Introduction to 'Crossing the Potomac: The U.S. Coup D'Etat of 2017'

Abstract

“We are five days away from fundamentally transforming the United States of America,” then-candidate Barack Hussein Obama declared at a Missouri campaign rally on Halloween Night in 2008, drawing gales of approval from thousands of supporters thronging the stage. Five days later, moved by war weariness, anger at incumbents, eagerness to elect the first president with African heritage, or hunger for the changes Obama promised, one hundred million American voters spoke. Two months later, although only a quarter of the U.S. military cast its votes for the winner, power transferred peacefully just as after every presidential election in a two hundred thirty-eight year national history. The U.S. military, although it possessed the power to overturn a verdict it disfavored, remained in its barracks. In fact, it has never brought its weapons to bear to oust a civilian regime, and an academic consensus judges the likelihood of the U.S. military rising up in arms to trump an election to so closely approach zero as not to merit serious inquiry.

The founding generation, whose experience with British military oppression heightened their wariness about the danger a professional army might pose to constitutional rights, developed a model of government incorporating their conviction that the optimal level of military involvement in U.S. politics is zero. Yet the 2009 inauguration of President Barack Obama, a community organizer who rode to power on a promise to “fundamentally transform the United States of America” and who, working with Congress and the courts, has done much to uphold that Halloween promise since, prompts the query: does the Constitution truly require complete subordination of the military to its civilian leaders? Put differently, does the Constitution permit or even condone military intervention in politics under any set of extraordinary circumstances?

For the Framers the issue of when a government could permissibly be overthrown was the very first they considered in contemplating whether to break from Britain, and this oldest question in political theory “stands at the very basis of modern constitutionalism as we know it.” Instituting civilian control of the military may have solved the problem of the coup, but it provided no guarantee that a future executive or legislative body would not rule as or more despotically than King George III or Cromwell, and military subordination to the authority of civilians of that ilk was just as much a prescription for tyranny as a coup — and perhaps more so. The Framers knew that “[e]nlightened statesmen will not always be at the helm” of government, and that future civilian leaders in any or all three branches might trammel the Constitution and the rights recognized therein. To conclude that the Framers, having secured the American people against the threat of coup by instituting civilian control of the military, turned blind eyes to the danger future civilian tyrants holding the reins of the military might pose to their liberties is to impugn their understanding of human nature and to deny their foresight in recognizing that the military might become the guardians of the Constitution and the instrument of the people in resisting a domestic tyranny threatening their lives, liberty, property, and other natural entitlements.

But is there anything the President cannot do to the American people? What if they elect a president who “want[s] to destroy this nation” and works to “create division among the people, encourage a culture of ridicule for basic morality and the principles that made and sustained the country, undermine the financial stability of the nation, and weaken and destroy the military[?]” What remedies did the Framers commend to us in the event a tyrant ever assumes the presidency? Do the people have the right to resist a tyrant, and does that remedy hold any prospect of success without military support? Does the Constitution require complete subordination of the military to civilian government and to such a commander-in-chief? Does the U.S. military have the right or even the duty to intervene as Constitutional and popular savior when the times require it, and who makes such a determination? If so, how do we know when this right or duty is triggered, and what are the implications of such a right or duty for our understanding of the Constitutional obligations of military and civilian leaders? Is such a duty incumbent upon the U.S. military at present? If not, how bad does it have to become? What conditions precedent would be required before the U.S. military would be justified in using force to oust a U.S. president? Finally, if complete subordination to civilian government is preferable to military intervention in the U.S., what constraints and limitations must civilian governors accept as the price of military abstention, and how else but by military intervention are those constraints and limitations to enforced?

Part I sketches theories that prescribe, explain, and predict the dynamic relationship between civilian government and the military, generally and in the U.S. context. It then sharpens the focus to develop a pre-theory hypothesizing why and when militaries intervene in politics. Part II examines the distinct socio-legal context of the U.S. to further elaborate the pre-theory and offer explanations and predictions of U.S coup behavior. Part III extrapolates data since 2008 and presents a future U.S. coup scenario as a heuristic test of the pre-theory. Part IV considers whether the general pre-theory of the coup can be contextualized and applied to determine whether, and under what circumstances, a coup might occur in the U.S. and what, if anything, should be done in light of these answers. It then recommends legal and political measures to afford greater guarantees against tyrannical government that protect individual rights while allowing the military to keep its guns direct outward rather than inward.

Keywords: coup d'etat, civil-military relations, constitutional law, armed forces, commander in chief, praetorianism, separatism, enemies foreign and domestic, oath of office