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Civilian Control and the ConstitutionAuthor(s): Samuel P. HuntingtonSource: The American Political Science Review, Vol. 50, No. 3 (Sep., 1956), pp. 676-699Published by: American Political Science AssociationStable URL: http://www.jstor.org/stable/1951551Accessed: 06/11/2009 14:23

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CIVILIAN CONTROL AND THE CONSTITUTION

SAMUEL P. HUNTINGTON

Harvard University

"Civilian control of the lnil itary is a basic principle of the American Con-Btitution"; so runs the commonplace. I t is the thesis of this article that th eeliche could hardly be more inaccurate, for actually the American Constitutionin the twentieth century obstructs th e achievement of civilian control. It is\vell known that civil supremacy was a major concern of the Framers. Theyprovided for it in the only form in which they knew it . But civilian control inthe eighteenth century is very different from civilian control in the twent ie thcentury: th e Constitution which ,vas 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 ha s changed over th e inter-vening years; (2) to describe th e Framers' concept and show how it was em-bodied in th e Constitution; an d (3) to demonstrate how th e provisions whicht hey thought would guarantee it impair it s effectiveness today.

I. CIVILIAN CONTROL IN T HE E IG HT EE NT H AN D TWEN TIETH CEN TU RIES

rrhe late eighteenth century knew tw o general types of military force.! Th e;.;tanding army was an institution of the European monarchy. Enlisted me n\vere recruited for long periods of service from the worst elements of society

through a mixture of bribery an d coercion. Officers, on the other hand, weredrawn from the aristocratic classes. On the continent, b irt h an d social statusdetermined eligibility for commissions. In England the purchase system pre-vailed: mil itary commissions were only open to those who had sizeable in-dependent means. A sharp line thus divided th e officers from the enlisted men.' fh e l at te r were an outcaste group with few ties to civil society; the officers\tvere drawn from th e same groups which furnished the social an d politicalleadership of the country. The standing army ,vas essentially an aristocraticinstitution, and the eighteenth century could not conceive of it otherwise.

Th e alternative to the standing army ,vas the citizen militia. England ha d a

long militia tradition, but it had also been a long tinle since th e English countymilitia had ever resembled an effective military force. In America, on the otherhand, th e militia units of the various colonies played a not unimportant role inmaintaining th e security of the colonies an d protecting the settlements againstIndian attacks. The militia tradition, moreover, received rene\ved vigor in th e"minu te man" companies of the Revolution. Unlike the s tanding army, themilitia was essentially a democratic institution, with officers an d enlisted me ndrawn from the common body of citizens. Indeed, in many militia units the

1 This discussion is purely in terms of land forces because i t \vas t he se which g av e riseto th e i ssues of civil ian control. What is said h e r ~a bo ut th e eighteenth century standingarmy, h owev er, c ou ld also apply, with slight modification, to th e eighteenth centurynavy.

676



CIVILIAN C ONTR OL AND TH E CONSTITUTION 677

oflicers were elected. Neither officers no r enlisted men were divorced fromsoeiety; their military duties were simply one aspect of their role as free men ina free society.

Both systems provided for civilian control, an d through essentially the samemethod, that is, by insuring that th e military leadership of the armies reflectedthe same interests, values, an d outlook as th e political leadership of society.The organization of the armed forces depended upon the political constitutionof society: there were no universal principles of military organization good forall societies. In an aristocratic society, the armed forces were aristocraticallyorganized: th e lower classes were excluded from officership. In a democraticsociety, th e armed forces were democratically organized: commissions wereopen to all an d officers were chosen by election from the ranks or by appointment by democratically elected legislatures. Throughout th e struggles inEurope at the end of th e eighteenth century bet\veen the Old Regime an d thebourgeois liberal elements, th e supporters of the former strove to preserve theexisting standing armies while the latter advocated some form of nationalmilitia or Landwehr. No clear distinction existed between what ,vas political and\vhat was military. Military an d political leadership merged, sharing a commonorigin an d outlook. In one sense, civil-military relations did not exist becausemilitary institutions were no t yet differentiated from the other institutions ofthe state and society. Group conflicts in the political arena were paralleled by('onflicts among th e representatives of the same groups in th e military arena.(jivilian control in this sense ma y be described as subjective. 2

In th e nineteenth century subjective civilian control became obsolete. Thernass armies of the French revolutionary an d American civil wars, the growth of

population, the development of technology, th e beginnings of industrialism,an d the rise of urbanism-all contributed to increased functional specializationan d division of labor. Armies an d navies became complex organisms embodyinghundreds of different specialties. Thereby th e need for st ill another specialistarose: th e expert in coordinating an d directing all these diverse parts to theirassigned goal. No longer was it generally possible to master this skill whilestill remaining competent in other fields. No longer could the European amateuraristocrat and the American Jacksonian citizen soldier direct armies as a part

tinle pastime. Military science an d military leadership emerged as a dis tinctarea of human knowledge an d endeavor, to be mastered only by sustained an dconcentrated effort. Officership became an exclusive role, defined by skill ratherthan by social status or popularity. In short, officership was professionalized.1-'he professional skill of the officer became, in Harold Lasswell's phrase, "themanagement of violence," an d his professional responsibility became th enlilitary security of his client, society.

'This change forced n at io n a ft er n at ion to alter the character of it s officer

2 On th e differences between subjective an d objective civilian control, see this author's"Civilian Control of th e Military: A Theoretical Statement," in Heinz Eulau, Samuel J.] ~ l d e r s v e l d ,an d Morris Janowitz (eds.), Politi cal Behavior: A Reader in Theory an d

Method (Glencoe, 1956), pp. 379-85.



678 THE AMERICAN POLITICAL SCIENCE REVIEW

corps. Entrance was opened to all social classes on th e basis of merit an d education. Promotion was based upon professional qualification measured by experience an d ability. Unskilled outsiders were gradually excluded from positionsof military command. Educational ins ti tu tions such as Sandhurst and Westl>oint for th e preliminary training of officers were established in th e first part of

th e century. 1-'he proliferation of advanced military schools, staff and wa r colleges followed. Military staffs developed to apply professional knowledge toth e direction of military operations. Th e officer corps thus became an autonon10US professional b od y wit h i ts own distinctive skills, standards, organization,esprit, an d sense of professional responsibility to the state which it served.l\1ilitary institutions no longer reflected th e political principles d om in an t i nsociety. Instead, they reflected occupational imperatives springing from th enature of th e military function. 3

'rhe same change drastically altered th e nature of civilian control. Actually,by differentiating th e role of th e officer from other social roles, i t created th emodern problem of civil-military relations. Th e soldier becomes th e professional military adviser to the political leaders. In acquiring a distinct area of

professional competence, ho\vever, he also acquires an incompetence in areasoutside that field. Civilian control thus depends upon th e extent to \vhich th emilitary leaders adhere to their roles as professional advisers. Civilian control isundermined if they s tray outside th e military sphere or if th e civilians make itimpossible for them to discharge their professional responsibilities. The professional military officer obeys th e state no t because he shares the outlook

an d values of its leadership, but simply because it is his professional respon~ i b i l i t yto obey. This objective civilian control is th e form required by the conditions of modern \vestern society. It is directly opposed to the subjective controlprevalent in th e eighteenth century. Subjective control achieved its end bycivilianizing th e military, making th em th e mirror of the state. Objective contro l achieves i ts end by militarizing the military, making th em t he tool of thestate. Subjective control presupposed military participation in politics; objective control requires military abstention from politics. Most of th e countries of

Europe, North America, and the British Commonwealth have achieved somedegree of objective control; subjective control sti ll prevails in much of Latin

i\merica, the Middle Eas t, a nd Southeast Asia. Subjective control is furtheredby constitutional forms an d governmental institutions which mix political andnlilitary responsibilities and which disperse control over military affairs amonga number of governmental agencies. Objective control is furthered by forms andinstitutions which clearly delimit polit ical and military responsibilities an d\vhich place control over military affairs in a single recognized legitimateauthority.

3 For fuller t reatment of th e professional character of modern officership, see chaps. 1and 2 of this author 's forthcoming volume, The Soldier and the State: The Theory an dPolitics of Civil-Military Relations, to be p ub li sh ed e ar ly i n 1957 by the Harvard Univer-sity Press.



