Guest Essayist: George Schrader, Student of Political Science at Hillsdale College

Article 1, Section 8, Clause 14-16

14:  To make Rules for the Government and Regulation of the land and naval Forces;

15:  To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

16:  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;

In discussions of the constitutional interaction between the federal government and the military, much of the conversation centers on the office of the president.  This is logical, as the president is declared the, “commander in chief of the army and navy of the United States” in Article Two of the Constitution.  What should not be overlooked, however, is the important role the legislature plays in how America’s armed forces operate.  While the president may have greater direct control over the military, especially in times of war, Congress’s powers under Article One, Section Eight provide both an important check on presidential power, as well as a means for maintaining security within the nation.

Perhaps the most prominent theme throughout this section of Article One is the intent of removing some control of the military from the president and placing it in the hands of Congress.  Examples of this are seen in Clause Fourteen’s allowance for Congress to, “make rules for the government and regulation,” of the army and Clause Fifteen’s reliance on the legislature to summon, “the militia to execute the laws of the Union.”  One may reasonably ask why the Founders, who spoke often in the Federalist Papers of having an independent and energetic executive, would make such enormous cessions of executive power to the legislature.  The answer appears to be rooted primarily in a fear of tyranny.

When one considers the concerns of average citizens during the time of the Founding, one of the most common fears was that America would slide into a tyrannical monarchy.  The most likely origin for such a monarch was the president, a suspicion supported by history.  Most popular forms of government, from the democracy of Athens to the republic of Rome, had collapsed into a tyranny once a sufficiently devious dictator found a weakness in the government’s structure.  Furthermore, these tyrants often obtained and secured their power through the use of the executive’s military control.  Examples of this abound, from Caesar in ancient Rome to Napoleon in France.  If America’s army were to overthrow the popular government it would most likely be at the behest of the president.

This fear of a powerful military president led to some problems for the Founders.  Legislatures, by their nature, make laws and do not independently enforce them.  Furthermore, it was generally understood that foreign diplomacy was best carried out by an entity separate from the legislature for reasons too nuanced to explore here.  Congress was therefore unfit to control the military by itself.  The military could also not be entirely entrusted to the states in the form of completely independent militias, as the nation’s experience under the Articles of Confederation proved that this system was too unorganized to react quickly to an emergency.  A president was literally the only solution.

Regardless of the necessity of independent executive control over the military, the Founders were still not comfortable simply allowing the president to wield unchecked control over the nation’s armed forces.  The limitations described in these clauses, along with Congress’s power over the budget, provide precisely these checks by creating situations in which the president’s normally supreme role in the military is eclipsed by the legislature.  It is interesting here to note that the limitations, particularly Clause Fourteen’s call for the legislature to create rules for the military, were carefully selected so as to only grant Congress powers that fit within its typical duties of creating law.  In this manner, the Founders reduced the threat of a military dictatorship led by an over-ambitious president without gravely distorting the purpose of the American legislature.

While not an issue which is frequently considered today, at the time of the Founding the threat of a military coup weighed heavily upon the minds of many Americans.  Though weakening the authority of the president over the military has its disadvantages, the Founders’ decision to do so in ways consistent with the purpose of Congress created perhaps the best possible compromise between presidential power and civic security.

George Schrader is a student of political science and German at Hillsdale College.

Guest Essayist: George Schrader, Student of Political Science at Hillsdale College

Article 1, Section 7, Clause 2

2:Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

The veto power contained in Article One, Section Seven, Paragraph Two of the Constitution is often trivialized as being a mere procedural formality.  While the Preamble provides sweeping statements of the values of the document, and the Bill of Rights proclaims rights every citizen holds dear, the veto power is for many no more than a step in the lawmaking process, devoid of any deeper constitutional significance.  Looking below the surface, however, reveals an important part of the philosophy and structure of the Constitution in this one procedural step.

Understanding the veto power means understanding the Founders’ idea of the separation of powers.  Born out of the Western European Enlightenment, this concept theorizes that government has very distinct powers, namely, the executive, legislative, and judicial.  In the American Constitution, an independent governmental institution was created for each of these powers.  Congress is granted the sole ability to legislate, the President the sole authority to execute the laws, and the courts the sole power to judge according to those laws.  This represents a revolution in government structure, as most previous governments attempted to wed two or more of these powers into a single entity, often resulting in tyranny.  By separating powers, the Founders hoped to dilute the powers of government and prevent any individual or branch from seizing control.

This is not to say, however, that the Founders believed that simply assigning each branch of government one political power would solve the problem of tyranny.  James Madison cringed at the idea of granting all of any power, be it legislative, executive, or judicial, to any one body.  He explains in Federalist Forty-Seven that the concentration of political power in any branch, “may justly be pronounced the very definition of tyranny.”  The Founders were therefore left with a dilemma.  Failure to separate the powers of government between several hands would quickly lead to the collapse of the government into tyranny.  However, allowing each branch to be miniature tyrants within their own power did not provide an acceptable alternative.  The resulting compromise is quite ingenious, and is demonstrated perfectly by the veto power.

In an effort to mitigate the problem of concentrating power of any sort in one set of hands, the Founders chose to take small pieces of each general power of government, and entrust it to a branch whose primary purpose was not the execution of that power.  This is perhaps best explained through the example of the veto power.  Making law is a legislative function, and as such is held by Congress.  The veto power puts the president, the chief officer of the executive power, in the law-making process, effectively rendering him a form of legislator.  While he cannot constitutionally perform other legislative functions, such as propose laws or control revenue flow, his vote is still an integral part of any law’s creation.  While just one example, the veto power illustrates how the Founder’s separation and redistribution of power work in practice.

Having considered the rationale of mixing government’s power, the question remains as to why this should prevent tyranny as the Founders intended.  The answer comes in revisiting the idea of concentrated power.  If tyranny grows out of too much power being in one place, two solutions seem likely.  First, one could take away an essential power of government, such as the ability to make law, therefore rendering the government all but useless.  Such a solution is akin to anarchy.  The other option, and the one chosen by the Founders, is to spread powers out so that any one entity would find it impossible to gain sole control over any aspect of government.  No matter how tyrannical the legislature’s intent, it cannot constitutionally remove the president’s role in the law-making process with his veto.  While certainly not foolproof, this system of dividing power provides an important constitutional check on the growth of governmental power.

While certainly not the most glamorous aspect of constitutional philosophy, the presidential veto power provides in miniature a view into the Founders’ hopes for governmental balance.  By separating power generally between three branches, and separating that power again through these exceptions, the Founders provided an institutional protection for the freedoms they hoped to preserve.

George Schrader is a student of political science and German at Hillsdale College.