February 1, 2010  

The Founders’ wisdom

The U.S. faces a number of difficult challenges in civil-military relations that carry with them profound effects on our national security. Among these issues are declining popular support for the wars in Iraq and Afghanistan, growing isolation between the U.S. military and the society it serves, and unresolved disputes over the limits of executive authority. However difficult these problems may be, they are neither unprecedented nor insoluble.

The underlying issues in these debates were explicitly addressed by America’s Founders in drafting the U.S. Constitution. Winston Churchill famously observed that “America will always do the right thing, but only after exhausting all other options.” Having today exhausted all other options to provide for our security, Americans would be well served to return to the system of war powers established by the Constitution.

James Madison’s elegant system of checks and balances created a system to ensure that we choose our wars carefully and prosecute them intelligently and vigorously. After rebelling against Great Britain and rejecting the Articles of Confederation, the Founders were well aware of the dangers of both tyranny and anarchy. They created a system of government that provided for strong legislative and popular oversight of national security and vigorous executive power to deal with crises. Many of the challenges in civil-military relations that we face are attributable to insufficient legislative and popular oversight of executive authority. The solution to these challenges therefore lies in a reassertion of this authority.

It’s important to consider the historical context in which the Constitution developed. The rebellion against British tyranny was a defining experience for America’s Founders, shaping their views on virtually every aspect of governance. While the American Revolution was largely a dispute over the authority of Parliament to tax the colonies, civil-military disputes also played a significant role. The American colonists’ grievances against King George III cited in the Declaration of Independence included the maintenance and quartering of standing armies in times of peace without the consent of colonial legislatures and the denial of colonial jurisdiction over crimes committed by British troops in the colonies.

The Founders were deeply suspicious of standing armies accountable solely to executive power. The colonists accepted the presence of British regulars out of necessity during the French and Indian War (1758-1763) but wished for the removal of these forces to the greatest extent possible once the war ended. Consistent with this view, the Founders raised a Continental Army only for the duration of the Revolution, and all but disbanded it once the British were defeated.

Unfortunately, the Articles of Confederation replaced British tyranny with a government too weak to defend American interests. Each state maintained its militia, and 11 also maintained their own navies. The Congress lacked the power to tax, which made it difficult not only to provide for future expenses but also to pay past debts, including those owed to veterans of the Revolution. Amending the Articles required unanimity, and the passage of any law required the assent of nine of the 13 states. The national government lacked the authority to resolve disputes among the states, creating numerous disputes in every aspect of public life. The new government was nearly paralyzed on questions of foreign policy and defense, including negotiating a peace treaty with Great Britain, resolving boundary disputes with Spain and raising a navy capable of protecting commercial interests. Throughout the 1780s, the newly created United States drifted toward anarchy. George Washington feared that unless the national government could be made more vigorous, the new country would “become the sport of European politics.”

The Constitution created a system of war powers that remedied many of the weaknesses of the Articles of Confederation while ensuring that the war powers of the U.S. remained under strong legislative and popular oversight. This system of checks and balances applied to every aspect of war powers, from raising forces to conducting operations. The Founders vested the power to raise armies with Congress, using specific language intended to ensure these forces would remain beholden to Congress for support. The Constitution states that Congress shall have the power “to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years.” The Founders used different language when describing support for naval forces. While the Constitution empowers Congress to raise armies, it then states that Congress shall have the power “to provide and maintain a navy.” The Founders viewed armies as temporary necessities to deal with particular crises but understood that the maintenance of a navy was an enduring requirement. Naval forces, both the fleet and Marines, gave the young republic an enduring expeditionary capability to protect its commercial interests. As these commercial interests were enduring, so too the capability to protect them must be enduring. Additionally, the Founders viewed naval forces as less of a threat to popular liberties than armies, as the latter are capable of controlling land, populations and resources for extended periods.

The Founders also ensured that executive branch officials, including senior military officers, were accountable to Congress. While the authority to appoint military officers resides with the president, the Constitution requires Senate confirmation for the appointment of officers.