C IV IL IA N C ON TR OL A ND TfIE CONSTITUTION 679

I I . THE FRAMERS AN D C IVILIAN C ONTR OL

Iror the purposes of objective civilian control the American Constitution wasdrafted at just the ,vrong time in history. T,venty-five years or more later, it sclauses about 11lilitary affairs might well have been w ri tt en v er y differently.}\>r v/i th all their political ,visdom and insight the Framers, ,vith a fe\v exceptions, did not foresee the emergence of military professionalism and objectivecivilian control. Their i deas on military officership, military forces, and governmental organization ,vith respect to military affairs all reflected a subjectivetheory of civilian control.

Jlf ilitary Officership. 'l-'he Constitution does not envisage a separate class ofpersons exclusively devoted to military leadership. " I am not acquainted withthe military profession," George IVlason proclaimed at the Virginia ratifyingconvention, and except for Hamilton, Pinckney, and a fe,v o thers he spoke forall the Framers. Military officership was t he a tt ri bu te of any nlan of affairs.IVlany members of the Federal Convention had held military rank during theIlevolution; vVashington was only the most obvious of the soldier-statesmen.'I'hey combined i n t he ir own persons military and political talents much as th esalnurai founders of modern Japan also combined them a hundred years later.]1:ehoing Blackstone, Washington believed tha t \vhen he "assumed the soldier"he "did not lay aside the citizen .... " An d Jefferson similarly condemned thedistinction "between the civil and military, \vhich it is for the happiness of bothto obliterate."4

These views were clearly revealed in the ineligibility and incompatibility

clauses of Article I, Section 6:~ 0 Senator or Representatives shall, during th e Time for wh ich he was e le ct ed , b e

appointed to any civil office under th e Authority of th e U nited S ta tes, "which shall haveheen c re at ed , o r th e Emoluments , , ~ h e r e o fshall have been increased dur ing s uch time;an d n o p er so n holding any Office u nd er th e United States shall be a Member of eitherl Iouse dur ing his Continuance in Office.

The Convention almost unanimously supported the second clause of this paragraph making legislative office incompatible with jud ic ia l o r executive (including military) office. This helped to enforce the separation of powers. I t reflectedth e necessi ty of keeping the legislature distinct from the executive rather than

the desirability of keeping the political distinct from the military. Attention a tth e Convent ion centered on the f irst clause of the paragraph. As reported fromth e Committee of Detai l, this clause proposed to make members of the legislature ineligible for appointment to an y national office during the time for ,vhichthey were elected. Opinions on the desirability of permitting legislators toassume civil office varied and vvere finally resolved by compromise. There ,vas,however, a universal belief tha t Senators an d Representatives should be eligible

4 See P. F. Boller, J r. , " Wa sh in gt on and Civilian Supremacy," Southwest Review,Vol. 39, pp. 10-12 (Winter, 1954); The Writings of Th01nas Jefferson (Washington,Thomas Jefferson Memorial Association ed. , 20 vols. , 1905) , IV, 218; William Blackstone,

Cotnmentaries on the Laws of England (Oxford, 3r d ed. , 4 vols., 1768), 1,407,413-14.




for appointment to a military office. "Exclude the officers of t he a rmy & navy,"said Gouveneur Morris, "and you form a band having a different interest from& opposed to th e civil po\ver: you stimulate them to despise & reproach those'talking Lords who dare n ot face th e foe.' " What would occur, he inquired,

in th eC:l,se of a war, an d th e Citizen th e most capable of conducting it , happening to be a membe r of th e Legislature. What migh t have been th e consequence of such a regulation a t th ecommencement, or even in th e Course of th e late contest for ou r liberties.

Others such as John Randolph who favored th e general ineligibility of legislatorsfor executive office also recognized that military talent might well exist inCongress; they supported an exception with respect to military office. Consequently, the final draft applied incompatibility to both civil an d militaryoffice but th e eligibility limitations only to civil office. Subsequently in the

\Tirginia convention l\Iadison defended th e eligibility provisions concerningcivil office by citing th e absence of any such restrictions upon appointment tonlilitary office. His argument, together with th e lack of any opposition to legislative eligibility to military office in the ratification debates, indicates how widespread was th e acceptance of this Cincinnatus theory of military leadership. 6

.Zllilitary Forces. The Framers' concept of nonprofessional officership couldhave been embodied in either a standing army or a citizen militia. The distanceof th e United States from Europe, however, made a permanent military forceseem unnecessary except for small frontier garrisons to deal with th e Indians.Consequently th e Framers generally agreed that a citizen milit ia ,vas the only

form of military force suitable for th e new republic. I t embodied th e democraticprinciple that defense of th e nation was th e responsibility of every citizen. Thedistinction between officers and enlisted men was minimized an d did not correspond to any sharp social cleavage.

Preference for th e militia was almost universal throughout th e states."There was not a member in the federal Convention," John Randolph remarked\vith only slight exaggeration, "who did no t feel indignation" at th e prospect ofa standing army. The rat ifying conventions were even more strongly opposedto regular military forces. Nonetheless, they approved a Constitution which,\vhile barring standing armies to th e states, gave th e national government

unlimited power to maintain a military force, th e only restriction being that noappropriations for this purpose could be made for more than tw o years. Th ereasons for t hi s apparen t anomaly were twofold. First, it was generally recognized that the national government would have to maintain some sort ofpermanent force along th e frontier. Secondly, there was al,vays th e possibilitythat a standing army might be necessary in an emergency. But the hope and

5 See Max Farrand (ed.), The Records of the Federal Convention of 1787 (New Haven,4 vols. , 1911-1937), 1 ,38 0 , 11 ,2 8 7-9 0; Jonathan Elliott (ed.), Th e Debates in the SeveralConventions (Washington, 4 vols., 1836,) III, 372-73. For the few instances in whichth e clause ha s been invoked in practice, see Hind's Precedents of the House of Representa-i1:ves (Washington, 1907), chap. XVI, an d Cannon's Precedents (Washington, 1935),ehap. 16.



CIVILIAN C ONTR OL AND THE CONSTITUTION 681

expectation were that this emergency would never occur an d that the powerwould never be utilized. Fe w provisions in th e Constitution were agreed to withmore reluctance; some delegates most vehemently against standing forcesrefused to sign the Constitut ion. Criticism of this unrestricted congressionalpower was widespread in th e state conventions. A number of states proposedrequiring an extraordinary majori ty in Congress for th e maintenance of such aforce or adding amendments declaring th e militia to be "the natural defence ofa free state" and standing armies in peace "dangerous to liberty."6

'fhe preference for the militia had two important results for future civiliancontrol. First, it assigned a major place in th e American military scheme to aforce which could never be professionally officered or subjected to effectivecontrol. A t the time, of course, professional officers ,vere just as rare in standingarmies as they were in citizen militias. Th e former, however, because they were

composed of full-time soliders, could eventually evolve into a disciplined body ofprofessionals. This was impossible in a part-time militia force. Secondly, theexpectation that the mil it ia would be th e main reliance for defense made theFramers relatively unconcerned with devising institutional techniques to control military forces in being. In part, this was th e result of the feeling that suchdevices were doomed to fail; to a larger extent , it reflected th e view that theywere unnecessary. The republic would be defended by its loyal citizen soldiers.Civilian supremacy would be maintained by el iminat ing a dis tinc t militaryforce.

(Jovernmental Organization. l 'he Framers' concept of civilian control was to

control th e uses to which military forces might be put rather t ha n to control th emili tary per see They were more afraid of military power in th e hands of politicalofficials than of political power in th e hands of military officers. Unable tovisualize a distinct military class, th e Framers could not fear such a class. Butthere was need to fear th e concentration of authority over th e mil itary in anysingle governmenta l ins ti tu tion . As conservat ives th e Fra me rs wan ted todivide power, including power over the armed forces. The national governmentif it monopolized military power would be a threat to the states; the Presidentif he ha d sole control over the armed forces would be a t hr ea t t o th e Congress.Consequently, th e ITramers identified civilian control with the fragmentationof authority over th e military. The issue of th e relative desirability of a militiaversus a standing army was subordinate to the issues of the relat ive power ofth e states and the nation, the executive and th e legislature, over the militaryforces, whatever thei r character. Those who wished a strong national government ha d no hesitancy in arguing: (1) that continuation of th e Articles ofConfederation would mean standing armies in every state; (2) that th e proposednational government necessarily had to have th e power to raise a standingarmy; and (3) that to avoid the necessity of exercising this power, th e national

6 Farrand, Records, II, 326, 329-30, 563, 640, III, 207; Elliott, Debates, I, 326, 328,

335, II, 77-80, 136-37, 111,381, 660, IV, 244; Char le s Warren, The Making of the Con-stitution (Cambridge, 1947), pp. 474, 483; James Madison, No . 41, The Federalist (ModernL i b r a r ~ red.), pp . 262-63.




