"...do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic..."

"For the good of the Air Force, for the good of the armed services and for the good of our country, I urge you to reject convention and careerism..."
- Secretary of Defense Robert Gates, Maxwell AFB, April 21, 2008

"You will need to challenge conventional wisdom and call things like you see them to subordinates and superiors alike."
- Secretary of Defense Robert Gates, United States Air Force Academy, March 4, 2011

Tuesday, June 21, 2011

Due for Another Age of Reason?


Jonathan Schell, a visting professor from Yale, wrote an article that parallels my own frustrations with those who warp language purposefully without interest in objective truth. To be clear, reasonable people can debate what language means and certainly some language is unclear. This is, however, completely separate from morphing language simply to avoid the conclusion from the written word that uses unwanted or inconvenient language to express an unwanted or inconvenient point of view.

It appears to me, people often twist language from any text that is viewed as authoritative, be it legal or religious or both, simply to introduce a "debate" into an issue that has a political side to it. This act of twisting language, instead of defining and embracing it, is indicative of a desire to sidestep that language and therefore the point of view of the text itself. Rather than take the honest, though politically more challenging stand, of acknowledging the text and its language and disagreeing with the text itself and its point of view, those who wish to maximize political capital while avoiding the conclusions of a text do so at the very peril of the document itself. It is not that they simply misrepresent what the text says, demeaning its value in one singular instance or maneuver. They damage it for life.

A once clear text becomes mired in "debate" whether credible or not, and continues to be for the life of the text with the potential to marginalize the text and its message. Even the most absurd "arguments" move the most ridiculous view point into the realm of "debate" where the masses happily defer to politics rather than language. It is much easier, safer, and more entertaining to watch a political battle than to consult the document itself. As we become less and less educated, a trend that appears real in our country, and as our "advanced" degrees are increasingly produced by elementary school institutions, it may increasingly become too much for the average American to simply read and reason without having their arguments supplied by sides of a political discussion.

What's next, science and math? 1+1=2? Well, I propose that 1 is not necessarily equal to 1 at all times, therefore it's debatable that 1+1 must equal 2. Says the citizen, "Well, there are two vocal groups with two passionate sides to this debate and they both get news coverage. Surely it's too complicated for me to figure out. I'll wait and see which side wins this,... debate."

While we may not all be concerned with such a scientific approach on first glance, we may become more so when that approach is used by the person constructing our bridges.

If our citizenry continues on this path, unaware of their American birthright and heritage and the power of objective reasoning that has preserved it, and unwilling to use their God given brains, Gail Wynand will make a killing. And we will lose everything greater Americans have provided us the opportunity to enjoy.

If we cannot agree on the basics of integrity, an honest approach to a text we are reading in order to determine what it says and not what we desire it to say, then we have lost our objectivity and we will lose our principles, our legal protections, our religion, our science, our technology, and the ability to defend ourselves. All are based on language, and all require objectivity. We will lose it all for the sake of political convenience and a citizenry too uneducated, too insecure, or too lazy to objectively read and reason for themselves.

For military Officers, recruited from our citizenry and part of our larger society, it is important that we demand from them the ability to read, reason, and discuss intelligently. Our military education processes must guard against censorship, politically motivated limits on acceptable speech, and mob rule to crush well articulated but unpopular views. It is one thing when Joe Citizen isn't able to distinguish the meaning of the written word, it is a worse thing when Joe Captain and his peers are not able to do the same. While Joe Citizen has the power to vote and lobby the government, Joe Captain is part of the government and must be able to understand instructions in order to stay accountable to the will of the People. Joe Captain is constructing the bridges we drive on.

I find that these simple language comprehension and reasoning skills are deteriorating, even among college educated government actors. Perhaps we are already due for another Enlightenment, another Renaissance, and another Age of Reason. Unfortunately, history has shown that even after the Age of Reason, the fruits of that age are threatened not merely by a lack of education or intellect, but rather by a lack of character masquerading as a lack of intellect. Education is important, but character is essential.

Sunday, June 19, 2011

The Legality of Libya

"The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

- Senator Barack Obama, 2007

As Officers we are required to support the Constitution and to refuse illegal orders. As such, we are independently responsible for determining whether an order violates the Constitution and or law. It's a burden without a doubt. While the legality of an order is solely determined by law, to include the Constitution, it's interesting to note that Congress and Officers of the Executive have weighed into the discussion as have others from the legal communities.

