Presidents, partisanship, and war

[Sanford Levinson]

This is designed to respond to the two Marks plus Bobby's post:

Speaking on military bases (or at the military academies) is tricky.
Surely the Commander-in-Chief is entitled to show up and cheer the
troops on, and, more importantly, convey the appreciation of a grateful
nation for their willingenss to take risks that the rest of us certainly
do not.  Whatever "neutrality" might mean, it CAN'T mean that the
President is estopped from promoting support for our military engagement
when visiting military bases.  Nor can the President reasonably be
estopped from answering his critics.  Where things get tricky is when he
refers to the critics generically as "Democrats" or even "some
Democrats" rather than by explicit name, e.g. "Representative Murtha."
And there is a problem if he refers ONLY to Democrats and not, e.g., to
Republican Nebraska Senator Chuck Hagel, who has raised some
embarrassing questions about the war.  And, of course, the primary
problem is that the Commander-in-Chief's opponents presumably have no
access to the military bases to offer their own critiques and explain,
in face-to-face meetings, that they, and not the Commander-in-Chief,
offer better solutions that would save the lives of the mlitary
personnel.  (I may be wrong on this last point:  Do West Point,
Annapolis, and Colorado Springs in fact invite opponents of the War to
give speeches to the members of the respective academies?  I know that
members of Congress regularly make "inspection visits" of foreign bases.
Are they invited to give speeches?  More to the point, have any dared to
criticize the President while visiting troops in Iraq?)

This is not an area that can be covered by hard-and-fast rules.  The
best we can do is offer "standards."  E.g.,
President/Commander-in-Chiefs ought not make instrumental use of the
military for crass political objectives (as almost everyone in the world
thought that Bush was doing with his notorious landing on the aircraft
carrier wearing his flight jacket).  The only reason that didn't end up
in 2004 campaign commercials on the Bush side is that "Mission
Accomplished" turned out to be just another mindless exaggeration of our
success.  As I suggested yesterday, the mystery is why the feckless John
Kerry didn't use it.  (Would the Bush Administration have had a legal
right to prevent Kerry from using it in an ad?  If so, where would that
right come from, since "We the People" surely paid for the aircraft
carrier and the plane that Bush flew?)   

Ultimately, as in so much of our system, we must rely on judgment and
character rather than anything that can easily be called "law."  But a
constitution surely includes "penumbras and emanations" that should
shape judgment and mold character, whether or not they are ever enforced
by courts.  

sandy

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Tushnet
Sent: Sunday, December 11, 2005 9:24 AM
To: Scarberry, Mark
Cc: 'conlawprof at lists.ucla.edu '
Subject: Re: RE: Presidents, partisanship, and war

Two questions:  (1)  Is there a constitutionally rooted principle/
convention of civilian control of the military in the U.S. system?  
(2)  If so, what is its content?

I take it that Sandy's position is something like this:  The principle
of civilian control of the military requires that members of the armed
forces take their direction from the commander in chief, who is
constrained by the operation of ordinary politics, but that they not
participate, except in their capacity as citizens (and, at the higher
levels, in their capacity as experts), in the making of those
directions.

Is the second provision above mistaken?  IIRC, McClellan resigned from
the armed forces before running for president; did he have to [putting
aside the obvious point that he might have been removed involuntarily
had he not]?  Could Eisenhower run for president while a general?  The
Incompatibility Clause doesn't rule out the possibility, does it?

If the second proposition (or something like it) is mistaken, does
constitutional princple/convetion place any limit on the participation
of members of the armed forces in the determination of policy?  In 2006
or 2008, would it be constitutionally permissible (in the sense of
principle/convention) for President Bush and Vice President Cheney, for
the reasons Mark Scarberry identifies, to hold partisan campaign rallies
at military bases (assuming that there are no statutory barriers to
doing so, or that their speeches, while clearly understood by observers
to be partisan capaign events, are written so as to avoid whatever
statutory strictures there are)?

I note, of course, that constitutional conventions can change, and
typically do so as part of larger regime transformations.

----- Original Message -----
From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
Date: Sunday, December 11, 2005 4:09 am
Subject: RE: Presidents, partisanship, and war

> In response to Sandy's argument that (as I understand it) the 
> President is endangering Constitutional principles of military 
> neutrality in
> politicalmatters:
> 
> Some Democrats attack Pres. Bush by saying that he
intentionally 
> misled the
> nation into going to war; thus, in effect, his supposed lies have 
> caused the deaths of over 2,000 members of the armed services. Such a
charge 
> has the
> direct effect, if believed, of destroying the confidence that members 
> of the armed services have in their Commander in Chief. It hardly
seems 
> improperfor the President to defend himself against such
charges by 
> speakingdirectly to members of the armed services, who
supposedly 
> are dying because
> of his supposed lies. 
> 
> Other Democrats (or perhaps the same ones) attack Pres. Bush
by 
> saying, as
> Democratic Party Chairman Dean said, that the war in Iraq
cannot be 
> won.Such claims, if believed, have the direct effect of
undermining 
> the morale
> of members of the armed forces. Again, it seems appropriate for
the
> President to speak directly to members of the armed forces to
rebut 
> suchclaims.
> 
> At least one prominent Democrat (Sen. Kerry) charged
members of the 
> armedservices with terrorizing the Iraqi people. That is a direct 
> attack on the members of the armed services. Again, doesn't it make 
> sense
for the
> President to speak to the members of the armed services to
express his
> confidence in them?
> 
> If we are witnessing the phenomenon of a political split
between the
> military and a portion of the civilian population, might the Democrats