government ought also be able to organize an d discipline the militia. rrhe statesrighters, contrariwise, argued that i t ,vas unnecessary for the national governnlent to have a standing a rm y a nd that, in any case, t he s ta te s ought to have

exclusive control over th e militia in order to protect themselves against th estanding army of the national government. 7

The fragmentation of authority over military affairs ha d paradoxical results.rrhe very aspects of th e Constitution ,vhich the Irramers an d later commentators have cited as establishing civilian control are in fact those \vhich hinder itsrea liza tion: civilian control would be more easily achieved in th e twentiethcentury if th e Framers ha d been less eager to achieve it in th e eighteenth century. Objective civilian control is maximized if the military are limited in scopeto professional matters an d relegated to a subordinate position in a pyramidof authority culminating in a single civilian head. The military clauses of the

C;onstitution, ho\vever, provide for almost exactly th e opposite. They dividecivilian responsibility for military affairs an d thereby foster th e direct access ofth e professional military authorities to th e highest levels of government:

(1) Within t he t ot al federal system of government, th e militia clauses dividecontrol over the militia between the state an d national governments.

(2) Within the national government, the separation of po\vers divides control of th e national military forces between Congress an d th e President.

(3) Within the executive branch of th e national government, the Commanderin Chief clause tends to divide control over the military bet,veen the Presidentand departmental secretaries.

These latter t,vo provisions reflect the distribution of military powers in th e13ritish government in th e eighteenth century. The similarity, however, turnedinto a fundamental difference in th e course of a century an d a half. The evolut ion of Bri tish government centra lized all authority over th e mil itary in theCabinet, and the British constitution today provides for effective objectiveeivilian control. The American Constitution, hovlever, remains frozen in th eeighteenth century pattern. r-rhe centrifugal politics of thi s count ry an d the,vritten, inflexible character of th e Constitution combined to obstruct changessimilar to those in Great Britain. American lack of concern with military affairs,fur thermore , left th e constitutional structure almost unsupplemented bystatutory enactments. Prior to the t\ventieth centu ry t he only significantadditions to the constitutional institutions were the office of the Secretary ofWar created in 1789 and the office of the Secretary of the Navy created in1798. For most of American history, the Constitution and little else determinedthe legal structure of American civil-military relations.

III . THE MILITIA C LA US ES A ND MILITARY FEDERALISM: T HE E MP IR E W IT HIN

AN EMPIRE

1"'he militia clauses of th e Constitution hamper civilian control in two \vays.

7 Farrand, Records, I, 465, II, 385; No.8 , 'Ph€ Federalist, pp . 42-43; Ell iot t , Debates,II, 520-21, III , 169, 378, 410-11. Pa tr i ck Henry said of the nat ional ist claim: "This argnment destroys itself. I t delnands a po\ver, an d denies th e probability of it s exercise."



CIVILIAN CONTROL AN D TH E CONSTITUTION 683

First, they give constitutional sanction to a semimilitary force which can neverbe completely subordinated to military discipline nor completely removed frompolitical entanglements. Secondly, they give constitutional sanction to a division of control over the militia between s ta te a nd national governments ,vhichnecessarily involves the militia in the conflicting interests of the federal system.'fhis unique combination of characteristics-part civilian an d part military,part s tate and part national-tends to make th e militia independent of th epolicy-making institutions of government.

The Framers had good reasons to prefer a mili tia force to a regular army.Rut there was lit tle rat ional justif ication for spl it ting up the control of thisforce. As Madison said, this control "did not seem in it s nature to be divisiblebet,veen t,vo distinct authorities." Politics if not logic, however, forced theI ~ " r a m e r s ,Madison included, to support dual control. Some, such as Hamilton,,vanted complete control in th e United States. Others wished for the nationalgovernment to be completely excluded from authority over the militia. Theclash of these two vie,vpoints produced a variety of compromise suggestions. Inthe end, the balance of political forces produced the following militia clauses:' [he Congress shall h av e Power . . .

To provide for calling forth th e Militia to execute th e Laws of th e Union, suppressInsurrections an d repel Invasions;

To p rovi de for organizing, arming, an d disciplining th e Militia, an d for governingsuch Part of them as ma y be e mp lo ye d in th e Service of th e Un it ed S ta te s, reservingto the States respectively, the A ppointment of Officers, and the A uthority of trainingth e Milit ia according to th e discipline prescribed by Congress . . . • The President shall

be Commander-in-Chief. . .

of th e Militia of th e several States, when called into theactual service of th e United States . . . .

In addition, of course, Congress also has t he authori ty to "raise an d supportarmies" under the army clause. 8 The exercise of these powers falls historicallyinto two periods. From 1792 to 1903., the militia ,vas under state control in timeof peace an d dual control in time of war . .A.fter 1903 the militia was under dualcontrol in time of peace an d national control in time of war.

State control existed in peacetime throughout the nineteenth century because Congress in the Militia Act of 1792, the basic legislation in this fielduntil 1903, abdicated it s powers under the militia clauses an d provided neitherfor effective federal supervision nor for effective federal support. Consequently,the militia remained purely state forces ,vhen not in the active service of thelfnited States. When in such service, ho,vever, th e dual control of th e militiaclauses resulted in constant confusion an d bickering over th e purposes for whichth e militia might be used and over the appointment of officers. In 1812, forinstance, when th e President called out the militia, the governors of Massachusetts an d Connecticut asserted that they a nd n ot he ha d the right to decide,,'hether the circumstances justified the call. Later in the war militia forces onthe Niagara front ier refused on const itut ional grounds to e nt er C an ad a to

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




support regular American troops fighting there. In the Spanish American Warmilitia units likewise refused to serve outside th e United States.

The President was constitutional Commander in Chief of th e militia whilei t ,vas in federal service. Yet how could he function in this capacity when hisofficers, in war as in peace, were appointed by state governors? In th e Wa r of1812 state governors challenged th e authority of th e President to subordinatemilitia units to th e command of Regular Army general officers. State officialsremoved their troops from national service as they saw fit and upset th e lines ofcommand by appointing militia officers to higher rank than th e regular officersto ,vhom the militia units were theoretically subordinate. In the Civil War t hestates appointed the regimental officers of th e militia and of th e nationalvolunteers assigned to the states while th e President appointed th e generalofficers. Th e Ac t of April 22, 1898 providing for the Volunteer Army for the

Spanish American 'Var reproduced this division of authority.9

Dual control in ,var did no t survive the nineteenth century. The militia hasfought th e twent ie th century wars of th e United States as an exclusively national force under the a rm y clause. Nor did th e system of purely state controlin time of peace extend past 1903. Dual control under th e militia clauses became a reality when Congress passed th e Dick Act of that year. The effectsof these changes were twofold. The military importance of the militia in time of,var was enhanced because i t now had th e wherewithal to become an effectivemilitary body. The political power of th e militia in time of peace was enhancedbecause i t was placed between th e tw o competing authorities. Objective civilian

control of the militia, which in th e nineteenth century was difficult in time of,var, became in th e twentie th century vir tual ly impossible in time of peace.1'he militia clauses are thus th e constitutional base for a potent political organization: th e National Guard and its spokesman, the National Guard Association. I t is generally recognized that constitutions are created by politicalforces. But consti tutions likewise create or impel th e creat ion of polit icalinterests, an d this is th e case with th e militia clauses and the National Guard.

T he Nat io na l Gua rd Association ,vas formed in 1878 by a group of militiaofficers for th e primary purpose of getting Congress to ac t under the militiaclauses. I t was designed to l lpresent a united front" for joint control. 10 Itsfounders wished the national government to supply money, instruction,standards, and a certain measure of supervision to the s ta te militia. The Regul ar Army was opposed because i t did no t t hin k th e militia could be an effectivenational force. The dual control advocates, however, won their first victory in

8 See Emory Upton, The Military Policy of the Uni ted States (Washington, 1912),pp. 100-103 ; F. B. Wiener, "The Militia Clause of th e Constitution," Harvard La w Re-view, Vol. 54, pp . 192-93 (December, 1940); L eo na rd D . White, The Jeffersonians (NewYork, 1951), pp . 540-41. Cf . Washington's revolutionary difficulties, James B. Scott,The Militia (S. Doc. 695, 64th Cong., 2d Sess., 1917), pp . 25-26.

