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Civilian Control and the Constitution

  • Samuel P. Huntington (a1)

Extract

“Civilian control of the military is a basic principle of the American Constitution”; so runs the commonplace. It is the thesis of this article that the cliché could hardly be more inaccurate, for actually the American Constitution in the twentieth century obstructs the achievement of civilian control. It is well known that civil supremacy was a major concern of the Framers. They provided for it in the only form in which they knew it. But civilian control in the eighteenth century is very different from civilian control in the twentieth century: the Constitution which was expertly designed to provide for it then, for this very reason, frustrates it now. In presenting this thesis, it is necessary: (1) to show how the meaning of civilian control has changed over the intervening years; (2) to describe the Framers' concept and show how it was embodied in the Constitution; and (3) to demonstrate how the provisions which they thought would guarantee it impair its effectiveness today.

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1 This discussion is purely in terms of land forces because it was these which gave rise to the issues of civilian control. What is said here about the eighteenth century standing army, however, could also apply, with slight modification, to the eighteenth century navy.

2 On the differences between subjective and objective civilian control, see this author's “Civilian Control of the Military: A Theoretical Statement,” in Eulau, Heinz, Eldersveld, Samuel J., and Janowitz, Morris (eds.), Political Behavior: A Reader in Theory and Method (Glencoe, 1956), pp. 379–85.

3 For fuller treatment of the professional character of modern officership, see chaps. 1 and 2 of this author's forthcoming volume, The Soldier and the State: The Theory and Politics of Civil-Military Relations, to be published early in 1957 by the Harvard University Press.

4 See Boller, P. F. Jr., “Washington and Civilian Supremacy,” Southwest Review, Vol. 39, pp. 1012 (Winter, 1954); The Writings of Thomas Jefferson (Washington, Thomas Jefferson Memorial Association ed., 20 vols., 1905), IV, 218; Blackstone, William, Commentaries on the Laws of England (Oxford, 3rd ed., 4 vols., 1768), I, 407, 413–14.

5 See Farrand, Max (ed.), The Records of the Federal Convention of 1787 (New Haven, 4 vols., 19111937), I, 380, II, 287–90; Elliott, Jonathan (ed.), The Debates in the Several Conventions (Washington, 4 vols., 1836,) III, 372–73. For the few instances in which the clause has been invoked in practice, see Hind's Precedents of the House of Representatives (Washington, 1907), chap. XVI, and Cannon's Precedents (Washington, 1935), chap. 16.

6 Farrand, , Records, II, 326, 329–30, 563, 640, III, 207; Elliott, , Debates, I, 326, 328, 335, II, 77–80, 136–37, III, 381, 660, IV, 244; Warren, Charles, The Making of the Constitution (Cambridge, 1947), pp. 474, 483; Madison, James, No. 41, The Federalist (Modern Library ed.), pp. 262–63.

7 Farrand, , Records, I, 465, II, 385; No. 8, The Federalist, pp. 42–43; Elliott, , Debates, II, 520–21, III, 169, 378, 410–11. Patrick Henry said of the nationalist claim: “This argument destroys itself. It demands a power, and denies the probability of its exercise.”

8 Farrand, , Records, II, 136, 168, 182, 330, 385, II, 332; Elliott, , Debates, III, 382, IV, 422–24.

9 See Upton, Emory, The Military Policy of the United States (Washington, 1912), pp. 100103; Wiener, F. B., “The Militia Clause of the Constitution,” Harvard Law Review, Vol. 54, pp. 192–93 (December, 1940); White, Leonard D., The Jeffersonians (New York, 1951), pp. 540–41. Cf. Washington's revolutionary difficulties, Scott, James B., The Militia (S. Doc. 695, 64th Cong., 2d Sess., 1917), pp. 2526.

10 Todd, F. P., “Our National Guard: An Introduction to Its History,” Military Affairs, Vol. 5, pp. 73–86, 152170, at pp. 162–63 (Summer, Fall, 1941). Aside from these brief articles and a few law review pieces, little scholarly work has been done on the National Guard and the National Guard Association.

11 Official Proceedings of the Natl. Guard Assoc., 66th Annual Convention, 1944, pp. 28–29, 44; 1948, pp. 111, 242–44, 254–55; 1949, pp. 202–210. For the Gray Board recommendations, see Committee on Civilian Components, Reserve Forces for National Security (Washington, 1948), pp. 924.

12 Statement of Policy Adopted by the Natl. Guard Assn. and the Adjutants General Assn. in Joint Convention, Baltimore, May 4, 1944, pp. 1, 4; Proceedings, NGA Convention, 1944, p. 100; 1945, pp. 65–66; 1946, pp. 114–15; 1948, p. 65; Public Administration Clearing House, Public Administration Organizations, 1954 (Chicago, 1954), pp. 102, 119.

13 Proceedings, NGA Convention, 1943, pp. 89, 93–96; 1945, pp. 50–55.

14 Proceedings, NGA Convention, 1945, p. 47; 1946, p. 43; 1948, pp. 34, 66, 80–81; 1950, pp. 264–65; 1953, pp. 288–90.

15 Proceedings, NGA Convention, 1943, pp. 56, 67, 88; 1944, pp. 44, 53, 55, 58, 65, 69, 73, 74; 1945, p. 56; 1946, pp. 28–32; 1948, pp. 47–49, 57, 91–92; 1953, p. 28; Time, LXIII (Mar. 1, 1954), 18.

