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Originalism's Final Frontier: Is Trump's Proposed Space Force Constitutional?

The issue was recently raised by legal scholar Michael Dorf, and goes back to earlier debates about whether originalism implies that the Air Force is unconstitutional.

A proposed logo for President Trump's Space Force.A proposed logo for President Trump's Space Force.

President Trump recently proposed the establishment of a new branch of the armed forces: the Space Force. And it's going to be a "separate but equal" force, according to the President. By that, - hopefully - he means that it will be separate from the Army, Navy, and Air Force, rather than racially segregated. Many experts have questioned the wisdom of establishing a Space Force. But Cornell law Professor Michael Dorf raises the issue of whether it is even constitutional, at least from standpoint of originalism. He does so in the context of a longstanding debate over whether the Air Force is permissible under an originalist interpretation of the scope of federal power.

As with the debate over the Air Force (an issue raised mainly by academic critics of originalism), the point of Dorf's post is less to criticize the Space Force (though he is actually no fan of the idea) than to attack originalism. If originalism would forbid the establishment of military services that seem vital to national security, that may be a good reason to reject the theory. Dorf analyzes a brief 2007 post in which I addressed the Air Force issue and offered two reasons why an air force can be compatible with originalism. Here's what I said:

One argument that is often made against originalist and textualist approaches to constitutional interpretation is the claim that they would render the Air Force unconstitutional. Article I, Section 8 of the Constitution seems to give Congress the authority to creat an Army and Navy, but not an Air Force. It grants Congress the following relevant powers:

To raise and support Armies .....;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

Citing this text, critics of textualism and originalism claim that the Air Force must be considered unconstitutional under these theories of interpretation. I think there are at least two compelling answers to this claim:

1. At most, the argument suggests that it is unconstitutional to have an independent air force. But air forces that are part of the Army and Navy are surely permissible. That is in fact the arrangement we had during WWII, and could go back to again. The mere fact that planes are a new technology that flies through the air surely does not forbid their use by the military, even under a very narrow view of textualism. Planes that fly through the air are no more constitutionally problematic than bullets that fly through the air, or balloons (whose military use was contemplated even at the time of the Founding).

2. Even an independent air force could potentially be justified by the Necessary and Proper Clause. If, under modern conditions, it really is militarily important to have an independent air service...., then the creation of an independent air force is "necessary" to the implementation of Congress' other Article I powers even in the narrow sense of the word, and is also "proper" in the sense that it doesn't seem to infringe on federalism or on other aspects of the constitutional structure.

I think these points apply to a Space Force in much the same way as the Air Force.

Dorf writes that these arguments are "pretty good" and notes that he "do[esn't] think the Air (or Space) Force problem fatally undercuts originalism." But he also argues that the Air Force/Space Force issue "is not quite as easy to dismiss as one might think" because "the analytical moves needed to do so render originalism indistinguishable from living Constitutionalism and other nonoriginalist approaches." In particular, he argues that the Necessary and Proper Clause rationale for the Air Force (or Space Force) requires deviation from the text of the Constitution, which - if allowed - would justify lots of other deviations, including many advocated by living constitutionalists:

[T]here's a potential problem with using the N&P Clause this way that's rooted in [Chief Justice] Roberts's opinion in NFIB v. Sebelius. He argues there, based on language in McCulloch v. Maryland, that certain "great substantive and independent powers" can only be granted in terms, not by implication from the N&P Clause. Neither John Marshall in McCulloch nor John Roberts in NFIB provides much guidance as to how exactly one is supposed to go about determining which powers fall within this category, but one textually-minded way of thinking about it would be to take cues from the language of the Constitution itself.

If the framers and ratifiers had thought that the need for support from one type of military force was sufficient to make that force fall within the scope of a N&P inference, then they would not have needed to provide for the power to create both "armies" and "naval forces." After all, "naval forces" will often be necessary (and thus, a fortiori, "necessary and proper") to transport armies by water or to provide protection for land forces against an attack from the sea. So the enumeration of both categories of forces tends to rule out an inference of other kinds of forces via the N&P Clause--at least if one accepts the "great substantive and independent powers" line drawn by the Chief Justice in Sebelius.

