My point was in regard to what you wrote, not what you thought. In regard to this new writing, I go with the Supreme Court and the majority popular opinion about what the “plain reading” of the constitution is.
Well, see @Falchion’s cite a few posts upthread of the 1628 “Petition of Right” which specifically complains that both "soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn”.
As a practical matter, most Sailors don’t spend most of their time at sea. If they are currently assigned as part of a ship’s crew, they could sleep aboard ship while it’s in port, sometimes, but as a practical matter, they generally have barracks ashore in their home port. And they can hardly sleep aboard their ship if it’s being refitted or over-hauled. And beyond that, navies usually have a lot of shore-based support personnel, and they all need places to live.
In the current U.S. Navy, at any given time only about 50,000 Sailors are at sea, out of 336,000 total. Those other 286,000 Sailors aren’t all sleeping onboard ships in port.
I think it’s number 2. The distinction, in other contexts, between “soldiers” and “mariners” continues into the 20th Century. It would be odd that, in this one specific instance, “mariner” is subsumed in “solider” (although, perhaps the point is to exclude civilian unarmed merchant marine types). (Note that, in some contexts, you can see references to both “soldiers and mariners” in the context of a particular naval vessel’s personnel, so maybe the answer has something to do with the structure of the Royal Navy that I don’t understand).
That said, “soldier” is clearly a broad category that would include army personnel, marines, air force, and, I think, many members of the naval service who are not “seagoing.” I think that actual ship personnel being forcible quartered probably just wasn’t a big issue (and that makes sense, although I have no idea why it was an issue in the 1600s).
But the history of including “mariner” in the anti-quartering legislation as well as the ongoing use of “mariner” to include naval personnel distinct from “soldier” would make me think (as a statutory interpretation matter) that they may not be talking about all military personnel.
In the English language, “men” can mean in some contexts “adult male human beings as opposed to adult female human beings”, but in other contexts “men” can mean “human beings”, and encompasses both men and women. Similarly, in common usage, “Soldier” can mean specifically a member of the U.S. Army as opposed to Airmen, Sailors, Marines, and Coast Guardsmen, but “soldier” can also mean “a member of the Armed Forces” more generally, and encompass Soldiers, Sailors, Airmen, Marines, and Coast Guardsmen.
I think the 3rd Amendment is pretty clearly using “Soldier” in a broader, more general context. But, as I stated, even if the drafters choose the word “Soldier” to specifically refer to members of the Army, because that was most salient, I think it’s fairly absurd to argue that they meant to exclude Sailors and Marines and Coast Guardsmen (and by extension Airmen) from the limitations of that Amendment, and that the 3rd Amendment only applies to U.S. Army personnel.
At any given time most people serving in the U.S. Navy are not on a ship. There were surely a great many Navy personnel flooding into Hawaii, for instance, during WWII.
The question is, why is it unconstitutional?
It must be admitted that the power and duty to actually wage war devolves on the President and the forces under his command. The decision to use a piece of equipment already provided for is left to the discretion of the President under his broad powers, subject only to Congressional regulations pursuant to their power to regulate land and naval forces.
The act of bombardment from an air craft is not in and of itself unconstitutional. Imagine a group of soldiers raid an enemy airfield - regulations allowing, the President is well within his rights to order soldiers to use the aircraft there. Compare with eighteenth century tactics of raiding shipyards - for example, Mass. Militia Col. Benedict Arnold stole the USS Enterprise from the British at St. Johns, Quebec. He &co. had sailed from Fort Ticonderoga to St. Johns on the Liberty, herself stolen days earlier from a former British Army captain in Skenesboro, New York.
No, the issue is not in the act of bombardment but in the establishment/provision of a force which is neither an army or navy, nor necessary and proper to establish/provide/support/maintain the same.
If it is true that a dedicated rocket balloon force is not
- an army
- (part of) a (national) navy
- necessary and proper for Congress to establish an army
- necessary and proper for Congress to provide a navy
- necessary and proper for Congress to support an army
- necessary and proper for Congress to maintain a navy
then it follows that neither the army nor navy clause grant Congress the power to establish or maintain a rocket balloon force.
The fact that an artillery detachment of an army may bombard a fortification, or that a ship may do the same, only has limited relevance to the above premises. Specifically, if the rocket balloon force is necessary and proper to support an army, or if the rocket balloon force is necessary and proper to maintain a navy, it can be justified under the army/navy clauses. In situations where the rocket balloon force is established to operate independently (chain of command is a good indicator), the nexus is lost and with it the force’s relevance to the army/navy clauses.
