Not that at all. I only meant that the term ‘soldiers’ would have included, for example, British sailors who would be quartered in coastal colonies. I will do a search to substantiate this, I know servicemembers from the Navy and Marine Corps today aren’t called soldiers but I believe the situation back then was different.
~Max
Are there countries that don’t have both Armies and Navies? Presumably not having a Navy is pretty common in landlocked countries. But what about, say, being so wet focused that all infantry (and any other relevant army bits) are used as marines and subordinate to the Navy?
USA-wise, I think two useful lines of argument would be r&d and chain of command.
Weapons change. Is it illegal for the Army to upgrade? Surely semi-automatic rifles are ok to replace muskets? What about machine guns? Hmm, how about improving range and size of your artillery? Instead of horse cavalry, can we do something with internal combustion engines? Hey, with this flying wing we get much better reconnaissance, and less cases of scout being shot. On the Navy side, you go from cannon, to really big cannon, to torpedoes and guided missiles, to putting helicopters on ships for use as anti-submarine weapons.
The constitution does not specify weapons and equipment to be used by the army and navy. If the army wants boats because they’ll be needed in the next war, it’s not illegal for the Army to have a naval arm. Arguments over jurisdiction, sure, but we already have Army vs Marines. And if Army or Navy thinks planes or long range missiles will win wars and reduce us casualties, then you need a better anti argument than “well, the Constitution didn’t say they can, therefore they can’t “
On the other hand, something that isn’t in the Constitution but was talked about a lot, is civilian control of the military. Rules about declaring war, with or without Congress, quartering of troops, paying for it all, lots of rules to keep the military under control. Okay, so we have a civiliand Commander in Chief. What does the Constitution say about below that level? A big blob of come as you are army might work, but kind of hard to control and oversee. Why not divide it up somehow so the CiC can be more efficient, and can be sure they know what anti-civilian-control is going on in the military.
So, let’s split our military up into Tweedly-Boppers, Rondos, and Fhtagn. (Or, take Army, Navy, Marine, etc and translate to your preferred non-English language) What goes in each group? By your logic, nothing. If the only tags you’re allowed are Army and Navy, that really limits how to efficiently divvy up your forces. Hmm, that also means that armored cavalry have to be on horseback, and having commanders by region is illegal too. After all, who ever had an army and divided it by grouping all units in a certain region? Oh, we also need to disband the Marines, coast guard, noaa, and uniformed medical, none of those are named army or navy.
Back to the Tweedly-Boppers. Over time, some units have really changed roles and can’t be efficiently run the same as normal units. Why not split them? The Tweedly-Boppers keep the role of combat on plains and in forest, and the new group NarfNek is all mountain warfare. Does the Constitution make it illegal to have better organizing and better civilian control?
So, if the claim is Air Force is unconstitutional because of name and role. That fails because making air a separate service is (supposed to) more efficient, and allows better/easier control by the President. Requiring the use of one of two words (army, navy) means you cant make military more descriptive of what they do.
If the claim is uncon due to “fighting in air”, that fails because the military should be allowed to decide what equipment it needs to win wars. Giving a grunt a jetpack doesn’t suddenly make them verboten. When there are no explicit rules given, saying “no aerial combat stuff” makes as much sense as “no gunpowder based weapons”, both make you fail at the ‘common defense’ thing
And a couple things from checking the text. The US is not limited to Army and Navy, Article 5, the Militia is separate from the land and naval forces. Also Article 1 section 8.
“Forts, Magazines […] and other needful Buildings”. So there’s your Air Force infrastructure handled.
Art 4 section 4 - the US has to protect states from invasion. For that to work, it has to have the power to have forces for whatever form of combat. Kinda silly to say “okay, yall are protected as long as nobody sends a plane or a cruise missile”
Right, which is the point I was making. Service members from the U.S. Navy and the U.S. Marine Corps are commonly called “soldiers” today, even though technically as the terms are used within the Armed Forces, they’re Sailors and Marines, respectively, and only service members from the U.S. Army are properly “Soldiers”. But as the term is commonly understood today, and as it was commonly used in1787, the term “soldiers” would have encompassed all military personnel, not just members of the Army proper.
