Constitution and Authority
I received a digital copy of the white paper the other day. Most of it is very good. One thing though, that will come across initially as lawyer-like nitpicking, but I think has gargantuan weight, especially if you are considering the role of our Army in the United States: On page 16, the white paper gets into the source of authority for the Army. It states -
All Soldiers swear to support and defend the Constitution. However, the Constitution alone is not the source of their authority. The source of military authority flows from the American people through the Constitution, through elected and appointed officials, to the officers they appoint, and finally to those Soldiers entrusted with executing orders. There is a dynamic relationship in this authority hierarchy. The people have the power to amend the Constitution and to elect the political leaders who both authorize and fund the military. The military remains loyal to the people and the Constitution by fulfilling its function in accordance with the guidance, laws, and regulations passed by those with the authority to do so.
This chain of authority argues against the idea that the ultimate loyalty for Army professionals is simply to the Constitution. Rather, Army professionals are loyal to the Constitution, and thus to the people, by being obedient to elected and appointed officials and the Commander-in-Chief. Thus, being willingly subordinate to civilian authority is based on loyalty to the source of its authority. This principle was perhaps best exemplified by General George Washington in his resignation to Congress at the close of the Revolutionary War. By this act he ensured that his immense national popularity as a military leader and hero would not overshadow the necessary power of the fledgling Congress. Thus the American military has long recognized and embraced a moral tradition of subordinating service to country.
The constitution and treaties signed by the president and ratified by the senate make up the highest law in the land. It is the constitution that establishes in the law the components of the federal government. It states how senators and congressional representatives are chosen, describes the powers of congress, describes the powers of the president, describes the means by which the constitution itself may be amended.
Most importantly, for this discussion, the constitution restricts the powers of the federal government to those things explicitly granted to it by the constitution which are not explicitly forbidden to the states or the people:
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The very existence of an armed forces controlled by the federal government requires explicit authority, which is given in Article I, Section 8:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
(...skipping through stuff not militarily-related...)
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
(...skipping stuff not militarily-related...)
You could also consider the powers granted to the president as commander and chief, but without the express authority to tax (and therefore spend) to fund a military, there wouldn't be one for the president to be commander-in-chief of. There is no legal way for the federal government to form and maintain such an armed forces except through the powers expressly stated in the constitution. So, it is illogical to see some other sources of authority - there aren't any.
What you have instead is a stream of authority that flows from the wellspring of constitutional law. Everything starts there. The appointment of officers, funding for operations, training, and the procurement of equipment, facilities, and materiel, the uniform code of military justice, so on and so forth...even the process for entering into, signing, and ratifying treaties that affect how our Army conducts itself originates with the constitution.
This is all very significant, and in opposition to the material on page 16, because congress and the president are bound by the constitution. (Again, look at the 10th amendment.) They don't have any "extra-constitutional" powers. If they did, then there wouldn't be any point to even having a constitution. The whole point of the constitution is to establish rule of law, rather than rule of man - aka mob rule. The whitepaper mentions that the "people" can amend the constitution through their representatives - yes, if it is done in the manner described in the constitution, but until they have done so, their whims don't mean diddly-squat.
Mob rule and populism are serious threats to the freedom of individual citizens. Rabble-rousing is a favorite tactic of murderous and oppressive strongmen the world over, the manic speeches of Hitler and Mussolini being the most famous, instantly-recognizable examples. The Soldier must have no confusion on the subject of constitutional supremacy. No order, if it violates constitutional law, is legal and no such order should be carried out.
When the Army starts writing about the profession of arms and the Army's position and role in our society, this stuff needs to be crystal clear and absolutely accurate.
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