10 F. P. Todd, "Our N at io na l G ua rd : An Introduction to Its History," Military

Affairs, Vol. 5, pp. 73-86 ,152-170 , a t pp . 162-63 (Summer, Fall , 1941). Aside f rom thesebrief art icles an d a few la w review pieces, little scholarly work ha s been done on th eNat io na l Gu ard and th e Nati o na l Gu ard Association.



CIVILIAN CONTROL AN D THE CONSTITUTION 685

1903 and subsequently strengthened and maintained their position despitethe continuing hosti li ty of the Regular Army. Throughou t i ts existence theGuard has recognized it s dependence upon the militia clauses and ha s stoutlydefended i ts dua l s tatus. Guard officers maintain that these clauses embody the

true sentiments of the Fra lner s on military policy. Constitutional "dual control" is opposed to central control and to exclusive state control. T he l at te ris impractical because the states will not carry the entire cost of the Guardand the former is unconstitutional because, according to the Guard, the arm yclause only gives Congress th e povver to maintain a standing a rm y n ot to keepa federal mil it ia. For the Guard, dual control in peace means that the nationalgovernment should supply the funds a nd t he know-how ,vhile the states supplythe command and direction. The Association h as consistently s ough t morefederal money for Guard activities but has resolutely opposed extensions ofof federal control . In 1949, for instance, the Association demanded increasedfederal aid for armor ies and construction, a uniform clothing allowance forK ational Guard officers, and the franking privilege for Nat iona l Guard mail.At the same time i t vigorously condemned further federal control over theGuard, describing the 1948 Gray Board recommendation for a single nationalreserve force as "unconstitutional, un-American contrary to ou r conceptand philosophy of life ... ill-advised and illegal. " Upon the constitutionalhase of the militia clauses, the National Guard has created a polit ical force offormidable proportions. As the president of the Association frankly and accnrately proclaimed, the Guard is a n "e mp ir e ,vithin an empire."ll Within i ts

8phere ofin te res t i ts

,vord is la,v, or becomesla,,1'

very quickly.The

extent ofthis power, and the ways in which the militia clauses contribute to it , may beseen in (1) it s legal status; (2) it s constitutional symbolism; (3) it s officialrepresentation in state and nat iona l governments; (4) t he s ta tu s of the National Guard Association; and (,5) the influence of the G ua rd w ith Congress.

Legal Status. The efforts of the Association to enhance the Guard's dual81 atus have put the latter in a unique legal position. The Nat iona l Guard isone organization but it has a double existence. As t he "Nat ional Guard of the8.('veral states an d territories" i t is organized under the militia clause and hasthe mission of preserving la w and order within the states under the orders of

t he s ta te authorities. In this capacity i t may be "ca lled f ort h" b y t he Presidentuncler the appropriate authority of Congress for the l imited consti tutionalpurposes of executing the laws of the United States, suppressing insurrection,an d repelling invasions. If this were its only status, the Guard would be conf-lt,itutionally incapable of participating as an organization in a foreign war.In 1917, without authority permitting overseas service, its members weredrafted as groups of individuals into the nat ional army, and Guard organization was disrupted. As a result, in 1933 the Association secured the passage of

11 Official Proceedings of the N all. Guard Assoc., 66th Annual Convention, 1944, pp .28-29,44; 1948, pp . 111,242-44,254-55; 1949, pp . 202-210. Fo r th e Gray Board recommendations, see Committee on Civilian Components, Reserve Forces fo r Nationa l Secur ity(\Vashington, 1948), pp . 9-24.



GR6 TITF} AMERICAN POLITICAJ.J SCIENCE REVIE'V

an act \vhich makes th e Guard as the "Nat ional Guard of the United States"a reserve component of the Arlny of the Uni ted Sta te s under th e army clause.In this capacity it s mission is to furnish units for all types of military operations any\vhere in the \vorld. As t he Nat io na l Gua rd of t he Uni ted States, the

( iuard may be "ordered" to active service by the President after Congress hasdeclared the existence of a national emergency. T he Gua rd ha s the best of t\VO\vorlds. Its status under th e militia clause protects it against federal controlin peacetime. Its status under the arn1Y clause insures it of an institutional andpronlinent role in \vartime.

Const'itltlional Sy'mbolism. .A.s a militia under dual control, th e Guardidentifies itself \vith two venerated constitutional symbols: the Citizen-Soldierand Sta tes Rights. Guardsmen ar e "amateur soldiers," citizens first an d soldierssecond in the l\linute Man tradition. "In th e future as in the pas t, " the Associa··tion declared in 1944, "and based upon sound tradition, long experience, andthis Nat ion 's fundamental law, th e citizen-soldier nlust be the major dependence of th e Nation in time of wa r .... " The federal reserves, ho\vever,can likewise claim to be citizen soldiers. But only the Guard can also invokethe banner of States Rights. Our "organizations," claimed President Walsh,"belong to the Sta te s a nd ar e merely loaned to the Federal Government in,vartime." T he Gua rd "rants th e "Federal system adhered to" in th e militaryeHtablishment. l-'he Guard can thus expect t he sup po rt of the state governments against th e national government. In 1943, for instance, the Conferenceof Governors urged continued dual status for th e Guard in th e post\var period,an d in 1948 th e I ~ x e c u t i v eCommittee of the Conference joined t he Gu ard indenouncing th e G ray Board Repor t. Its state affiliations enhance the politicalillfluence of t he Guard relative to that of th e reserve assoeiations of th e nationalforces. In 1954 th e Reserve Officers Association ha d 60,000 members an d theXCi-A .. 34,000. The RO.A. normally has had more n10ney an d a larger staff thanth e NGA. Nonetheless, \vithout a secure base of operations in th e states, th el{OA has no t equaled th e NGA in political influence. In 1946 th e president ofthe ROA himself described his organization as th e "younger brother" of th e1\ ational Guard Association and admit ted with reference to political influencethat "The National Guard has much of \vhat \ve the TIeserves have not had."12

/3tate and National Representation. Th e position of the Guard is strengthenedby it s official foothold in b ot h t he state an d national governments. Th e headRof th e Guard in th e states ar e th e adjutants general appointed b y t he governors.rrhese officials represent the Guard ,vithin the state governments an d ar elinked nationally through the Adjutants General Association \vhich is a "corollary" organization of th e NGA. T he Gua rd is represented in t he Depar tmentof th e Army by th e Chief of th e Nat ional Guard Bureau who under the N-ational Defense Ac t of 1920 must be a Guardsman and by th e National Guard

12 Statement of Polic1J Adopted by the N all. Guard .A.ssn. an d the ..4djutants General Assn.in Joint Convention, Baltimore, May 4,1944, pp. 1 ,4 ; Proceedings, NG A Convention, 1944,p. 100; 1945, pp . 65-66; 1946, pp. 114-15; 1948, p. 65; Public Adlntnistration ClearinglIouse, Publ i c Adln ini s tra tion Organizations, 1.954 (Chicago, 1954), pp . 102, 119.



CIVILIAN C ON TR OL A ND THE CONSTITUTION 687

lllembers of the joint General Staff committees vvhich, under th e sanle act ,must consider all policies affecting th e Guard. These national representativeshave k ept th e N GA informed of \vhat transpires within th e Army an d t he WarDepartlnent. T he Gua rd has regularly insisted that it be included at an early

stage in th e preparation of War Department policies vvhich might affect it.E ~ x c l u s i o l lof th e Guard in th e development of policy has usually meant opposition by the N G . L ~when th e programs are submitted to Congress. 13

The National Guard Association. The NGA occupies an ambiguous positionon th e borderline between a private association an d a public body. Legally itis simply a voluntary organization of Nat iona l Guard Officers. Nonetheless,it considers itself to be "the authorized R,epresentative of th e Nat ional Guardof th e United States." I t is also closely tied in with the official state an dllational representation of the Guard. In 1948 vvhen only 42 % of Guard officersbelonged to the NGA, th e Association declared it to be th e responsibility ofthe adjutants general "to insist that every National Guard Officer be a memberof th e National Guard Association." To this end i t urged the states to requireeach new Guard officer to fill out an NGA membership application prior toappearing before th e official Examining Board. Through such techniques, theNGA by 1953 achieved a 99 % membership among Guard officers. As a privateassociation the NGA carries on public relations activities, publishes th en10nthly National Guardsman, and represents the Guard with respect to a wide,rariety of legislation. At one point in th e debate over the Selective Servicel\ct of 1948, for example, \vhen it looked as if th e Guard viewpoint would no tprevail, th e Association brought members from thirty-four states to Washington to lobby \vith their congressmen. In t,vo days they \vere eminently successful in get ting Congress to adopt th e National Guard position. In PresidentWalsh's words, th e great virtue of t he NGA is th at i t isth e only agency on which t he N at io na l Guard ca n rely t o p ro te ct it s interests, for th e.Association is free a nd u nt ra mm el ed a nd i t does no t have to conform to any particularpattern no r is i t bound within th e n ar r ow l im it s of channels of c om mu nica tion o r thechain of command. 14

Influence with Congress. In th e final analysis th e influence of t he Guard boilsdown to its influence with Congress. The fate of th e Inilitia is legally in th e

hands of Congress. NGr\. officers, ho\vever, assert that ",ye should settle the future of th e Nat iona l Guard ." To this end it must settle th e actions of Congresson National Guard affairs. For half a century it has been astoundingly successful in doing exactly this. The local roots of th e Guard, it s appeals to Statesl li gh ts a nd th e Citizen Soldier, i ts sup po rt from th e state governments, it slobbying an d pressure tactics, have made i t a po\ver on Capitol Hill. "Congress," in th e words of President Walsh, "has ever been our refuge an d ourstrength."