Which is the point any number of people have been trying to make in this thread. The U.S. Constitution grants Congress the power
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
But “Armies” and “Navy” include aircraft, including an Air Force, as those terms are commonly understood today. As they were commonly understood in 1787, those terms would not have been understood to include aircraft, but only because aircraft didn’t exist. They certainly weren’t understood to exclude aircraft.
You’ve made some hay about the fact that the Constitution includes references to “Armies” and “Navy” as if those are exclusive terms, and exclude any other form of military service. But in 1787, saying the Congress has the power “to raise and support Armies…[and] a Navy” is exactly equivalent to saying it has the power “to raise and support military forces of all conceivable kinds”. You’re taking a stylistic choice and reading into it deep legislative intent.
Moreover, the idea that “Armies” and “a Navy” are separate items that should be regulated separately is pretty much a quirk of British historical practice, inherited by the United States, and shaped by colonial history. As others have pointed out upthread, China’s navy and air force are both elements of the People’s Liberation Army. Just as “soldier” has a broader meaning in the context of the Third Amendment than literally just members of the United States Army, “Armies and Navy” has a broader meaning in the context of Article I, Section 8 than literally “only military personnel and equipment which are actually literally on the ground or floating in the water.”
The point of specifying “Armies” and “Navy” is because the Framers wanted to regulate them differently, not to exclude any military service other than a purely land-based Army or a purely water-based Navy.
To raise a point I brought up upthread, if a Soldier hikes into a combat zone with an anti-tank rocket on his back, fires on a tank, and then hikes back out, that’s clearly within the bounds of a constitutional army, right? And if he drives in to fire the rocket and then drives back out, that’s ok, right? What if he rides in on a helicopter which drops him off, then picks him up after he fires the rocket? Is he still a “land force” covered by the Constitution? If so, why can’t he constitutionally just fire the rocket from the helicopter while it’s in the air?
It also says something about a “well regulated militia” but that phrase isn’t just not taken literally, it’s completely ignored.
Or indeed, does the Fourth Amendment not protect apartments or hotel rooms because the word used is “houses”?
Respectfully, you only “had to make up” your “own test” in order to justify your predetermined claim that the Air Force is unconstitutional. You could have just as easily said that it makes no practical or historical difference to differentiate between two things flying through the air for constitutional purposes just because one of them has a man on it.
You have created a false dilemma for yourself. Would you look at a stack of cannonballs and call them a land force? Probably not. But they qualify under your definition. Also, why can’t pilots be called an army? Just because there is a more specific term for them in more common use besides an army does not mean that they are not an army.
You misunderstand. A sovereign state has the power to pass ex post facto laws, enslave a portion of its population, make age 21 the minimum voting age, or allow 18 year olds to be the chief executive officer. The United States has made a choice that no part of it, neither the states nor the federal government will do these aforementioned things. It has forsaken its sovereign power to do those things.
But note that it has done so explicitly. It has not played a hide the ball game whereby you turn the Constitution on its side and guess that the feds don’t have the power to have an Air Force (and even people who think this admit that the reason for this was because the founders didn’t conceive of airplanes) yet they somehow mystically were able to predict an Air Force and deny that power to states.
Of course the Constitution is flawed. It’s a legal document written by men, not the word of God carved in stone in letters deep as a spear. As such things go, it’s unusually elegant, but unflawed? Hardly.
But regarding the matter at hand, what of it? So the the Air Force is unconstitutional. Who cares? The sun still rises in the morning, the planes still fly, the system still works. No challenges have been made, no bad precedents have been set. Laws are judged by their actual real-world effects, not by abstract principles. The only objections I can think of to how things currently stand are on purely aesthetic grounds, and really, who has time for that?
