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Civics 101: Instilling Constitutional Literacy in Tomorrow’s Strategic Leaders

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tags: Constitution, education, citizenship, academia



Gregory D. Foster is a professor at the National Defense University, a West Point graduate, and a decorated veteran of the Vietnam War.

National Defense University (NDU) Faculty walk out of Roosevelt Hall for the Graduation ceremony at

Fort Lesley J. McNair, Washington D.C. DoD Photo by U.S. Army Sgt. James K. McCann.

 

 

“You should try teaching political science in this town with a straight face.” That has been my longtime lament to anyone who engages me on the enduring turbulence, divisiveness, inertia, and dysfunction of politics and governance in Washington. Now, though, the situation has become so massively fraught that my standing lament assumes new saliency. When catastrophe, calamity, debacle, disaster, fiasco, and chaos are words that seem best to characterize the functioning of the federal government today, it makes my job especially daunting.

 

I’m a professor – at one of the U.S. military’s senior colleges. My students aren’t your average student nor even your average graduate student. They’re experienced government professionals – military officers at the rank of lieutenant colonel and colonel (or the Navy equivalent) and federal civil servants and Foreign Service Officers of comparable grade, each with 15-23 years of professional experience – who have been specially selected by their parent service or federal agency for a year-long graduate-level educational experience designed to groom them for future positions of executive authority and responsibility. 

 

The Constitutional Oath

As the price of their admission to public service, these individuals have all sworn an oath of allegiance to the Constitution, thereby assuming the obligation, willingly and without mental reservation, to support and defend it against all enemies, foreign and domestic. That means, in my estimation, that they have agreed, uncoerced, to embrace, protect, and remain loyal to the precepts, prerogatives, institutional arrangements, and rights embodied in the Constitution, its amendments and, arguably to be sure, the Constitution’s underlying philosophical foundation, the Declaration of Independence

 

With regrettably few exceptions, though, most of these individuals haven’t given more than passing thought to the Constitution since they first took the oath. So, where there should be intimate familiarity and understanding, there is pronounced ignorance –civic illiteracy– that could signal danger ahead as these individuals advance to senior levels. On top of that, when the only role models they have at the highest levels of government discredit, sully, and even jeopardize the values the country claims to represent, civic consciousness, literacy, and competence assume overriding significance.

 

What, then, should the public expect such future senior leaders to learn? Let us note at the outset that these are public servants charged with serving the American public – professionals who, because of their specialized expertise and preparation, standards of conduct and performance, and presumed internal self-policing, are accorded a great deal of unquestioned discretionary license by the public they serve in return for competence, integrity, and accountability. For me, the message is clear: If the public is to be properly served, professional development at this level necessarily becomes an exercise in civic development.

 

As such, I would want these individuals, for starters, to address that most fundamental of questions: What is the very purpose of government they inhabit and operate? Is it merely to preserve property (a la John Locke), to facilitate the happiness of the people (a la John Adams), to provide justice (a la James Madison), or to ensure peace and security (a la Thomas Hobbes)? Is it, in the wise words of Abraham Lincoln, “to do for a community of People, whatever they need to have done, but can not do, at all, or can not, so well do, for themselves – in their separate, and individual capacities”? Or is it, as America’s founders contended in the Declaration of Independence, to secure the natural rights (including, but not limited to, life, liberty, and the pursuit of happiness) all humans (not just citizens) possess and deserve to enjoy simply by virtue of being human?

 

I would want them to ponder the other parts of that seminal second paragraph of the Declaration of Independence, so that they are duly sensitized to the importance of government legitimacy being derived from the consent of the governed (popular sovereignty) and the associated right, indeed the duty, of the people (inside and outside government) to express dissent (possibly leading even to overthrow) in the face of abuse by those in power. And then there’s the part about all of us being created equal. Does that mean that even though we obviously aren’t equal in our attributes, talents, and abilities, we are equal in the sense that we have the same rights? Or, on the contrary, do we have only those rights granted to us by government?