Notice that this critique is entirely focused on my second argument (the one based on the Necessary and Proper Clause). It doesn't address my first point: that an Air Force - or, today, a Space Force - is perfectly constitutional so long as it is part of the Army or the Navy. That structure is compatible with a great deal of institutional autonomy for the Space Force, as is true of the Marines today (which are part of the Department of the Navy, but nonetheless enjoy considerable autonomy) and was also true of the Army Air Force during World War II (before it became a fully independent Air Force in 1948). Indeed, as Dorf suggests, limited autonomy might well be superior to full autonomy, because modern military operations require strong interservice cooperation, which can be impeded by interservice rivalries. That is one of the reasons why the armed forces have, over time, moved towards greater integration.

Regardless, this sort of structure avoids the nightmare scenario of forbidding the establishment of of essential military forces, and thus neutralizes this potential criticism of originalism. And it does so without stretching the text or opening the door to living constitutionalism. Even if the Necessary and Proper Clause does not allow the creation of a fully independent Air Force or Space Force, we can get most of the same benefits by other means.

But I think Dorf's critique also fails when it comes to the Necessary and Proper Clause argument itself. If I am right that the power to establish an army and navy gives Congress the authority to create partly autonomous air and/or space forces lodged within those services, then the establishment of a fully independent air force or space force would not be a a "great substantive and independent power," but merely imposing a new form of bureaucratic organization on a military force that Congress already has the power to create elsewhere. While Chief Justice Roberts' NFIB v. Sebelius opinion argues (correctly, in my view) that the use of a "great and independent power" would not be "proper" even if "necessary," the same does not apply to a minor power ancillary to authority Congress already has under one of its other enumerated powers. I discuss NFIB and the meaning of "proper" in greater detail in this article.

Dorf's best point is the possibility that the Necessary and Proper Clause argument renders the power to establish a navy superfluous, since naval forces are surely often "necessary" for the support of land forces. But, in the 18th century context, naval forces of an oceanic seapower like the United States often operated at a vast distance away from any of the country's land forces, with no ability to quickly communicate or cooperate with ground units. Thus, much of the Navy in that era had little plausible connection to the Army. In an age of electronic communications and fast airlift, by contrast, US naval forces are in constant communication with other branches of the service and each can call on the other at short notice (and routinely do). The same point would apply to a Space Force (at least one focused primarily on operations in earth orbit, primarily intended to support satellites used by intelligence agencies, other branches of the armed forces, and the like).

There are plenty of serious objections to originalism. But originalists need not worry too much about the Air Force issue - or the Space Force.

The fact that Trump's Space Force may be constitutional does not, of course, mean that it is a good idea. I am very skeptical that it is. On the other hand, I would be happy to see the return of the "Star Blazers" Star Force, which was my favorite armed force back when I was in elementary school. The Star Force's wave motion gun could truly make space warfare great again!

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  • JoeGoins||

    A government that can twist intrastate commerce to mean interstate commerce will likely prevail.

  • Brett Bellmore||

    Oh, no doubt about that; Fun discussion, but our moldering Constitution isn't going to rise from the grave to the extent that questions like this one will become of interest to the courts.

    I sometimes think these points are mostly worth discussing because, at some point, we're going to have another constitution, and it would be good if all this stuff were thought out in advance.

  • Eddy||

    The worst originalism could do to the Air Force and the future Space Force is force Congress to choose between (a) attaching these forces to the existing Army and Navy, or (b) doing a constitutional amendment to make them independent of the Army and Navy.

    Nobody suggested it would be unconstitutional to let the Army use balloons - which existed at the time - and the only legally relevant difference between balloons and aircraft/spacecraft is how high they can go and how cool they can look.

  • RoyMo||

    When they build a helicopter that can reach orbit the Army can talk.

    Powered balloons clearly belong to the Navy as do all space zeppelins, cf. "This Man's Navy" 1945.

  • Wizard4169||

    Nice to see I'm not the only one to recognize the false choice. If you believe we need a Space Force but don't believe the Constitution authorizes it, then the obvious answer is to amend the Constitution, not ignore it.

  • markm23||

    The Air Force and the future Space Force are NOT independent of the existing Army and Navy. They're all under the Department of Defense, and I see nothing in the text that requires the sea forces and land forces be managed separately.

    Nor does it require just one land force, and aircraft and spaceships that can only operate from a land base are a land force. The text says "armies" and "navy". There wasn't just one land force, but rather one federal Army, a whole lot of militias, and marines in one form or another since 1775.

