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External Research Associates Program

LEAD ME, FOLLOW ME,

OR GET OUT OF MY WAY:

RETHINKING AND REFINING

THE CIVIL-MILITARY RELATIONSHIP

Mark R. Shulman

September 2012

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ii

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ISBN 1-58487-547-X
iii

FOREWORD

In this monograph, Dr. Mark Shulman offers important insights into the nature and condition of civilmilitary relations. Dr. Shulman’s broad-ranging experience as a lawyer, military historian, and academic 

gives him a unique perspective toward this crucial 

relationship. 

His monograph appears at a critical juncture. Dr. 

Shulman encourages readers to consider the changing 

relationship between the National Command Authority and the Armed Services. The all-volunteer force is 

nearly 40 years old, and our most recent defense reorganization (the Goldwater-Nichols Act of 1986) was 

passed nearly a quarter-century ago. Dr. Shulman 

notes numerous social, legal, political, and technological changes in recent years that should occasion a new 

look at this age-old nexus. The historic drawdown 

from the long wars in Iraq and Afghanistan—along 

with the impending budget adjustments—only increases the need to think deeply about how the Armed 

Forces work with the political apparatus of our republic. 

Dr. Shulman launches this important dialogue by 

discussing two recent books by professors of constitutional law. Naturally, scholars in other fields have 

been examining civil-military relations from other 

important perspectives. Naval War College Professor 

Mackubin “Mac” Owens has been thinking deeply 

about this relationship from the perspective of a national security specialist. Historians Richard Kohn 

and Andrew Bacevich have also explored these issues. Even television host and political commentator 

Rachel Maddow has joined the conversation, decrying 

the “Unmooring of American Military Power.” Now 
iv

Dr. Shulman brings to our attention the perspectives 

of scholars deeply steeped in constitutional jurisprudence. 

In examining these works of constitutional law, 

Dr. Shulman elucidates some of the important schisms 

between members of the Armed Forces and civil society. He explains the legal maneuvers that created or 

widened the distance between them, and he argues 

for more candid, multidisciplinary questioning. What 

should the civil-military relationship look like, and 

how do we get there? Dr. Shulman’s monograph attempts to frame these crucial questions and provides 

a constructive start in answering them.

 

DOUGLAS C. LOVELACE, JR.

Director

Strategic Studies Institute
v

ABOUT THE AUTHOR

MARK R. SHULMAN is the Assistant Dean for Graduate Programs and International Affairs and an Adjunct 

Professor at Pace Law School. Prior to joining Pace, he 

directed the Worldwide Security Initiative at the EastWest Institute. Until 2003, he practiced corporate law 

in New York. An active member of the Association of 

the Bar of the City of New York, he chairs the Council 

on International Affairs and serves on the Task Force 

on National Security and the Rule of Law. Over the 

years, Dr. Shulman has taught international law and 

the laws of war at Columbia Law School and Sarah 

Lawrence College, and history and security affairs at 

Yale University, the U.S. Air War College, and Columbia University’s School of International and Public Affairs. He also serves as a consultant to the Rockefeller 

Foundation and is a member of the board of Next Generation Nepal. He served as editor-in-chief of the Journal of Transnational Law at the Columbia Law School. 

Dr. Shulman has published widely in the fields of history, law, and military and international affairs. His 

books include: The Laws of War: Constraints on Warfare 

in the Western World (1994), Navalism and the Emergence 

of American Sea Power (1995), An Admiral’s Yarn (1999), 

and The Imperial Presidency and the Consequences of 9/11

(2007). His scholarly articles have appeared in the 

Columbia Journal of Transnational Law, American Journal 

of International Law, Journal of National Security Law & 

Policy, Fordham Law Review, Penn State/Dickinson Law 

Review, Houston Journal of International Law, Journal of 

Military History, and Intelligence and National Security. 

He has also contributed numerous essays to newspapers, including the International Herald Tribune and the 

Financial Times, as well as to blogs such as Opinio Juris. 
vi

Dr. Shulman holds a B.A. from Yale University, a master’s degree from Oxford University, a Ph.D. in history 

from the University of California at Berkeley, and a 

J.D. from Columbia Law School.
vii

SUMMARY

This monograph explains why robust civil-military 

relations matter and discusses how they are evolving. 

Without meaningful and reliable civilian control of 

the military, governments lose some measure of control over the destiny of their nations. In extreme circumstances, a lack of civilian control can even lead to 

a coup d’état. Part I discusses A More Perfect Military: 

How the Constitution Can Make Our Military Stronger

by Diane Mazur, a book that examines the jurisprudence that has reshaped civil-military relations. Mazur maintains that since the Vietnam era, the U.S. Supreme Court has in effect distanced the Armed Forces 

from general society in order to create a separate—and 

more socially conservative—sphere. 

Part II discusses The Decline and Fall of the American 

Republic by Bruce Ackerman, a wise and wide-ranging 

book that argues that the nation’s polity is in decline 

and that the increasingly politicized armed forces may 

force a change in government. Part III asks where we 

go from here. These important books attribute a thinning of civilian control over the military to specific 

legal and political decisions. They explain some of the 

most important implications of this transformation, 

and they offer proposals about how to improve that 

critical relationship for the sake of enhancing the effectiveness of the armed forces and the vitality of the 

republic. This monograph goes on to examine briefly 

evolving great-power politics, the effects new technologies have on long-standing distinctions and borders, 

and the relative rise of nonstate actors, including al 

Qaeda—three sets of exogenous factors that inevitably 

drive changes in the civil-military relationship. In the 
end, this monograph points to a more ambitious enterprise: a complete re-examination of the relationship 

between force and society.

viii
1

LEAD ME, FOLLOW ME,

OR GET OUT OF MY WAY:

RETHINKING AND REFINING

THE CIVIL-MILITARY RELATIONSHIP

Introduction.

The constitutional linchpins of human rights—

most notably, the four key elements: regular elections, 

habeas corpus, freedom of expression, and civilian 

control of the military—ensure that the people remain 

sovereign in a democratic society by allowing them 

to hold governments accountable. These instruments 

work to prevent arbitrariness in government. They enable the people to speak and ensure that their leaders 

will hear. The instruments imply, too, that the government will respond appropriately with remedies for 

valid complaints. Without any one of these constitutional linchpins, substantive human rights cannot be 

enforced. In such circumstances, governments may 

still recognize the legitimate claims of individuals—

but only by grace, not by right.

Each of these elements is necessary to ensure that 

the full host of human rights claims is protected.1

 The 

significance of each particular element has been examined at length elsewhere. For instance, much has 

been written about the critical roles that regular elections and the freedom of expression play in promoting responsive government. Likewise, U.S. policies 

and practices for detaining alleged terrorists have, 

over the past 10 years, given the study of habeas corpus

a tremendous boost. But the fourth element, civilian 

control of the military, remains less developed.2

 This 

monograph explores U.S. civil-military relations and 

their connection to human rights, taking two impor-
2

tant new books as a prompt and springboard for further exploration. 

This monograph begins by explaining why robust 

civil-military relations matter. Without meaningful 

and reliable civilian control of the military, governments lose some measure of control over the destiny 

of their nations. In extreme circumstances, the lack of 

such control can even lead to an overthrow of government. Part I, A More Perfect Military: How the Constitution Can Make Our Military Stronger, by law professor 

Diane Mazur, examines the constitutional jurisprudence that has reshaped U.S. civil-military relations 

over the past 4 decades. Her carefully documented 

argument maintains that since the Vietnam era, the 

U.S. Supreme Court has hewn the Armed Forces from 

the general society in order to create a separate—and 

more socially conservative—sphere. Part II, The Decline and Fall of the American Republic, by constitutional 

scholar Bruce Ackerman, is a wise and wide-ranging 

book that argues that the nation’s polity is in decline 

and that the increasingly politicized armed forces may 

ultimately lead to a coup. Part III asks where we go 

from here. 

The important books under consideration attribute 

a thinning of the civilian control over the military to 

legal and political decisions made over the past 30 

years. They explain some of the most important implications of this transformation, and offer sensible 

proposals about how to improve the critical militarycivilian relationship for the sake of enhancing the effectiveness of our Armed Forces and the vitality of 

our republic. But neither work examines the evolving nature of great-power politics since the end of the 

Cold War, the effects new technologies have on longstanding distinctions and borders, or the relative rise 
3

of nonstate actors including al Qaeda—three sets of 

exogenous factors that inevitably drive changes in the 

civil-military relationship. So, in the end, these books 

point to the need for a more ambitious enterprise: a 

complete re-examination of the relationship between 

force and society in the 21st century.

Before discussing the books, a brief discussion of 

the civil-military relationship is required. The astonishing events of the Arab Spring in 2011 illuminate 

important truths about the nature of governments and 

governance. Most notably, they demonstrated that in 

order to rule, civilian leadership must exercise consistent and reliable control over the state’s security apparatus. In the case of repressive regimes, stability may 

not be normatively desirable, but it remains a significant factor nonetheless. Without the ability to control 

the army, almost any regime will fall. This lesson may 

seem obvious or axiomatic, but it bears repeating and 

illustrating. The Tunisian military’s refusal to support the long-standing regime in the face of a popular 

uprising condemned President Zine El Abidine Ben 

Ali to a rapid fall from power.3 Shortly thereafter, the 

world watched anxiously to see whether the Egyptian 

military would remain loyal to the regime of President Hosni Mubarak or shift the balance of power to 

the protesters crowding Cairo’s Tahrir Square. Much 

like its counterparts in Tunisia, the Egyptian military 

tried to appear an honest broker, effectively denying 

support to the president and thus ensuring the protesters the space in which to give effect to their revolution.4

 Months after Mubarak fled Cairo, the military 

continues to exercise power, running the interim government.5

In contrast, the armed forces of Bahrain and Syria 

have thus far remained mostly obedient to their governments, which in turn have, to date, survived.6

 The 
4

case of Libya illustrates a third way. The Libyan military was split on supporting the regime of Muammar 

Muhammad el-Qaddafi, resulting in a bitter and hotly 

fought civil war.7 In every instance in which the military has fully supported the government, the government survived. Where the military turned against the 

national leadership, the government fell. Where the 

military has vacillated, violent conflict and political 

indeterminacy ensued.

This brief sketch of Arab Spring leads to several axiomatic observations that certainly apply in the Muslim world and possibly elsewhere. When a nation’s 

armed forces take orders from the civilian leadership, 

the government has a good chance of retaining power. 

When the military is not absolutely obedient, the regime’s ability to govern is significantly diminished. 

When the military defects, a change in leadership 

invariably results. The events of Arab Spring offer a 

timely and poignant reminder of the roles that armed 

forces can play in the life and death of a state. This 

critical fact has rarely been commented on with regard 

to the United States, but it nevertheless remains very 

real. When the government no longer exercises a monopoly on the use of large-scale violence, the regime’s 

effectiveness and longevity become less certain. This 

lesson might seem self-evident, but it is worth spelling 

out because of its momentous implications.