 

I would want them to address the Constitution’s Preamble as not simply hortatory, aspirational literary frill, but as an imperative for action, America’s Security Credo, encapsulating as it does the full range of imperatives that define security for individuals and society beyond just providing for the common defense: national unity, justice, domestic tranquility, general well-being, and liberty.

 

I would want them to recognize the Constitution as the supreme law of the land, the ultimate statement of the rule of law (which we preach incessantly to others the world over) over the rule of men, an anchor to guide us especially in the face of populist demagoguery. “In questions of power,” Jefferson said, “let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitution.”

 

I would want them to consider the ordering of the Constitution’s articles: why the legislative branch, as the people’s representatives, is listed first; the executive, as the president of all the people, second; and the judiciary, the protectors of the law, third; this, even though these are coequal, coordinate branches of government that necessarily – and desirably – share many powers. Is this just syntactic necessity or a reflection of more meaningful underlying purpose?

 

Diagnosing Congress

I would want these future senior leaders to scrutinize Article I’s treatment of Congress, starting with the basics: Is our republican form of government – representative democracy – actually the one we should want, for reasons including but also transcending the “efficiency” necessitated by our size and population? Aren’t the separation of powers and checks and balances designed to be intentionally inefficient? Is such inefficiency compatible with the strategic imperatives of unity – unity of purpose, unity of effort, unity of action – called for in the international affairs of state? Is representative democracy actually consistent with popular sovereignty – popular rule – especially when those who represent us have chosen to be a full-time political class? Is the implicit premise of republican government that the best of us govern the rest of us (notwithstanding ample evidence to the contrary)? If so, are the prescribed qualifications for office – age, citizenship, and residency alone – all that should be required, leaving the voters to make their own judgments about such things as competence, intelligence, integrity, trustworthiness, and public-mindedness?

 

I would want them to confront key questions about what we should expect from our representatives in Congress: Should the primary responsibility of congressional representatives be to their constituents or to the country? Should they make their own reasoned judgments in office or be essentially a mouthpiece for their constituents? Should they check and balance or rubber stamp and enable the president and the executive branch? Should they be loyal to Congress and its constitutionally prescribed mission or to their political party?

 

I would want them to pay close attention to the specific wording of the Article I powers conferred upon Congress – “All legislative powers herein granted shall be vested in a Congress” – at the same time they note Article II’s more expansive and vague wording for the President – “The executive power shall be vested in a President” – as well as the 10th Amendment’s provision that “the powers not delegated to the United States . . . are reserved to the States respectively, or to the people.” By the same token, I would want them to note the countervailing implied congressional powers suggested by Article I’s so-called elastic clause: “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers. . . .”

 

I would want them to recognize that Article I gives Congress – not the executive – the power to “provide for the common defence,” and that “no money shall be drawn from the Treasury, but in consequence of appropriations made by law.” As importantly is Congress’s role in exercising civilian control of the military (beyond that accorded the President in Article II as “commander in chief of the army and navy . . . and of the militia”): raising and supporting armies; providing and maintaining a navy; making rules for governing and regulating land and naval forces; providing for calling forth (mobilizing) the militia – and for organizing, arming, and disciplining the militia when thus mobilized. Most importantly, almost certainly, is the power accorded Congress to declare war – which we don’t do anymore because it’s too hard (perhaps too provocative); which Congress has the power to do but isn’t obligated (nor, increasingly, even expected) to do; and which we avoid by calling wars something other than wars, using “authorizations for the use of military force” instead, relying increasingly on publicly deniable covert military operations, and falling back on the 1973 War Powers Resolution, which, rather than reasserting proper congressional prerogative, provided an excuse for congressional inaction on the use of force until after the fact.

 

Diagnosing the Presidency

I would want these future senior leaders, belonging as they do to the executive branch, to make exacting judgments about Article II’s treatment of the president and the presidency, not least the precise wording of Section 1: “The executive power . . . shall be vested in a President.” What does that really mean? Is he an executor who is expected to carry out the direction of Congress, or is he the presider – the issuer of direction? Are the President, the presidency, and the executive branch a unitary body (in the manner of a “unitary executive,” endowed with not only expressed powers but also a wide range of inherent powers); or should we expect and want internal checks and balances (State vs. Defense, Army vs. Navy)? Was Alexander Hamilton right in his famous Federalist #70 call for “energy in the executive,” a metaphorical unitary force to overcome the inertia of the popular representative mass that is Congress? On what basis, then, should we judge a President (and, by association, determine how binding his direction should be): by his accomplishments (domestic and/or international), by his behavior (public and/or private), by his attributes (charisma, character, vision, courage)? 