  • Eddy||

    The question isn't whether a Space Force is good in the abstract, but what should the U. S. do to anticipate or counteract other countries which think a Space Force *is* a good thing?

    Fight space lasers with space lasers.

  • Scarecrow Repair & Chippering||

    I remember when I finally learned that "military" used to encompass the Army only; that's why there were Departments of War and Navy, or Military and Navy. It still seems strange to me, because very few people today would say the navy was not part of the military. I wonder if they would have said so 100 or 200 years ago, or if "military" had two different meanings back then.

  • Peter Gerdes||

    Are you sure you aren't slurring over the difference between "war" and "military"? After all it was the department of war not department of military. I don't have any idea but I wasn't clear if you meant to suggest the two words were used interchangeably.

  • Scarecrow Repair & Chippering||

    No, reading anything old enough will find references to "military" which are clearly ignoring naval aspects. Budgets, manpower, and so on. It's not black and white, but it's much more pronounced 100+ years ago.

  • loveconstitution1789||

    There was always a Navy and Army in the USA. Both were around before 1776.

    The Army came from the original state militias and so did the Navy.

  • Krayt||

    And the Air Force was the Army Air Corps. And the Marines derive from the Navy.

    A Space Force would seem to be more Navy than Air Force because it will (eventually) have ships AKA space stations and not just satellites with lasers and missiles. But whether they want to consider it an extension of the navy, or the air force, and thus the army, it still fits.

    More importantly, we should be spreading to the moon, the Lagrange points, eventually Mars. Dictatorship is not something that should be allowed, by free people, to expand off the Earth.

  • steeltown lad||

    Star Fleet has Admirals, not Generals. Q.E.D.

  • jph12||

    And it's always the Space Marines.

  • Brett Bellmore||

  • FlameCCT||

    LaGrange point for me! Great views!!!

  • FlameCCT||

    The War Department existed from August 7, 1789[1] until September 18, 1947, when it split into Department of the Army and Department of the Air Force and joined the Department of the Navy as part of the new joint National Military Establishment (NME), renamed the United States Department of Defense in 1949.

  • Peter Gerdes||

    What is the justification for connecting the constitutional authorization to raise and support armies and navies with the bureaucratic organization of the Department of Defense. The constitution doesn't grant congress the power to raise a BRANCH of the armed forces but to raise armies and it's other powers (along with the fact Armies is plural) obviously let it organized those units into whatever command structures it wants be it 3 branches of the armed forces or reporting to the secretary of treasury.

    So shouldn't an originalist be asking if the battalions in the Air Force or Space force can be validly raised/supported as part of the raise armies/navies clause and end the inquiry there?

    Seems to me that the Armies and Navies clause gives congress the power to both raise masses of troops from the land (i.e. call out huge bodies of people from their homes) under generals and the like as well as to authorize more independent, permanent and capital focused (ship not men) instruments of war as used by navies. Since those cover both air and space forces we're good.

  • FlameCCT||

    The War Department and its Cabinet Member became the Dept. of Defense containing all the military forces. This part is obviously Constitutional as well as Congress having the Constitutional authority to pass laws regarding the military including the organizational structure.

    One might have an argument if the military departments were separate entities instead of under the one military entity of DOD.

  • RoyMo||

    We already make such distinctions. There has been the Continental Army, The Legion of the United States, The (Regular) Army of the United States, The United States Volunteers (wartime), The National Army of the United States (1917-1920), The Army of the United States (1940-1973), The United States Army Reserve, and The National Guard.

    Each can have separate ranks, this is why we refer to George A. Custer as General Custer. He was a Lt. Colonel in the Regular Army, but a Major General of Volunteers. Since the Civil War was over in 1876 he was serving as Lt. Col. of the Seventh Cavalry with the courtesy title of Major General, when he led them into disaster at Little Bighorn. At the time his second in command was Major Marcus Reno, who was a Brigadier General of Volunteers. Though he was promoted to Colonel in the Regular Army later, a rank Custer never reached, he has gone down in infamy as "Major Reno.

    My great uncle was a Lt. Colonel in the Army of the United States in WW2, but his rank in the Regular Army was Captain, which he retired as.