The record of National Guard success with Congress begins with th e Dick

]3 Proceedings, NG A Convention, 1943, pp . 89, 93-96; 1945, p p. 5 0- 55 .14 [Jroceedings, N G A Convention, 191;5, p. 47; 1946, p. 43; 1948, pp . 34, 66, 80-81;

lD50,pp. 264-65;1953, pp. 288-90.



688 THE AM ER ICAN POLITIC AL SCIENCE REVIEW

r\ct of 1903. Representative Dick himself was a former pres ident of the National Guard Association. In 1908 th e Association secured th e passage of th esecond Dick Act strengthening federal support of th e Guard. In 1916 theGuard "threw every ounce of it s energy into an effort to defeat" the Continental

Army plan of th e General Staff. I t was successful, an d th e National DefenseJ\.ct of that year was in line with its views. Th e position of th e Guard wasgreat ly strengthened four years later by the National Defense Ac t of 1920,\vhich th e Guard described as "a great achievement an d a great v ic to ry."In passing th e 1933 act making the Guard a reserve component of the .A.rmyin peace as well as war "Congress saw eye to eye with the proposals submittedby the National Guard .... " Throughout the twenties an d thirties, theNCiA successfully devoted its efforts to increasing the appropriations of th eGuard from $13,000,000 in 1920 to $72,000,000 in 1941. In 1940 when th eSelective Training and Service Bill as originally introduced did no t secure th e

interests of th e Guard, th e Association had inserted into i t the -"NationalGuard protective clause" which declared it to be "essential that th e strengthan d organization of th e National Guard as an integral part of th e first line ofdefense of this nation be at all t imes maintained and assured." In 1946 th eGuard fought efforts by th e Wa r D epa rtm ent to se t up a large Organized Reserve Corps which th e Guard viewed as a "competing" and "parallel" organization. A War Department recommendation for a $40,000,000 appropriation forthe ORC was eliminated by Congress at th e insistence of th e National Guard.l-'he G uard h ad no difficulty, ho\vever, in getting funds for itself. For FiscalYear 1949 the Budget Bureau recommended $195,000,000 for the Guard. TheNCiA did not think this enough an d got the econonly-minded 80th Congressto appropriate $290,000,000. In 1948 th e Association was also successful in having its vie\vs written i nt o t he Selective Service Act an d in blocking the legislative recoilllnendations of t he G ra y Board. In 1954 \vhen an Assistant Secretaryof Defense suggested that th e Guard should be used only for Home Gua rd a ndcivil defense functions, President Walsh confidently picked up the challenge:"If t he y w an t war, let it begin here."l6

~ r h erecord shows that Congress ha s indeed given, in Mr. Walsh's phrase,"generous support" to th e Guard. Continuing his reflections on the 80th Con

gress, the president went on to wonder ifan y organ izat ion has been so successful in th e legislative field in so brief a period as th eK ational Guard Association. I t is indeed a great accomplishment to have attained all th emajor legislative objectives of this Association.

T,yo years later the NGA Legislative Committee reported that the Associationh ad "been phenomenally successful in obtaining the enactment of legislationessential to it s well-being and development."16 So long as th e Guard retains it sjealously protected dual status, this will continue. Ensconced behind the

15 Proceedings, NGA Convention, 1943, pp . 56, 67, 88; 194-1, pp . 44, 53, 55, 58, 65, 69,78,74; 194.5, p. 56; 1946, pp . 28-32; 191;8, pp . 47-49, 57, 91-92; 1953, p. 28; 'Time, LXII I(:\1:1r. 1, 1954) , 18.

16 Proceedings, NG A Convention, 191;8, pp . 33-34; 1950, p. 245.




lui li tia clauses this premier military lobby effectively dominates th e proceedings of Congress concerning it. And i t is th e Constitution ,vhich under,vrites it sslogan that "There \vill al\vays be a National Guard."

IV . TH E SEPARATION OF POWERS: DUAL CONTROL OVER Ti lE N ATIO NA L FO RCES

In many respects the most significant aspect of the separation of powers is no tth e division of power between President an d Congress, but the effects of thisdivision upon th e power of other groups. Th e existence of t,vo coordinate bodiesmeans that th e power of each vis-a-vis other groups is less than it would be ifeither possessed full sovereign authority. The principal beneficiaries have beenorganized interest groups, bureaucratic agencies, and the military services.rrhe separation of powers is a perpetual invitation, if not an irresistible force,drawing military leaders into political conflicts. Consequently, it 'has been amajor hindrance to the development of military professionalism an d objectivecivilian control in the United States.

With few modifications the Framers reproduced in th e Constitution the division of authority over the military which prevailed in England and thecolonies in the middle of the eighteenth century, "The purse & th e sword,"said George Mason, "ought never to ge t into the same hands [whether Legislative or Executive]." The President inherited th e powers of the English king,Congress th e powers of the English Parliament. Th e executive authority ofth e President, Hamilton stated in The Federalist, "will resemble equally thatof th e king of Great Britain and of the governor of New York. " The Framersdid, ho\vever, make one major adjustment in favor of tp.e legislature. In granting Congress th e wa r power they altered British practice an d established asignificant precedent in the evolution of representative government. The result,vas that Congress was given the power

To declare War, grant Letters of Marque an d Reprisal, an d make Rules concerningCaptures on L and and Water;

To raise a nd s up po rt Armies, but no Appropria tion of Money to that Use shall befor a longer Term than Two Yea rs ;

To provide and maintain a Navy;"fo m ak e R ul es for th e Government and Regulation of the land and naval Forces .

• . . And

To make all laws which shall be necessary an d proper for carrying into Execution th eforc\going Powers, an d all other Powers vested by this Constitution in th e Governmentof t he Uni ted Sta te s, or in an y Department or Officer thereof.

And th e President was made "Commander in Chief of the A rmy a nd Navy ofth e United States . . . . "17

17 For discussion of royal and parl iamentary authori ty, see Blackstone, Comrnentaries,I, 257-58, 262, 412-13; J. S. Omond, Par liament and the Army, 1642-1904 (Cambridge,19:):3), pp . 7-8; John W. Fortescue, A History of the British Army (London, 13 vols.,18H9-1930), II, 568. The Framers at first adopted in t ot o t he language of th e basic English statute, 13 Car. II, c. 6 (1661), but then realized tha t they could not make th e Presi

den t like th e King commander in chief of th e militia in peace as well as war. See Farrand,R e c o r d . ~ ,I, 139-140, II, 185, 426-27; No. 69, The Federalist, p. 448. For the continuingdebate as to whether th e wa r power was properly legislative or executive, see Farrand,




The general intent of the F ra me rs in m aking thi s division of power is clear.I>roblems arise, however, from the nature of th e grant of presidential po\ver.1 ~ h i sclause is unique in the Constitution in granting authority in th e form of ano.ffice rather than in the form of a function. The President is not given the function "to command the Army an d Navy"; he is given th e office of "Commanderin Chief." This difference in form is of considerable importance, for it left undefined the specific po\vers an d functions. This eased th e approval of the Constitution in the ratifying conventions, but i t gave subsequent generations something to argue about.

