Every military officer takes the uniformed services oath of office. The oath contains the following, “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same”. Some of the implications of the oath are easily missed. This article brings those implications into focus.
Military oaths go back to ancient Rome. Until the U.S. Revolution, oaths were to the king or a General. George Washington took a different approach on 7 May 1788 when he had his soldiers pledge an oath to the Constitution. That precedence holds today. In addition, military personnel are to be apolitical. They vote, but they are not to be overtly active in political matters.
The Uniformed Services Oath of Office holds a new military officer to 2 key promises:
- Well and faithfully discharge the duties of office
- Support and defend the Constitution from all enemies
The first promise encourages an officer to do a good job. In a meritocracy, it is common for everyone to do his/her job well. This promise reflects on Aristotle’s αρετη (arete), to be the best human being one can be. Any nation wants the best defending it.
The second promise is much more interesting in a constitutional context. The phrase, “defend the Constitution of the United States against all enemies, foreign and domestic”, has some profound and surprising implications. Let us consider the two enemies.
Roman Republic law forbade the army from crossing the Rubicon to prevent the army from installing a dictator. Likewise, the US military is never deployed within the continental United States unless a state requests it. The universal view is that the military is used exclusively against foreign enemies of the nation – as it should be. What is not considered is that the defense of the Constitution against foreign enemies is indirect, not direct. That is, the military defends the nation directly, and only defends the Constitution indirectly – as a result of defending the nation’s sovereignty. Without the nation, the Constitution is an antique of history. Therefore, when the enemy is foreign, the meaning of the Constitution is not at issue. Survival of the nation is front and center.
The situation is different for the second case – where the enemy is domestic. There are two potential types of domestic enemies: 1) those attacking the nation and 2) those attacking the Constitution itself. The former case can be treated as spies have always been treated. They are essentially a foreign enemy who just happens to be located within the borders of the US. The second enemy is the more dangerous and confounding. The target of such a domestic enemy is not the nation’s sovereignty per se. The target is the Constitution (the sovereignty of the people). The goal is most likely to substitute a tyrannical form of government that represses individual rights – as has happened to republics and democracies throughout history.
One of the things that is interesting about this latter enemy is the definition of treason in the Constitution itself. Treason requires levying war against the United States (e.g., the nation). Attacking and attempting to invalidate the Constitution is not considered treason. How, then, can a military person defend the Constitution against a domestic enemy? Ignoring an enemy of the Constitution who is not guilty of constitutional treason but guilty of undermining the Constitution leaves the military in a conundrum. The military should not be a political instrument, but it is honor bound to protect the Constitution from domestic subversives.
There is a fascinating set of questions to answer to define an enemy of the Constitution and what can be done to such an enemy:
- Can an office-holder of the government be an enemy of the Constitution?
- Is an officer who exceeds his/her limits an enemy of the Constitution?
- Can another military person be an enemy of the Constitution?
- Can a private citizen be an enemy of the Constitution?
- Can an organization be an enemy of the Constitution?
- Is an attempt to change the system of government from a Republic an enemy act?
- What can a military person do to a domestic enemy to defend the Constitution?
There are, no doubt, more questions and many resultant thoughts. Below are just a few.
With regards to who can be an enemy of the Constitution, anyone and any organization can be an enemy of the Constitution. The most compelling question is if an office-holder of the government can be an enemy of the Constitution. No other instance is more dangerous. Throughout history, usurping power is mostly done from within the government. The reason is simple. There is less resistance to the change. It takes war to overthrow an existing government from outside the government. Overthrow from within is predominant throughout history in the form of coup’s. This is why the American military is to be apolitical.
How can an enemy actually damage the Constitution? The rules within the Constitution itself dictate that a sizeable faction would be required to damage the Constitution. Throughout our history, factions that were not powerful enough to persuade the public of the need for constitutional amendment have tried to bypass the Constitution by legislation, Supreme Court ruling, or executive order. Are these excesses of power the act of an enemy of the Constitution? American DNA contains the desire to push the rules as far as possible, so to make such a claim makes no sense.
So, how does a domestic entity become an enemy to the Constitution? At its core, the Constitution describes a federal system of government. That is, governance is intended to be distributed throughout the land. Separation of powers is intended to be a horizontal balance of power, while federalism is a vertical check on power at the national and state levels. The enemy of such a system is centralization of power and can attack either horizontally or vertically.
Political parties that are too strong threaten the separation of powers. Excessively strong political parties are a true enemy of the Constitution because they promote centralized control by the party. To use the vernacular, “party discipline” can nullify “separation of powers”. In such a scenario, party leadership dictates to all branches of government, and consequently, to the people. Instead of the branches asserting independent interests, they only do the party’s bidding.
The long-term weakening of state power (that is, federalism) was not started to centralize power, it was a byproduct of correcting injustice – slavery. But the progressive movement did not stop with the end of slavery. They continued to see injustice – some real, some not. The progressive amendments of 1913 (16th and 17th) were not about removing injustice. They grew the national government and reduced the power of the states. In other words, these two amendments centralized power in Washington, D.C.
How, then, can a military person defend against a domestic enemy of the Constitution and be apolitical? The battlefield itself is political in nature. It is a paradox without a good answer.
