So, wait — close air support/spotter units, organic to the divisions or corps or the naval task force would be OK, but dedicated strategic bomber forces, or dedicated interceptor forces to counter those, wouldn’t?
I see them as qualifiers on the word “forces”, much in the same way I might qualify “pies” in this sentence:
I would like blueberry and apple pies, please!
It would be a misinterpretation to take my order for a strawberry pie, because I said “I would like […] pies, please!”.
~Max
Slightly off-topic but I was looking at those cases and fail to make the connection between the equal protection clause - which applies to states - and regulation of the military. The Fifth Amendment doesn’t come into play even under the mainstream theory of incorporation against the federal government when Congress has such a broad power. Otherwise you would have people winning unconstitutionally vague cases against the tax code.
~Max
The Court has ruled that the Fifth Amendment Due Process Clause has an Equal Protection component as well. See Bolling v. Sharpe. {{meta.fullTitle}}
The result was unquestionably good, but few scholars have been able to justify it legally.
Also, we (not us, but the general we) have had these debates in other threads about the power of legislatures to appoint electors. The clauses are written in absolute language, but as the courts have said many times, and as it is mostly said about the Second Amendment, no clause or grant of power or rights is absolute to absurdity.
The grant of power to make rules for the military is contextually assumed to be viewed against the backdrop of other powers, rights, and customs of the nation.
I did consider that, but then Article II refers to both an army and a navy when making the President commander in chief. And it is quite counterintuitive to speak of armies in such a general sense - perhaps that is my modern bias. I looked at the 1828 Webster dictionary. The relevant entry,
A collection or body of men armed for war, and organized in companies, battalions, regiments, brigades and divisions, under proper officers. In general, an army in modern times consists of infantry and cavalry, with artillery; although the union of all is not essential to the constitution of an army Among savages, armies are differently formed.
The general definition refers to ground forces.
I also think to documents I’ve read covering the ratification debates. A common theme about the federal military was that the federal army was a standing army. Anti-federalists were constantly arguing that the standing army allowed for by this very clause would be the one oppressing the people - on land. Federalists were constantly trying to reassure the public that the standing army was kept in check by things such as the militia, the Congress, and of course the two year limit. The amount of public debate devoted to the danger of a standing army (with executive control!) totally dominated the debates, possibly more than any other issue. I am hard pressed to believe the word was used in any other sense than to mean a land army, the kind that can oppress people by quartering in their houses, put down protesters, etc.
~Max
Correct. Leveling an enemy city with airpower alone and independent of a ground operation is not a form of land support, it is pure aerial warfare and an extreme tactic therein. Such a tactic is not to be confused with offensive air support coordinated with ground troops like suppressive fire, targeted air strikes, reconnaissance, and air interdiction. It is these which I think fall within necessary&proper for the armies clause.
~Max
I misread before, but it doesn’t substantively change my answer. Aerial bombardment to induce a surrender (rather than to level the city) is an objective in and of itself, and not in support of ground troops who might otherwise fight to occupy the city. Landing troops well after the surrender as opposed to a combined air assault does not make the battery necessary and proper for supporting an army, at least not under any argument I find convincing.
Remember, that’s what you have to argue - necessary and proper for supporting an army. Not necessary and proper for winning a war, not for taking a city.
~Max
In your analogy, “blueberry and apple” is equivalent to “land and naval”. What is the equivalent to “strawberry”?
Or in other words, if “land and naval” is a limitation on Congress’ power, what is being excluded? There is no reasonable answer, and this “land and naval” is descriptive, not limiting.
All apologies if I’ve missed it upthread, but: on that note, who do you figure would have standing for the hypothetical USAF suit?
No, it doesn’t. It says that an army is generally comprised of various elements common to ground forces (of course it does, they didn’t really contemplate a separate aviation wing). But the definition is a body of men, armed, organized, and properly commanded – which can certainly extend to air or space armies.
Sure I could. In historical fact racial segregation was indeed imposed on DC by Congress for over 150 years. For that matter, nothing in the original constitution precluded summary executions. The Bill of Rights was needed to change that.
First, the lack of consistency of what things can change and what can’t is the second most fatal flaw to your argument. (The first is that it’s nothing more than the argument that Ohio’s paperwork wasn’t processed right when it became a state and so nothing since then is legal or some such. It’s moot, as noted above, as anything other than an internet discussion.) That “armies” and “navy” preclude air force but the rest of Article I, Section 8 can be twisted to any purpose is hardly convincing.
Second, which is why your shall we say idiosyncratic use of words would also be considered odd is any other context. “Regulate the military” would normally imply that Congress has control but not that it could act in ways that it is manifestly constrained or violate the laws of physics. But it’s worse than that since your listing forgets your own context. You followed that phrase with the clause that “there was a lot of debate over the precise language used when it comes to the military.” That can’t refer to anything other than the Constitutional Convention and would be absurd if it referred to the language of the Bill of Rights. It’s as absurd as looking at the discussion of a standing army and a citizen’s militia and thinking that the founders considered them as one.