~Max
I generally agree with you. But I don’t think you can look at the word “soldier” and necessarily conclude that it was being used as a generic (which I agree it can be) when (a) the distinction between “soldiers” and “mariners” was being used in similar statutes and (b) that distinction was still being used at that time in other contexts.
Now, “airmen” clearly fall within “soldier” and, I would argue that given the sea-going focus of the term “mariner,” so do many naval personnel. This is not dissimilar to the argument I was making earlier: the bureaucratic structure doesn’t matter, it’s the nature of the individual personnel.
Well, then you seem to back to the contention that it’s constitutional for Congress to raise and maintain a bombardment force that launches its bombards from the ground, or from craft at sea, but if the bombarding equipment floats an inch above the ground, it somehow becomes unconstitutional. Which I think is absurd. Again, if it’s constitutional to organize an “army” such that it drops off ground troops by aircraft to fire on the enemy, the argument that it’s unconstitutional to organize an “army” such that its soldiers fire on the enemy from the aircraft itself rather than waiting until they land just seems silly to me.
And as many, many posters in this thread have pointed out in many, many posts, an air force of some sort is in fact necessary to and proper to maintain an army and a navy in 2021. The U.S. chooses to call one of its “armies” the U.S. Air Force and gives it a chain of command separate from the U.S. Army proper and the U.S. Navy. But that’s no different from the U.S. Marine Corps or the U.S. Coast Guard.
At this point, though, we’re going in circles.
I do want to say, that although I find your position absurd, I do appreciate that you’ve taken the time and effort to actually make your case, and constructively engage with all of us who disagree with you, and have done so in a completely civil manner. And I think there has been some interesting discussions in this thread.
Worryingly close to a goldbug saying fiat money is unconstitutional - another common criticism of originalism, the difference being I think original meaning analysis supports Congress’s power to issue fiat money, while original intent analysis does not.
Whereas here I think original meaning analysis does not support the USAF (or at least parts of it such as global strike), while original intent analysis does.
~Max
For what it’s worth, my take on this is that the operation can be remote. What matters under my test is where the (physical) aiming and propulsion is carried out - in the case of a drone, it is carried out by the drone’s machinery in flight. Contrast with a teletank where the operation is remote but the aiming and propulsion of projectiles takes place by the tank’s machinery on land.
And I agree wholeheartedly, my interpretation puts a straightjacket on implementation. Although I think I interpret the constitution correctly, I also think it is deficient.
~Max
I strongly disagree. The freedom of the press was by then an established concept that transcended the presence of a physical printing press. It was understood even then to encompass all forms of publishing such as handwritten circulars (flyers).
Furthermore, television is a broadcast media and does not enjoy the same protections as print media when it comes to freedom of the press. The government not only can but actually does regulate broadcast frequencies, requiring a license to broadcast, and for a time even imposed a fairness doctrine on content.
But it did, and that force was the militia. The military structure of the English Kingdom at the time consisted of,
- The Regular Force (Royal Army, Royal Artillery, Royal Engineers)
- The Naval Force (Royal Navy, also called marine force)
- The Militia Force (one specific to each colony, with England’s militia being the “home” force; also called reserve force esp. after 1859)
~Max
I agree with Babale, who has since been modnoted, so without going into details, I disagree with your strict reading of the Second Amendment. If you are interested in my reading, I gave it in a previous discussion.
~Max
I agree that the constitution permits paying an army and owning a fleet. Unfortunately I seem to have lost sight of your argument.
Let’s take a step back. Here is the text.
The Congress shall have 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;
If I understand you correctly, I should interpret “Armies” as referring to personnel, and “a Navy” as referring to only the ships (not crew) of a fleet. In support of your interpretation are the following points,
- You have to pay an army, but you have to own a fleet
- Are you implying that armies have recurring costs (wages), but fleets do not?
- Are you implying that armies have no capital cost, and fleets have high capital costs?
- Wouldn’t it be constitutional to rent a fleet?
- Wouldn’t it be constitutional (in the early days), for the United States to own an army of slaves?
- “land and naval forces” is an enumeration of types of forces
- where land forces have recurring costs (wages), and naval forces are owned?
~Max
I disagree. If the Constitution read, Congress has the power to do whatever is necessary and reasonable to win wars and reduce US casualties, I would agree with you. But it doesn’t read that way.
Maybe it should (I would want a bit more nuance but am not generally opposed), but it doesn’t. It just wasn’t written that way.
I believe you misunderstand me, sir. The name of the service or organization is totally besides the point. We can move past the Tweedly-Boppers because I don’t have any issue with them as you described.