Of course, Arab Spring affected very different 

kinds of countries and therefore offers limited value 

for a study of the United States. The affected countries 

were not functional democracies with robust rule-oflaw systems and traditions of ordered liberty. Instead, 

they were run by people who had risen to power 

through the ranks of the armed services or taken 

power themselves through military means. Their in-
5

stitutions of civil society were meager. Their cultures 

were plagued by discontent, particularly among the 

vast portion of society that is young and desperately 

underemployed. The armed forces themselves were 

more oriented toward state security roles than those 

required for fighting wars against other states. This 

orientation may have made the militaries more likely 

to make autonomous decisions about whether to support their governments. In all these ways and more, 

the countries directly affected by Arab Spring differ 

significantly from the United States. Nevertheless, the 

basic point remains valid: If a country’s leadership 

cannot rely on the military for complete and unfailing 

support of its policies, then the range of policies its 

political leaders can pursue is limited by the military 

and not by political leadership.

Effective civilian control of the military, therefore, 

is an unheralded linchpin of human rights. Just as an 

actual linchpin secures a wheel to the axle, civilian 

control of the military ensures that the armed forces 

do not spin off or diverge from the policies of the constituted governments. U.S. military officers take an 

oath of office to support and defend the Constitution.8

That oath articulates and embodies the principal obligations of officers. Without the loyalty commanded by 

that oath, the rights of civilians are not fully guaranteed, even though they may be more or less respected 

as a matter of policy or habit. Therefore, civilian control is necessary to: (1) ensure representative government and, consequently, almost every other human 

right; (2) prevent militarization of civil society and the 

civilianization of the military; and, (3) ensure effective 

barriers between the law, norms, and privileges of 

war and those of civil society.

The 2011 U.S. National Military Strategy provides 

a crisp statement of the American tradition of ci-
6

vilian control over the military and its immediate 

implications:

We [the Joint Forces] will maintain the trust and 

confidence of our elected leaders and the public by 

providing frank, professional military advice; being 

good stewards of public resources; and vigorously 

executing lawful orders. The military’s adherence to 

the ideals comprised in our Constitution is a profound 

example for other nations. We will continue to affirm 

the foundational values in our oath: civilian control of 

the military remains a core principle of our Republic 

and we will preserve it. We will remain an apolitical 

institution and sustain this position at all costs.9

Inclusion of this statement represents a welcome 

change from the previous National Military Strategy, 

from which it was absent.10

To drive the point home, Admiral Michael Mullen, then outgoing Chairman of the Joint Chiefs, recently explained this principle to a new generation 

of officers, notably at the Class of 2011 Commencement ceremony at the U.S. Military Academy at 

West Point, NY:

I’m going to ask you to remember that you are citizens first and foremost. This great republic of ours 

was founded on some pretty simple ideas—simple but 

enduring. And one of them is that the people, through 

their elected representatives, will, as the Constitution 

stipulates, raise an army and maintain a navy. The 

people will determine the course the military steers, 

the skills we perfect, the wars we fight. The people 

reign supreme. We answer to them. We are therefore—and must remain—a neutral instrument of the 

state, accountable to our civilian leaders no matter 

which political party holds sway.11
7

Admiral Mullen’s account is notable because he included it in his valedictory commencement address.12

Why did he feel compelled to remind the cadets that 

they remain citizens, and that they must serve as neutral instruments of state? What factors moved him to 

speak these most fundamental concepts as if there was 

an urgent need to express them at this particular time? 

Constitutional law scholars Diane H. Mazur and Bruce 

Ackerman provide some insights to these questions. 

A Separate Sphere.

Diane H. Mazur is one of the rare women who has 

served as a military officer and then gone on to teach 

full time in an American law school.13 As a young Air 

Force captain, she had served as an aircraft-maintenance and then a munitions-maintenance officer before attending law school. Following graduation, she 

practiced law for a few years and then joined the faculty of the University of Florida Levin College of Law. 

Since the mid-1990s, Mazur has written extensively on 

civil-military relations, focusing particularly on sexual 

minorities in the military and the related “Don’t ask, 

don’t tell” policy controversies. She has also written 

a number of policy studies for the Palm Center, a research institute focusing on gender, sexuality, and the 

military, where she serves as Legal Co-Director. Her 

new book, A More Perfect Military: How the Constitution Can Make Our Military Stronger, brings together 

a career’s worth of military, scholarly, and advocacy 

work in one powerful argument.

The title of this book plays on the Preamble of the 

U.S. Constitution nicely to convey the thesis—“that 

the military is most healthy when it respects constitutional values.”14 Mazur argues that “[u]nfortunately, 
8

since the end of the Vietnam draft, our civilian branches of government—the President, Congress, and the 

courts—have been trying to distance the military from 

the Constitution. They assume that constitutional values get in the way of military effectiveness, but that’s 

not true.”15 Mazur sets out to cut through the cant and 

“change all the rules that limit the way we talk about 

the military.”16 Unlike Bruce Ackerman, whose new 

book will be discussed below, Mazur does not focus 

on the constitutional implications of a strained civilmilitary relationship. Recognizing the same general 

phenomenon, Ackerman argues that this relationship 

might lead to some sort of military intervention or 

coup in the United States. Mazur goes in a different 

direction. She believes that our “confidence that the 

military will never engage in a coup against civilian 

government, or anything even remotely close to a 

coup” should not confuse us into believing that civil-military relations are good.17 Mazur believes that 

Congress and especially the judiciary have been effectively working to distinquish the members of the 

Armed Services from the general population, to the 

detriment of civil-military relations and, ultimately, to 

the vibrancy of the Armed Forces. Mazur’s book argues for tearing down the recently constructed legal 

walls that have segregated the Armed Forces from the 

rest of society. Doing so will, she argues, endow the 

nation with a more robust force, one more capable of 

defending the Constitution against all enemies, foreign and domestic.18

At the heart of Mazur’s book is the claim that over 

the past 4 decades, conservative lawmakers and judges have carved out a separate sphere for the military. 

In it, they have promoted conservative social values 

without heed to the modern constitutional protections 
9

for individuals. To insulate the Armed Forces from 

the social progress that has been transforming civilian 

society, they have created strong rhetorical and legal 

barriers that prevent the questioning of military choices. To make this argument, Mazur draws widely on 

recent American history, including such notable episodes as the 1991 Tailhook Scandal, the formation of 

the “Don’t ask, don’t tell” policy, and the abuse of detainees at Abu Ghraib early in the Second Gulf War.19

But most critically and innovatively, she examines a 

strand of the Supreme Court jurisprudence of William 

Rehnquist.20 Mazur argues that Justice Rehnquist created circumstances in which “military society could 

serve as a safe harbor from the usual constitutional expectations . . . [and] could be used to validate and reinforce socially conservative viewpoints.”21 She asserts 

that Rehnquist revolutionized American civil-military 

relations for the purpose of promoting his conservative social values.

Mazur’s story opens with Rehnquist as a recent 

Stanford Law School graduate clerking for Justice 

Robert H. Jackson. In 1953, the Supreme Court heard 

Orloff v. Willoughby, a low-profile case about a doctor 

challenging the Army’s decisions to draft him under 

the Doctors’ Draft Act of 1948 and then not to commission him as a medical officer, presumably because of 

his unwillingness to deny that he was a Communist.22

Orloff had argued that because he could be drafted 

only on account of his being a doctor, the Army must 

either commission him as a medical officer or discharge him.

The Supreme Court held otherwise, ruling for the 

Army. Justice Jackson wrote:
10

We know that from top to bottom of the Army, the 

complaint is often made, and sometimes with justification, that there is discrimination, favoritism, or other 

objectionable handling of men. But judges are not 

given the task of running the Army. The responsibility 

for setting up channels through which such grievances can be considered and fairly settled rests upon the 

Congress and upon the President of the United States 

and his subordinates. The military constitutes a specialized community governed by a separate discipline from that 

of the civilian. [Emphasis added.] Orderly government 

requires that the judiciary be as scrupulous not to 

interfere with legitimate Army matters as the Army 

must be scrupulous not to intervene in judicial matters.23

Mazur agrees with the decision to uphold the Army’s authority to self-regulate. She goes on to speculate that William Rehnquist may have even drafted 

this key passage of Justice Jackson’s decision.24 After 

all, we know that young Rehnquist had drafted a 

memo to Justice Jackson, then considering Brown v. 

Board of Education, that “Plessy v. Ferguson was right 

and should be re-affirmed.”25 Clearly, he was willing 

to share his conservative views with Justice Jackson 

(who had been appointed to the bench by Franklin D. Roosevelt), intending to see them written into 

the court’s opinions. Moreover, Mazur notes that 

Rehnquist was “preoccupied with the question of the 

judiciary’s proper posture towards the military.”26 In 

any event, the Korean War-era Orloff decision achieved 

a curious form of momentum during the more politically contentious war that followed.

Joining the Supreme Court in his own right in 1972, 

Justice Rehnquist set out “to push the military outside 

our nation’s constitutional fold and weaken its connection to civilian courts and civilian law” in a pair of 
11

early cases dealing with some of the day’s most hotly 

debated issues.27 In late-October 1969, John Flower 

had been ordered off Fort Sam Houston, TX, for distributing anti-war fliers.28 Six weeks later he returned 

and was arrested for being on an otherwise open military post and for “distributing handbill invitations for 

a ‘Town meeting’ on the Vietnam War.”29 The District 

Court convicted Flower of unlawfully entering military property and sentenced him to 6 months in prison.30 The Supreme Court overturned the conviction, 

holding that “[o]ne who is rightfully on a street which 

the state has left open to the public carries with him 

there as elsewhere, the constitutional right to express 

his views in an orderly fashion.”31 Joined by Chief Justice Warren Burger, Rehnquist dissented:

Simply because some activities and individuals are 

allowed on government property does not require 

the abandonment of otherwise allowable restrictions 

on its use. . . .[T]he unique requirements of military 

morale and security may well necessitate control over 

certain persons and activities on the base, even while 

normal traffic flow through the area can be tolerated.32

Whereas governmental decisions to limit free 

speech would usually be subject to strict scrutiny, 

Rehnquist would not even inquire into the legitimacy 

of those restrictions when applied by the Army. He 

would not ask for—let alone weigh—their burdens 

against the benefits to morale and security. He would 

defer unquestioningly to the military’s decision.33

The young justice extended this position 2 years 

later in a more high-profile equal-protection case, 

Frontiero v. Richardson.