'rhe powers of th e Commander in Chief might range from the extremelyl)foad po\ver to conduct wa r to a narro\vly res tr ic ted power of military command. They certainly exclude all po\vers specifically assigned to Congress orthe states, and they probably include all purely military powers not so assigned.13ut does the office possess nonmilitary powers as \vell? The Framers themselvesseemed to hold conflicting opinions on this point. The Supreme Court in 1850,ho\vever, declared that the duty an d po\ver of the President as Commanderin Chief \vere "purely military," an d denied the similarity bet\veen the presidential authori ty and the royal prerogative. I8 So long as th e Commander inChief power \vas interpreted as purely military, i t remained , in ProfessorC ~ o r \ v i n ' sphrase, "the forgotten clause" of the Constitution. In the Civil Warand in World \Var II, ho\vever, Lincoln an d Roosevelt used th e clause tojustify an extraordinarily broad range of nonmilitary presidential actionslargely legislative i n n atur e. The justification of these actions by the ComInander in Chief clause \vas persuasive, ho\vever, only because John Rutledgedefined that po\ver as an office rather than a function. I t could be argued thatthe office of Commander in Chief possesses authority to seize a strike-bound\var plant. I t \vould be harder to argue that the function of commanding th e.l\.rmy an d Navy implied such authority. The Commander in Chief clause, inother \vords, has been of relatively little direct use in securing civilian controlover the military. Indeed, in one respect it has been directly detrimental tosuch control. But because i t was phrased as an office rather than a function,it has been of great use to the President in expanding his power at th e expenseof Congress. This, in turn, has broadened the area of conflict bet\veen these1\vo

institutions and, consequently, if indirectly, has further impeded civilian( ~ o n t r o lby increasing th e likelihood that military leaders will be dra\vn intopolitical controversy.19

Records, I, 64-66; Alexander Hamilton, Works ( Ne w Yor k, 12 vols., Federal ed., 1904),I V, 1 45 -4 6; Janles Madison, Writings ( Ne w Yor k, 9 vols. , 1900-10), VI , 145; Clarence A.Berdahl, War Powers of the Executive in the United States (Univ. of Illinois, 1921), p. 79.Cf. W. W. Crosskey, Politics an d the Constitution (Chicago, 2 vols. , 1953), I, 422-28.

18 Fleming v. Page, 9 How. 603, 615, 618 (1850). The powers of th e British King asgeneral of th e kingdom extended to many nonmilitary areas. Blackstone, Cornrnentaries,I, 262ff. For the vie,vs of Fran 1ers on th e C om ma nd er i n Chief p ower, see Farrand,Records, I, 244, 292, II , 145,319,426-27, 111,624; Elliott, Debates, IV, 114; Th e Feder-

alist, pp . 448, 482.18 For th e b ou nd ar ie s b etwe en p re side nt ia l an d congressional luilitary p ow ers, see



CIVILIAN C ON TR OL A ND THE CONSTITUTION 691

rrhe P re si de nt h as exercised his powers with respect to military affairsthrough the appointment of military personnel, the issuance of execut iveorders an d commands, and reliance upon the instrumentality of the civiliansecretary. Congressional \veapons include statutes, appropriations, and investi

gations. These devices have norma lly been \vielded in the name of Congressby the military and naval affairs committees, the appropriations committees,and special wartime investigating committees. On occasion both sides havefound i t necessary or expedient to appeal to the military for support of theirpl ans or to seize upon a nd pus h military plans for purposes of their O\Vl1. Theinvolvement of the national officer corps in politics consequently has beenless consistent and more sporadic in nature than the involvement of the militiaofficer corps. The division of authority bet\veen t,vo separate governments de-manded a permanent political spokesman for the interests of the militia. Thedivision of authority between t,vo branches of the same government led tot he t ra ns it or y involvement of individuals an d cliques of officers in controversies over military policy an d, m os t pa rti cu la rly, over the force levels ofth e armed services.

I)rior to 1940 t he p at te rn of national politics respecting the strength of mili-tary forces tended to obscure the extent of military political participation. Theexecutive was usual ly more favorably inclined towards a larger military establishment than was Congress. Congress had less immediate contact wi th foreigndangers and was under greater popular pressure to cut spending. In addition,the easiest way to assert congressional authority in the budget process ,vassimply to reduce executive requests. Thus, the institutional jealousy of thet\VO branches, even apart from constituent pressure, tended to make Congressless favorable to military appropriations. In some cases, to be sure, the GeneralBoard of the Navy found a more favorable audience for it s recommendationsin the Congress than in the executive branch. But, generally, the militaryleaders appeared before congressional committees to support the President'sprogram. l\1ilitary involvement in politics on the side of Congress tends to beconspicuous and dramatic; on the side of the President i t tends to be subtlerand less obvious. Undoubtedly, some administrations used popular officers torally congressional support for their military proposals. B ut i t is extremely diffi-

cult to draw the line between the soldier giving professional advice to Congressas to \vhat the country needs for it s defense and the soldier lobbying \vithCongress for the administration. The t\VO roles are distinct in theory butblended in practice.

In the post-World 'Val' I I period, on the o ther hand, the increased importance of national defense issues an d th e greater concern of Congress with themha s caused the legislature to insist upon an independent revie\v of military forcelevels. On occasion Congress h as v ot ed more money for a particular service or

Edward S. Corwin, Th e President: Office and Powers ( New Yor k, 1948), chap. vi ; Ex

Parte lVIilligan, 4 vVall 2 (1866); Berdahl, War Powers, passim,. Howard 'Vhite, ExecutiveInfluence in Deterrm,ining }"f1:[t£[ary Policy in the United States (Urbana, 1924), chap. iii.




in criticizing i t before Congress? The annual psychic crisis of the Chiefs of Staffbefore th e congressional appropriations committees has become an enduringphenomenon. If th e military chief accepts and defends the Presiden t's policies,he is subordinating his o,vn professional judgment, denying to Congress theadvice to which it may constitutionally claim to be entitled, and becoming th epolitical spokesman of an Administration policy. If the military chief expresseshis professional opinions to Congress, he is publicly criticizing his Commanderin Chief an d furnishing ammunition to the latter's political enemies.

There is no easy way out of the dilemma. Military leaders in th e post-warperiod have varied from more or less active campaigning against presidentialpolicies ( the admira ls with respect to unification and the B-36 controversy)to the defense of presidential policies which ra n counter to their professionaljudgment (General Bradley with respect to the Fiscal 1951 budget) . A middlecourse, ho\vever, appears to be the most desirable one. The military chief ha sth e professional duty to speak frankly t o b ot h President an d Congress. GeneralRidgway's behavior under Senate questioning in 1954 and 1955 reflected aneffort to find the proper path. In both cases, the general emphasized his acceptance of higher level executive decisions fixing the size of the Army whichobviously did no t accord with his own judgment. In 1954 he gave his own viewsin executive session; in 1955 he presented in public his military opinion on th edesirable strength of his service. 24 With respect to any significant issue of military policy, however, th e national officers inevitably tend to be drawn into th elegislative-executive struggle on one side or th e other. The separation of powers

makes i t impossible for American officers ever to be at ease in their professionalism.

v. THE COMMANDER IN CHIEF CLAUSE: THE POLITICAL-MILITARY HIERARCHY

()ne major function of th e Commander in Chief clause ha s been to justifythe exercise of broad Pres idential powers in t imes of national emergency. Asecond principal function has been to complicate the achievement of civiliancontrol in th e executive branch. Just as th e separation of powers is a standinginvitation to military leaders to make an end run around the President toCongress, the Commander in Chief clause is a s tanding invitation to make an

end run around th e civilian secretary to the President.1 'he Commander in Chief clause is th e outstanding example of th e Framers'

mixing of political an d military functions. "fhe same thinking which permittedthem to envision Senators becoming generals in wa r also permitted them toaccept a civilian President as mil itary Commander in Chief. In most societiesfrom primitive nomadic tribes down to their own time, it ha d been customaryfor the chief of state also to be th e chief military commander. This ha d beentrue of th e Greek city state, th e Roman republic, an d the European nationalmonarchies; it was to be true of Napoleonic France. Virtually all the s tate con-

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 SenateCOlnmittee on A pp ro pr ia ti on s o n Dept. of Defense Appropriation Bill for 1956, 84thCong., 1st Sess., pp . 211-12, 215-19 (1955).




stitutions at th e tim e made the governor commander in chief of the militia.IVlilitary command was as much a function of the chief execu tive as the appointment of administrative officials or the negotiation of alliances. I t "vasonly natural for the Framers to assign this role to the President. He ,vas to bea republican Soldier-President patterned upon the Royal Warrior of th e European states.