The vast majority of the House of Representatives in a bipartisan effort, voted to rebuke the POTUS over actions they claim are unconstitutional and therefore illegal, in Libya, passing 268-145. There is a debate whether or not Congress will go beyond pointing out the illegality of the action and will add the power of the purse to the discussion. Apparently the Pentagon will fund the war with present funds instead of relying on further Congressional funding. A bipartisan group of ten Congressman are suing the POTUS in an effort to get the Supreme Court to issue an order suspending the efforts in Libya. The POTUS chose to disregard the findings of his own top lawyers, including the Justice Department's Office of Legal Council, Caroline D. Krass, and Pentagon General Council, Jeh C. Johnson. Those lawyers maintained that actions in Libya did amount to "hostilities," and are therefore subject to the War Powers Resolution and the time limit which has now expired. This view is supported by the Attorney General, Eric Holder. While the Office of Legal Council is normally the legal source for the POTUS, he can choose to ignore the findings of his top lawyers, though it is apparently rarely done.

While there are government actors, lawyers, and pundits who will argue each and every side of any issue, individuals who have sworn an oath to the Constitution are required to consult it and law alone, in determining orders they can or cannot carry out. Even a midshipman at the United States Naval Academy has asked this important question on the blog of Tom Ricks, who himself claims the cornerstone of the legality argument doesn't pass the laugh test. Opinions and arguments aside, what does the Constitution itself have to say about this issue?

Those who believe the POTUS can act without being restrained by the law of Congress, with regard to delivering combat actions with military forces, point solely to Article 2, Section 2 of the Constitution of the United States which states:
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
The side arguing for unlimited war powers by the President claim that simply having the title "Commander in Chief" implies the POTUS can command the military unchecked by Congressional oversight.

Those who disagree point to Article 1, Section 8 of the Constitution of the United States which gives Congress the Power:
To declare War,
And also gives Congress the Power:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The Congress points to their Power above in the law they passed to carry into Execution the power of the POTUS regarding their power to declare what is War, and what is not. The law they passed is Title 50, Chapter 33, the War Powers Resolution.

In this law they define the limits of the President stating in 1541(a):
It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.
And in 1541(b):
Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer hereof.
And in 1541(c):
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to

(1) a declaration of war,

(2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
And in 1542:
The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.
And further declares what is considered to be hostilities, or war, in 1543(a):
In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;
The Congress also specifies when the POTUS must terminate use of Armed Forces in 1544(b):
Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress

(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,

(2) has extended by law such sixty-day period, or

(3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.
It is of note that the President is not authorized to extend the 60 day period to 90 days unless Congress is physically unable to meet to grant the authorization or declare war as a result of an attack upon the United States. In that case, the POTUS may extend the hostilities to 90 days only after providing a written certification to Congress that unavoidable military necessity requires the continued use of the military to bring about a prompt removal of forces.

As military Officers, we are charged with supporting the Constitution and disobeying unlawful orders. Popularity, convenience, and the opinions of others play no factor in our decisions as Article VI of the Constitution is written. We must consult the Law, and ensure our actions are bound by the limits set in the Constitution.

Mental Reservation, Purpose of Evasion, and Service Before Self

I have spent some time now sparring with some fellow Officers on the importance of factoring the Constitution and the law into our professional decisions in debates across the interwebz. It has been a positive experience for the most part. There are plenty of Officers who understand the importance of the document they swore before God to support, defend, bear true faith and allegiance to; an obligation they took freely without any mental reservation or purpose of evasion. Sadly, they rarely share these opinions in public fearing they will be seen as fringe or nutty.

Still more unfortunately, there are a number of others who apparently did not take the oath in earnest, who took it without considering what they were pledging, or who took it with a mental reservation or a purpose of evasion.

Those with a purpose to evade their obligation likely stay quiet in such matters. Others offer up mental reservations as a justification to the shirking of their duty. There is no doubt the oath is solemn and serious, and defending something always means some risk to yourself. I believe this risk is the sticking point for many Officers who wish to pick their battles in order to actually avoid a fight that carries personal risk. For them, our Constitution does not factor into a battle worth fighting and instead they prioritize their careers, their convenience, and their social or professional standing over the oath they swore. These Officers demonstrate a purpose of evasion, the purpose being themselves rather than making good on their oath to the People. Always at the root of dishonorable government action is self over service.