34 In this case, Air Force Lieutenant Sharron Frontiero challenged the military’s policy 

of giving all married men extra housing and medical 
12

benefits while requiring married women seeking these 

benefits to prove that their husbands were dependent 

upon them.35 In an opinion authored by Justice William Brennan, the court held that classifications based 

on sex should be subject to strict scrutiny. He found 

that the Air Force’s rationale for this differential treatment, which rested on “administrative convenience,” 

could not stand up to such scrutiny.36 In Justice Brennan’s trenchant words, there “can be no doubt that 

‘administrative convenience’ is not a shibboleth, 

the mere recitation of which dictates constitutionality.”37 Rehnquist dissented from Brennan’s opinion, 

elevating distinctions based on sex to the same protected status as race, alienage, and national origin.38

“In determining the constitutionality of the statutory 

scheme that plaintiffs attack, [he would merely] ask 

whether the classification established in the legislation 

is reasonable and not arbitrary and whether there is 

a rational connection between the classification and a 

legitimate governmental end.”39 Mazur attributes this 

position to Rehnquist’s willingness to make Frontiero 

prove that the claim of administrative convenience by 

the U.S. Department of Defense (DoD) did not exist.40

Here the record is very thin;41 perhaps Rehnquist took 

this position because of an unwillingness to elevate 

the level of scrutiny for sex-based distinctions rather 

than out of deference to the military.

If Rehnquist spoke quietly and perhaps ambiguously in Frontiero, he came out roaring in three landmark cases that followed the end of military conscription in 1973, Parker v. Levy in 1974, Rostker v. Goldberg in 

1981, and Goldman v. Weinberger in 1986.42 With these 

three decisions, Rehnquist led the charge to revolutionize the relationship between military and civilian 

society.43 According to Mazur, his “opinions would 
13

build [a] wedge on a foundation of four troubling 

principles” that have come increasingly to define the 

civil-military relationship in today’s United States.44

The military should be portrayed as distant, remote, 

and separate from civilian society. The more different 

the military is from the civilian society it serves, the 

less justification there might be for holding the military to the expectations of civilian law.

The military should be viewed as morally superior to 

civilian society and civilian government, and military 

values should be elevated above constitutional values. 

If military values were morally superior to constitutional values, it would be much easier to disregard the 

Constitution when its protections appeared to conflict 

with assertions of military necessity.

Civilians should be encouraged to withdraw from 

active participation in civil-military relations and civilian control of the military and to see themselves as 

unqualified and undeserving to question assertions of 

military necessity. Service members should be encouraged to resent civilians, civilian society, and civilian 

influence over the military.

Judges, courts, and other institutions of law should be 

reluctant to insert themselves in legal controversies involving the military, creating a vacuum that could be 

filled by political partisanship and allegiance.45

Mazur argues that all this has come to pass, with 

harmful effects on the military and the republic. To 

make this argument, she offers a provocative account 

of Supreme Court decisions affecting the civil-military 

relationship.

Rehnquist launched this revolution in Parker v. 

Levy, which ought to have been a simple case. In 1966, 
14

the “Hawkeye Pierce” of the Vietnam War, Army 

Captain Howard Levy, started to tell lower-ranking 

personnel that the war was immoral and that black 

soldiers were being discriminated against by being 

“given all the hazardous duty . . . [and that if he] were 

a colored soldier [he] would refuse to go to Viet Nam 

and . . . refuse to fight.”46 Not surprisingly, Levy was 

court-martialed and convicted of conduct unbecoming an officer and for acts that “prejudice . . . good 

order and discipline in the armed forces.”47 Nor was 

it remarkable that the Supreme Court upheld the convictions, finding that the charged provisions of the 

Uniform Code of Military Justice were neither unconstitutionally vague nor overbroad.

The important part of the Parker v. Levy story that 

Mazur reveals is how Rehnquist misrepresented the 

earlier Orloff decision to establish the proposition “that 

the military should be seen as distant, remote, and 

separate from civilian society.”48 To do so, he mischaracterized Justice Jackson’s dictum discussed briefly 

above: “The military constitutes a specialized community governed by a separate discipline from that of the 

civilian.”49 Jackson had been referring to the military 

justice system, but Rehnquist twisted the words to imply that the military was necessarily a society separate 

and apart from civilian society.50 He offered what became a self-fulfilling argument. The military in which 

Captain Levy served had been highly representative 

of American society in general. Soldiers were not relegated to lifetimes on remote outposts on the frontier 

as they had been in the century preceding World War 

II. Instead, conscripts and career soldiers lived within 

American society. Until the Supreme Court handed 

down its decision in Parker v. Levy in 1974, America’s 

soldiers generally enjoyed all of the freedoms guaran-
15

teed by the First Amendment, without admonishment 

that the exercise of those freedoms was inconsistent 

with good order and discipline.51 The Parker decision 

started a process of walling the Armed Forces off from 

the rest of American society by cutting back their freedom of speech. 

In the 1981 case of Rostker v. Goldberg, Justice 

Rehnquist found his opportunity to harden the wall 

he was drawing around the military. In 1979, President Jimmy Carter had responded to the Soviet invasion of Afghanistan by reinstating draft registration. 

Contrary to the President’s wish to register women 

as well, Congress authorized funds sufficient only to 

register eligible men.52 The Goldberg plaintiffs complained that the process violated the equal protection 

guarantees of men and women.53 Mazur explains that 

the court should have found this an exceedingly difficult case for introducing heightened deference to 

military decisionmaking.54 First, unlike previous cases 

that had generally decided the claims of one person or 

a small number of people, this case affected all American women between the ages of 18 and 26. Because 

so many people were affected, it is hard to pass the 

policy choice off as mere administrative convenience. 

Second, previous cases had involved the review of 

decisions made by the military; here, Goldberg was 

challenging a congressional decision. So the deference 

here was really to Congress. There is no special deference to Congress. Congress passes all laws, so the 

ordinary standards of respect among branches should 

automatically apply. Third, in previous cases, the 

Court had decided to defer to the military. In this case, 

the military services had requested funds to register 

women, too; it was Congress that refused to make the 

authorization. So the Supreme Court disregarded the 

military perspective. 
16

Despite these perplexing circumstances, Rehnquist 

held that “the Constitution itself requires . . . deference to congressional choice.”55 Mazur argues that 

Rehnquist deferred to the will of Congress over that of 

the military on this military personnel issue because 

Congress was seeking to implement its view about the 

proper role for women in society.56 This is vexing because in the rest of society, the Constitution specifically 

did not defer to decisions to make distinctions based 

on sex. It viewed such distinctions as presumptively 

unlawful.57 With the ruling in Goldberg, Rehnquist was 

able to promote a social agenda that used the military 

as the means to achieve a nonmilitary end. When the 

military wanted to discriminate in ways that promoted conservative social values, the Rehnquist Court deferred to the military. When Congress wanted to use 

the military to discriminate, Rehnquist would lead the 

court to defer to Congress, even against the views of 

the DoD on a personnel question.

In the final case of this post-draft trilogy, Goldman 

v. Weinberger, Rehnquist further bolstered his wall.58 S. 

Simcha Goldman was a clinical psychologist serving 

as an Air Force officer. As an Orthodox rabbi, he was 

required by his faith to cover his head. After his superior officer ordered him to remove his yarmulke, Captain Goldman sued, claiming that this interpretation 

of the uniform rule infringed unduly on his right to 

religious expression.59 Writing on behalf of the court, 

Justice Rehnquist held:

In the context of the present case, when evaluating 

whether military needs justify a particular restriction 

on religiously motivated conduct, courts must give 

great deference to the professional judgment of military authorities concerning the relative importance of 

a particular military interest. . . . Not only are courts 
17

’ill-equipped to determine the impact upon discipline 

that any particular intrusion upon military authority 

might have,’ but the military authorities have been 

charged by the Executive and Legislative Branches 

with carrying out our Nation’s military policy.60

The Air Force did not have to explain its policy, let 

alone justify it. Nor was this a question of deference 

to congressional will; the Air Force had simply issued 

and interpreted its own regulation without the notice 

and comment that other governmental agencies must 

undergo prior to issuing regulations. Captain Goldman had either to remove his yarmulke or leave the 

service, just as every other Orthodox Jew and Sikh 

in the service would have to do. Rehnquist’s revolution was complete. No longer would the personnel 

policies of the Armed Forces of the United States be 

subjected to any meaningful constitutional review. He 

had separated military society from civil society and 

from constitutionally protected rights. Mazur argues 

that in this separate sphere, conservatives proceeded 

to institutionalize their prejudices about homosexuals,61 women,62 religious minorities,63 and even law 

students64 in ways that make the military less strong65

and America less equitable.

Separate is seldom equal. As noted above, Mazur 

emphasizes the role that Justice Rehnquist and the Supreme Court played in the separation of military personnel from American society.66 Having established 

that claim, she moves on to argue that Rehnquist’s 

views about the separate nature of the armed services—while not necessarily accurate when he penned 

them—contributed to their self-fulfillment.67 Ten years 

after the Goldman decision, a former Vice Chief of Naval Operations observed, “The armed forces are no 
18

longer representative of the people they serve. More 

and more, enlisted [men and women] as well as officers are beginning to feel that they are special, better 

than the society they serve.” 68 He added that this “is 

not healthy in an armed force serving a democracy.”69

This sense of superiority reached near-critical levels in 

the late-1990s. Since the war in Afghanistan started in 

late 2001, however, the sense of crisis has greatly subsided, even if the separation and feelings of superiority have not. Mazur argues that the separate sphere 

gives the political leaders of government innumerable 

opportunities for mischief, space in which to employ 

questionable policies. The “military is the most respected and trusted institution, public or private,70

within our society,”71 and our elected representatives 

are not. Mazur argues that this fact may explain support for military detention and trials of accused terrorists. She views the military’s autonomy as a factor 

contributing to the ill-advised policies or practices related to detention, interrogation, and trial of persons 

considered dangerous adversaries in the so-called 

“War on Terror.”72

As will be discussed below, Bruce Ackerman goes 

further. He argues that an untethered military—with 

independent sources of political strength—may contribute to a constitutional crisis with even more farreaching consequences.73 Ackerman speculates that it 

may put the Chairman of the Joint Chiefs in the position of deciding to end a contested election and placing the opposing candidate in the White House. 

The Soldier and the Republic.

Let us turn now to Ackerman’s more wide-ranging book, one that also inquires how the people of the 
19

United States relate to the members of the military 

sworn to support and defend their Constitution. In 

Mazur’s book, the military is characterized as playing an oddly passive role in a campaign waged by 

social conservatives outside the services to carve out 

a separate sphere. In important contrast, Bruce Ackerman’s book posits military leaders playing a more 

active role in reshaping the American political order. 

His account ascribes to senior military leaders a role 

that is less central to the narrative but more decisive in 

the outcome. Ackerman is a Sterling Professor of Law 

and Political Science at Yale, one of the university’s 

most distinguished chairs. He earned this honor in 

great part because of his prolific record of high-impact 

scholarship, having written dozens of books and articles on economic and civil rights, constitutionalism, 

and jurisprudence, and, more recently, on national security.74 Drawing on this extensive background, Ackerman delivered the prestigious 2010 Tanner Lectures 

on Human Values at Princeton University and subsequently published these lectures as The Decline and Fall 

of the American Republic.