But your opposition earlier included specifically strategic bombing. But that is projection of military strength to the land. So by your own argument, that aspect of air force operations is allowed.
This is only true if the city is Laputa. All other cities I’m aware of are on land.
Right! Obviously you can’t have a modern (or really any) air force without the latter too, but I think the Constitution doesn’t provide for that and therefore should be amended.
~Max
It’s difficult for me to reconcile that case with Brushaber v. Union Pacific, where it was held
The Fifth Amendment is not a limitation upon the taxing power conferred upon Congress by the Constitution.
The taxing power and the power to legislate in all matters concerning the capital are two clauses of the same section in Article 1, so I can’t imagine why the Fifth Amendment would apply to one clause but not another…
Or Billings v. United States,
The Constitution is not self-destructive – it does not take away by one provision powers conferred by another, and the express authority to tax is not limited or restricted by subsequent provisions or amendments, especially the due process clause of the Fifth Amendment.
[/ot]
~Max
I also think that you have “necessary and proper” doing way too much work. The Constitution authorizes the Congress to provide and maintain “a Navy.” A Navy, of course, is a fleet of ships and a “ship” is a vessel that floats on water by means of sail.. No galley navies in this definition (and curiously, I don’t think it is the sail that allows a vessel to float).
Under your approach, Congress could fund individual vessels and, perhaps, shipwrights, directly. But the funding of shore facilities, support services, aviation wings, and, for that matter, all personnel are allowable only because they are “necessary and proper” to maintaining a Navy.
And I sorta understand that, but I disagree. “A Navy” is fundamentally a “Naval service.” The Royal Navy is not just the collection of ships, but an entire organization. I think that also allows the concept to develop over time, at least in terms of materials and tactics.
You view naval aviation as permissible because, in modern warfare, it’s a necessary to support a “real” navy (i.e., a fleet of sail-floating vessels). But I don’t see any such limitation. Naval aviation is as legitimate a part of the Navy as other things (which is why spinning it off into a separate bureaucratic department is fine – and I think this argument is actually stronger with “armies”).
That said, if naval aviation wasn’t part of “a navy”, I think it reads “necessary and proper” too far to allow things that would be otherwise outside the scope on the basis that it would improve the efficiency of the real navy.
“air” or “space”
Again, “air” or “space”.
I anticipate an objection, there was no concept of an air or space force in the eighteenth century! The fact that air forces and space forces were not concepts back then is irrelevant. The text as written is an enumeration of two specific types of military forces. There are now three or more, what with battlespace theory including domains like intelligence. Still, the text of the constitution is stuck on land and naval.
You seem to argue as if, because land and naval forces would have encompassed all military forces in 1789, we should interpret land and naval as meaning all military forces now. I think that is a flawed interpretation.
Imagine if you are at a table with blueberry and apple pies. I say, “you may have all the blueberry and apple pies you like”. A few minutes later someone places strawberry pies on the table. You are not justified in assuming I gave you permission to eat the strawberry pies - although blueberry and apple were the only flavors when I gave you permission, I did not actually say any flavor of pie.
Imagine an alternate version of the Treaty of Tordesillas. Instead of specifying regions with a line of demarcation, suppose Portugal was to control all areas except those specifically enumerated by Castile. Say Castile lists Cuba and Hispanolia, believing those two islands to be the extent of the new world. It would be unreasonable to interpret such a treaty as validating Castile’s claims to the later-discovered American continents.
~Max
Probably nobody. I haven’t given it thought.
If the President refused to administer the air force because he thought it was unconstitutional, I think it might be possible for enlisted airmen to sue for their wages, and have standing.
~Max
Do you think that, if air combat had existed when the Constitution was written, the authors would still have specifically excluded the ability to form air force?
Except for treason, the original constitution prohibited summary executions for treason.
I’m sorry Exapno_Mapcase, I’ve read and re-read your post many times. I have trouble understanding this part.
So you have two criticisms of my post, first that my position is as moot as Ohio’s paperwork being processed when it became a state (??), and second (or is this also the first?) that I am inconsistent on what things can or cannot change.
I have no idea what Ohio paperwork you are talking about and of course I don’t think I’m being inconsistent. You seem to say the inconsistency is here:
I don’t think I am twisting Article I section 8 to “any purpose”, and would love to hear where you think I’m being overbroad so I can address that specifically. If you are talking about the magazines or other “needful buildings”, that is literally written into the text of the Constitution.
Okay, I think you are saying my usage of words is proven odd and idiosyncratic because of other contexts. Let’s look at these other contexts.
I agree.
I did use that language, but I was not referring to the Constitutional Convention. I was referring to the ratification debates between 1787 and 1789, which are also by chance the public debates between what we now call federalists and anti-federalists that produced the bill of rights later in 1789. States when originally ratifying the constitution would tack on their proposed bill of rights they want amended in. The most prominent examples I had in mind, when writing the post you quoted, were the second and third amendments.
And I do not conflate the standing army and a citizens militia. You must have misunderstood me if you think I considered militia the same as a standing army. Both are military, but the militia is not considered an army for section 8 purposes.
~Max