1-'he extent to \vhich the Framers expected the President to exercise militaryfunctions may be seen in their failure to curb his authority personally to leadtroops on the field of battle. Such a restriction was contained in the N ew Jerseyplan and had the support of Hamilton. The Convention, however, explicitlyrejected these a tt em pt s t o limit his authority. Some crit ic isms of this powerVlcre voiced in state conventions but there, too, efforts to curtail it , , ~ e r eunsuccessful. The intention and the expectation of the Framers and of th e people,vas that the President could, if he so desired, assume personal command in thefield. Early presidents d id not hesitate to do so. Washington led the troopscalled ou t to suppress the 'Vhiskey Rebellion. James IVladison took a directhand in organizing th e ineffectual defense of Washing ton in 1814. During theMexican War President Polk, although he did not command the a rm y in thefield, nonetheless personally formulated the military strategy of the war an dparticipated in a "vide range of exclusively military matters. The last instanceof a President directly exercising military functions ,vas Lincoln's participationin the direction of the Union armies in the spring of 1862. The President personally determined the plan of operations, and through his War Orders directed

the movement of troop units. I t ,vas not unt il Grant took over in Virginia thatpresidential participation in military affairs came to an end. No subsequent]}resident essayed the direction of military operations, although TheodoreIloosevelt in World War I argued conversely that his previous experience asC ~ o m m a n d e rin Chief proved his competence to command a division in France. 25

Until the middle of the nineteenth century, no real d is tinction existed inthe United States between political and military competence. Just as successfulgenerals made popular presidential candidates, so a ny m an of affairs \vas capaI)le of comlnand. "fhe exercise of his military functions by the President createdflO logical difficulties. "fhere ,vas a single, clear political-military hierarchy run

ning from th e President through the Secretaries of ~ Tar and the Navy to theuniformed conlmanders. Political and military responsibilities and abilities,vere mixed all along th e line. The President frequently had previous militaryexperience; the Secretary of War almost al,vays had. T he top generals, on theo ther hand, ,vere usually involved in politics. The organization of th e servicedepartments, consequently, was little different from tha t of any other depar tment.

This unified hierarchy began to break up as th e miiitary function becameprofessionalized. The President ,vas no longer qualified to exercise military

25 See Farrand, Records, I, 244, I I I , 217-18, 624. IV, 53 ; Elliott, Debates, II, 408,412, 522-523, III , 59-60, 49 6- 98 ; L eo na rd I ). W hi te , The Jeffersonians, p. 220, an d TheJacksonians (New York, 1954), pp. 51-57; Pendleton Herring, The Im,pact of War (NewYork, 1941), pp . 146-47.



CIVILIAN CONTROL AND THE CONSTITUTION 695

command, an d even if he were qualified by previous tra ining, he could no tdevote t ime to this function vvithout abandoning his political responsibilities.'"fhe political functions of th e Presidency became incompatible with th e militaryfunctions of th e Commander in Chief. No r ,vere th e civilian politicians appointed Secretaries of War and the Navy competent to exercise military command; they were usually lawyers. On th e other hand, th e emergence of th emilitary profession produced officers whose experience ha d been exclusivelymilitary, who were quite different types from th e politician secretaries, an d,vho ,\vere technically qualified to command. The constitutional presumptionthat the President exercised command still remained, however, an d complicatedthe rela tions among President , secretary, an d military chief. The militarychief was mil itary, the secretary political, and the President political andlnilitary. One might assume that th e secretary, with his duty to represent th e

interests of his department, ,vould be nlore military in outlook, if not in capability, than the President with his broader interests an d responsibilities. TheConstitution, however, reversed this relationship, an d obscured th e clarity ofthe hierarchy. Di d th e chain of command go up through th e secreta ry, acivilian pOlitician, to th e President? Or vvere there two lines of authority emanating from the Presidency: a political-administrative line to the secretaryand a military command line directly to th e highest professional officer? Theseissues have beclouded American military organization down to th e present day.

'fhree different types of civil-military organizational relations have existedamong the President, secretary, an d military chief. Th e balanced pattern as

Higns to th e l:>resident a purely political function: the decision of the highestpolicy issues an d th e general supervision of th e lnilitary establishment. Beneathhim the secretary, also a purely political figure, is responsible for th e entiremilitary organization. Below the secretary, th e hierarchy divides into militaryand administrative components. The highest professional officer is the leadingmilitary adviser to the secretary an d normally ha s command of th e militaryforces. He is subordinate to the secretary who is subordinate to the President,but neither of th e two civilian officials exercise military command, which stopsat the level of th e military chief. Also subordinate to the secretary are administrative officials (civilian or milita ry) "rho direc t th e nonmilitary supply,logistical, an d financial activities of the depar tment.

This balanced pattern of organization tends to maximize military professionalism and civilian contro1. 26 Civilian an d military responsibilities areclearly distinguished, and th e latter, on paper at least, are clearly subordinatedto the former. The President and the secretary handle political mat te rs ; themilitary chief military matters; and the staff or bureau chiefs administrativemat ters . The scope of the authority of th e professional military chief is limitedto the military realm by the administrative bureaus, and the level of his

26 ' fhe theoretical rationale of th e balanced pattern w as d ev el op ed i n A. 'r. Mahan,

"'rhe Principles of Naval Administration," Naval Administrat ion and lVarfare (Boston,1908), p p. 3 -4 8, an d Spenser Wilkinson, Preface to th e 2d ed it ion of 'Phe Brain of an Army(London, 1913). Mahan's essay an d Wilkinson 's p re fa ce a re brilliant analyses of executive military organization and a re b as ic to an understanding of th e subject.



696 TH E AMERICAN POLITICAL SCIENCE REVEW

authority, subordinate to th e secretary, does not often involve him in overtpolitical decisions. Administrative and military interests are balanced by thesecretary under the authority of the President. English civil-military relations

have been organized along comparable lines since the last halfof

the nineteenthcentury. Between 1794 and 1870 the War Office administered the civilian affairs of th e army, an d the Commander in Chief, directly under the sovereign,was responsible for military command an d discipline. In 1870, however, theCabinet insisted that the military chief be subordinated to the Secretary of

State for War. A fully balanced scheme was achieved with the abolition of thepost of Commander in Chief in 1895 and the subsequent creation of th e officeof Chief of the Imperial Staff. Th e same system also existed at the Admiralty.rfhis organization was possible only because th e sovereign consented, howeverreluctantly, to have his role as first general an d admiral become, in Bagehot's

phrase, a "dignified" part of the constitution. The "efficient" hierarchy of cont ro l ran from Parliament to Cabinet to Prime Minister to Secretary of State for"VVar and then to the military chief and th e administrative bureaus of th e WarOffice. In the United States, however, no President has permitted his constitutional functions as Commander in Chief to atrophy. These remain efficientand no t dignified. Consequently, the balanced pattern of organization has beendifficult to achieve and even more difficult to maintain. In American government th e Na vy Department alone since 1915 has attempted to organize itselfalong these "balanced" lines. Only with great difficulty has it maintained thisorganization against the pressures of th e Chiefs of Naval Operations either to

expand their authority over the bureaus or to establish a direct line of responsibility to the President. 27 American civil-military relations almost inevitablytend in the direction of other arrangements which tend to weaken military professionalism and civilian control.

The coordinate scheme involves th e separation of military an d administrativefunctions immediately below the President. Th e secretary is limited to nonmilitary administrative duties, and the military chief discharges his militaryfunctions directly under the President. The chain of administration goes fromPresident to Secretary to bureau chiefs; th e chain of command from Presidentto military chief to the military forces. This accords with constitutional theoryand keeps civilians, except th e President, ou t of the military hierarchy. I ttends, however, to undermine civilian control. Th e scope of the authority ofth e military chief is limited to military matters, bu t the level of his authoritywith direct access to the President involves him in political issues. The President is normally too busy with other affairs to devote sufficient attention tothe interrelation of political and military policies, an d th e military chief consequently has to make political decisions. His direct access to the President· also

27 See U. S. Navy Dept., Naval Administration: Selected Documents on Navy Depart-rnent Organization, 1915-1940, passim; R. E. Coontz, Frorn the Mississippi to the Sea(Philadelphia, 1930), p. 400; Ernest J. King and "Valter Whitehill, Fleet Admiral King:A Nav al Record (Ne'w York, 1952), pp . 261 ff., 471-478; Paul Y. Hammond, "The Secretaryships of War an d the Navy: A Study of Civilian Control of t he M il it ar y" ( Ph .D .Thesis, Harvard University, 1953), pp . 223-246, 293-305.