75

The book’s title, of course, echoes the tropes made 

famous by the works of two British historians: The History of the Decline and Fall of the Roman Empire, the 18thcentury classic by Edward Gibbon, and, less directly, 

the “Rise and Fall” discourse so famously articulated 

by Ackerman’s colleague at Yale, historian Paul M. 

Kennedy.76 These historical discourses are sophisticated, nuanced, and ultimately pessimistic—ending 

inevitably with a fall. Gibbon’s classic attributed the 

decline and fall of the Roman Empire to its decadent 

civil society and poor leadership, which abdicated 

responsibility for the defense of the realm to 

mercenaries.
20

Public virtue, which among the ancients was denominated as patriotism, is derived from a strong sense of 

our own interest in the preservation and prosperity of 

the free government of which we are members. Such 

a sentiment, which had rendered the legions of the 

Roman republic almost invincible, could make but a 

very feeble impression on the mercenary servants of 

a despotic prince; it became necessary to supply that 

defect by other motives, different but no less compulsory—honor and religion.77

The mercenaries eventually turned on Rome, Gibbon explained, destroying the world’s greatest power 

and condemning Europe to centuries of darkness. 

While drawn from immense scholarship, Gibbon’s history was also shaped by the urgent issues of the time 

in which he wrote. The American Revolution raged, 

and London relied increasingly on Hessian mercenaries in the long struggle to retain the North American 

colonies.78 To some extent, Gibbon’s history of ancient 

Rome naturally reflected his views on the state of the 

contemporary British Empire.

Britain lost a second empire 200 hundred years later. Born in 1945 and writing some 40 years after that, 

British-born historian Paul Kennedy posited that great 

empires overreach and consequently collapse under 

the unbearable combined weight of far-flung military 

obligations and unsustainable domestic consumption.79 For Kennedy, as for Gibbon, the responsibility 

for a great power’s decline typically lies in ill-considered grand strategy or, more specifically, in the failure of that society’s leaders to make the tough choices 

necessary for allocating resources to sustain vital institutions.80 “Rise and Fall” studies inevitably correlate 

the vigor of society’s with the extent to which their 

leaders’ decisions are virtuous. These studies exhibit 
21

an essentially historicist way of explaining the world. 

They focus on where things went wrong and how conscious (and contingent) human decisions shaped destiny. Many other scholars would, of course, attribute 

national or imperial decline to exogenous factors, such 

as ill-tempered gods, uncontrollable plagues, drinking 

water pipes made of deadly lead, or foreign invaders 

led by generals of unique genius.81 But for members of 

the “School of Decline,” the fault lies not in our stars, 

but in ourselves.

Applying this formula to examine the troubles 

of today’s great power,82 Ackerman argues that the 

United States has started its decline, and that it will 

fall. Whereas for Kennedy, the word “fall” signifies a 

relative loss of economic and military power, for Ackerman it means a loss of a republic’s virtue, the demise 

of the very characteristic that defines the society, gives 

it integrity, and makes it strong. Ackerman grimly 

predicts in one breathless paragraph:

(1) [T]he evolving system of presidential nominations 

will lead to the election of an increasing number of 

charismatic outsider types who gain office by mobilizing activist support for extremist programs of the 

left or right; (2) all presidents, whether extremist or 

mainstream, will rely on media consultants to design 

streams of sound bites aimed at narrowly segmented 

micropublics, generating a politics of unreason that 

will often dominate public debate; (3) they will increasingly govern through their White House staff of 

superloyalists, issuing executive orders that their staffers will impose on the federal bureaucracy even when 

they conflict with congressional mandates; (4) they 

will engage with an increasingly politicized military 

in ways that may greatly expand their effective power 

to put their executive orders into force throughout the 

nation; (5) they will legitimate their unilateral actions 
22

through an expansive use of emergency powers, and 

(6) assert “mandates from the People” to evade or ignore congressional statutes when public opinion polls 

support decisive action; (7) they will rely on elite lawyers in the executive branch to write up learned opinions that vindicate the Constitutionality of their most 

blatant power grabs. These opinions will publicly rubber-stamp presidential actions months or years before 

the Supreme Court gets into the act . . . [w]ith . . . the 

president’s media machine generating a groundswell 

of support for his power grab, the Supreme Court may 

find it prudent to stage a strategic retreat, allowing the 

president to displace Congress and use his bureaucracy and military authority to establish a new regime 

of law and order.83

This is his outline and argument. In short, Ackerman predicts an executive coup made partially possible by a politicized and anti-democratic military.

While he assembles an argument that explains 

some serious problems, his conclusions sometimes 

seem overreaching. Ackerman reads widely and frequently spots subterranean trends before others; but 

in this instance, he may have over-learned the lessons 

from his principal case studies. Specifically, Ackerman rests his argument on the lessons he draws from 

three recent crises in the recent American constitutional experience: Watergate, Iran-Contra, and the socalled “War on Terror.” While Ackerman refers to the 

scandals of the early-1970s and mid-1980s throughout 

this book, it seems that he would not have written it 

without the outrageous “Torture Memos” issued by 

the Justice Department’s Office of Legal Counsel in 

the summer of 2002.84 Ackerman rests much of his argument on the claim that the “‘torture memos’ do not 

represent a momentary aberration but a symptom of 

deep structural pathologies that portend worse abuses 

in the future.”85
23

With the scandalous “Torture Memos” as his principal source of inspiration, Ackerman ascribes the loss of 

republican values to the “transformation of the White 

House into a platform for charismatic extremism and 

bureaucratic lawlessness.”86 Ackerman does not foresee a decline in the nation’s morality or its democratic 

processes. He expects America to continue to develop 

into a more moral nation and to continue to hold regular elections. He does, however, predict that the duly 

elected Presidents will govern radically and without 

adequate checks from Congress or the Judiciary.87 In 

Ackerman’s dark interpretation of the emerging “administrative Presidency,” the United States will come 

to be governed through a largely unaccountable executive branch.88 Presidents will set policy by edict and 

implement it through the burgeoning White House 

staff rather than through the executive departments or 

agencies. These unaccountable Presidents will determine policy on their own or through czars who have 

not faced the confirmation process. They will establish 

the policies through decrees, executive orders, executive agreements, administrative rules, interpretations, 

or signing statements. “Superloyalist” lawyers in the 

Office of Legal Counsel at the Justice Department or 

the White House Counsel will provide self-proving 

legal support for these policies. Pollsters and spinmasters will hone the public messages. Thousands of 

political appointees will implement them.89 The Presidents will enjoy the tacit consent of a fragmented Congress and an excessively deferential judiciary. In each 

of Ackerman’s scenarios, the military plays a critical 

role. In the direst of these, “the military will operate as 

a power behind the throne.”90

One of Ackerman’s most compelling concerns is 

the increasingly politicized and autonomous mili-
24

tary.91 This three-part argument notes first that the 

Chairman of the Joint Chiefs has become an unelected 

political force of his own. Second, the “military colonization” over national security decisionmaking has 

been supported by the ever-increasing number of officers and retired officers obtaining high-level civilian appointments. Third, and possibly fatally, these 

two premises have been reinforced because military 

professionals have become more political and partisan. In short, Ackerman posits that the officer corps, 

which over time has increasingly identified with the 

conservative wing of American politics, may resolve 

some future political crisis by handing the presidency 

to the Republican candidate on the basis that only by 

doing so could a security catastrophe be prevented 

(discussed below).92

First, Ackerman explains that since the passage of 

the Goldwater-Nichols Department of Defense Reorganization Act of 1986, the Chairman of the Joint 

Chiefs has enjoyed an increasingly autonomous and 

powerful status as the unified voice speaking on behalf of the Armed Forces.93 Charismatic chairmen, 

such as Colin Powell and Michael Mullen, have been 

able to pursue policy objectives by appealing directly 

to the public, to the House or Senate leadership, and to 

the executive. Thus, they may have sometimes outmaneuvered their civilian defense secretaries and even 

Presidents in contests to shape military policy.94 For 

example, Ackerman claims, that because he enjoyed 

a significant autonomous power base, General Powell was able to foist on President Clinton his eponymous strategic doctrine amplifying the earlier Weinberger doctrine, inter alia limiting interventions to 

circumstances in which the United States could exert 

overwhelming force.95 This maneuver, in Ackerman’s 
25

view, left the elected leadership with a less meaningful ability to shape national security policy. 

Secondly, Ackerman argues that career officers 

have colonized the key positions of the nominally civilian leadership of the military and paramilitary institutions, in the DoD, the National Security Council (NSC), 

and the intelligence community. Prior to 1980, the civilian leadership within the DoD was overwhelmingly nonmilitary; only 17 percent of these officials had 

as much as 5 years of military service.96 Since 1980, the 

numbers have changed considerably. Nearly a quarter 

of them have had 15 years of service, and 44 percent 

have had 5 years.97 Why is this shift problematic? First, 

having spent so much time in military careers, these 

officials are imbued with military culture and military 

views. Such views are neither wrong nor inferior, but 

they are frequently different from the civilian perspectives that are supposed to be setting policy. Likewise, 

those with a military background may have bureaucratic advantages (for instance, communicating with 

people in uniform in ways that enable them to connect 

better) that give them a bureaucratic-operational advantage over true civilians—particularly in an era in 

which the civilian appointments turn over so rapidly 

and take so long to fill.98

Ackerman also notes with concern the significant 

increase in the incidence of military professionals 

leading other security-related institutions such as the 

NSC and intelligence agencies.99 For 4 decades following the establishment of the position in 1947, civilians 

served as National Security Advisor. Particularly in 

the years following President John Kennedy’s appointment of McGeorge Bundy, heavyweights such 

as Walt W. Rostow, Henry Kissinger, and Zbigniew 

Brzezinski provided meaningful civilian control of the 
26

national security establishment. Ackerman further asserts that President Ronald Reagan’s unfortunate appointments of Marine Colonel Robert “Bud” McFarlane and then Vice Admiral John Poindexter resulted 

in the Iran-Contra scandal. He cites Ivo Daalder and I. 

