Mark Milley and the Constitution

Mark Tushnet

One matter that’s been largely unremarked upon in discussions of Trump, January 6, and the abortive “coup d’etat” (scare quotes because, compared to real coup attempts this one was a comic opera) is the role of the US military—or, more precisely, the proposition, which everyone seems to take for granted, that the US military wouldn’t have supported the coup (in contrast to Brazil, where the possibility of military support for a Bolsonaro coup was real and openly discussed). What follows are some tentative thoughts about this issue.

That the military would not intervene is taken for granted, I think, because people assume (correctly) that military leadership at the highest levels understands that their duty is to support and defend the Constitution. As Jeff Powell and others have said, one (unwritten) constitutional principle is that political change is never to be carried out through direct exercise of violence (though any realistic view of constitutional change has to acknowledge that violence often lies in the background of such change). The difficulty, though, is that another (partly written) constitutional principle is that the military is ultimately under civilian control.

The taken-for-granted assumption about Trump and the attempted coup is that military leaders would have ignored/defied a direct order from the (still) commander-in-chief to intervene on his behalf—that is, would have ignored the principle of civilian control of the military in the service of their own understanding of basic constitutional principles (here, the principle about direct force and political change). I have a strong sense that even the most extreme of Trump’s advisers—and so Trump himself—knew this and so didn’t even explore seriously the possibility of issuing such a direct order.

I’m not sure that we “constitutionalists” should be completely comfortable with that (as a general proposition). Consider a scenario suggested to me by my reading of Uwe Wittstock’s terrific book, February 1933. The Proud Boys and similar groups become serious paramilitary organizations carrying out terroristic attacks on liberals on a regular and reasonably large scale. Congress responds by authorizing the president to deploy regular military force to suppress paramilitary organizations. Do we want the Joint Chiefs of Staff to decide whether that statute, or actions taken by the president to suppress right-wing paramilitaries, is consistent with their independent view of what the Constitution permits?

I’ve worked out (for myself) scenarios in which political actors effect a change in the method of choosing the president that eliminates the Electoral College. Suppose there’s an election which candidate A would have won the electoral college but candidate B wins under the revised system, and suppose the Supreme Court holds that the constitutionality of the revised system is a political question. Do “we” want the Joint Chiefs to intervene on candidate A’s behalf?

The problem I’ve sketched is, I think, a version in the non-judicial context of what Alex Bickel called “the moral approval of the lines”—“we” take for granted that following Trump’s orders would have been a bad thing and so aren’t concerned about the (implicit, assumed) disregard of the principle of civilian control of the military. Bickel’s point was that times change, and so do views of what lines should be approved morally. That seems to me true in the context I’m dealing with here as well. (The scare quotes around we are there is signal that Trump's supporters might well give answers different from the ones most readers of this blog would give.)

Bickel was working in the “neutral principles” tradition, and realists/crits have a number of responses applicable to the non-judicial context: carpe diem/sufficient unto the day is the evil thereof; doing the wrong thing now because somebody else might do a different wrong thing in the future is a fool’s game.

As noted, these are tentative thoughts—but I do think that the issues deserve more exploration.