The primary mental reservation I have witnessed from these Officers is fear. These Officers will remind you that you're really risking yourself if you take the viewpoint of your oath and refuse an unconstitutional order. You better have your ducks in a row, better hope others agree with you, better make sure you're right or you're going to get it. This mental reservation isn't actually offered for the benefit of the principled; the principled are well aware that principle is typically inconvenient in our largely unprincipled world. Instead, it's offered as a rationalization to the person uttering it, to assuage the guilt they feel because deep down they know they are shirking their duty for their own convenience, and are acting without honor.

Another common mental reservation is the idea that we as educated military Officers are not able to read the Constitution or the law, in order to determine for ourselves the legality of our professional actions. The purpose of evasion here is obvious. Officers with this viewpoint seek to evade the oath they took to defend the Constitution, instead delegating that authority, without the legal power to do so, to others in the government. While the Constitution requires military Officers be bound to the Constitution, and not to the interpretation of it by any branch of the government, these Officers evade the oath they took by diffusing the responsibility they freely accepted by passing the buck. Imagine if you hired a caretaker for your home, wrote out a list of things that the employee must do and could not do, in the maintenance of your home and made him or her promise with the strongest language to be bound to your instructions. What would we think of that same employee not carrying out our instructions because somebody down the street said they didn't apply, were too old, not important, or meant something different? What if that employee said, "Well, it's debatable what garbage is or is not, so I'm just not going to take it out despite my instructions." What happens to the Home we live in when we can't depend on our housekeeper to follow instructions?

There are those among us who have a purpose of evasion to their oaths. They are not interested in the hard work required by the instructions of those who employ them. Rather, they are interested in preserving their own convenience and they make a political maneuver, rather than a principled one. They are cowards and they are a cancer to our nation.

We have many cultural challenges in our service and despite our Core Value of "Service Before Self," many place themselves and their convenience before service. In my younger years I argued against this Core Value despite being a fan of Gen Fogleman. My argument was that of rational egoism, that everything we do is essentially for self and it cannot be any other way. I still agree with this perspective. The trick though is to convince or recruit Officers who value the principles of the greatest nation that has ever existed, and the rule of law, and to value the principles of our Founders above themselves. One would think with the generous money our citizens pay us, and the emphasis on service and sacrifice, that this would be easy. Unfortunately, the character of many we employ belies this assumption. Patrick Henry said give me liberty or give me death. He valued freedom so much that he wasn't willing to live without it. Unfortunately many Officers value their own convenience and comfort over the principles of America. For Officers who understand and appreciate the greatness of America, this is not a problem and they are willing to sacrifice themselves for it because they value America more than their personal convenience. Other Officers do not. Despite my philosophical argument, the value of the Core Value of "Service Before Self" is to remind us that there is something more important than our comfort, and we are being paid by the People to support and defend it.

Saturday, June 18, 2011

Somebody Call an Ambulance, the Air Force Should be in Shock!

Dispatch: "This is AFPC Dispatch, go ahead please."

Caller
: "I need an ambulance to the Air Force wing of the Pentagon. I've found the the Air Force face down, hemorrhaging blood, signs of heat stroke, pale and malnourished with severe exhaustion, and what appears to be brain damage. Please send medics immediately!"


Dispatch
: "I'm sorry, I did not recognize your choice selection. For force management, please press or say one..."


The Air Force and commanders could learn a great deal from the human body at both the unit and higher levels. It is no secret the service is tired, fatigued, exhausted. That analogy has been used for at least the last ten years and is as tired as the issue it describes. But the analogy needs an update. How pale is our air arm? People will debate that. Those who actually serve in the institution see a lack of blood in the corpse-like service. They live the undermanned reality, they know they and their families are nearly tapped out or already have been. On the other hand, those who look at PowerPoint slides where numbers and metrics are doctored like Enron accounting sheets, might get the impression that the service has beautiful bright red rosy cheeks, or at least that it is manned normally. That perspective or simple budget realities, or a combination, have introduced Force Shaping measures and the pronouncement that we're overmanned and we have to RIF our life blood. If true, we should accept that a little blood splatter is just part of the gruesome business of war.