M. Destler, who note that Reagan’s preferred choice, 

James A. Baker, would probably have exercised the 

common sense and the administrative skill needed to 

prevent the fiasco.100 Even after the scandal threatened 

to bring down his administration, Reagan turned to 

another military officer, Colin Powell, and then President George H. W. Bush similarly appointed Army 

Lieutenant General Brent Scowcroft. The trend has 

only continued to intensify, as Presidents have since 

appointed career officers to chair the NSC,101 to hold 

key posts in the Central Intelligence Agency (CIA),102

and, more recently, to serve as Directors of National 

Intelligence.103 Ackerman makes this point cogently:

A similar pattern prevails at the Defense Department. Its recent decision to create an undersecretary 

of defense for intelligence is a big deal—the new office 

ranks just behind the reliably civilian undersecretary 

[sic] in the department’s pecking order. But only the 

first incumbent was a civilian [Stephen Cambone], and 

he has been followed by a retired three-star general 

[James Clapper, U.S. Air Force]. If this military turn 

continues, the undersecretary will not function as a 

civilian check on the enormous intelligence operations 

run by the department’s Defense Intelligence Agency 

or its National Security Agency—both under the leadership of active-duty three-stars. He will be looking 

at the world through the same professional prisms as 

his subordinates. When he leaves the Pentagon to talk 

with the president’s new director of national intelligence [Admiral Dennis Blair], the conversation will 

continue in the same vein—so long as the director is 
27

a military man, one retired three-star general will be 

talking to another retired three-star. And if they get 

together to give the president advice, he undoubtedly 

will want to hear the opinion of his four-star national 

security advisor [Retired Marine Corps General James 

L. Jones].104

Ackerman’s point here is very important: the nation does not have meaningful civilian control over the 

military intelligence apparatus if its civilian leaders 

are retired generals.105 Even though the overwhelming majority of intelligence activities, personnel, and 

funding are military, the intelligence process retains 

fundamental political dimensions, and therefore requires civilian input.106 Relying on a relatively homogeneous military community to lead intelligence 

activities deprives decisionmakers of other valuable 

perspectives.

Ackerman’s snapshot may not be quite as predictive as he fears. In the year following Ackerman’s 

writing of this passage, President Barack Obama has 

appointed civilians to succeed military men in the positions of Under Secretary of Defense for Intelligence 

(Michael Vickers) and National Security Advisor 

(Thomas E. Donilon).107 Today, only one of the top 15 

people on the NSC staff has significant military experience. Moreover, command responsibilities continue 

to require that the directors of the Defense Intelligence 

Agency (DIA) and the National Security Agency 

be uniformed officers, indicating that Congress has 

deemed appointment of officers to these positions as 

necessary for the agencies’ success.108 Likewise, Ackerman found “14 of 29 key positions” in the Obama DoD 

were held by retired officers.109 My own survey (approximately a year later) finds 15 of 92 appointments 

at the level of Deputy Assistant Secretary or above 
28

were held by retired military. Of these 15 retired officers, more than half direct units administering personnel or military community and family affairs (including reserve and prisoner-of-war affairs) for which the 

leadership of veterans seems uniquely appropriate. 

Likewise, the service departments of the Army, Navy, 

and Air Force do have a higher proportion of senior 

administrators with significant military experience, 

which also makes good sense—given their mission to 

organize, train, and equip military personnel. On the 

other hand, civilians dominate in DoD’s most politically sensitive strategy and policy positions. 

Over the past several decades, in addition to taking on new and more politically oriented roles in the 

government, individual officers have become more 

politicized and partisan. First of all, they are voting. 

Prior to World War II, “[t]he overwhelming majority 

of officers even refused to vote, since it required them 

to think of themselves as partisans for the time it took 

to cast a secret ballot.”110 By 1944, however, a quarter 

of senior officers voted in the presidential election.111

Since then, political participation became common. 

The Reagan Revolution brought another dramatic 

change. In the late-1970s, over half of all higher-ranking officers identified themselves as political independents and only a third as Republicans.112 In 1984, over 

half self-identified as Republicans, a portion that rose 

to two-thirds in 1996—at which point only 7 percent 

were Democrats.113 Mazur also notes the increasing 

levels of partisanship, citing as support a statement 

made by a West Point professor and a speech given 

by Secretary of Defense Robert Gates at the Air Force 

and Naval Academy graduations in 2007.114 Because 

the current officer corps is also more likely than not to 

believe it acceptable to advocate publicly for specific 
29

military policies,115 civilian control is diminished—

particularly if that civilian is viewed as soft on national defense.

Ackerman discusses possible implications of having an officer corps that overwhelmingly favors one 

party over another. Here he echoes Gibbon’s account 

of the fall of Rome. He identifies several hypothetical 

scenarios in which the constitutional order faces critical but not implausible challenges. One such scenario 

involves a highly contested election à la Bush v. Gore,

in which the Supreme Court demurs from deciding 

this “political question,” even as the crisis continues 

past Inauguration Day, (much as it threatened to do 

in 1876-77 and again in 2000).116 Finally, the Chairman 

of the Joint Chiefs steps in and calls a halt to the chaos 

in the name of national security.117 He declares the 

conservative to be the winner, based on his reading of 

polling data (not votes in the Electoral College), which 

finds that candidate more popular. Ackerman does 

not seem as exorcised by this hypothetical intervention itself as he is by the dangerous precedent it sets 

for further military meddling in the constitutional order.118 His other hypotheticals also involve some form 

of military participation in their resolution.119

After painting the disturbing crises that might 

impend, Ackerman proposes a variety of constructive institutional solutions to ensure that the White 

House and the military reconnect more faithfully with 

the constitutional order that has sustained the republic for more than 2 centuries. First, he proposes a raft 

of arrangements to improve the functioning of the 

democratic process. To reduce the likelihood of electing demagogues to the presidency, he revives his proposal for a national “Deliberation Day.”120 To ensure 

that serious journalists continue to perform watchdog 
30

functions, he would create the “Internet news voucher” and a “National Endowment for Journalism.”121

To avoid another contested electoral crisis, Ackerman supports the Popular Sovereignty Initiative, an 

interstate pact in which states commit their Electoral 

College votes to whichever candidate earns the most 

popular votes.122

Then Ackerman offers a more radical set of organizational adjustments intended to halt the march of 

the “institutional presidency” and restore the rule of 

law. First, Ackerman would establish a Supreme Executive Tribunal composed of nine judges appointed 

to long but staggered terms and subject to confirmation by the Senate.123 This tribunal would review the 

legal opinions made by the White House Counsel and 

the Department of Justice’s Office of Legal Counsel 

in an effort to hammer out consensual positions on 

questions related to executive authority.124 As part of a 

grand bargain restructuring the separation of powers 

among the branches of government, Ackerman would 

also reform the Senate’s filibuster rules to ensure that 

presidential appointments receive up or down votes.125

Among Ackerman’s many reform proposals, and 

most important for our purposes, is his recommendation to draft and adopt a new Canon of Military Ethics, aimed at reinvigorating the principle of civilian 

control.126 Ackerman hopes that a Presidential Commission on Civil-Military Relations would undertake several years of study to shape a realistic code 

of conduct. Once drafted, Congress would enact it, 

or the President could order it into effect.127 At first 

blush, this proposal seems facile. The principle of civilian control of the military is clearly important and 

relatively noncontroversial as far as principles go, but 

what does it mean? Ackerman does not really answer, 
31

but would hand this question to the Presidential Commission. Given the diverse social, political, cultural, 

technical, and administrative issues involved, Ackerman may be correct. Perhaps ordinary political processes cannot resolve such a complex set of problems, 

and a Commission is required. 

To support necessary changes, Ackerman also offers a few more specific proposals. He would pass a 

new emergency powers law that requires increased 

levels of congressional involvement as security crises 

continue.128 He would amend the Goldwater-Nichols 

legislation so that the Chairman of the Joint Chiefs 

no longer has a statutory seat on the NSC; he or she 

would attend meetings only at the invitation of the 

Secretary of Defense or the President.129 Ackerman 

would extend civilian experience requirements beyond the top echelons of the DoD. Currently the Secretary and Deputy Secretary of Defense must spend, respectively, 10 and 7 post-uniformed years as civilians 

before they can be appointed.130 The service secretaries 

must spend at least 5 years as civilians.131 The Under 

Secretary of Defense for Policy must also come from 

civilian life, although no specific time requirement is 

imposed.132 Ackerman would extend this mechanism 

more broadly within the DoD and to the National Security Advisor and Director of National Intelligence.

While I applaud the effort to encourage Presidents 

to reach beyond the military to find their civilian leaders, this particular fix seems somewhat ill tailored. After 20 or 30 years in the military, individuals are not 

likely to dramatically change their mindsets by spending 5 years working for a defense contractor or doing 

defense-related work in academia. If they have been 

working for 5 years in a field completely unrelated to 

the military, their relevant skills and interest in military affairs may have diminished significantly. At the 
32

risk of being one of those reviewers who writes about 

what he would include in the book rather than what 

is included, I wish that Ackerman had instead focused 

some attention on what influential educational and 

civic institutions could do to educate future military 

and civilian leaders to make wiser decisions.133 As 

these institutions invest more in this kind of education, their graduates seem more likely to receive leadership appointments—and to fulfill their roles wisely.

What Kind of Civil-Military Relationship 

Do We Want?

These two important books raise troubling questions about the relationship between America’s 

Armed Forces and the wider society. Both point to the 

isolation of the military from broader society and discuss the significant risks that this isolation creates. But 

neither goes far enough in examining what we should 

expect from that relationship. In general terms, the 

wish list has not changed in decades. First, military 

officers should do as they are directed by the National 

Command Authority in the legitimate pursuit of national security and related objectives. Second, military 

personnel should act publicly in a politically neutral 

way. Third, the Armed Forces should be appropriately equipped and adequately trained to complete 

their assigned tasks. Fourth, their leaders should provide civilian leadership with the appropriate military 

capabilities needed to protect the nation and execute 

national policy. These axioms remain valid as far as 

they go, but, as Mazur and Ackerman observe, much 

else has changed. Mazur focuses on the military culture, which has evolved dramatically since the end of 

the draft, mostly in ways that further distanced it from 
33

the wider society. Ackerman focuses on changes in the 

constitutional order—in our polity—that portend for 

the military a new role as power broker. Both authors 

offer some laudable suggestions for how to improve 

the relationship between the military and civil society.

The end of the draft and the rise of the modern military-industrial state inevitably changed the range of 

possibilities for civil-military relations. An institutionalized volunteer military has supplanted the nation’s 

long reliance on citizen-soldiers. The implications of 

this change for the nation are myriad. For example, 

the military is now composed of a less representative sample of Americans—volunteers as opposed 

to draftees. American society is thus composed of a 

smaller portion of people with military experience, 

since volunteer regulars generally serve longer than 

draftees on 2-year tours. This has led to a growing 

gap in mutual understanding between the military 

and civil sectors. Likewise, fewer of our elected leaders have military experience, which would give them 

personal insight into war and the military—and the 

credibility to make decisions contrary to the advice of 

military professionals.

Half a century ago, outgoing President Dwight D. 

Eisenhower presciently warned against the distractions imposed by the military-industrial complex on 

the “diligent in pursuit of the Nation’s great goals.”134

In the councils of government, we must guard against 

the acquisition of unwarranted influence, whether 

sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced 

power exists and will persist.
34

We must never let the weight of this combination 

endanger our liberties or democratic processes. We 

should take nothing for granted. Only an alert and 

knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of 

defense with our peaceful methods and goals, so that 

security and liberty may prosper together.135

Despite Eisenhower’s admonitions, the cluster 

of interests representing members of Congress and 

their financial supporters, the military services, universities, think tanks, and the defense industries has 

dramatically reshaped the nation’s political, research, 

economic, and strategic landscapes. I see no way to 

unravel that complex as long as the military needs 

specialized weapons, logistics, and communications 

systems. So we need more sophisticated tools and 

theories for controlling these interests and managing 

the conflicts of interest.