  • Peter Gerdes||

    Wait, I just realized sec def isn't even a constitutional office so it can't say anything about which 'branches' of the armed forces report directly to that statutory office and which are subordinate. Congress could have established the Secretary of Attack as well and given that guy his own armies so how does it bear on reorganization inside the DoD?

  • FlameCCT||

    LOL. It wouldn't surprise me if they made such an argument however they would then have to argue that the Dept. of Education, et.al. violate the Constitution too. Not to mention history would smack them upside the head starting with the Dept. of War and its cabinet member.

  • MatthewSlyfield||

    There is an argument out there that the Department of Education is unconsitutional, but that argument has nothing to do with whether or the Secretary of Education is a cabinet position or not.

    Congress doesn't have an education power, so the department of education was justified under the commerce clause power to regulate interstate power. However, there are a lot of people who think the courts have allowed Congress to stretch the commerce clause well beyond any bounds of reason and that the Department of Education is just one of the things that would have to go away if commerce clause jurisprudence was brought back into reasonable bounds. But that would have no bearing on the DOD/AF/SF issue which is all about separate enumerated powers (armes/navy)

  • Stephen Lathrop||

    Roberts: Rather, such a conception of the Necessary and Proper Clause would work a substantial expansion of federal authority. No longer would Congress be limited to regulating under the Commerce Clause those who by some preexisting activity bring themselves within the sphere of federal regulation. Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. Even if the individual mandate is "necessary" to the Act's insurance reforms, such an expansion of federal power is not a "proper" means for making those reforms effective.

    What that shows is that Roberts has no notion of the meaning of "proper" in Marshall's antique usage. For Marshall, a means was "proper," if it would prove sufficient to accomplish, or at least strongly support the accomplishment, of the authorized end.

    Marshall: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

    Note: "which are plainly adapted to that end"—that's what "proper" meant to Marshall. It was a usage modern readers would recognize in a context such as, "A proper blacksmith's shop"—meaning one equipped to get the job done. The individual mandate was exactly such a means.

  • Brett Bellmore||

    The problem here is that, at least since the 10th amendment was ratified, unenumerated powers don't "consist with the letter and spirit of the constitution", which clearly gives to the states or the people, not the federal government, the "powers not delegated to the United States by the Constitution, nor prohibited by it to the states".

    Current N&P jurisprudence has rendered the 10th amendment a nullity, the N&P clause being read more as a "convenient and, eh, whatever" clause.

  • Sarcastr0||

    Current N&P jurisprudence

    ...Isn't that basically since McCulloch in 1819?

  • juris imprudent||

    In which Marshall accepted the argument offered by Hamilton in favor of the [1st] Bank of the U.S. An argument gainsayed by Madison, who pointed out that listing Congress's [express] powers was pointless if additional powers could be implied.

    Further Marshall relied on the existence of the 1st BotUS as proof that the Second was justifiable. By that logic the Alien & Sedition Acts could be resurrected and pass Supreme Court muster.

  • Sarcastr0||

    Well, the A&S Acts would seem to pass originalist muster.

  • juris imprudent||

    That was never tested before the Court so far as I know. Certainly the Court has been fine with Wilson's Espionage Act.

  • apedad||

    "Current N&P jurisprudence has rendered the 10th amendment a nullity, the N&P clause being read more as a "convenient and, eh, whatever" clause."

    Actually McCulloch (1810), answered the question about N+P and 10A, with the Court saying Congress has the authority to decide what it wants to do (as long as its constitutional).

    The Court noted "1st. The clause is placed among the powers of congress, not among the limitations on those powers. 2d. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted. No reason has been, or can be assigned, for thus concealing an intention to narrow the discretion of the national legislature, under words which purport to enlarge it. The framers of the constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness.incidental powers to be expressed instead of implied.

  • apedad||

    AAAAHH TYPO ---1819!

  • Careless||

    Of course, the big joke is that none of them ever got "necessary" right

  • Stephen Lathrop||

    My comment above leaves one possibility unaccounted for. Maybe Roberts thinks, possibly reasonably, that Marshall's, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. is a basis for finding the mandate not "proper."

    I suggest that is not part of the definition Marshall intends, but an additional test which a proposed means must pass to be considered legitimate. But even if it is part of Marshall's meaning for "proper," Roberts offered nothing but arm waving to prove the point.