The VSP allowed for some of that blood to voluntarily leave, yet turned out to be little more than a small vial's worth while the needle used caused quite the bruise. Now enter the latest Maj-Lt Col promotion board, where those Officers who have carried the Air Force for the last ten to fifteen years are told whether or not those efforts, and their time away from family, have allowed them to continue in the service. They have spent nearly their entire careers at war, including in Afghanistan, the longest war in the history of the United States. One would think their experience would be valuable.

Instead, it appears they are being shown the door in record numbers. While Majors twice passed over for Lt Col have traditionally been allowed to continue their service until retirement, it has never been guaranteed.

Consider an Air Force Times article discussing the need for force reduction in the Air Force, and the resulting reduction of those granted "selective continuation":
Faced with a need to reduce the size of the Air Force by 13,000 people, officials are returning to the days when selective continuation was offered only to officers in a few undermanned and overworked career fields.
The article above was published nearly eight years ago and was referencing Captains twice passed over for Major. But the question any rational person would ask after reading this article is, why not take the people you are going to kick out, who have invested all this time into the service, and simply transfer them to the areas that are "undermanned and overworked?" Just like the body in shock that sends the blood from areas of the body that are not critical to places that are. The critical organ is the mission, the heart, the center of what we do. The body does not elect to simply pump that blood overboard figuring it can grow more; it's smart enough to know that it costs more energy to create new blood than to send existing blood to where it is needed. This is one reason the body takes great pains to guard against the loss of blood through clotting. The Air Force needs to break out the packs of EZ-CLOT.

Unfortunately for the Air Force body, a lot of blood is being spilled on the ground.

But these are unusual circumstances. As per DoDD 1320.8:
Commissioned officers on the Active Duty List who hold the grade O-4, who are subject to discharge under Section 632 of reference (b), shall normally be selected for continuation by selection boards convened for that purpose if the officer will qualify for retirement under Section 3911, 6323, or 8911 of reference (b) within six years of the date of such continuation. The Secretaries of the Military Departments concerned may, in unusual circumstances, discharge involuntarily such officers...
We're not just discussing Captains to be given the pink slip at the ten year point these days. We're talking about Officers who have served for fifteen years. Normally all the Majors who met the previous board would be continued despite not being promoted. It makes sense that Officers who have given so much of themselves, have sacrificed time with their families, have lived in less than ideal places, and most importantly have gained so much experience, be allowed to continue to serve. That is normally what is required by law. Normal of course means exactly that. As the law states, there is a caveat for "unusual circumstances." But what happens when the unusual becomes the usual?

We don't serve in normal times and haven't for at least a decade. The body of the Air Force is corpse-like, and one must consider the warnings published more than a decade ago by Dr. Grant Hammond. The Secretary of the Air Force, realizing normality is not in the cards, issued these non-normal standards for boards to decide if Officers who have checked all the boxes expected of them, and yet were not promoted to the next grade, would be shown the door after fifteen to sixteen years of serving their country:
As there is no quota applied, you may select up to 100% of eligible, fully qualified officers; but you must also consider the following guidance...

It will normally be in the interest of the Air Force to continue officers with critical skills. I have determined that the following skills are critical to the Air Force. RPA Operators...Fighter Pilots...Bomber Pilots...Special Operations CSOs...Combat Rescue Officers/Special Tactics Officers...Catholic Chaplains...Clinical Psychologists...Flight Nurses...and Mental Health Nurses...
In order to keep with this analogy, it is noteworthy that chaplains, psychologists and mental health nurses are critical to the Air Force.

Despite the guidance from the SecAF, the Air Force could have continued every single Officer on that board. They could have done so and then funneled that expertise to the RPA community at a minimum. They could have enlarged the pipelines as required, like the arteries and veins. They could have, but they apparently chose not to. The problem is the Air Force does not yet realize how deeply injured it is, or has not chosen to take necessary action to protect its mission. It doesn't matter what injured the institution, it only matters that it realize it and take proper action. Like the body, it must go into shock.