Yes, domestic factors and the choices leaders make 

do matter a great deal. In the tradition of British historians of empire, Edward Gibbon and Paul Kennedy, 

American constitutional law professors Bruce Ackerman and Diane Mazur offer explanations of the decline 

of civil-military relations that rely on internal factors. 

For a more complete and possibly more problematic 

understanding, however, we should also examine the 

external factors that contribute to reshaping the relationships between the armed forces and general society. In great part, civil-military relations have changed 

because of the end of the Cold War, the revolutionary 

ubiquity of information technology, and the rise in importance of nonstate actors, most notably of al Qaeda.

First, since the end of the Cold War released state 

and nonstate actors from the constraints of the superpower rivalry, conflict has proliferated. As a result, 
35

the United States has experienced a militarization of 

foreign relations. The increased resources invested 

in diplomacy, public diplomacy, and nonmilitary 

foreign aid pale in comparison to the proliferation of 

DoD relations with foreign governments, the influence of Regional Combatant Commands, and the impact of military assistance programs.136 Even without 

wartime supplemental financing, the DoD budget is 

over 30 times greater than that of the State Department.137 The DoD consists of approximately 1,400,000 

service members on Active Duty, 860,000 Reserve 

and National Guard, and 790,000 civilians on installations in the United States and around the world.138

The Department of State has approximately 29,000 

employees.139 With far greater resources than the State 

Department dispersed over far-flung locations, the 

DoD plays ever-more-diverse roles in U.S. foreign relations. Many of the changes blur the lines between 

the roles and missions traditionally deemed military 

and those viewed as diplomatic or political.

Second, the Information Revolution is constantly 

blurring the lines between civil and military capacities, issues, and campaigns. Cyberthreats and cyberwarfare can be conducted by military or civilian 

authorities and against states, nonstate entities, or 

individuals. Likewise, unmanned aerial vehicles are 

being operated by military and nonmilitary organizations, often with operationally indistinguishable missions. Global information systems and highly flexible 

drones erase many of the distinctions between the 

military and civilian spheres. These new technologies 

irrevocably smudge the lines between war and peace.

The war against al Qaeda has rapidly accelerated 

the breakdown between civil and military spheres because the United States has been fighting a “war” with 
36

a nonstate actor. The National Command Authority is 

constantly deciding whether to employ military or civilian assets in combating al Qaeda. For example, the 

U.S. President now possesses dramatically expanded 

powers to order the killing of an individual outside a 

traditional war zone. The law has been hard pressed 

to keep up with these developments. The nature of the 

enemy (nonstate, transnational), the tools available 

(weapons, cyber media, diplomacy, public affairs), 

and the laws and norms applicable (humanitarian, 

human rights, domestic, privacy, and secrecy laws) all 

shape the landscape in ways that inevitably alter civilmilitary relations. If this is emblematic of an epoch in 

which sovereignty itself is in decline, then it will not 

be repaired with the demise of al Qaeda.

Diane Mazur and Bruce Ackerman’s new books 

make important contributions to the dialogue, reminding us that a healthy relationship between civil 

society and the military matters for the nation’s security and governance. Such a relationship does not 

emerge inevitably from some natural law of war and 

peace or intrinsic characteristics of civilian and military, let alone immutable, principles defining their interrelationships.140 We must constantly evaluate these 

relationships to preserve essential values in the face 

of revolutionary change. The piecemeal and episodic 

decisions made by public authorities, such as Justice 

Rehnquist or President Obama, have tremendous and 

sometimes unseen cumulative significance. So, too, 

do global trends far beyond their control. Perhaps 

the most valuable contribution Professors Mazur and 

Ackerman make is to reframe and restart a national 

discussion about the relationship between our national security apparatus and our republic.
37

ENDNOTES

1. The U.S. National Security Strategy articulates a similar list 

in explaining the importance of promoting democracy abroad by 

working to strengthen “key institutions of democratic accountability—free and fair electoral processes, strong legislatures, civilian control of militaries, honest police forces, independent and 

fair judiciaries, a free and independent press, a vibrant private 

sector, and a robust civil society.” The White House, The National 

Security Strategy of the United States of America, Washington, DC, 

2010, p. 37, available from www.whitehouse.gov/‌sites/‌default/‌files/‌rss_

viewer/‌national_security_strategy.pdf.

2. Surprisingly few scholars have attempted significant studies of the civil-military relationship in the United States. To the 

author’s knowledge, no one has completed a more thorough examination of civil-military relations since Samuel P. Huntington 

published his magisterial work, The Soldier and the State, in 1957. 

See Samuel P. Huntington, The Soldier and the State: The Theory and 

Politics of Civil-Military Relations, Cambridge, MA: Belknap Press 

of Harvard University Press, 1957; see also Deborah N. Pearlstein: 

“The Soldier, the State, and the Separation of Powers,” Texas Law 

Review, Vol. 90, 2012 (providing an extensive review of the literature and analyzing the ways in which professional military advice 

does, does not, and can better conform to separation of powers 

theory); and Morris Janowitz, The Professional Soldier: A Social and 

Political Portrait, New York, NY: The Free Press, 1971.

3. See David Kirkpatrick, “Military Backs New Leaders in Tunisia,” The New York Times, January 16, 2011, p. A4; CNN, “Ousted 

Tunisian Strongman Convicted of Corruption Charges,” June 20, 

2011, available from articles.cnn.com/2011-06-20/world/tunisia.ben.

ali‌_1‌_corruption‌-‌charges-‌abidine-‌ben-ali-tunisians?_s=‌PM:WORLD.

4. See, e.g., Larisa Epatko, “What is the Role of the Military 

in Egypt’s Transition?” The Rundown, PBS NewsHour, February 7, 

2011, available from www.pbs.org/newshour/rundown/2011/02/egy

pt-military.html.

5. See David Kirkpatrick, “Military Flexes Its Muscles as 

Islamists Gain in Egypt,” The New York Times, December 8, 2011, 

p. A6.
38

6. See, e.g., Zoltan Barany: “The Role of the Military,” Journal 

of Democracy, Vol. 22, No. 4, October 2011, pp. 31-34.

7. See, e.g., ibid., pp. 28-31.

8. Oath of Office, 5 U.S.C. § 3331, 2006. The oath taken by 

National Guard officers also includes support and defense of the 

state’s constitution and obedience to its governor. Appointment 

Oath, 32 U.S.C. § 312, 2006.

9. Chairman of the Joint Chiefs of Staff, The National Military 

Strategy of the United States of America 2011: Redefining America’s

Military Leadership, Washington, DC: Joint Chiefs of Staff, 2011, 

available from www.jcs.mil//‌content/‌files/‌2011-02/‌020811084800_

2011_NMS_-_08_FEB_2011.pdf.

10. Contrast ibid. with Chairman of the Joint Chiefs of Staff, 

The National Military Strategy of the United States of America: A Strategy for Today; A Vision for Tomorrow, Washington, DC: Joint Chiefs 

of Staff, 2004, available from www.defense.gov/news/mar2005/

d20050318nms.pdf.

11. Admiral Michael Mullen, Chairman of the Joint Chiefs 

of Staff, Commencement Address at the U.S. Military Academy, 

May 21, 2011, available from www.jcs.mil/speech.aspx?ID=1598.

12. For other examples of this kind of high-profile reminder, 

see Secretary of Defense Robert M. Gates’s admonition that as officers, “you will have a responsibility to communicate to those 

below you that the American military must be non-political,” as 

delivered in graduation speeches in 2007 at the U.S. Naval Academy, Annapolis, MD, and at the U.S. Air Force Academy, Colorado 

Springs, CO. Robert M. Gates, Secretary of Defense, Commencement Address at the U.S. Naval Academy, May 25, 2007, available 

from www.defense.gov/‌speeches/‌speech.aspx?speechid=‌1154; idem,

Commencement Address at the U.S. Air Force Academy, 

May 30, 2007, available from www.defense.gov/speeches/speech.

aspx?speechid=1157; see also Admiral Michael Mullen, “From the 

Chairman: Military Must Stay Apolitical,” Joint Forces Quarterly,

Issue 50, Third Quarter, 2008, p. 2 (reminding the members of the 

Armed Services to remain apolitical in an essay published during 

the 2008 U.S. presidential campaign).
39

13. See University of Florida Levin School of Law, “Faculty and Staff: Diane H. Mazur,” available from www.law.ufl.

edu/faculty/mazur/.

14. Michael F. Shaughnessy, Interview with Diane H. Mazur, Education News, November 9, 2010, available from www.

educationnews.org/commentaries/102607.htm.

15. Ibid.

16. Diane H. Mazur, A More Perfect Military: How the Constitution Can Make Our Military Stronger, New York: Oxford University 

Press, 2010, p. 5.

17. Ibid., p. 13.

18. See generally ibid.

19. See, e.g., ibid., pp. 120-126, 146-164, 174-180.

20. See generally ibid., pp. 53-73.

21. Ibid. p. 88.

22. Orloff v. Willoughby, 345 U.S. 83 (1953), p. 91; see Mazur, 

pp. 42-45.

23. Orloff, 343 U.S., pp. 93-94 (emphasis added), notes that the 

military is governed by military law and military justice—a separate system of order and discipline—but not that it constitutes a 

separate society.

24. Mazur, p. 42.

25. William H. Rehnquist, “A Random Thought on the

Segregation Cases,” Nomination of Justice William Hubbs 

Rehnquist: Hearings Before the Senate Committee on the 

Judiciary, 99th Cong., 1986, p. 315, available from www.gpoaccess.

gov/congress/senate/judiciary/sh99-1067/browse.html.

26. Mazur, p. 45, quotes Frank I. Michelman: “The Supreme 

Court 1985 Term—Forward: Traces of Self-Government,” Harvard 

Law Review, Vol. 100, No. 4, 1986, pp. 4-77, especially p. 8.
40

27. Mazur, p. 45.

28. See Flower v. United States, 452 F.2d 80 (5th Cir. 1972), pp. 

81-82, reversed 407 U.S. 197, 1972.

29. Ibid., p. 82; Mazur, p. 46.

30. Flower, 452 F.2d, p. 91. Flower was convicted under 18 

U.S.C. § 1382: “Whoever reenters or is found [within a military 

post] after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof—

Shall be fined not more than $500 or imprisoned not more than six 

months, or both.” Ibid., p. 87 (internal quotation marks omitted).

31. Flower, 407 U.S. pp. 198-199, quotes Jamison v. Texas, 318 

U.S. 413 (1943), p. 416.

32. Ibid., pp. 200-201 (citations omitted).

33. See Mazur, p. 47.

34. 411 U.S. 677 (1973); see Mazur, p. 49.

