It would not be any different, as you have pointed out “military” seemed to be somewhat synonymous with “army”.
I was not aware of this, but looking back at my post, I happened to recommend “armed forces”, not “military”.
~Max
Coincidentally the most common criticism of living constitutionalism is that it is judicial activism.
As I understand it,
The premise of original intent originalism is to rely on the intentions of people who passed the law. The premise of original meaning originalism is to rely on the meaning of the words at the time the law was passed.
The premise of pragmatic living constitutionalism is that meanings and mores change over time: strict interpretation of a two hundred fifty year old document would lead to unacceptable policies today, and is therefore unacceptable. The premise of original intent living constitutionalism is that the people who wrote and ratified the constitution intended for it to be broad and ambiguous, with simple language and only essential principles that would withstand the test of time (most famously, the phrase of “cruel and unusual punishment” is generic enough that we can use modern standards of what is “cruel” or “unusual”).
Not all combinations of these theories are necessarily incompatible, but some definitely are.
~Max
These cites are a hundred years older than the 3rd Amendment, but as What_Exit stated it may have been that the issue of quartering sailors was nonexistent during the French & Indian or (American) Revolutionary Wars. I tried to find references to quartered mariners or sailors in eighteenth century Boston or New York, but could not. I wonder if they all fit within the barracks, or if they stayed on the ships - if I remember the fleet didn’t stick around New England after dropping off the army. (I am also an amateur at this sort of research)
So I have to withdraw my post #180, the evidence seems to be that the Third Amendment is silent on the notion of sailors quartering in private homes.
I admit, the conclusion that the government can quarter sailors in a private house, but not soldiers, is absurd policy. But that has nothing to do with whether it is correct.
~Max
Not exactly relevant to the point you were making, but in the course of my research for this debate I have learned that the Americans used a submarine in the revolutionary war.
~Max
Ha! Cases involving the third amendment!
I think there’s only one, where a federal circuit ruled that national guardsmen are soldiers and the third amendment is incorporated against the states.
Engblom v. Carey , 677 F.2d 957 (2nd Circuit 1982).
The absence of any case law directly construing this provision presents a serious interpretive problem, and little illumination can be gleaned from the debates of the Constitutional Convention. We are thus left with the language of the Third Amendment and analogies to other areas of law. […]
They go on to discuss mainly how to interpret the word “owner”, the general right to privacy, the issue of incorporation, and due process rights to a hearing, and take it for granted that troops of the national guard are soldiers.
~Max
But you’ve also recognized that the definition of “army” at the time was just an organized armed force. What has changed, of course, is that, in modern parlance, “military” would tend to suggest all armed forces and army would not. But the modern usage can’t be how you’re viewing original public meaning.
I don’t think anyone here would argue that the omission was intentional, with sailors in Amendment III or with airmen in Article I. It certainly makes for absurd policy in either case.
I only argue that the omission carries force of law.
~Max
I agree, and always have - it is absurd and silly - not to interpret the constitution that way, but to actually have that as a policy is absurd. I just don’t see that as a counterargument.
I agreed with them, but only to a limited extent - tactical air support and such.
A long range outfit dedicated to strategic bombing could not, in my opinion, be considered necessary and proper for raising/supporting an army, nor providing/maintaining a navy. To win a war, perhaps.
~Max
I indicated in my last post that I’m bowing out. I actually meant that. These are circular arguments, and your understanding of the terminology, legal issues, and real world facts are at such a variance from mine that I simply don’t think there’s any realistic possibility of a meaningful dialogue.
I feel it is a good counterargument. The point of the counterargument is that such an absurd policy would have to be enacted in order to maintain your unique and idiosyncratic view of what the Constitution says–and for no other reason.
If the text of the Constitution clearly and unambiguously required such a thing, only then do you chalk it up to a failure of the founders and the need for an amendment. I’m not suggesting to twist and mold the Constitution in order to get a result. However, when it can be fairly argued otherwise, why should one take the unique and idiosyncratic view that turns a constitutional command into a ridiculous absurdity like the prior poster suggested?
IOW, even if you think it not the very best definition to call the Air Force a “land force,” when it could be reasonably argued to be one based on the land, why not take that one when it yields a clear and manageable solution, than to stubbornly insist that it is definitely not a land force (again, supported only by your gut and nothing legal or historical) and therefore we must come up with exceptions and caveats that air power may be used in X circumstance, but only if Y also happens, and if Z is lurking in the background?
Why make a constitutional decision that is exceedingly complex, when a simple one works just fine?
I’m not condemning judicial activism per se. (I would condemn judicial activism in its the theoretical definition but in practicality most of the things which are called judicial activism are not actually that.) I have no problem condemning the hypocrisy of people who condemn what they call judicial activism while supporting the same thing when they call by a different name.
