The Domestic Role of the American Military

The role of armed forces in an open society may be likened to a potent medicine that is life-saving in the proper dosage but lethal beyond a certain proportion. Military forces have proved to be indispensable for securing the political space in which free institutions can flourish, but they may also trample or destroy those institutions if unconstrained by law and wise leadership.

A rich and thoughtful account of how the U.S. military has protected, supported, clashed with and occasionally undermined constitutional government in this country is presented in the new book “Soldiers on the Home Front: The Domestic Role of the American Military” by William C. Banks and Stephen Dycus (Harvard University Press, 2016).

The authors, who are law professors, trace the role of the military back to its constitutional roots, which are not as precisely defined as they might have been. The Framers of the Constitution “knew that troops would sometimes be needed to help enforce the civilian laws. They just neglected to tell us precisely when.”

And so, Banks and Dyson write, U.S. military forces have played a multiplicity of domestic roles over time, both constructive and abusive.

“In the middle of the twentieth century, [troops] helped integrate Southern schools and universities, and they were sent into cities around the country to help control race riots. Federal forces were also used to suppress political protests during the Vietnam War. All the while, the unique capabilities of the military were welcomed in communities recovering from natural disasters.”

The authors devote chapters to military detention of U.S. citizens, trial by military commission, domestic military intelligence gathering, and the imposition of martial law– each of which is a matter of sometimes astonishing historical fact, not simply of speculative possibility, from Revolutionary times to the Civil War and World War II to our own post-9/11 era.

One of the surprising themes that emerges from “Soldiers on the Home Front” is that even after centuries of legislation, litigation and historical experience, many of the underlying policy questions and some of the basic legal issues remain at least partly unresolved:

“Whether a president has inherent constitutional authority, or may be authorized by Congress, to order the military imprisonment of a civilian without charges, perhaps indefinitely, is a question that has not yet been definitively answered by the courts. As a practical matter, however, the president may do so if no court will intervene.” (p. 116)

“Even after more than two centuries of experience, appropriate limits on military investigations of civilians are ill-defined and controversial.” (p. 167)

“The small number of episodic judicial opinions about martial law have left many questions unanswered. With no mention of martial law in the text of the Constitution, we might have expected Congress to adopt policy for resort to such a drastic measure. But it has so far failed to do so.” (p. 211)

“Ambiguity remains about who in the United States may be imprisoned, upon what grounds, and pursuant to what process.” (p. 249)

“The rules, in other words, are a mess.” (p. 263)

More fundamentally, “Soldiers on the Home Front” reminds us that constitutional values are not self-enforcing, and are liable to be eroded in times of political stress or national emergency. Defending those values is the task of an alert, informed citizenry. This fine book should help.