Response or Comment
The Soldier, the State, and the Separation of Powers is important and very persuasive. (In this Response, I will call it Separation of Powers to distinguish it clearly from The Soldier and the State,7 the classic work on civil–military relations referenced in the title.) Professor Pearlstein asks the right questions and reaches the right conclusions—no small task when law professors have typically deferred to expertise in other fields, if not avoided the subject entirely.8 What do we mean by civilian control of the military? Where is the line between a military that offers its professional expertise to civilian decision makers and a military that wields undue influence in those decisions? Is strong civilian control inconsistent with a constitutional structure that separates power over the military among the three branches of federal government? Separation of Powers convincingly dismantles the political orthodoxy that a professional military cannot thrive when its principals—legislative, executive, and judicial—share constitutional authority. It rightly concludes that any proper theory of civilian control must acknowledge and affirm our constitutional structure because, first, such an interpretation is faithful to constitutional text, and second, separation of powers actually strengthens civilian control and military professionalism.
Diane H. Mazur, Response, The Constitutional Bond in Military Professionalism: A Reply to Professor Deborah N. Pearlstein, 90 Tex. L. Rev. See Also 145 (2012), available at http://scholarship.law.ufl.edu/facultypub/288