gained ascendancy in the officer corps after the civil war. In the early nineteenth century, the line between professional officer and professional politician was unclear, and individual military officers were often involved in politics. After world war ii many military officers were appointed to high civil positions in government. Yet at no time, in peace or war, did serious challenges to civilian authority issue from the central military institutions. When, as in the Civil War and the korean war, individual military leaders challenged or seemed to challenge the authority of the President, they were removed from command. The Supreme Court, in ex parte milligan (1866), also limited military power by holding that martial law may operate only in situations where actual conflict forces civil courts to close. The Court has also narrowly defined the extent to which American civilians accompanying the armed forces overseas are subject to military justice, as in reid v. covert (1957).

In the 1780s there was general agreement that the militia should be the principal source of defense for a free society. Some members of the Constitutional Convention proposed prohibiting a standing army in peacetime or limiting the size of such an army. These proposals were rebutted both in the debates and in the federalist by arguments that there was no way to prevent another nation with a standing army from threatening the United States, and that inability to maintain such a force would invite aggression. Everyone agreed, however, that in keeping with the tradition dating from the English bill of rights of 1689, the power to establish military forces rested with Congress. There was widespread belief that appropriations for the army should be limited to one year, and a two-year limit was approved only because it seemed likely that Congress might assemble only once every two years. The Constitution is silent on the means Congress may employ to recruit military manpower. conscription was, however, an accepted eighteenth-century practice, and the Supreme Court has held that the power to "raise and support" armies included, "beyond question," the power "to classify and conscript manpower for military service" in peace or in war.

The early consensus on the central role of the militia did not extend to the question of who should control it. Traditionally, the militias had been state forces, and it was widely accepted that they should remain under state control in time of peace. The national government, however, needed the power to call on the militia to deal with invasions or insurrections. Experience in the Revolution also had demonstrated the need to insure that the militia meet minimum national standards. james madison remarked that control over the militia "did not seem in its nature to be divisible between two distinct authorities," but in the end that control was divided: the national government took responsibility for organizing, arming, and disciplining the militia, and the state governments were responsible for the appointment of officers and training. In the debates that led to this shared control, the most repeated and persuasive argument of the nationalists was the need to have a well-organized and disciplined militia under national control so as to reduce reliance on a standing army. Support in the state conventions for what subsequently became the second amendment was based on similar reasoning.

In the Militia Act of 1792, Congress did not effectively exercise its powers to organize, arm, and discipline the militia. In effect, the states retained sole control over the militia in peacetime. When required, the militia was called into federal service for the limited constitutional purposes of executing the laws, suppressing insurrections, and repelling invasions. Even in wartime, however, the assertion of federal control was controversial because the states guarded their power to appoint officers. In addition, militia units could not be used outside the United States. Thus in the nineteenth century the militia was under state control in peace and under dual control in war. Laws passed between 1903 and 1933 in effect put the militia, now called the National Guard, under dual control in peace and national control in war. Federal support was greatly expanded, federal standards were more effectively imposed, and provision was made to order the National Guard into federal service in war under the army clause of the Constitution, thus precluding any assertion of state power.

In Great Britain the king was the commander-in-chief of the army and navy and in some states the governors played similar roles. The Federal Convention gave the President command of the national military forces and of the militia when in federal service. War Presidents, most notably abraham lincoln, franklin roosevelt, and lyndon b. johnson, actively directed military operations. The commander-in-chief clause is unique in the Constitution in assigning power in terms of an office rather than a function. It is, consequently, unclear to what extent it gives the President powers extending beyond military command. In The Federalist,alexander hamilton wrote that the clause grants "nothing more than the supreme command and direction of the military and naval forces"; yet he also wrote that the clause makes the executive responsible for the "direction of war" and gives him "the power of directing and employing the common strength." The latter definition might justify a President's seizing a steel plant to insure the continuation of war production; the former clearly would not. Beginning with Lincoln, Presidents have, however, used the clause to justify the exercise of a wide range of war powers.

The ineligibility clause of the Constitution expressly prohibits appointment of congressmen to civil positions created while they are in Congress. The Framers specifically exempted military positions, because, in case of a war, citizens capable of conducting it might be members of Congress. The incompatibility clause, on the other hand, applies to both civil and military offices. Enforced in the nineteenth century, this prohibition against simultaneously holding legislative position and military office has been frequently and systematically violated in the twentieth century by congressmen holding reserve commissions in the military services.

The more fundamental provisions in the Constitution regarding the distribution of power have had an equal effect on shaping civil-military relations, complicating, and at times frustrating, the achievement of civilian control over the military. federalism required that authority over the militia be divided between state and national governments. This division has enhanced the power of the militia by giving them two masters that might be played off against each other. The division of control over the national forces between Congress and President has worked in comparable fashion. Military officers testifying before congressional committees have some freedom to determine how far they should go in defending the policies of their commander-in-chief and how far they should go in expressing their own views. Military officers working in implicit cooperation with influential members of Congress may be able to undermine policies of the President. In addition, the commander-in-chief clause has at times been interpreted to encourage a direct relationship between the President and the uniformed heads of the armed services, bypassing the civilian secretaries of those departments. The Framers clearly intended to establish firm civilian control over the military, and many specific provisions are designed to secure that goal. Yet, by limiting the power of each branch of the government, the constitutional system effectively limits the power those branches can exercise over the military.

Samuel P. Huntington
(1986)

Bibliography

Huntington, Samuel P. 1957 The Soldier and the State: The Theory and Politics of Civil-Military Relations. Cambridge, Mass.: Harvard University Press.

Riker, William H. 1957 Soldiers of the States: The Role of the National Guard in American Democracy. Washington, D.C.: Public Affairs Press.

Smith, Louis 1951 American Democracy and Military Power. Chicago: University of Chicago Press.