 

Of most salient immediate concern to this audience is the President’s designation as commander in chief, this being at the very heart of the hallowed democratic precept of civilian control. This raises numerous questions, especially in conjunction with the presidential oath of office, which swears him to “preserve, protect and defend the Constitution,” – to the best of his ability. Is this license for the President to order the military to do anything he wants; and is the military obligated in turn to dutifully obey any order that isn’t demonstrably unlawful? Considering that the Constitution details how laws are to be passed and treaties ratified via shared powers, how legitimate are recurring presidential actions to circumvent both – through executive orders, signing statements, and international executive agreements? What, therefore, do we and should we expect the relationship between the executive and Congress to be: confrontational? competitive? cooperative? collaborative? collusive? Recall Justice Robert Jackson’s well-known concurring opinion in the 1952 Youngstown Sheet & Tube Co. v. Sawyer case: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. . . .”

 

Don’t Forget the Judiciary

Lest the judiciary be overlooked in a fit of casual neglect, I would want these future strategic leaders to be sensitive to the judiciary’s crucial role: a formally independent, non-political arm of government, whose mission is to interpret and apply the law – not to make or enforce it. Apolitical judicial independence in the service of “equal justice under law” is the normative ideal, though the selection of judges and justices is driven in very large measure by political and ideological considerations. There are no prescribed qualifications for these lifetime, non-elected appointees, though virtually all are lawyers whose inclinations for judicial activism or judicial restraint reflect inner ideological and political leanings. 

 

Two issues specifically mentioned in Article III – impeachment and treason – and two whose provenance lies outside the Constitution – judicial review and judicial deference – warrant particular attention. With regard to impeachment, a recognizably political rather than legal act addressed more directly in Article II, the most pressing question is what constitute “high crimes and misdemeanors.” With regard to treason, defined in Article III as a wartime act, the question, in light of the world of hybrid, asymmetric conflict we now face, is what constitutes war. Judicial review, codified in the 1803 Marbury v. Madison case, raises questions about the extent to which, and under what circumstances, the judiciary should have the final say on the legality of executive and legislative actions. And then there is judicial deference, the Court’s selective, not always consistent practice of declining to take up certain types of cases (e.g., defense, foreign affairs, war powers) it considers to be the proper purview of the “political branches.” 

 

And, Finally, the Amendments

Yes, finally, I would want these individuals to address the amendments to the Constitution head on, precisely because that is principally where the rights they have sworn to uphold are most clearly enumerated. Indeed, there is much to be discussed with regard to the meaning and scope of gun rights and gun control, unreasonable search and seizure, due process and equal protection, double jeopardy and self-incrimination, speedy and public trial by jury, citizenship, and the protection of rights not otherwise specified in the Constitution. Perhaps most salient and most potentially controversial, though, are the rights enumerated in the First Amendment: religion (church-state separation, persecution, religiosity in public office), speech (dissent, hate speech, incitement, slander), press (secrecy, propaganda and disinformation, censorship, libel, leaks and whistleblowing, public accountability, informed citizenry), peaceable assembly and redress of grievances (civil society, protest movements and events, public awareness, access to public facilities).

 

 

If this sounds like Civics 101, it is – for good reason. It would be a massive mistake to conclude that uniformed military officers, federal civil servants, and Foreign Service Officers – professionals all – who aspire to future responsibilities as senior leaders, should be judged by standards no different than in the past: basically, technical expertise and operational know-how. Now, though, they are enroute to becoming tomorrow’s generals, admirals, and senior diplomats and federal executives. If they are to earn the continued trust and confidence of the public, they must fully expect to be judged anew by how much and how well they demonstrate understanding of and commitment to the higher-order ideals of the Constitution they have sworn to support and defend.


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