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If the Election Produces No Clear Winner, the Military Is Definitely Not the Answer

Summary:
Last month, retired generals John Nagl and Paul Yingling wrote an open letter to the chairman of the Joint Chiefs of Staff General Milley claiming that the military ought to be ready to intervene to remove Donald Trump from the presidency if he loses. But there’s a problem here. If Biden is clearly the winner, the ...

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Last month, retired generals John Nagl and Paul Yingling wrote an open letter to the chairman of the Joint Chiefs of Staff General Milley claiming that the military ought to be ready to intervene to remove Donald Trump from the presidency if he loses.

But there’s a problem here. If Biden is clearly the winner, the odds are close to zero that Donald Trump is going to refuse to leave the White House quietly. Thus, in the scenario imagined by Nagl and Yingling, outside intervention—military or otherwise—is unlikely to be necessary at all.

Moreover, in his article “The Generals Won’t Save American Democracy,” Fred Kaplan at Slate states what should be obvious: if Biden is the clear winner, virtually all of the Washington bureaucracy—both civilian and military—will hand over power to Biden.

What If the Outcome Is Unclear?

The problem arises when the outcome is more murky, and that’s precisely when we definitely don’t want the military involved.

Consider a hypothetical situation: election night comes and goes, but it is unclear who the winner is. Several states report fraud, “irregularities,” or other problems that cast doubt on the presidential vote in several states. A multitude of lawsuits ensue.

Conceivably, all the legal decisions may not even be resolved by late January. Or maybe all the courts have ruled but a sizable portion of the public refuses to accept the outcome.

What then?

Shall the military then essentially “pick the winner” by siding with one candidate or the other? This would be a dangerous precedent to say the least, and it would invert the order envisioned by the Constitution itself: military officers would themselves pick their civilian commander-in-chief.

In a crisis situation such as this, it is clear the authors of the Constitution—and the Americans of the nineteenth century as well—wisely preferred a civilian-guided outcome of some kind. Historically, in times when general elections do not produce an obvious winner—as in 1800 and 1824—the House of Representatives would intervene to choose the president.

The Contentious 1876 Election

But in one case the election didn't follow this script, and American politicians were forced to create an “unwritten deal” as in the case of the “Compromise of 1877.” This compromise was an agreement in which the Democrats pledged to recognize Hayes as the winner in exchange for the end of Reconstruction in the Southern states.

The compromise became necessary because Rutherford B. Hayes likely won the electoral college in a very close election, but Democrat Samuel Tilden won the popular vote by a considerably larger margin. There was real fear that many Democrats would refuse to accept Rutherford B. Hayes as a legitimate president. Some suggested forming militias to march on the White House. Indeed, as described by historian Gregory Downs, Samuel Tilden “asserted a state's right to forcefully resist a usurper’s inauguration.” This was followed by the pro-Tilden governor of New York “promising state resistance to the ‘revolutionary’ overthrow of ‘the time‐consecrated methods of constitutional government.’”

For two months—between the election and the meeting of the group that would create the compromise—an orderly transition of power remained in doubt. Downs continues:

Fear shattered the unitary vision of the nation and produced a series of fantastic but not wholly unrealistic doubled images, visions of dual presidents, dual capitals, and dual armies. One of the most provocative rumors was that Tilden planned to stage a counter‐inauguration in New York City. Backed by a line of Democratic state militias from Connecticut to Virginia, he would seize the federal Treasury Building in New York, fund his government through customs collections in the harbor, and force Hayes from the capital to his own shadow republic in the Midwest.

None of this came to pass. But peace was maintained only because the civilian government sought to reach a compromise rather than engage in a military solution in which one side imposed the new president on the other—or in which the US simply split up, likely with localized but widespread conflict at the state and local levels.

Why Not Use the Military to Resolve the Dispute?

But wouldn’t it have been easier to just have the military step in, in the method preferred by Yingling and Nagl? The Republicans were in power, so it would have been fairly simple to use the military to ensure the party retained control of the White House, especially since Hayes appeared to have won the electoral college vote. (Moreover, in those days before civil service reform, the federal bureaucracy would have been dominated by Republican loyalists.)

It’s what comes after that which is the problem. The military can intervene and coerce compliance rather easily in the short term. But once this happens, the legitimacy of the state begins to evaporate rather quickly. This is a recipe for division and violence, and military rule becomes the de facto reality.

Why the Constitution Strictly Limits the Role of the Military

The Americans who devised the US constitutional system clearly wished to avoid the military option.

It’s not an accident that the authors of the US Constitution went to great pains to ensure that the military powers remained subject to the will of the civilian government. Eighteenth- and nineteenth-century Americans regarded a standing army as a threat to their freedoms. Federal military personnel were treated accordingly.

Article I, Section 8 of the Constitution states that Congress shall have the power “to raise and support Armies” and “to provide and maintain a Navy.” Article II, Section 2 states, “The President shall be the 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 authors of the Constitution were careful to divide up civilian power of the military, and one thing was clear: the military was to have no autonomy in policymaking.

The people who wrote these words did so in part because they were quite familiar with what to them was the relatively recent history of the English Civil War. This was a period when England came dangerously close to becoming a military dictatorship. During Cromwell’s time as “lord protector,” the line between military rule and civilian rule had become quite blurry. After 1655, the country even came under the de facto rule of eleven “major-generals.” This led to enduring hostility among many Englishmen to military rule. And it likely influenced the thinking of eighteenth-century Americans.

Will that idea endure into 2020?

The US is possibly heading toward the most contentious election since 1876. If it ends up being a “tie” in the manner of 1876, there will indeed be calls for the military to step in an “resolve” the conflict. Yingling and Nagl are simply the first ones to suggest the idea. Expect more to do so.

This will also begin to drive the final nails into the coffin of the corpse that is the American constitutional system.

Ryan McMaken
Ryan W. McMaken is the editor of Mises Daily and The Austrian. He has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014.

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