Perhaps no check on executive power is more important than the provisions concerning the writ of habeas corpus. The Constitution states that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Two issues are worth noting here. The first is that there are no “emergency war powers” in the Constitution. The Founders expected us to govern ourselves in time of war according to the same laws that apply in times of peace. Second, the language regarding the suspension of the Great Writ is found in Article I, which covers Congress, and not Article II covering the president. This omission was no accident; the Founders considered executive power to be both a necessary guardian and a potential danger to popular liberty. The Great Writ is the most important of all checks on executive power, for if the executive has the unchecked power to imprison its opponents, every other liberty is meaningless.

The Founders also extended legislative oversight to the conduct of war itself. By vesting the power to declare war with Congress, the Founders ensured that America would choose its wars carefully. While Congress may be less well-suited to vigorous unitary action than the executive, it is far better-suited to engage in deliberation over the purpose and necessity of committing the nation to war. At the same time, entrusting Congress with the power to declare war ensured that America would prosecute its wars vigorously. The Founders expected that the prosecution of war would require the mobilization of the militia under federal service paid for under the federal budget.

The president alone is the commander in chief, but he is dependent on the Congress to raise and maintain military forces and to mobilize the militia. The president may appoint officers to positions of command, but such appointments are dependent on Senate confirmation. Most importantly, the president cannot commit the nation to war without congressional authority. While in practice the president may act in the interest of public safety, Congress’ power of the purse limits such actions to brief expeditionary operations.

Many of the difficulties in civil-military relations today are attributable to our departure from the elegant system of checks and balances established in the Constitution. Congress has all but abdicated many of its war powers, including raising forces, confirming the appointment of officers, providing oversight to operations and declaring war. This has made the U.S. weaker by allowing hasty, ill-considered and poorly supported executive actions to imperil national security. The remedy for these failures requires not innovation, but rather a return to the time-tested principles of America’s founding.

The Constitution requires Congress to raise and maintain military forces to ensure popular support for the development and employment of American military power. However, today’s military forces are manned solely by volunteers and paid for with borrowed money. The congressional task of “raising the Army” has been reduced to the acts of appropriating money and raising the debt ceiling. Until recently, wartime funding came through supplemental appropriations that received far less scrutiny than funds allocated through the normal budgetary process. The financial burdens for raising today’s military and fighting today’s wars will fall to future generations, as the entirety of the defense budget has been financed with deficit spending for nearly a decade. The dangers of military service are born solely by volunteers, a disproportionate number of whom come from working- and middle-class families. The wealthiest and most privileged members of American society are all but absent from the ranks of the U.S. military.

Moral exhortations for citizens to care more deeply about national defense are insufficient. Unless the public and its elected representatives have some personal stake in decisions of war and peace, they can not and will not provide adequate oversight in these profound choices. Madison understood that “if men were angels, no government would be necessary.” It is precisely because men are not angels that the Founders placed the terrible power to choose and make war with those who would feel its burdens most directly. In Federalist 51, Madison argues that the “policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” Rather than hope for better motives in either the executive or the legislature, the American people would be best served by returning to the system of checks and balances in war powers that has served us so well for so long. Given America’s global responsibilities, the U.S. can no longer rely for its security on a small and relatively cheap standing military supported by a large 18th-century style militia. However, we can return to the principle that America’s citizens and our elected representatives must be engaged in the defense of our country.


The U.S. should therefore abandon the all-volunteer military and return to our historic reliance on citizen soldiers and conscription to wage protracted war. This approach proved successful in both world wars and offers several advantages over the all-volunteer military. First and most important, this approach demands popular participation in national security decisions and provides Congress with powerful incentives to reassert its war powers. Unlike the all-volunteer force, a conscripted force of citizen soldiers would ensure that the burdens of war are felt equally in every community in America. Second, this approach provides the means to expand the Army to a sufficient size to meet its commitments. Unlike the all-volunteer force, a conscripted force would not rely on stop-loss policies or an endless cycle of year-on, year-off deployments of overstressed and exhausted forces. Third, conscription enables the military to be more discriminating in selecting those with the skills and attributes most required to fight today’s wars. Unlike the all-volunteer force, a conscripted force would not rely on exorbitant bonuses and reduced enlistment standards to fill its ranks. Finally, this approach would be less expensive. Unlike the world wars of the 20th century, today’s dangers will not pass quickly, allowing for a return to a smaller and less expensive military establishment. Imposing fiscal discipline on the Pentagon would not only strengthen America’s depleted finances, but also constrain executive ambitions for adventures abroad and congressional appetites for pork-barrel projects at home.