Let me ask you this: If I go on Google books and set the date range between 1750 and 1800, I can find numerous documents (often English) that refer to a “Military and Naval” – for example, a treatise on the “Present State of Military and Naval Surgery” (1800) or “Songs, Naval and Military” (1779) or The Naval and Military History of the Wars of England (1794). And, you can readily find American sources of that period referring to “military and naval” matters (supplies, forces, etc.).
Obviously, modern usage would consider “military” as an umbrella term that includes all the armed forces. But there’s obviously a distinction being drawn (and I think it’s a function of the English structure of the navy versus the army, which is also somewhat reflected in the American distinction). And, it seems to me, the “military” is doing the same work in those sources as “Armies.”
So, would your view be different if the Constitution said: “To raise and support a military, but no appropriation…” and “to provide and maintain a Navy”? If it would be different, then I think you’re just getting hung up on modern usage of terms.
I disagree with Max’s constitutional interpretation, but I disagree with this statement even more. If we allow an unconstitutional thing to continue because we all think that the thing is good or hasn’t caused any problems, then the precedent is set to ignore the Constitution for the next thing that a tinpot dictator says is good and won’t cause any problems. Constitution? We’ve already shown that we don’t need to abide by that with the Air Force…pass my new bill.
And yet, the Air Force has existed for over 70 years and somehow hasn’t been used as a precedent for imposing tyranny. You’re creating a problem where no problem exists.
Because the Air Force is not unconstitutional!
Debatable.
I think the most common criticism of originalism is that it’s judicial activism.
The premise of originalism is that the judge is making a ruling based on what the people who enacted the law intended the law to mean. Not what the law says or what the people who enacted the law said; it’s based on what they were thinking.
What’s the process for determining what somebody was thinking two hundred years ago? Does the judge use some combination of time travel and telepathy? Or is it magic?
The obvious answer is that it’s neither. The judge just makes up an intent based on what he believes. And then he claims that what he believes is coincidentally what the text’s author also believed two hundred years earlier.
This is a truncated understanding, of course. The premise of originalism is that a constitutional provision (like most other laws) needs to be understood based on what it meant at the time on enactment. One way to do that may be to attempt to determine legislative intent. The other is textualism, of which a more popular type is “original public meaning” (i.e., what a reasonable reader at the time would have understood the text to mean).
The debate between legislative intent and textualism is, of course, at the core modern debates about statutory interpretation entirely apart from constitutional interpretation. I share your textualist outlook, but it’s certainly a subject of debate among serious people. And, in reality, the distinction between the two is pretty blurred in practice, without any claim of activism.
Look at it this way. The fact that in 70 years nobody in the political world has ever raised the issue of the Air Force’s constitutional status means that there are two options:
Either way, there’s nothing to get worked up about.
The USA /still/ has well regulated militias, and the size and organisation of the militias is because of the constitutional mention. Many countries have militias, but nowhere else is ‘calling out the militia’ to suppress civil insurrection a common thing.
That was the original constitutional intent: reps from some states were afraid that they wouldn’t get federal support in putting down a civil (slave) insurrection. The /meaning/ of the language used was wider, but that doesn’t mean that the narrower constitutional statement has been ‘completely ignored’. It’s still there, and still expressed in the state militias.
Would it be more correct to say no one has had both standing and a reason to file suit, yet? And a rule of “presume its constitutionality unless/until Supreme Court rules otherwise”
There’s some weakness in that argument. The Fifteenth Amendment said people couldn’t be denied the right to vote due to their race. But it took over seventy years before the court system noticed that denying people the right to vote because of their race was unconstitutional.
I was responding to someone who claimed that a plain reading of the 2nd Amenent would grant you the right to use all arms, including tanks or nukes. My point is that a plain reading of the 2A grants the right to own arms in order to form a well ordered militia. But that’s generally ignored and we all just pretend that the 2A says “you can have all the guns you want”.
Where today are Sailors called “soldiers?”
I was in the Navy over 30 years and I was never once called a Soldier.