> who make such claims and charges be more responsible for the split
than 
> thePresident who finally is responding to them? If the
President's 
> defenseagainst such claims and charges in front of military audiences 
> highlights for us civilians the irresponsible nature of the claims and

> charges, is that a politicization of the military?
> 
> Mark S. Scarberry
> Pepperdine Univ. School of Law
> 
> 
> 
> -----Original Message-----
> From: Sanford Levinson
> To: Matthew J. Franck; conlawprof at lists.ucla.edu
> Sent: 12/10/2005 6:36 PM
> Subject: RE: Presidents, partisanship, and war
> 
> With respect (and it is genuine), I don't think that the
Washington 
> andLincoln references are responsive to the main point.  The
fact that
> Washington exhibited partisan bias in a private letter is quite 
> different from using the military as a backdrop for politically 
> partisanpublic speechmaking.  And it seems altogether
appropriate 
> to dismiss
> military officers who campaign for a presidential candidate, 
> regardlessof their party affiliation.  (That's the point of the 
> military-civilian separation, after all.)
> 
> I think the jury is still out on the degree to which Clinton has 
> harmedour basic constitutional structure.  A lot of Democrats,
myself
> included, have taken justified pleasure in hearing Republicans
say 
> thatperjury isn't a big deal.  But it would be better for the 
> politicalsystem if we treated mendacity (including perjury) as indeed 
> a big deal, regardless of the people doing it.  In retrospect I think 
> it's safe to say that all of us might have been better off had Clinton

> been convicted(or, even more to the point, resigned), so that Al Gore 
> would have run as an incumbent.
> 
> sandy
> 
>  _____
> 
> From: conlawprof-bounces at lists.ucla.edu 
> [conlawprof-bounces at lists.ucla.edu] On Behalf Of Matthew J.
> Franck
> Sent: Saturday, December 10, 2005 9:09 PM
> To: conlawprof at lists.ucla.edu
> Subject: Presidents, partisanship, and war
> 
> 
> Just a couple of notes on past precedents, to add to Richard 
> Dougherty'smention of FDR.  In 1794, in response to the
Whiskey 
> Rebellion,President Washington resolved to don his uniform
and lead 
> the U.S.
> forces in the field personally.  In the end he did not go farther
than
> Carlisle, but who knows what he said to soldiers before they
parted
> company.  We do know (Joseph Ellis reports in His Excellency)
that he
> wrote to Henry Lee, who commanded in his place, "I consider
this
> insurrection as the first formidable fruit of the Democratic 
> Societies."Somehow American constitutionalism survived.
> 
> In 1864, when the Democrats nominated George McClellan,
secretary 
> of war
> Stanton (according to Phillip Shaw Paludan's The Presidency
of AL) 
> "wasparticularly vigorous.  He supported requests for furloughs
so 
> that the
> soldiers could come home and vote for Lincoln; soldiers with
other
> inclinations could foresee some problems in visiting home.  He 
> dismissedquartermaster officials who campaigned for
McClellan."  
> Again American
> constitutionalism survived the experience--to say the least, in
this
> instance.
> 
> I have great respect for the thesis of Sandy's colleague Jeffrey
Tulis
> in The Rhetorical Presidency.  An opposing view was well
argued a few
> years back by David Nichols (now your neighbor at Baylor,
Sandy) in 
> TheMyth of the Modern Presidency.  As someone who more or
less 
> regularlyteaches the presidency, I'd say the jury is still out on 
> which of these two gentlemen has the better argument.  Most days I 
> incline to
Tulis,
> but not every day.
> 
> Anyway, my reading of the Constitution has more room for
Bush's 
> partisanspeeches before military audiences than for Bill
Clinton's 
> escape from a
> well-deserved removal from office.
> 
> Matt
> ***************************
> Matthew J. Franck
> Professor and Chairman
> Department of Political Science
> Radford University
> P.O. Box 6945
> Radford, VA 24142-6945
> phone 540-831-5854
> fax 540-831-6075
> e-mail mfranck at radford.edu <')" >mfranck at radford.edu> 
> www.radford.edu/~mfranck <"
> target="l">http://www.radford.edu/~mfranck>
> ***************************
> 
> <<ATT1557140.txt>>
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