I don’t feel there’s any constitutional justification for this. You can make an argument that strategic bombing in unsound as a military practice but I don’t believe you can make the argument that it’s unconstitutional.
I feel that when people put the words “army” and “navy” in the Constitution, they were aware that these organizations would adopt new weapons over the course of time. And I don’t feel there’s any reasonable possibility that they intended to restrict the army and navy to the weapons and equipment that existed in the late 18th century. So it’s constitutional to equip soldiers and sailors with aircraft in 2021. And it will be constitutional to equip them with phasers if those are invented in the future.
You can make a somewhat more plausible argument that the Constitution limits the United States to two military services; the Army and the Navy. And then argue that while it’s constitutional for the Army and Navy to operate military aircraft, its unconstitutional to have a separate Air Force (or Space Force) that is not part of those two original services.
I personally would not agree with that argument. I feel that the Constitution gives the national government the authority to have professional military organizations. While only an army and a navy were explicitly mentioned, there is no prohibition against organizing other separate services.
Why is it unconstitutional? Why are we saying an army is “this thing called ‘army’” and not “military devoted to battles on land” which the Air Force and their support certainly does. Similarly the navy described in the constitution is simply “military devoted to battle on water” and would not have to be named “Navy” to be constitutional.
Re quartering sailors: if you did quarter them on land you could expect lots of them to disappear among the locals, given that much of the crews were effectively conscripts, and the sailors could be pretty multinational. Some of my reading (not sure if was true in exactly 1780s) says that merchant service had better pay and working conditions than the royal navy, so another reason to jump ship.
For just how much they needed more sailors, consider that 1812 had the British stopping US ships to… acquire rogue British sailors (I think that was the official justification)
I’m still not sure if I understand.
I think an army can be used to occupy and also to project force. I think armies require upfront capital, in the form of equipment (for example, guns). I think armies also have recurring costs in the form of wages, rations, equipment repairs, etcetera.
I think a navy can be used project force, but not really to occupy a city or something. They can occupy the harbor or any waterway. I think navies require upfront capital to build the ships and provide equipment. I think navies also have recurring costs in the form of wages, rations, repairs, etcetera.
So I do think the ‘critical elements’ of armies and navies include occupation, projection, upfront capital, and recurring costs. But I still don’t think you can separate navy from ‘on the water’.
After all there must be some difference between an army and navy, the two cannot share all the same defining features. Because the constitution limits army appropriations to two year terms, and places no limits on naval appropriations, it follows that the two are distinct. Because the army and navy clauses are listed separately and with parallel structure, I do not believe the restriction on army appropriations applies to the navy. And if they are distinct, there must be some difference in ‘critical elements’ that make up an army versus a navy.
I suggest that ‘on the water’ is the critical element of a navy which sets it apart from armies, and that it is a constitutionally important distinction. At the very least it seems that armies do not include forces ‘on the water’, because water forces are part of a navy and therefore distinct from armies.
Now, I know you disagree - you wrote, “just as ‘on the water’ and ‘on the land’ are not the critical elements of Army and Navy” - but I do not understand which specific step in the above argument you disagree with.
~Max
Thank you for your time and effort debating me, I always hate to end a debate on a sour note so I just want to do a quick recap in case you or someone else wants to jump back in where we left off.
I believe, at this point, your main argument is something along the lines of, the USAF is an “army” for constitutional purposes because 1) the common definition of “army” at the time wasn’t specifically limited to foot soldiers/land forces, and 2) although army and navy are distinguished in the Constitution, the correct interpretation is that army includes everything except the navy.
I concede point #1 but not #2, and I don’t know if you fully understand my rationale behind rejecting point #2.
You have demonstrated to my satisfaction that you understand my own main argument. I endorse your characterization:
You seem to reject my argument because of its absurd consequence. I concede the consequence is absurd but do not reject the argument on that basis.
~Max
P.S.
Emphasis mine. Actually I am much more confident in my own opinion on that matter than the topic at hand.
This passage highlights my disagreement with you. Yes, to be a Navy, it must be a military force connected with the water. But the reverse is not necessarily true…simply because a military force is on the water, or partially on the water, or sometimes uses a body of water to project military force does not mean that that force is a “Navy.”
(reply out of order, before I hop in the car)
Can you give me some examples of military forces that are mainly on/in the water, which you do not consider naval forces?
~Max
When Washington crossed the Delaware to defeat the British at Trenton, he was not commanding a naval force at any time.
What is your opinion about Arnold on Lake Champlain? Naval force or no?
~Max