35. Frontiero, 411 U.S., pp. 680-681; Mazur, p. 48.

36. Frontiero, 411 U.S., pp. 688, 690-691.

37. Ibid., p. 690.

38. Ibid., p. 691.

39. Frontiero v. Laird, 341 F. Supp. 201 (M.D. Ala. 1972), 

p. 206. 

40. Mazur, pp. 48-49.

41. Rehnquist did not actually draft a dissenting opinion. The 

syllabus merely notes that he dissented by endorsing “the reasons stated by Judge [Richard] Rives in his opinion for the District 

Court.” Frontiero, 411 U.S., p. 691.
41

42. Parker v. Levy, 417 U.S. 733 (1974); Rostker v. Goldberg, 453 

U.S. 57 (1981); Goldman v. Weinberger, 475 U.S. 503 (1986).

43. Mazur, pp. 55-56.

44. Ibid., p. 56.

45. Ibid.

46. Ibid., p. 57, citations for Levy’s public statement noted in 

Parker, 417 U.S., p. 737.

47. Parker, 417 U.S., pp. 736, 738.

48. Mazur, p. 59.

49. Parker, 417 U.S., p. 744, quotes Orloff v. Willoughby, 345 

U.S. 83 (1953), p. 94.

50. See Mazur, p. 59; see also Parker, 417 U.S., pp. 744-745.

51. See Mazur, pp. 60-61.

52. See Proclamation No. 4771, 45 Fed. Reg. 45, 247 (July 2, 

1980); see also Doug Bandow: “Draft Registration: The Politics of 

Institutional Immortality,” Cato Policy Analysis, No. 214, August 

15, 1994, available from www.cato.org/pubs/pas/pa-214.html.

53. See Rostker v. Goldberg, 453 U.S. 57 (1981), p. 59; see also 

Mazur, p. 62.

54. Mazur, pp. 64-65.

55. Rostker, 453 U.S., p. 67.

56. Mazur, p. 68.

57. See ibid., p. 66.

58. See generally Goldman v. Weinberger, 475 U.S. 503, 1986. 
42

59. See Mazur, pp. 69–72; Goldman, 475 U.S., pp. 504-505, 

quotes Air Force Regulation AFR 35-10, regarding Air Force Dress 

Code, 1-6.h(2)(f) (1980), “headgear will not be worn . . . [w]hile indoors except by armed security police in the performance of their 

duties.”

60. Goldman, 475 U.S., pp. 507–508 (citations and internal 

quotation marks omitted).

61. See Mazur, pp. 146-154.

62. See ibid., pp. 165-180.

63. See ibid., pp. 69-173.

64. See ibid., pp. 6-9. Mazur explains that ROTC programs left 

many university campuses because they would not comply with 

academic standards and because the end of the Selective Service 

made ROTC less popular, not, as was commonly held, because of 

any hostility on the part of elite universities. The inaccurate but 

prevailing story fed an unwarranted sense that military people 

were unwelcome in the wider society. See ibid. Similarly, she argues that Congress’s threats to cut funding to higher education 

institutions that prohibit ROTC or prevent military recruitment 

on campus, otherwise known as the Solomon Amendment controversies, unnecessarily exacerbated a minor issue. See Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), 547 U.S. 

47 (2006), pp. 51-53. The military should not have discriminated 

against homosexuals in service. Law schools should not have 

banned military recruiters. Congress should not have retaliated 

with the Solomon Amendment threatening to cut off all government support of the universities. Law professors should have realized that their case to overturn the Solomon Amendment would 

not succeed because the Supreme Court would view it as a military personnel issue, not a free-speech issue. See generally Rumsfeld, 547 U.S. 47. Mazur argues that the ROTC and the Solomon 

Amendment controversies arose because the Supreme Court had 

deprived members of the armed forces of freedoms enjoyed by a 

more tolerant civil society. See generally Mazur, ch. 1.

65. See, generally, Mazur, ch. 8. Mazur ascribes one important facet of the military’s fragility as arising out its unwillingness 
43

to draw from a broader swath of society, posing significant constraints on its ability to recruit and retain suitable candidates. As 

one result of this situation, she argues, the military ends up overpaying enlisted personnel. See ibid., pp. 140-143. Even so, the services are taking in a declining rate of high-school graduates and 

an increasing number of recruits requiring “moral waivers” on account of their records of felony and serious misdemeanor convictions. The services have had to issue thousands of these waivers, 

including for persons convicted of “aggravated assault, burglary, 

robbery, and in a few cases, for making terrorist threats.” Ibid., pp. 

138-139. The services have also been recruiting more former gang 

members. See ibid., pp. 139-140.

66. See, e.g., ibid., pp. 89-91; see also Endnotes 15-57 above 

and accompanying text.

67. See ibid., p. 90. See generally ibid., ch. 6. 

68. See Mazur, p. 77, quoting Stanley R. Arthur, “The American Military: Some Thoughts on Who We Are and What We Are,” 

in Vincent Davis, ed., Civil-Military Relations and the Not-Quite 

Wars of the Present and Future, Carlisle, PA: Strategic Studies Institute, U.S. Army War College, 1996, pp. 12-19. 

69. Ibid. 

70. See, e.g., Donna Miles, “Military Takes Top U.S. Confidence Rankings,” American Forces Press Service, June 28, 2011, 

available from www.jcs.mil/‌newsarticle.aspx?ID=641. The DoD reports these findings proudly and without editorial comment on 

the Chairman’s webpage, ibid.:

Forty-seven percent said they have a “great deal” of confidence in the military, the highest rating, and 31 percent 

reported “quite a lot” of confidence. That [total] rating 

[of 78 percent] was 14 percent higher than for the secondranking institution, small business, and 22 percent higher 

than for the third-ranking institution, the police. Other 

organizations rankings, in descending order of high confidence, were: organized religion, 48 percent; the medical 

system, 39 percent; the U.S. Supreme Court, 37 percent; 

the presidency, 35 percent; the public schools, 34 per-
44

cent; the criminal justice system, 28 percent; newspapers, 

28 percent; television news, 27 percent; banks, 23 percent; organized labor, 21 percent; big business, 19 percent; and health maintenance organizations, 19 percent. 

Congress received the lowest high-confidence ranking, 

at 12 percent.

71. See Mazur, pp. 3-4, citing Frank Newport, “Americans’ 

Confidence in Congress at All-Time Low,” Gallup News Service,

June 21, 2007.

72. See Mazur, ch. 7.

73. See infra Part III.

74. See Yale Law School, “Bruce Ackerman,” available from 

www.law.yale.edu/faculty/BAckerman.htm.

75. Bruce Ackerman, The Decline and Fall of the American 

Republic, Cambridge, MA: Harvard University Press, 2010.

76. See Edward Gibbon, The History of the Decline and Fall of 

the Roman Empire, J. B. Bury, ed., London, UK: Fred de Fau & Co., 

1906 (originally published 1789); Paul M. Kennedy, The Rise and 

Fall of British Naval Mastery, Dublin, Ireland: Ashfield Press, 1986; 

see also idem, The Rise and Fall of the Great Powers: Economic Change 

and Military Conflict from 1500 to 2000, New York: Vintage Books,

1989.

77. Gibbon, p. 10.

78. See Harold E. Selesky, “Colonial America,” in Michael 

Howard, George Andreopoulos, and Mark R. Shulman, eds.,

The Laws of War: Constraints on Warfare in the Western World, New 

Haven, CT: Yale University Press, 1994, pp. 59-86, 79-80.

79. See Kennedy, British Naval Mastery, pp. 347-349, attributing the decline of the British Empire to its having “numerous 

defence burdens and obligations, without the corresponding capacity to sustain them”; idem, Great Powers, pp. 44-55, ascribing 

the decline of the Hapsburg Empire to increasing military costs, 

overextension of the military, and failure to preserve the domestic 

economy.
45

80. See Kennedy, British Naval Mastery, pp. xiv-xvii; idem, 

Great Powers, pp. xv, 539-540.

81. See, e.g., Sergio Sabbatanti and Sirio Fiorino: “The Antonine Plague and the Decline of the Roman Empire,” Le Infezioni in 

medicina, Vol. 17, No. 4, 2009, pp. 261-275, discussing the plague’s 

impact on the Roman Empire; Saint Augustine, The City of God, 

Marcus Dods, trans., Boston, MA: Digireads.com Publishing, 

2009, pp. 89-90. See generally A. Trevor Hodge, Roman Aqueducts 

and Water Supply, London, UK: Duckworth, 2002, discussing water 

supply in the Roman Empire; Peter Heather, The Fall of the Roman 

Empire: A New History, New York, Oxford University Press, 2005, 

attributing the decline to overwhelming barbarian invasions.

82. For more on the “decline school,” see Robert D. Schulzinger, “Complaints, Self-Justifications, and Analysis: The Historiography of American Relations since 1996,” in America in the World: 

The Historiography of American Foreign Relations Since 1941, Michael J. Hogan, ed., Cambridge, UK: Cambridge University Press, 

1996, pp. 395-424, 421-423; and Peter Schmeisser, “Taking Stock: 

Is America in Decline?” The New York Times Magazine, April 17, 

1988, available from www.nytimes.com/1988/‌04/17/magazine/takingstock-is-america-in-decline.html?‌pagewanted=‌all&‌src=pm.

83. Ackerman, The Decline and Fall of the American Republic, 

pp. 9-10.

84. See generally Karen J. Greenberg and Joshua L. Dratel, 

eds., The Torture Papers: The Road to Abu Ghraib, New York: Cambridge University Press, 2005, compiling the legal memoranda 

that appear to justify torture and other cruel, inhumane, and degrading treatment of detainees.

85. Ackerman, The Decline and Fall of the American Republic, 

p. 95. Trevor Morrison, who served as an Associate White House 

Counsel to President Obama, takes on this claim directly as part 

of his review, arguing that Ackerman misconstrues institutional 

realities that generally do constrain executive behavior. See Trevor W. Morrison: “Constitutional Alarmism,” Harvard Law Review,

Vol. 124, No. 7, 2011, p. 1688-1750. “[Ackerman’s] account of the 

current state of affairs is too often oversimplified or false, its attraction to institutional innovation too often blind to the workaday needs of government and insensitive to the costs of change. 
46

Ultimately, the book deals too little with the reality of executive 

Constitutionalism to offer a credible appraisal of its performance 

or to propose serious ideas for its reform.”

86. Ackerman, The Decline and Fall of the American Republic, 

p. 11.

87. Ibid., p. 40.

88. Ackerman cites extensively the writings of Elena Kagan, 

who pointedly describes this emerging phenomenon as the “administrative Presidency.” See ibid., pp. 36-38. Ackerman notes 

that Kagan played a key role in developing this form of governance while serving in the White House under President Bill Clinton. See ibid. As a professor at Harvard Law School, she became 

one of the leading theorists of this concept. Kagan’s most notable 

scholarly work acknowledged the dangers of this shift: “lawlessness—that Presidents, more than agency officials acting independently, tend to push the envelope when interpreting statutes.” 