    He would have been hard pressed to do better, because the nature of the problem absolutely demanded the individual mandate as part of the solution. There was no other way to get the job done. And the alternative was to conclude Congress had no power to regulate commerce in the provision of healthcare—an obvious absurdity. Hence Robert's tortured resort to the taxing power.

  • Brett Bellmore||

    "And the alternative was to conclude Congress had no power to regulate commerce in the provision of healthcare—an obvious absurdity."

    An obvious absurdity to some, a self-evident proposition to others. Notice that you left out a word there?

    "interstate".

  • Brett Bellmore||

    The Constitution says, (Article 1, section 8) that 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;"

    Note that while it's "a Navy", it is also "Armies", plural.

    So there's no constitutional bar to the Air Force or Space Force being independent if it is treated as just an Army that flies. While if considered Navy, it must be part of the existing Navy, as only one is authorized.

    The key point here, though, is that Armies and the Navy are treated differently in the Constitution: Appropriations for Armies are term limited to 2 years at a time, while the Navy is under no such limitation!

    There are, as I understand it, two reasons this difference might exist:

    1) Because the Navy has major capital requirements, ships can not be instantly summoned up.
    2) Because armies can be used to oppress the people in detail, while ships cannot reach beyond the coast, standing armies, but not a standing navy, were disfavored.

    Which is the Air force being treated as? (I honestly don't know.)

    The Space force would, on both theories, appear to be part of the Navy.

  • Bob from Ohio||

    As you observed, the navy was not considered a threat like a "standing army". Armies was likely plural because the Framers thought multiple armies would be raised and then disbanded as threats arose and receded.

  • Rossami||

    No, armies is plural because even in the Founders day, it was routine to have multiple "armies" in the field at one time. Army at the time of the Founding was merely the name for the highest level of land-based military hierarchy on a given front or campaign. For example, Napolean formed L'Armée des côtes de l'Océan (the Army of the Ocean Coasts) in order to invade England while maintaining different forces for protecting the royal household, protecting their eastern borders, etc.

  • RobinGoodfellow||

    I don't this has really changed. IIRC, a US soldier in Vietnam wore a patch with either USA (United States Army) or AUS (Armies of the United States) depending on whether he was "regular army" or drafted.

  • Rossami||

    It's different now in that "Army" is a standing designation. For example, First Army has responsibility for our mobilization, readiness and training command. Second Army was originally part of the American Expeditionary Forces (AEF) but is now the Army component of CyberCommand.

    On the other hand, we do still use front-based Army designations as well. Seventh Army is responsible for all European units and, if I remember right, Korea is Eighth Army.

  • FlameCCT||

    The War Department (Armies) existed from August 7, 1789 until September 18, 1947, when it split into Department of the Army and Department of the Air Force and joined the Department of the Navy as part of the new joint National Military Establishment (NME), renamed the United States Department of Defense in 1949.

    Basically they combined both Army and Navy into one "military" with a different organizational structure that allows other services like the Air Force to be separate from the Army and/or Navy.

    Congress can choose whether to make the Space Force a separate department under the DOD or make it semi-independent under one of the current services like the Marines under the Navy.

  • AJD||

    > Note that while it's "a Navy", it is also "Armies", plural.

    But note that "Army" is singular under Article II, Section 2 ("The President shall be Commander in Chief of the Army and Navy of the United States.")

    Which leads me to believe that "armies" is plural in Article I, Section 8 because it is contemplated that there will be more than one army *over time*, but is singular under Article II, Section 2 because it is contemplated that there will only be one army at a time.

  • Richard Gadsden||

    "If originalism would forbid the establishment of military services that seem vital to national security, that may be a good reason to reject the theory."

    It is obvious that the United States did not need military aviation in 1789.

    It is obvious that some form of military aviation is a requirement in 2018.

    The question is whether that change should be done by interpretive means - whether that's "living Constitutionalism" or the Necessary and Proper Clause - or whether it should be done by amendment.

    The strength of the argument for originalism is that it is an argument for amending the constitution rather than reinterpreting it. If the constitution bans the United States from having an Air Force, then that is an argument for amending the constitution to permit one.

    The worst phrase in all of constitutional jurisprudence is the idea that the "Constitution is not a suicide pact". The result of this is that judges and lawyers try to interpret the constitution to not require the obviously stupid or prohibit the obviously required, rather than accepting that it does so, many times, in its text, and this is because the Constitution's drafting is no better than average.