That means it must stop spilling its life blood and must instead direct that blood to the vital organs. Those vital organs are identified by the SecAF and include RPA Operators, Fighter/Bomber Pilots, etc. We need to pump that blood back into the organs that sustain life for the Air Force, that is those that do the actual critical wartime mission. While some career fields might not make for an easy transition, some are certainly doable including the first on the list....RPA Operators. A career field people shun and do not volunteer for, but that is vital nonetheless. Force the blood there as the heart does when it is concerned with living.

But it's not just about pumping blood to those vital organs, it's about letting the other sections of the body die so that life can be sustained. Needless OPRs that take up dozens if not hundreds of man hours simply to put a nice polish on a decision that is made in ten seconds. We can't afford to do that anymore. Office jobs that take away from the vital mission that meet needless regulations but don't actually produce anything vital if even useful. We have to eliminate those processes so we can allow our airman to do the actual mission and keep their sanity. Then we won't need so many Mental Health Nurses, and we can let them go too. Base agencies that nobody ever really visits, golf courses, all of that should be on the table. Empires and fiefdoms will crumble, but that is necessary to support the mission.

The Air Force is in a state of serious injury, it must go into shock just as the human body would, to sustain the vital mission and it needs to stop forcing the blood spill. On top of that, it needs to discover a blood transfusion. If the Air Force is to live.

Wednesday, June 15, 2011

A Major Victory - Pardon the Pun

I'm hesitant to bring up such a career oriented post, because I believe the focus on career should be the last thing to go through an officer's mind and should not weigh into the decisions we make. That being said, many younger officers from my previous command have witnessed my leadership style, and have heard the prognostications of careerists. The message is clear, challenging leadership and saying no, when no is the right answer, results in career destruction. These warnings are not without merit.

I made some powerful enemies in my previous assignment. I have previously blogged about a completely fabricated (and provably so) LOR given to me and a two-star insulted by my assessment of Air Force leadership under the fighter mafia. This reprimand was handed to me several months after being charged with "failing to signal a lane change," a charge later dismissed, so that the LOR entered into my Officer Selection Record (OSR) just in time to be considered by my next two promotion boards, including one that would determine if I would be able to continue in the service.

The leadership then cancelled my assignment to fly RPAs, an assignment I had volunteered for many months earlier and had already been matched to. An assignment few volunteer for. I was told by my functional that he was no longer handling my assignment, and that I had to talk to an O-6 in my chain of command. The O-6 told me I had only two choices, both ACC staff jobs including one to Tuscon, Arizona. Very nice location and my wife and I would have loved to have lived there. But it wasn't the mission the Air Force needed, it was not my command, and I insisted on my RPA assignment. I was ultimately given back my RPA assignment and I returned to my command. A command with a vital wartime mission that produces quality leadership as a result of doing things that truly matter.

Thanks to this leadership, my fabricated LOR was removed from my record before the board would decide if I was to be sent packing after more than fifteen years of service, or if I would be able to continue until twenty years and retire. Today I was offered this opportunity, and I accepted it. I will be able to continue to provide airpower to brave Americans who need it and to help shape the culture around me. If and when I retire, I will be able to convert a very generous retirement package into purely pro bono legal work to continue the fight against the unprincipled who are weakening this amazing country. Should I retire, I will never monetarily profit from my future legal career. Money will never factor into my principled decisions and I will take on clients based only on two questions...are they being truthful, and are they right.

I have posted this for the younger guys, who have wondered how it would turn out for me after the warnings from careerists. Factor my experience as you see fit. You can be principled and not only survive, but even prosper. Don't count on it. Don't expect it. Save your money, invest wisely and realize nothing is guaranteed. But know that it is certainly possible, especially when you serve in a superior community, led by superior leaders, that does superior things each and every day.

Sunday, June 12, 2011

Who Interprets the Constitution for You?

Are military officers required to interpret the Constitution in order to fulfill their oath, or are they instead required to interpret judicial decisions? Are they expected, as educated men and women, to perform the intellectual grunt work of understanding the document, or are they instead given their government marching orders explaining what the text says and means? What does the Constitution itself say regarding this question?