My claim is as you say, “uncon due to ‘fighting in air’”, except I would add “independent of land or naval forces”. I think the necessary and proper clause makes it constitutional to have tactical air support, but that still leaves long range outfits unconstitutional.
As you say, giving a grunt a jetpack doesn’t make them unconstitutional. But a law establishing a jetpack force whose purpose is to act independent of any land army or navy is unconstitutional, because the constitution doesn’t give power to do what is necessary to win wars (assuming the jetpack force is necessary to win).
The constitution doesn’t give explicit rules on the type of weapons or the names of the organization, but it does give explicit rules on what types of forces Congress can create and throw money at. The way I see it Congress is only allowed to create a military force if it is one of these:
I don’t believe an independent jetpack corps would count as any of the above, therefore I don’t think the army or navy clause allows Congress to create one. The same logic goes for the dedicated air corps that handles, for instance, strategic bombing.
I have admitted in post #177 that militia air forces could be constitutional, even under my interpretation.
I agree only to a limited extent. That section technically only gives Congress over lands it has purchased. It does not on its own give Congress the authority to purchase the lands. You need the necessary and proper clause plus some other explicit power to justify the purchase of land and to show why it is needed.
So the army clause + n&p clause lets Congress purchase land for forts and arsenals. Then the federal lands clause (which you quoted) gives Congress full authority over that land, meaning state laws do not apply.
The navy clause + n&p clause lets Congress purchase lands for dockyards. The federal lands clause gives Congress full authority and jurisdiction over the federal dockyard, so for example the state cannot tax the ships there or require purchase of state licenses to operate.
The post office clause + n&p clause lets Congress purchase lands to build post offices. The federal lands clause gives Congress full authority and jurisdiction over that land.
etcetera.
This is a duty imposed on the United States and not a power granted to Congress. It must be assumed that the powers granted elsewhere are sufficient to protect states from invasion. If not, the Constitution is flawed and should be amended.
~Max
What I was suggesting was, between them, ‘army’ and ‘navy’ cover the critical elements of airforce, and that being ‘in the air’ was not a critical element of air force, just as ‘on the water’ and ‘on the land’ are not the critical elements of Army and Navy.
What I was suggesting was that the critical elements of ‘army’ and ‘navy’ are occupation and projection, and capital and recurring.costs.
What I was suggesting is that ‘in the air’, ‘on the water’, ‘on the land’ are merely descriptive features of airforce, navy, and army, not constitutionally important distinctions.
I was doing so on the basis of my observation of the arguments the framers of the constitution made about an army, and the arguments that have been made about the role of government, and the arguments I have observed and participated in with other organisations.
I also observe that ‘air’, ‘land’, ‘water’ are not important military distinctions once you go above the strategic level, where war is just "the continuation of politics by other means” (Clausewitz, cf PLA), but here I’m reflecting about what the means for the constitution, rather than what that means for generals.
I personally think it is common knowledge that sailors and marines do not like to be called soldiers, but that’s not really relevant.
Make no mistake, I understand the argument quite well by now. We had previously consulted an antique dictionary and found that the definition of “army”, while generally meaning ground forces, technically extended to all disciplined armed forces. My response, as you note, is that it could not be construed so broad the way it was used in the Constitution: by use of parallel structure, the “Armies” specified in the constitution are to be distinguished from “a Navy” or “naval forces”; “Armies” are implied to be land forces.
I think this demonstrates a core misunderstanding between you and I. I do not argue that the people who wrote and ratified the Constitution intended to say anything about an air force one way or another. As you say, and as I pointed out in the OP, they had no notion of airplanes. Balloons were the cutting edge of technology back then, and to my knowledge the only American who thought about balloon warfare was Benjamin Franklin.
No, I think relying on legislative intent over original meaning or (in this case) statutory construction is deeply flawed. Just to list a few issues where intent has gone against practice: paper/fiat money, miscegenation, a citizen of one state’s standing to sue another state. This last item is of particular relevance, shortly after the court ruled that the Constitution allows an individual to sue another state, an amendment was passed explicitly saying that is the wrong interpretation.
Perhaps most importantly of all, an ordinary person reading the text at the time it was enacted, with only the faculties of common reason, ought to be able to understand it.
I have laid out my specific rationale for concluding the power to raise/maintain a Navy is not merely an exception to the two year appropriations limit on the power to raise/support Armies. I also showed that it is not merely a stylistic choice, given the necessary & proper clause or the federal lands clause or the militia regulations clause. I invite your opinion on the matter,
Your appeals to common practice in China do not hold much weight, as the Constitution was written by and for a specific audience attenuated to the peculiarities of British historical practice.