    Originalism is great, because it exposes the profoundly flawed nature of the actual constitution, and forces the people and the political class to face up to the need for extensive and comprehensive amendment.

  • Lee Moore||

    Agreed.

    If originalism would forbid the establishment of military services that seem vital to national security, that may be a good reason to reject the theory

    is a worthless idea. You don't turn vegetarian if your steak is tough. You send it back and ask for a new one.

  • FlameCCT||

    No Amendment is needed as there is only one organization with cabinet member, DOD, not one each for Army and Navy. Congress has the authority to pass laws regarding the Army and Navy. They passed a law that combined both the Army and Navy into one "military" that meets the Constitutional requirements even of originalists.

  • apedad||

    To raise and support Armies .....

    Just define "Armies" has being anything 'military related' and that solves the problem.

    I don't think the Supreme Court would have a problem with that if anyone challenged it.

  • Sarcastr0||

    The point being made is that once you have the Cout defining things, you can no longer claim originalism is purely determinative.
    Which matters if you've defined the only valid theory of Constitutional interpretation to be whatever sort of originalism you follow, since you've already determined all the required results.

  • PubliusVA||

    Unless the Court isn't creating its own definition, but looking for the definition that would have been understood at the time and concluding that it's not necessarily limited to a land-only force. From the definition of "army" at the etymonline.com etymological dictionary:

    "Originally used of expeditions on sea or land; restriction to 'land force' is by late 18c. Transferred meaning 'host, multitude' is c. 1500. Meaning 'body of men trained and equipped for war' is from 1550s."

  • Sarcastr0||

    concluding that it's not necessarily limited...

    a-HA! You dirty unenumerated powers living Constitutionalist, that logic could apply anywhere!

  • PubliusVA||

    "Could," yes. Whether it reasonably does depends on the historical evidence.

  • Sarcastr0||

    If historical evidence means finding an openended definition somewhere in the preceding three centuries, I see quite an expansive set of resonability.

  • PubliusVA||

    Finding "some evidence somewhere" usually isn't determinative. Assessing the totality of the evidence offered by both parties and weighing it is part of what courts do.

  • Sarcastr0||

    Which is tricky when it comes to recent events or moder meaning, and impossible when it comes to history. There's enough gaps and ambiguity subjective preferences are bound to get involved.

    Not neccessarily bad; it's not like judges are appointed despite their policy views. But going through silly contortions to allow a Space Force shouldn't be something any properly functioning system should require.

  • Ohio Farmer||

    If there were no evidence from the text itself itself, maybe one could argue that "army" includes land and sea, although even according to your dictionary "restriction to 'land force' is by late 18c."- the time of the drafting.

    But, the Constitution makes clear that "army" does not include the navy, by providing for armies and a navy- and making different rules for the two!

  • Brett Bellmore||

    The Constitution doesn't say the military can't use flying machines. As I point out above, the real question isn't whether you can have an air force, but whether it's considered part of the Navy, or an army. Because they're treated differently for funding purposes.

    I think the better case is for both the Air Force and Space Force being branches of the navy, since the main concern was not having a standing army that could go door to door oppressing people. But in terms of getting the government to hew to the Constitution, this is fairly minor compared to the sorts of violations which are now common.

    As for originalism, the Constitution can't be expected to settle all questions. The important thing is that it be allowed to settle those questions it does actually settle, rather than declaring false ambiguity in order to be free of its constraints.

  • Sarcastr0||

    But if it's a Constitution of enumerated powers and it doesn't enumerate flying machines, where's your limited government now?

    The fact that you're dickering around with the structure of the military services to make them fit with your Constitutional order shows how the utility of your rigidity is not universal.

    The issue I have with originalism isn't it's system, it's the complete lack of doubt originalists have that encompasses not just their own views, but the views of everyone who might seem to disagree with them. It's missing the e pluribus forest for the ideological concistency trees.

    As Orin Kerr's twitter recently posted:
    "The spirit of liberty is the spirit which is not too sure that it is right." -- Learned Hand, 1944"

  • juris imprudent||

    So your freedom of speech only reasonably applies to hand cranked printing presses, since this internet thingee didn't exist back then? And muskets for arms, etc.

    Originalism isn't literalism, it is rooting a decision in the principle expressed in the words given. Granted, plenty of "originalism" fails to do that and is more a fig leaf for naked preference. That is a pretty natural failing for human beings.