Some may argue that conscription is unfair. Only a small percentage of the 4 million Americans eligible for military service in any given year would be required to serve. Past conscription systems were riddled with waiver policies that allowed the most-privileged Americans to avoid military service. Any future conscription policy must be both fair and militarily effective. Both goals may be achieved by raising induction standards to conscript those with the attributes necessary for today’s wars: the ability to speak foreign languages and operate in foreign cultures, engage in complex moral reasoning about the use of force, as well as bear the heavy physical and psychological burdens of combat. Many of the young people who possess these attributes also demonstrate a low propensity to volunteer for military service. Conscription based on militarily relevant skills and attributes without waiver would provide the quality and quantity of manpower required to prosecute today’s wars. Conscripting gifted young people would embrace the fairest principle of all: To whom much is given, much is expected.

Defenders of the all-volunteer force often argue that the U.S. already has a military that is broadly representative of and better educated than the society it serves. Today’s military volunteers have certainly demonstrated admirable intelligence, courage and adaptability. However, claims that today’s military is representative of American society are based more on methodological sleight of hand than rigorous analysis. Opponents of conscription point out that the richest 20 percent of American households with military-aged children are slightly overrepresented in today’s military. This category includes all households with median incomes over $52,000, grouping together middle-class families with multimillionaires. By grouping together widely divergent income categories, the Defense Department obscures the absence of the most-privileged Americans from the ranks of the armed forces. The same sleight of hand is evident regarding educational levels. Any educational barrier to enlistment, however low, would necessarily produce a force that is better-educated than the general population from which it is drawn. Defenders of the all-volunteer force are at difficulties to explain why, as demands on enlistees have increased since the end of the Cold War, enlistment standards have declined. In truth, the all-volunteer military competes in a labor market for a limited pool of talent that often has more viable economic alternatives than military service.

Beyond the issue of fairness, some may object to increased reliance on the National Guard and reserve on the grounds of strategic responsiveness. The U.S. will continue to require an immediately available active-duty expeditionary force to respond to short-notice, small-scale contingencies. A congressional declaration of war and mobilization of the National Guard and reserve take time. However, for cases of protracted major wars, this time would be well-spent in deliberating the wisdom of proposed war aims. Prior to America’s entry in World War II, Congress and the country engaged in a rigorous debate about the wisdom of President Franklin D. Roosevelt’s defense policies. In the summer of 1941, congressional authorization to extend the draft and federalization of the National Guard passed the House of Representatives by a single vote. However contentious and slow this process may have been, it ensured the country was informed of and committed to FDR’s policies. Roosevelt understood that congressional debate was a vital step in mobilizing popular passions for war. However tactically proficient today’s all-volunteer force may be, it remains isolated from America’s greatest strategic assets: the wisdom and energy of the American people.

Others may dispute these methods of raising and funding military power on the grounds of political expediency. Imposing conscription, mobilizing National Guard and reserve forces, raising taxes and cutting domestic spending to pay for military expenditures will be politically unpopular. However, the development of America’s military forces and their commitment to protracted wars were never intended to be politically expedient. The Founders placed these powers in the hands of Congress to ensure that such momentous decisions were undertaken carefully after sober public deliberation. The Founders did not expect that America would “go to war with the Army we have” but rather that Congress would raise the Army we need to prosecute carefully thought out war aims to a successful conclusion.

