The Military's Constitutional Role

Authors

Brenner M. Fissell, Villanova University Charles Widger School of LawFollow

Recommended Citation

Brenner M. Fissell, The Military's Constitutional Role, 103(2) North Carolina Law Review 331 (2025).
Available at: https://digitalcommons.law.villanova.edu/facpubs/195

Abstract

A basic principle of the American constitutional order is that civilian authority must be supreme over that of the military. The violation of this principle by the British was one of the grievances enumerated in the Declaration of Independence, and the Framers responded with a Constitution that made military rule impossible. But why is so-called “civilian control” of the military so important? This deep normative question has yet to be thoroughly answered by scholars, most of who assume it away as a given. This Article takes up that task, using contemporary political theory to defend the principle of civilian control.

The United States is a liberal democracy, while the military is an institution governed by principles that are opposed to both liberalism and democracy. Military law enforces command-based governance, hierarchy, and collectivism, with an eye toward success in violent conflict. These values conflict with liberalism’s commitment to reason-giving, autonomy, individualism, and pacifism; they also conflict with democracy’s demand for deliberation and majoritarian preference aggregation. Our commitment to liberal democracy, therefore, requires civilian control.This eliminates the possibility of legitimate military rule, but also that of a military that is autonomous and separate from civilian authority.

How is civilian control implemented today, though, in a stable polity unthreatened by overt military coup? This is primarily through fluid, unwritten norms of behavior that govern the conduct of senior military officers. The more realistic concern is not that of a coup, but of these officers’ undue influence in policymaking. To guard against such a threat, this Article argues that the civilian control norm should include a non-aggrandizement principle—that when military influence seeks to expand military authority at the expense of civilian authority, this is a strong indicator that the influence is violative of the underlying norm. Non-aggrandizement works to protect liberal democracy against the threat of either military rule or military autonomy.

ISSN

0029-2524

Disciplines

Constitutional Law | Law | Military, War, and Peace | National Security Law