Before we seek out the Constitution itself (a fitting source for the question at hand), consider the words of Justice Story in his, Commentaries on the Constitution of the United States, published in 1833. In a chapter entitled, "Who is the final Judge or Interpreter in Constitutional Controversies," this James Madison appointed SCOTUS Justice writes:
The constitution, contemplating the grant of limited powers, and distributing them among various functionaries, and the state governments, and their functionaries, being also clothed with limited powers, subordinate to those granted to the general government, whenever any question arises, as to the exercise of any power by any of these functionaries under the state, or federal government, it is of necessity, that such functionaries must, in the first instance, decide upon the constitutionality of the exercise of such power. It may arise in the course of the discharge of the functions of any one, or of all, of the great departments of government, the executive, the legislative, and the judicial. The officers of each of these departments are equally bound by their oaths of office to support the constitution of the United States, and are therefore conscientiously bound to abstain from all acts, which are inconsistent with it. Whenever, therefore, they are required to act in a case, not hitherto settled by any proper authority, these functionaries must, in the first instance, decide, each for himself, whether, consistently with the constitution, the act can be done.
Justice Story says that military officers are equally bound to their oaths, as are the government entities themselves. He suggests that interpretation is an individual affair that is equal to the interpretation of the government branch they are employed with. He also suggests that if a Constitutional interpretation on an issue has already been rendered by a "proper authority," that this may not be the case.

I agree with the Justice on the whole. Military officers are required to interpret the Constitution themselves to inform their actions, and that requirement is equally as important as the executive, legislative, and judicial branches binding their actions by the document. He makes it clear that if the Constitutionality of a proposed government action has not yet been ruled on by a "proper authority," that individual government actors must use their own understanding of the document. There are no other options. To simply trust the order to be legal, or to have faith in the government body issuing it, would make the oaths we take to the Constitution utterly worthless. Consider the potential order to assassinate an American citizen without the citizen being tried for any crime. This is clearly not a case that has been resolved by the Supreme Court, and anybody with any understanding of the Constitution knows this will eventually be struck down as perhaps the most unconstitutional overreach of power ever taken by our government. But the SCOTUS has not ruled on the issue. So individual public servants must make the interpretation themselves as Justice Story explains. The Justice does, however, suggest that this does not apply once a "proper authority" has provided its interpretation. I disagree with him here.

The reason I disagree on this finer detail is because the Constitution itself states otherwise. In Article VI it requires an oath (or affirmation) by both judicial and executive (military) officers to the Constitution itself. It binds judicial officers to the text, and it binds executive officers to the text. It does not bind the judicial to the text, and the executive to the interpretation of the judicial (or vice versa).
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution...
Of course, any military officer serious about understanding the document will naturally seek the reasoning of the judiciary who spend their time pondering these issues. Clear reasoning from a judge or Justice is invaluable in our professional military duty to understand the limits set upon us. That being said, we did not swear an oath to the judicial interpretation, just as they did not swear an oath to our particular executive officer interpretations. We are responsible for knowing our Constitution and acting accordingly.

It makes sense. Requiring government actors to swear an oath before God to the supreme law of the land, rather than the government this law intends to limit, provides a fail safe should the government attempt to stray from the Constitutional line in the sand.

What a great responsibility for us in the military. Not only do we have to fight our nation's wars, but should an unconstitutional (and therefore illegal) order be issued from the government, we are required to be knowledgeable of the Constitution enough to detect it, and courageous enough to refuse to follow it. It's noteworthy that Article VI did not include an exception for inconvenience as a result.

Friday, June 3, 2011

Constitutional Question of the Day - Representation

Did the Constitution speak to the People as represented by their States, or to the People directly? That's my latest conundrum as I try to understand the document better. Were rights guaranteed to the People separately from any government representation, or was it understood that the People would be represented by their individual States?

If rights were granted to the People separately, how would they go about exercising these rights when challenged by both State and Federal government? Did the Constitution provide machinery for them, and if so what kind?

Were the delegates to the Constitutional Convention representing their individual States (which in turn represented their People), or this third group of the People directly? What about the delegates at the individual Ratifying Conventions? Who exactly did they represent when they gave a yay or nay to ratify the Constitution? I find it highly unlikely these delegates were, across all the colonies, free of the influence of their State governments. Did they represent their States, or did they represent the People directly? Or did they represent both simultaneously?

And how does this situation, whatever it may be, inform the understanding of the Constitution's granting of powers? I don't know yet but studying this is in the queue.