Alden Fletcher analyzes the historical origins and intent behind the Constitution’s “Calling Forth Clause” that has served as a foundation for confiding vast military authority in the president and potentially allowing the use of military force against civilians. While scholars have interpreted the Clause’s original meaning as requiring violent resistance to the laws before military force may be brought to bear, Fletcher shows that evidence from English, colonial, and founding-era history reveals the Clause was designed without such narrow constraints.
But historical evidence also suggests Congress and the judiciary could be intimately involved in the decision of deploying military forces domestically. Fletcher thus concludes that the founding era history both supports broad permission of the federal government to use troops domestically, as well as a significant ability of Congress and the courts to check the executive’s use of military force, even in a crisis.
Hosted by National Institute of Military Justice (in honor of NIMJ’s 30th anniversary)
The following pieces are from the “30 Years of Military Justice” symposium held on Oct. 28, 2021, with keynote speaker Senator Kirsten Gillibrand (D-NY), and in partnership with Georgetown University Law Center’s Center on National Security and the Law, the Journal of National Security Law & Policy, and the Georgetown National Security Law and Military Law Societies.
Dan Maurer’s essay argues that a complete scrutiny of norm-breaking and “crises” within strategic-level American civil-military relationships ought to consider more than the impact of the breach or the value of the actor’s apparent justification for transgression.
Rather, considering how an actor understood the norm, and whether he or she accepted it before breaching it, uncovers two important factors that have been left under-examined in civil-military norms and relations literature: whether that norm ought to be considered the norm any longer, and whether there is a more nuanced way to determine an actor’s culpability or blameworthiness for the violation.
Exploring the willfulness and mindset of the individual parties, who seem to breach norms or fail to establish a baseline of workable mutual expectations, is a step in the direction of understanding the peculiar character of that choice beyond its effect and the actor’s reasoning.
This essay proposes that we borrow the scalable legal concept of “intent” from criminal law—described as “the degree of informed intentionality” of a civil-military relationship actor. Informing this proposal is a look at some recent norm-busting events “ripped from the headlines.”