  • Bob from Ohio||

    "Originalism isn't literalism"

    Correct. That is why these gotchas are tiring. Living constitutionalists think everyone is as unprincipled as they are.

  • Sarcastr0||

    You're talking about purposivism, which I have been told is not True Originalism.

  • Sarcastr0||

    I don't doubt originalists have principles, I just bridle that they think everyone else does not.

  • jph12||

    You've never demonstrated any.

  • FlameCCT||

    IIRC Congress passed the law, combining Armies and Navy into one military department in 1947, renamed DOD in 1949. That law meets the Constitutional requirements even using originalism. Congress also has the Constitutional authority to pass laws regarding the structure, regulation, etc. of that new organization.

    The only real issue being argued is whether Space Force would continue as a command under the Air Force, a semi-autonomous command like the Marines under the Navy, or a separate service.

  • Rev. Arthur L. Kirkland||

    That law meets the Constitutional requirements even using originalism.

    What kind of dope advances that type of unqualified assertion?

    A dope like FlameCCT, whose confidence is augmented by lack of a legal education.

  • Red Rocks White Privilege||

    What kind of dope advances that type of unqualified assertion?

    If you think it's unconstitutional, bring a lawsuit, hicklib.

  • Variant||

    You're confusing originalism with textualism.

  • PubliusVA||

    As Brett notes above, this would require that all military appropriations be limited to no more than 2 years. So things get tricky if Congress creates the space force as an independent branch and then appropriates funds for longer terms for it. It seems you would either have to 1) find the appropriations unconstitutional, 2) find that the space force is somehow part of the Navy despite being organizationally independent, or 3) find that the N&P clause allows Congress to make an end-run around the 2-year limitation that could essentially render it meaningless.

    The Marine Corps potentially raises similar questions, though.

  • loveconstitution1789||

    The USMC is part of the US Navy.

  • PubliusVA||

    In organizational terms, the USMC is part of the Navy now, and has been at least since 1834. The relationship of the USMC to the Navy Department versus the War Department was somewhat ambiguous from 1798 to 1834. That doesn't necessarily answer the constitutional question, though. Could Congress completely circumvent the 2-year restriction on appropriations for "armies" by abolishing the "U.S. Army" and mandating an equivalent increase to the force structure of the "Marine Corps," which falls under the "Department of the Navy"?

  • FlameCCT||

    Military appropriations are usually a year to year decision just like all other federal government budget/appropriation decisions. It has been a rare appropriation that has exceeded one year for military, let alone for any other government agency.

  • Jerry B.||

    How many armies can dance on the head of a Constitutional pin?

  • Rigelsen||

    On the other hand, I would be happy to see the return of the "Star Blazers" Star Force, which was my favorite armed force back when I was in elementary school. The Star Force's wave motion gun could truly make space warfare great again!

    There has indeed been a return of the Star Blazers show recently, starting with a remake of the original arc, and proceeding with a new story. Funimation has done the English dub I believe.

    Unfortunately, this doesn't mean we are likely to see a real wave motion drive or gun any time soon however.

  • General_Tso||

    Check out the live action (cgi, of course) movie they made a few years ago. I thought it was pretty good.

  • ReaderY||

    I see a huge difference between going from freedom of the "press" to freedom for publications not produced by pressing inked plates, on the one hand, and going from "due process of law" to abortion and gay marriage on the other.

    Going from "army and navy" to general military forces including air and space seems much more like the first than the second.

    And it seems to me that a position that tries to argue that anyone who thinks the second extrapolation is unreasonable ought to think the first is as well or is a hypocrite, is defining their categories for purposes of manipulation towards a pre-determined conclusion rather than for purposes of reasoned discussion.

  • Sarcastr0||

    Not that there can't be, but your post does not provide a definitive limiting factor. You know 'too far' when you see it isn't a very commanding philosophy unless you're Justice Kennedy.

    Figuring out which conclusions are pre-determined is an exercize in speculative telepathy that I would suspect is itself pre-determeined by partisanship more ofen than not.