The responsibility of Congress to raise military forces includes the responsibility to confirm senior military officers to positions of important command. To ensure that America’s armed forces are ably led, Congress must return to its tradition of exercising strong oversight on the appointment and conduct of senior officers. The historical record contains ample evidence of the efficacy of Congressional oversight in this regard. The National Security Act (1947) and the Goldwater-Nichols Defense Reorganization Act (1986) both substantially strengthened U.S. military capabilities, and both passed despite the objections of senior military officers. During World War II, Sen. Harry Truman’s leadership of a military oversight committee dramatically improved procurement procedures, saving lives as well as money in the process. More recently, Congress has deviated from this tradition of strong oversight. When Army Gen. George Casey was nominated to serve as the senior U.S. commander in Iraq, the Senate confirmed the nomination unanimously after essentially pro forma hearings. As Greg Jaffe and David Cloud note in “The Fourth Star: Four Generals and the Epic Struggle for the Future of the United States Army,” “[Casey] hadn’t interviewed with either Rumsfeld or Bush before being chosen. No one asked him for his ideas about what needed to be done, and he hadn’t thought about it very much. [Army Chief of Staff Gen. Pete] Schoomaker had given him a book entitled ‘Learning to Eat Soup with a Knife: Counterinsurgency Lessons Learned from Malaya and Vietnam.’ … It was the first book Casey had read on guerrilla war.”

After two more years of mounting chaos in Iraq, Congress again returned to its tradition of strong oversight in the appointment of military leaders. When Army Gen. David Petraeus was nominated to replace Casey, the Senate confirmation hearings were far more vigorous, despite Petraeus’ distinguished pedigree in counterinsurgency warfare. The Senate would never confirm a Supreme Court justice who hadn’t given much thought to questions of constitutional law. Instead, senators inquire vigorously into the qualifications and judicial temperament that each nominee brings to his or her grave responsibilities. The Senate should exercise the same rigor in confirming those who lead American forces in battle.

Congress must be equally vigorous in resisting expansive interpretations of executive authority. Hasty and ill-considered executive decisions may burden the country with untenable and counterproductive policies whose consequences endure for decades. No issue makes this point more clearly than the Bush administration’s policies regarding the detainees at Guantanamo Bay, Cuba. The Bush administration asserted broad authority to detain suspected terrorists, asserting that they were neither lawful combatants fully protected by the Geneva Conventions nor criminal suspects fully protected by the Constitution. The Supreme Court ultimately rejected these arguments, but not before these policies did substantial damage to America’s reputation around the world. Greater congressional oversight in the formulation of the Bush administration’s detention policies might have prevented this. The Founders provided Congress with ample authority to conduct such oversight, including the appropriation of funds and the confirmation of executive branch nominees. The Founders did not provide the executive with expanded power in time of war, and placed the authority to suspend the writ of habeas corpus under Congress. The Founders were not naive and understood that not every exigency of war could be anticipated and satisfactorily resolved by the law. Even strong advocates of legislative supremacy recognized the possibility that an executive might act contrary to the law for the purpose of preserving the state. John Locke, whose “Second Treatise on Government” powerfully influenced the Founders’ thinking, acknowledged the possibility of executive prerogative, defined as “power to act according to the discretion for the public good, without the prescription of the law, and sometimes even against it.” However, Locke warned that “the people shall be judge” as to whether such sweeping executive action was intended for the public good. Lincoln’s suspension of the Great Writ in the Civil War, imposed during congressional recess and affirmed only after the fact, is an example of the exercise of executive prerogative for the public good. Especially in times of war, the people’s elected representatives must balance executive demands for broad discretion with equally important concerns for accountability and oversight.

Finally and most importantly, Congress must discontinue the practice of authorizing protracted military operations without a formal declaration of war. Since World War II, Congress has abandoned the practice of declaring war prior to the onset of military hostilities. This practice may be justified in the immediate aftermath of an attack, such as the Japanese attack on Pearl Harbor or the al-Qaida attacks of Sept. 11, 2001. In such circumstances, the president as commander in chief has the authority to act in self-defense until he can bring the matter before Congress. However, the Constitution places the power to declare war and commit the armed forces of the U.S. to battle with the Congress.

The Founders recognized that war placed substantial demands on the public in both blood and treasure. For a self-governing society to fight a protracted war, the people must believe in the wisdom and justice of the conflict. Because they will bear the burdens of war, the people through their elected representatives are the best judges in the decision to use force to achieve the aims of policy. The Founders relied on the people and their elected representatives to ask hard questions and seek peaceful solutions in order to avoid potential conflicts.