CIVILIAN C ONTR OL AND THE CONSTITUTION 697

encourages t he l at te r t o try his hand at military affairs an d to intervene in professional military planning an d command where he has no special competence.The Army and the War Depar tment ,vere organized on a coordinate basis from1821 to 1903. The Secretary of Wa r was responsible for fiscal an d administra

tive mat te rs and supervised th e activities of the staff departments. The Commanding General of th e Army, on the o ther hand, was independent of theSecretary an d directly responsible to the President for th e military commandan d discipline of the Army. The result was continuous fric tion erupting attimes into violent acrimony between th e Secretary an d the Commanding General.

The vertical pattern solves the problem of th e Commander in Chief clause ina different manner, but one equally inconsistent with civilian control. In thisscheme the secretary and th e military chief have identical supervisory responsibilities. The administrative bureau heads are subordinated to th e professionalJ11ilitary chief, and t he professional military chief is subordinated to the secretary who is in turn responsible to the President. Since the President is st il lCommander in Chief, an d some connection must exist between him an d therest of th e military hierarchy, the secretary is given a place in the militarychain of command and is described as the President's deputy commander inchief or in some similar terms. The military chief, however, is given controlover all the activities of th e department under th e secretary, the specificallynlilitary command an d planning functions being delegated down the hierarchyto a subordinate of the military chief's on the same level as the administrativechiefs of bureaus. This prevents the military chief from achieving direct accessto the President because his responsibilities ar e identical with those of the secretary. He can claim no peculiar relation to th e President. On th e o th er ha nd , h esupervises all the activities of t he depar tment below the secretary and, byreason of long familiarity with the establishment, may be able to reduce thetransient secretary to a figurehead. By combining in his own person politicaland administrative responsibilities, as well as functions of military command,th e military chief transgresses beyond his competence. He sacrifices higherlevel for broader scope which is equal ly damaging to his professional status ..AJso, the extension of the constitutional myth so that not only the Presidenthut also the secretary is assumed to exercise military command violates thefacts of reality. Since 1903, th e General Staff system of the Army ha s closelyapproximated the vertical pattern of civil-military relations.

The National Security Ac t of 1947 raised the problem of executive civillnilitary relations from the single service level to the central defense level. TheAct itself was a compromise, not clearly and definitively establishing anyoneof the three patterns of civil-military relations. Elements of the coordinatesystem, however, existed in those provisions of the Ac t which made t he J oi ntChiefs of Staff the "principal military advisers" to the President and to theKational Security Council an d which placed th e Chiefs under the "au thor ity

an d direction" of th e President as well as the Secretary. In actual practice theJ oint Chiefs organization at times tended to view itself as a semi-autonomouscorporate body not wholly subordinate to th e Secretary of Defense. In addi-



698 THE AMERICAN POLITICAL SCIENCE REVIE'V

tion, in both the Tru ma n an d Eisenhower Administrations the Chairman oft he Joi nt Chiefs ,vas more than just a professional military adviser. He playeda ke y role in the formulation and advocacy of national policy. I t is still to oearly to sa y finally ,vhich of the three patterns of civil-military relations the])epartment of Defense ,vill approximate. But it is clear that the constitutionalhindrances to the achievement of th e balanced s yst em ha ve n ot been entirelyovercome.

VI . CIVILIAN C ON TR OL A ND CONSTITUTIONAL GOVERNMENT

Objective civilian control has at times existed in the United States. I t hasbeen, ho,vever, the product of geographical isolation and the internationalbalance of po,ver which permitted the virtual elimination of standing militaryforces and the exclusion of the military from polit ical power. Civil ian controlin this sense has been so effective that Americans have called it a fundamentalprinciple of their sys tem of government. But they have been deluding them-Rclves in ascribing to the Constitution a virtue of geography. Objective civiliancontrol in the United States has been extra-constitutional, a part of ou r politicaltradition but not of our constitutional tradition. Civilian contro l has , in asense, been like the party system. The :Framers did no t foresee the rise of popula r democracy; consequently, they did not provide for polit ical parties. Theydid no t foresee the rise of the military profession; consequently, they did no tprovide for objective civilian control. Neither is contemplated in the Constitu-tion, ye t both have been called into existence by nonconstitutional forces.'rhe C on st it ut ion h as c ont rib ut ed i ts s ha re to obstructing the gro,vth of astrong party system such as exists in Great Britain. I t has also contr ibuted itsshare to obstructing effective civilian control such as exists in Great Britain.r-rhe restraints of a ,vritten constitution have proved effective against some ofthe most po"rerful functional imperatives.

1'he question thus arises: r-ro what extent is i t possible, short of amendingthe Constitution, to provide for objective civilian control in the existing framel\TOrk? The difficulties are constant but they are no t all of equal strength. Theextent to which the Commander in Chief clause opera tes to damage civiliancontrol largely depends upon the individuals ,,,ho occupy that office. I t adds

nothing and det ract s much from military professionalism an d civilian control."fhe British I>rime l\1inister ,vho is not Commander in Chief and has no military functions has more effective control over his military forces than doesthe .A

.. merican President . rIhe princ ipal posit ive use of the clause ha s been toexpand presidential po,ver against Congress in nonmilitary areas. If the clausecan come to be vie,ved primarily in this nonmilitary sense, and if presidents,vould exercise constitutional self-restraint so as to ma ke the ir mi li ta ry comlnand of the armed forces as honorific as that of the king of Eng land , thi sobstacle to civilian control would be removed, an d a balanced pattern of executive organization be made workable.

The milit ia clauses directly hamper the development of military professionalism in only one segment of the armed forces. Conceivably, of course,



CIVILIAN CONTROL AND THE CONSTITUTION 699

Congress could abolish dual control over the militia. But in th e face of th epolitical strength of the National Guard this hardlJT seems likely. And, giventhe existing situation, it probably ,vould not even be desirable. The moreappropriate course is to make the best of th e situation of military federalism.rrhe existence of th e Guard will necessarily prevent the development of a strongand ready nat ional reserve organization. The Constitution has made the Guardinto a powerful political force, an d it is not inconceivable that this politicalstrength may make the Guard into an effective n1ilitary organization. At th eend of 1954, the Arm y an d Air National Guard ha d almost 400,000 men ondrill pay status-t \vice the number of the Army and Air Force Reserves. Atthe beginning of 1956 Guard g round forces consisted of tvventy-one infantrydivisions, six armored divisions, nine regimental combat teams, n ine armoredcavalry regiments, 123 antiaircraft battalions, seventy-four field artillery battalions, an d miscellaneous other units. Th e Air National Guard ,vas organizedinto t\venty-seven combat wings. Th e readiness of the Guard \vas at a higherlevel than ever before in its history. lVlany of th e antiaircraft units an d interceptor squadrons ,vere participating in the ai r defense of the nation on a semiaetive a le rt s ta tu s. 28

B}T its very nature the Nat iona l Guard can never bebrought fully vvithin objective civilian control. But it may sti ll be possible tocreate a respectable reserve force vvithin the existing constitutional an d politieal framework.

Th e real constitutional stumbling block to objective civilian control is th e~ p p a r a t i o nof povvers. This is th e essence of the American system of govern

rnent, and its impact is felt throughout th e arlned forces. Short of fundamental constitutional change, the separation of po,vers cannot be altered .Indeed, it is highly questionable even if such change vvere possible, vvhether i t\vould be ,vorth the price. There arc values other than civilian control an dInilitary professionalism, an d these ,vere the values th e Framers ha d in mind\"hen they wrote the Constitution. Foreign countries may have more effective~ y s t e m sof civilian control but no country has as effective a system of restraintsupon arbitrary polit ical po,ver or such a unique balance of executive unity an dlegislative diversity. Inevitably, both military officers attempting to adhere toprofessional s tandards and civilian secretaries attempting to exercise civilian

rontrollook ,vith envy to the cabinet sys tem. Such a system, ho,vever, is no tfor the United States. ~ " ' i t h i nthe framevvork of the separation of po\vers, institutional adjustments can be made ,vhich ,vill reduce it s deleterious effects uponcivilian control. But it vvill never be possible to eliminate these effects completely. A lesser measure of objec tive civilian contro l an d lovver standards ofInilitary professionalism ar e th e continuing prices th e American people willhave to pa y for th e other benefits of their constitutional system.

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