The Soldier, the State, and the Separation of Powers

By Pearlstein, Deborah N. | Texas Law Review, March 1, 2012 | Go to article overview

The Soldier, the State, and the Separation of Powers


Pearlstein, Deborah N., Texas Law Review


As U.S. counterterrorism activities continue to engage the armed forces in profound legal and policy debates over detention, interrogation, targeting, and the use of force, recent legal scholarship has painted a grim picture of the effective vitality of civilian control over the U.S. military. Prominent generals leverage their outsized political influence to manipulate the civilian political branches into pursuing their preferred course of action. Bureaucratically sophisticated officers secure the adoption of their policy judgments in the Executive Branch and Congress contrary to civilian preferences. And misplaced judicial deference to military expertise on what is necessary to regulate the special community of the armed forces exacerbates the growing social separation between the military and the society it serves. The question of how to distinguish expert advice from undemocratic influence that has long surrounded the work of administrative agencies is made especially complex by the unique constitutional role of the military. But before one can tell whether civilian control is threatened, one must first have some understanding of what it is. For all the intense focus in recent years on the legality of what the military does, where the modern military fits in our constitutional democracy has remained remarkably undertheorized in legal scholarship. Moreover, prevailing theories of civilian control in the more developed social- and political-theory literature of civil-military affairs view the Constitution's separation of powers-in particular, the allocation of authority over the military to more than one branch of government-as a fundamental impediment to the maintenance of civilian control as the theories take it to be defined. As a result, there remains a significant gap in the development of a constitutional understanding of the meaning of civilian control. This Article is an effort to begin filling that gap, by examining whether and how the constraining advice of military professionals may be consistent with our modern separation-of-powers scheme.

I. Introduction

As American counterterrorism activities continue to engage the armed forces in profound legal and policy debates over detention, interrogation, targeting, and the use of force, recent works by legal scholars from Bruce Ackerman and Diane Mazur to Glenn Sulmasy and John Yoo paint a remarkably grim picture of the vitality of civilian control over the U.S. military. Prominent, even "celebrity," general officers leverage their outsized political influence to manipulate the civilian political branches into pursuing their preferred course of action.1 Bureaucratically sophisticated mid-level officers inside the Pentagon are able to effect the adoption of their policy judgments in the Executive Branch and Congress "against the wishes of civilian leaders to the contrary."2 And misplaced judicial deference to military expertise has exacerbated the growing separation between the military and the society it serves.3 In these ways and more, such authors suggest, the modern military has come to threaten core notions of civilian control by exerting undue influence on democratic processes of governance.

Particularly given the scope of contemporary U.S. military activity in counterterrorism efforts worldwide, the notion that the military is in some important sense exerting undue influence over political decision making should seem troubling. Our constitutional democracy was, after all, founded on the complaint that the King had "affected to render the Military independent of and superior to the Civil power."4 It should be troubling also for those familiar with a separation-of-powers scheme that allocates significant structural authority to more than one branch of the federal government for the purpose of ensuring that the military remains subordinate.5

Yet, high profile accounts of charismatic military leaders like Colin Powell effectively campaigning against a presidential initiative to lift the ban on gays in the military,6 or of a group of generals revolting against civilian Defense Secretary Donald Rumsfeld by criticizing his leadership during the Iraq War,7 tend to obscure more complex illustrations of military engagement in legal and policy-making decisions. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Soldier, the State, and the Separation of Powers
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.