16 Proceedings, NGA Convention, 1948, pp. 33–34; 1950, p. 245.

17 For discussion of royal and parliamentary authority, see Blackstone, , Commentaries, I, 257–58, 262, 412–13; Omond, J. S., Parliament and the Army, 1642–1904 (Cambridge, 1933), pp. 78; Fortescue, John W., A History of the British Army (London, 13 vols., 18991930), II, 568. The Framers at first adopted in toto the language of the basic English statute, 13 Car. II, c. 6 (1661), but then realized that they could not make the President like the King commander in chief of the militia in peace as well as war. See Farrand, , Records, I, 139–140, II, 185, 426–27; No. 69, The Federalist, p. 448. For the continuing debate as to whether the war power was properly legislative or executive, see Farrand, , Records, I, 6466; Hamilton, Alexander, Works (New York, 12 vols., Federal, ed., 1904), IV, 145–46; Madison, James, Writings (New York, 9 vols., 19001910), VI, 145; Berdahl, Clarence A., War Powers of the Executive in the United States (Univ. of Illinois, 1921), p. 79. Cf. Crosskey, W. W., Politics and the Constitution (Chicago, 2 vols., 1953), I, 422–28.

18 Fleming v. Page, 9 How. 603, 615, 618 (1850). The powers of the British King as general of the kingdom extended to many nonmilitary areas. Blackstone, , Commentaries, I, 262ff. For the views of Framers on the Commander in Chief power, see Farrand, , Records, I, 244, 292, II, 145, 319, 426–27, III, 624; Elliott, , Debates, IV, 114; The Federalist, pp. 448, 482.

19 For the boundaries between presidential and congressional military powers, see Corwin, Edward S., The President: Office and Powers (New York, 1948), chap, vi; Ex Parte Milligan, 4 Wall 2 (1866); Berdahl, War Powers, passim; White, Howard, Executive Influence in Determining Military Policy in the United States (Urbana, 1924), chap. iii.

20 The most notable instances have been the increase in National Guard funds mentioned above, a 1946 increase in research and development funds, the extra money voted for the 70-group Air Force in 1948 and 1949, the increase in Marine Corps appropriations in 1955 and in Air Force appropriations in 1956. In three of these instances, the President directed that the additional funds be impounded: a clearly unconstitutional action, as I think, arrogating to the President an item veto over appropriations bills. See Williams, J. D., The Impounding of Funds by the Bureau of the Budget, ICP Case Series: No. 28 (University, Alabama, 1955). Congress, however, has yet to develop legal or political means of forcing the President to spend funds it appropriates. See Cong. Record, Vol. 95, p. 14922 (Oct. 18, 1949); H. Rept. 1797, 81st Cong., 2d Sess., pp. 309–311 (1950); House Committee on Armed Services, Unification and Strategy, H. Doc. 600, 81st Cong., 2d Sess., pp. 4950 (1950); Hearings before House Armed Services Committee on National Defense Program—Unification and Strategy, 81st Cong., 1st Sess., pp. 97–99, 300–301 (1949); Hearings before House Committee on Appropriations on Department of Defense Appropriations for 1951, 81st Cong., 2d Sess., pp. 50–62 (1950).

21 Vinson, Carl, Cong. Rec., Vol. 95, p. 3540 (March 30, 1949).

22 Sec. 202 (c) (6), National Security Act, 63 Stat. 578 (1949).

23 H. Doc. 600, 81st Cong., 2d Sess., pp. 10–12, 45, 52.

24 Hearings before Senate Committee on Appropriations on Dept. of Defense Appropriation Bill for 1955, 83rd Cong., 2d Sess., pp. 43–44 (1954); Hearings before Senate Committee on Appropriations on Dept. of Defense Appropriation Bill for 1956, 84th Cong., 1st Sess., pp. 211–12, 215–19 (1955).

25 See Farrand, , Records, I, 244, III, 217–18, 624. IV, 53; Elliott, , Debates, II, 408, 412, 522523, III, 59–60, 496–98; White, Leonard D., The Jeffersonians, p. 220, and The Jacksonians (New York, 1954), pp. 5157; Herring, Pendleton, The Impact of War (New York, 1941), pp. 146–47.

26 The theoretical rationale of the balanced pattern was developed in Mahan, A. T., “The Principles of Naval Administration,” Naval Administration and Warfare (Boston, 1908), pp. 348, and Spenser Wilkinson, Preface to the 2d edition of The Brain of an Army (London, 1913). Mahan's essay and Wilkinson's preface are brilliant analyses of executive military organization and are basic to an understanding of the subject.

27 See U. S. Navy Dept., Naval Administration: Selected Documents on Navy Department Organization, 1915–1940, passim; Coontz, R. E., From the Mississippi to the Sea (Philadelphia, 1930), p. 400; King, Ernest J. and Whitehill, Walter, Fleet Admiral King: A Naval Record (New York, 1952), pp. 261 ff., 471478; Hammond, Paul Y., “The Secretaryships of War and the Navy: A Study of Civilian Control of the Military” (Ph.D. Thesis, Harvard University, 1953), pp. 223–246, 293305.

28 Secretary of Defense, Semiannual Report, July 1 to December 31, 1954, p. 58; New York Times, January 13, 1956, p. 6; New York Herald Tribune, November 22, 1953, p. 1. November 20. 1955, Sec. 2, p. 3.

Civilian Control and the Constitution

  • Samuel P. Huntington (a1)

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