There is no need for Congress to revisit or revise the War Powers Act of 1973, or to pass new legislation constraining executive war powers. The constitutionally mandated power of Congress alone to declare war is sufficient in and of itself. A popularly supported declaration of war is the surest indication that the war aims proposed by the executive have been carefully thought out, and peaceful means to achieve those aims have been exhausted. More importantly, such a declaration commits the full energy of the American people in prosecuting the war to a successful conclusion.

Eschewing a congressional declaration of war calls into question both the wisdom of the war and the public’s commitment to winning it. The clearest example of this phenomenon is the 2002 congressional authorization for the use of force in Iraq. This resolution authorized the president to employ the armed forces “as he deems appropriate” to “defend the national security of the U.S. against the continuing threat posed by Iraq.” Moreover, unlike U.N. Security Council resolutions, the congressional authorization for the use of military force had no fixed time limit. Once passed, the president could and did use this authority to initiate a preventive war and sustain a protracted counterinsurgency campaign in Iraq. Congress granted this authority despite the fact that the Bush administration’s justification for war contained a number of highly dubious claims. Among these were that Iraq had links to al-Qaida, that Iraq possessed or would soon possess weapons of mass destruction and that establishing a democracy in Iraq could transform the conflict-torn Middle East into a more peaceful region. Prior to the war, a number of highly prestigious international relations scholars questioned the wisdom of the case for war. Moreover, several internal Defense Department studies indicated that the armed forces lacked sufficient troop strength to prosecute the war successfully. To be fair, a number of members of Congress questioned the justification for war and the means available for its prosecution. However, the resolution interpreted by the executive branch to provide sweeping presidential authority to invade, occupy and govern Iraq passed both houses of Congress by wide margins and without members of Congress accepting responsibility for the ensuing conflict.

In many ways, the prosecution of the war in Iraq is a cautionary tale against bypassing the war powers of Congress. If members of Congress had to impose conscription and fully mobilize the National Guard, they might have been more skeptical of the case for war. Had members of Congress been required to cut popular domestic programs to pay for the war, they might have insisted on prosecuting the war more intelligently and vigorously. Instead, Iraq edged toward chaos over the course of four years, costing the lives of thousand of volunteers and hundreds of billions of dollars in borrowed money. Members of Congress held hearings and asked questions, but took no action to change the course of events in Iraq. The public did not have to endure conscription as it did during the Vietnam War; the nascent anti-war movement therefore never approached the size and intensity of its Vietnam-era counterpart. Congress played only a minor role in the 2007 change of strategy in Iraq, the so-called “surge” that has created a remarkable, if fragile, turnaround. Nonetheless, the underlying fact remains that our conduct of the war in Iraq calls into question both the intelligence and vigor of America’s capacity to wage war.

As the U.S. commits additional forces to Afghanistan, Americans would be well-served to return to our constitutional system of war powers. The burdens of fighting in Afghanistan cannot and will not be shouldered solely by those in uniform today. Many of the soldiers who will fight in Afghanistan have not yet entered high school, and many of the workers who will pay for this conflict are not yet born. No war policy can succeed unless the American people are committed to the wisdom and justice of the conflict, and prepared to bear the burdens necessary for victory. America’s Founders understood this principle well, and gave us a system of government to keep us both safe and free. In practice, this form of government provides for a deliberative process that is slow, inefficient, messy and noisy. However, these inconveniences are a small price to pay to ensure that we choose our wars wisely and fight them intelligently and vigorously. We have paid a terrible price for ignoring the Founders’ wisdom, and in doing so have gained neither safety nor freedom. However, the great advantage of our system of government is that it allows us to learn from the past and do better in the future. Perhaps Madison should have added an eighth article to the Constitution: “When all else fails, read the directions.”

LT. COL. PAUL L. YINGLING is an Army officer who has served three tours of duty in Iraq and who is currently a professor of security studies at the George C. Marshall Center in Garmisch, Germany. The views expressed here are the author’s own and do not necessarily reflect those of the Army or Defense Department.