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ON THE COMMANDER-IN-CHIEF POWER
David Luban, Georgetown University Law Center
Forthcoming: Southern California Law Review
ABSTRACT:
Since September 11, the Bush administration has asserted broad, exclusive presidential war powers under the Commander in Chief Clause. However, the minimalist language of the Clause never specifies what powers a commander in chief possesses. This paper argues, based on military history, original understanding, and the contemporary theory of civilian-military relations, that the commander-in-chief power is narrow rather than broad. In ancient and feudal societies, like contemporary military dictatorships, civilian and military dominion are fused to consolidate power in the hands of a single leader – a warrior-king or fighting executive, whose military prowess validates the claim to civilian rule. In a democratic republic, however, the purpose of fused dominion is entirely different. It is to ensure civilian control of the military – to safeguard against coups, usurpations, and adventurism. For purposes of civilian control of the military, there is no assumption that the civilian commander in chief possesses any military competence or exercises real military command. There is, therefore, no reason to suppose that the commander-in-chief power incorporates a broad, uncircumscribed set of war powers. Examination of military history shows that at the time of the constitutional framing, the functional roles of rulers and military commanders were already separated; and founding-era debates demonstrate lively concern about the dangers of usurpation and adventurism. The contemporary theory of civilian-military relations reveals the continued importance of maintaining separation of civilian and military functions. In short, the political theory behind the civilian commander in chief centers on the need to restrain power, not to enhance it; and it is this theory that provides the interpretive key to the Commander in Chief Clause.
SUGGESTED CITATION:
David Luban,
"ON THE COMMANDER-IN-CHIEF POWER"
(October 26, 2007).
Georgetown Law.
Georgetown Law Faculty Working Papers.
Paper 40.
http://lsr.nellco.org/georgetown/fwps/papers/40
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