Ibid., p. 37, quotes Elena Kagan: “Presidential Administration,” 

Harvard Law Review, Vol. 114, No. 8, 2001, pp. 2245-2385, 2249 (internal quotation marks omitted). But, Ackerman also notes that 

Kagan concluded that the disadvantages of this lawlessness “are 

outweighed by the “president’s unique claims to democratic legitimacy.” Ackerman, The Decline and Fall of the American Republic, 

p. 37. 

89. Ackerman points out that President Kennedy had 196 

high-level positions to fill, each requiring U.S. Senate confirmation. President Clinton had 786, and President George W. Bush 

had 1,141. When combined with the key posts that do not require 

confirmation, the current President can make some 3,000 key appointments. Ibid., p. 34.

90. Ibid., p. 11.

91. See generally ibid., ch. 2.

92. Ibid., pp. 61-62, 78-79.

93. Ibid., p. 49; see Goldwater-Nichols Department of Defense 

Reorganization Act of 1986, 10 U.S.C. §§ 151-155, 2006.
47

94. Ackerman, The Decline and Fall of the American Republic, 

pp. 49–56.

95. See ibid., pp. 51, 56.

96. Ibid., pp. 56-57.

97. Ibid., p. 57.

98. According to the most recent data available, the average 

political appointee faces a confirmation process that takes 8-1/2 

months and then serves only 11 to 20 months. Cheryl Y. Markum 

et al., Department of Defense Political Appointments: Positions and 

Process, Santa Monica, CA: RAND Corporation, 2001, p. xi. Ackerman notes that between 1979 and 2003, positions requiring Senate 

confirmation were vacant some 25 percent of the time. See Ackerman, The Decline and Fall of the American Republic, p. 157, citing 

Anne Joseph O’Connell: “Vacant Offices: Delays in Staffing Top 

Agency Positions,” Southern California Law Review, Vol. 82, No. 5, 

2009, pp. 913-1000, 962-963.

99. See Ackerman, The Decline and Fall of the American Republic, pp. 57-58. 

100. See ibid., p. 57, citing Ivo Daalder and I. M. Destler, In the 

Shadow of the Oval Office: Profiles of the National Security Advisors

and the Presidents They Served—from JFK to George W. Bush, New 

York: Simon & Schuster, 2009, pp. 148-149.

101. Ackerman may be overstating his case as far as the office of the National Security Advisor is concerned. Brent Scowcroft was the last military appointee, because neither Presidents 

Clinton nor George W. Bush appointed officers or former officers. 

President Obama’s first appointee, retired Marine General James 

L. Jones, lasted less than 2 years and was replaced by a civilian 

lawyer with no military background, Thomas E. Donilon. See 

Ackerman, The Decline and Fall of the American Republic, pp. 57-58. 

102. Both Presidents George W. Bush and Obama appointed 

two directors of the CIA; notably, each appointed one civilian and 

one active-duty general. President George W. Bush appointed civilian Porter Goss and General Michael Hayden, U.S. Air Force 
48

(Ret.), while President Obama appointed civilian Leon Panetta 

and then General David Petraeus, U.S. Army (Ret.).

103. The Directors of National Intelligence have been: Ambassador John Negroponte (April 21, 2005–February 13, 2007), 

Vice Admiral John Michael McConnell, U.S. Navy (Ret.) (February 13, 2007–January 27, 2009), Admiral Dennis C. Blair, U.S. 

Navy (Ret.) (January 28, 2009–May 28, 2010), David C. Gompert 

(a Naval Academy graduate and long-time civilian employee of 

the DoD, Acting, May 28-August 5, 2010); and Lieutenant General 

James R. Clapper, U.S. Air Force (Ret.) (August 5, 2010 to the present).

104. Ackerman, The Decline and Fall of the American Republic, 

pp. 58–59 (citations omitted). The “sic” indicates that the Under 

Secretary for Intelligence follows in succession to the reliably civilian Deputy Secretary (not “undersecretary”).

105. See ibid., p. 59.

106. See Robert Jervis: “What’s Wrong with the Intelligence 

Process?” International Journal of Intelligence and Counterintelligence, Vol. 1, No. 1, Summer 1986, pp. 28-41, 39-41; see also, e.g., 

Mark R. Shulman: “The Rise and Fall of American Naval Intelligence, 1882-1917,” Intelligence and National Security, Vol. 8, No. 

2, 1993, pp. 214-266, 214, providing a historical perspective on the 

politicization of the collection and analysis work of the Office of 

Naval Intelligence.

107. Under Secretary Vickers did have some military experience early in his career, but he quickly moved to the CIA and 

then other civilian positions. Moreover, the President traditionally does not appoint civilians to some of these positions. The 

Director of the Defense Intelligence Agency is a general officer, 

with duties to serve as military intelligence advisor to the Secretary and the Chairman of the Joint Chiefs and to command the 

Joint Functional Component Command for Intelligence, Surveillance and Reconnaissance. 50 U.S.C. § 403-5(b)(5), 2006. See Defense Intelligence Agency, “About DIA,” available from www.

dia.mil/about. Likewise, Congress requires that the Director of the 

National Security Agency be recommended jointly by the Secretary of Defense and the Director of National Intelligence, before 
49

being appointed by the President (10 U.S.C. § 201, 2006 and Supp., 

2009. He also serves as Commander of the U.S. Cyber Command. 

Apparently his deputy is always a civilian. See National Security 

Agency-Central Security Service, “Who Is the Head of NSA/CSS? 

Frequently Asked Questions About NSA,” available from www.

nsa.gov/‌about/‌faqs/‌about_nsa.shtml.

108. 10 U.S.C. § 201, 2006 and Supp., 2009.

109. Ackerman, The Decline and Fall of the American Republic, 

p. 162.

110. Ibid., p. 61.

111. Ibid. (meaning colonels and general officers).

112. Ibid., stating that 55 percent of higher-ranking officers 

identified themselves as independents in 1976, while 33 percent 

identified themselves as Republican.

113. Ibid. Reading the same materials, Mazur notes that the 

author of the survey believed that his data “may have understated the size of the partisan divide.” Mazur, A More Perfect Military, 

p. 86.

114. Ibid., p. 83. Ackerman cites a survey taken at West Point. 

Ackerman, The Decline and Fall of the American Republic, p. 62.

115. Ibid., p. 62, citing Ole R. Holsti, “Of Chasms and Convergences,” in Peter D. Feaver and Richard H. Kohn, eds., Soldiers 

and Civilians: The Civil-Military Gaps and American National Security, Cambridge, MA: MIT Press, 2001, pp. 19-21, reporting on the 

survey conducted by the Triangle Institute for Security Studies; 

James A. David, “Attitudes and Opinions Among Senior Military 

Officers and a U.S. Cross-Section, 1998-99,” in Feaver and Kohn, 

eds., Soldiers and Civilians, p. 120. “[Sixty-five] percent of senior 

officers think it is OK to go public and advocate military policies 

they believe are in the best interests of the United States.”

116. Ackerman, The Decline and Fall of the American Republic, 

pp. 76–78; see Bush v. Gore, 531 U.S. 98, 2000.
50

117. Ibid.,p. 79.

118. Ibid., pp. 78–79.

119. Ackerman discusses two additional scenarios as well: 

“The Extremist Scenario” and “The Crisis Scenario.” See ibid.,

pp. 79–81, 81–83.

120. Ibid., pp. 127–31. See generally Bruce Ackerman 

and James S. Fishkin, Deliberation Day, New Haven, CT: Yale 

University Press, 2004.

121. Ackerman, The Decline and Fall of the American Republic, 

p. 133, giving shared credit to his colleague Ian Ayres for the idea 

of the “Internet news voucher.”

122. Ibid., pp. 136-137.

123. Ibid., p. 143.

124. Ibid., p. 143-146.

125. Ibid., p. 158-159.

126. Ibid., p. 159-160.

127. Ibid., p. 160-161.

128. Ibid., pp. 168–74. Here Ackerman reprises his 2006 book, 

Before the Next Attack. See Bruce Ackerman, Before the Next Attack: 

Preserving Civil Liberties in an Age of Terrorism, New Haven, CT: 

Yale University Press, 2006.

129. Ackerman, The Decline and Fall of the American Republic, 

pp. 163-164.

130. 10 U.S.C. § 113(a) (2006) (Secretary of Defense); 10 U.S.C. 

§ 132(a) (2006) (Deputy Secretary). 

131. 10 U.S.C. § 8013(a)(2) (2006) (Air Force); 10 U.S.C. § 

3013(a)(2) (2006) (Army); 10 U.S.C. § 5013(a)(2) (2006) (Navy).
51

132. 10 U.S.C. § 134(a) (2006); 10 U.S.C. § 135(a) (2006); 10 

U.S.C. § 136(a) (2006); 10 U.S.C. § 137(a) (2006).

133. See, e.g., Yale University, “The Brady-Johnson Program in Grand Strategy,” available from iss.yale.edu/brady-johnson-program-grand-strategy-and-studies-grand-strategy-graduateseminar; David Burt, “Faculty Approve New ROTC Resolutions,” 

Yale Daily News, May 5, 2011, available from www.yaledailynews.

com/news/2011/may/05/faculty-approve-new-rotc-resolutions/.

134. President Dwight D. Eisenhower, “Farewell Address, 

January 17, 1961,” in Public Papers of the Presidents, Dwight D. 

Eisenhower, Washington, DC: U.S. Government Printing Office, 

1961, pp. 1035-1040; also available from avalon.law.yale.edu/‌20th_

century/eisenhower001.asp.

135. Ibid.

136. The 2011 fiscal year budget for the Department of State 

was $16.4 billion (excluding foreign assistance), while the budget 

for the DoD was $548.9 billion. Office of Management and Budget, Executive Office of the President, Budget of the United States 

Government, Fiscal Year 2011, Washington, DC: U.S. Government 

Printing Office, 2010. 

137. See ibid. 

138. U.S. Department of Defense, Agency Financial Report, 

Washington, DC: U.S. Government Printing Office, 2010, pp. 8-9.

139. U.S. Department of State, Agency Financial Report, Washington, DC: U.S. Government Printing Office, 2010, pp. 7-8.

140. See Michael Howard, The Invention of Peace: Reflections

on War and International Order, New Haven, CT: Yale University Press, 2000, p. 1, quotes Sir Henry Maine’s observation that 

“[w]ar appears to be as old as mankind, but peace is a modern 

invention.”
U.S. ARMY WAR COLLEGE

Major General Anthony A. Cucolo III

Commandant

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STRATEGIC STUDIES INSTITUTE

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Professor Douglas C. Lovelace, Jr.

Director of Research

Dr. Antulio J. Echevarria II

Author

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Dr. James G. Pierce

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Ms. Rita A. Rummel

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Mrs. Jennifer E. Nevil