I think this is reasonable, but - without admitting your previous points - it does not follow that Congress has the power to create any other kind of military force. This argument is, to me, more of an argument on how the Constitution should be written, than how to interpret it as it is written.
I had given an example of permissions to eat different flavored pies upthread. I was then addressing the same argument as you present now, because the Constitution is essentially giving Congress permission to do things with explicit grants of power. I am interested if you think the example is flawed in some way, or if you think it is wrong for some deeper reason such as an unstated understanding that you could eat all the pies, or that Congress could do whatever is reasonable.
It has been my personal experience, especially after the nuclear option in U.S. politics, that people don’t actually care about procedure, only whether the method is agreeable and reasonable and the ends are justified. I’m not knocking on anyone with that outlook, only pointing it out.
~Max
The criticism that some levy is inapt. There is an amendment process. If the Constitution doesn’t provide for an Air Force or for fiat money, then amend the Constitution to allow for it instead of pretending that it is there, and making fun of people who rightfully point out that it isn’t there.
The problem is that we have found it to be too difficult to amend the Constitution, so people try to twist and find powers that aren’t there. And recently we have found simple legislation to be too difficult to pass, so we rule by executive fiat.
Many have said that the point of this thread is ridiculous, but (while still disagreeing with your premise) there is nothing at all wrong with saying that a document written in 1787 doesn’t provide a power to create an Air Force. It seems almost indisputable that the Founding Fathers never envisioned airplanes, so why is the topic of the thread so silly?
I could have, but the question not being fully resolved that way in my mind, I would be lying. When I first contemplated whether a drone operated from the ground is considered a ground force or an air force, I knew the answer to be an air force. I did not yet have any test in mind to formally distinguish between land and air forces and so could not work from principles. The justification was post-hoc, as was the test I formulated to distinguish land and air forces.
I suppose, I could have bowed out of the discussion since I hadn’t the foresight to anticipate that question before starting the debate… I’m sure you understand why I didn’t do that.
You are mistaken, a stack of cannonballs do not make or carry out any decision and are therefore not on their own any kind of military force whatsoever.
I think if army is distinguished from navy, it must be distinguished from an air force. Pilots of aircraft cannot be called an army unless they act like an army as distinguished from an air force or navy. If a group of pilots were to be organized and march on foot, I would be comfortable referring to them as an army.
The United States also made the choice to only give Congress such powers as are enumerated, &etc. Is your contention that a power not specifically granted or forbidden to the United States, yet forbidden to the states, is somehow granted to the United States by default?
~Max
There are several problems with that analogy, as I see it. A big one is that not only do other kinds of pies exist, we know other kinds of pies exist, so a specific mention of only two of the myriad possible pies is a clear indication that the baker is only giving specific permission for those two pies, not for all pies in general.
But in the case at issue here, “armies” and “navy”, in 1787, covered all existing and all conceivable military forces. (And if I understand you correctly, I think your contention upthread that a “militia” is a third type of military force separate from “armies” and that therefore Congress doesn’t have the power to raise a militia is also, frankly, absurd). And, moreover, the U.S. Air Force is an army. And strawberry pies aren’t necessary to a modern apple pie, but an air force, including strategic strike abilities, is absolutely vital to a modern army and a modern navy.
Again, it seems that by your definitions, a Solider can fire on a tank from the ground, an aircraft can transport them to the battlefield so they can fire on that tank and then fly them out again, and that’s all constitutional, but if the Soldier just cuts to the chase and fires from the aircraft while it’s one inch off the ground, that makes it a completely different kind of military force not authorized by the Constitution. Which just seems silly to me.
But again, we’re just going around and around the same points.
I’ll be completely honest. I think your understandings of the terminology and issues involved are so idiosyncratic that you’re simply operating from a different ontological base than the rest of us, and we’re all just talking past each other, and that’s unlikely to change. So, I’ll be bowing out.
You are simply declaring, “I am right because I am right.”
Of course not. What I am saying is that your interpretation requires that an Air Force be forbidden to the national government and reserved to the states, despite the fact that the very design of the Constitution was to nationalize all war making power and forbid states from having war making power.
How about this? If an infantryman jumps into the air and fires, is he now an air force? Or is there yet another special pleading and exemption as to why yet another human and weapon is in the air that doesn’t count? I’m not trying to be snarky, but your argument adjusts to fit your conclusion when the cleanest way to view it is to say that the Air Force is based on land and is therefore subsumed under the heading of land force—as you concede that an absolutely identical force could be that depending solely on how it is used.