  • ReaderY||

    That's true, but of course as Oliver Wendell Holmes observed there's no inherent limiting factor definitely distinguishing night and day - only shades of gray. An let's add to that that there isn't one distinguishing sickness and health, life and death, war and peace, and almost anything else that's of any importance. We can tell boundaries have been crossed, but we can't tell where the boundary is. Professor Volokh recently remarked his astonishment that scientists construct boundaries artificially for utilitarian reasons and don't think there are objective natural ones. (This is to me a bit like being astonished to discover that they don't use quill pens or drive horse-drawn carriages anymore.)

    But Holmes has one over, and nobody involved in anything empirical today thinks that most category boundaries are objective.

    So we artificially construct a limiting factor where needed, just as scientists do. The absence of a natural one is a limitation, but it no more prevents humans from engaging it than the absence of omniscience, omnipotence, or immortality.

  • Sarcastr0||

    So then posit a boundary.

  • MatthewSlyfield||

    "Going from "army and navy" to general military forces including air and space seems much more like the first than the second."

    Except for one thing, The constitution specifies "armies" plural, but Navy in the constitution is singular. As long as extra military forces are armies, is there really a problem?

  • FlameCCT||

    Nope. No problem. Congress passed the law in 1947 creating one "military" for all Armies and Navy instead of dealing with them separately; later renamed Dept. of Defense in 1949. Congress also passed laws regarding the organizational structure, rules, etc. using their Constitutional authority; which included Army, Navy, and Air Force.

  • AJD||

    > I see a huge difference between going from freedom of the "press" to freedom for publications not produced by pressing inked plates, on the one hand, and going from "due process of law" to abortion and gay marriage on the other.

    The former is an extension, whereas the latter is just a natural consequence?

  • bernard11||

    the individual health insurance mandate is improper because upholding
    it under the Clause would have given Congress virtually unlimited power to impose other
    mandates, and also render large parts of the rest of Article I redundant.

    This is nonsense. The original mandate and associated penalty are logically indistinguishable from a tax credit for buying health insurance. Does the power to create tax credits an "unlimited power to impose mandates?" Of course not.

    What makes a mandate unreasonable, or improper, is an unduly harsh penalty for failure to obey it. If the ACA mandate dictated imprisonment, or a million-dollar fine, for failure to buy insurance then the claim made by Somin would be valid. But it didn't do that.

  • Lee Moore||

    The original mandate and associated penalty are logically indistinguishable from a tax credit for buying health insurance.

    No. Even if you want to go all Robertsesque and assume a "tax" character, the mandate can't possibly be a tax credit. It has to be a tax - a tax levied on inactivity. You could equally try to characterise any criminal offense punishable by a fine as a tax on the conduct that is criminalised.

    But although the things may be mathematically equal, that doesn't mean that they are equal in substance. A fine is not generally intended to raise revenue, it is intended to deter conduct. A tax is generally intended to raise revenue. On that basis, the mandate was clearly a fine not a tax. It was not intended to raise revenue it was intended to coerce the unenthusiastic into buying insurance.

    If the government can levy a "tax" to coerce you into buying insurance, they can levy a tax to coerce you into - or out of - anything. Maybe there's a limit to what judges would put up with in terms of the extent of the coercion, but that is a matter for the judicial conscience not something that could be discerned from reading the Constitution.

  • AJD||

    > It has to be a tax - a tax levied on inactivity.

    It's a tax, but not a tax levied on inactivity. It's a percentage of income, which is capped at a certain dollar amount.

  • General_Tso||

    This debate as a story of a Russian killer satellite is in the news.

  • juris imprudent||

    Yes we should all stop thinking and pray for our gods and generals to save us from the latest scary thing.

  • Dan S.||

    The Air Force is "an army" under the Constitution, which allows for the creation of multiple "armies", but only one navy. That means that appropriations for it can be for no longer than two years, but since we have NDAA bills every year anyway, that is hardly a problem. If there were to be an independent Space Force, it would have to be considered an "army" as well, from a Constitutional standpoint, despite the Star Trek-inspired notion that the space "fleet" should use naval ranks and traditions.

  • MatthewSlyfield||

    I agree with this analysis.

  • JSR2||

    The idea that the "space 'fleet'" is naval was around long before Star Trek. It shows up in the Lensman series beginning with Triplanetary, which was serialized in 1934.

  • Brett Bellmore||

    It's natural, in light of the fact that your soldiers can't march to their destination, but instead are just there to man ships.

  • Bob from Ohio||

    "despite the Star Trek-inspired notion that the space "fleet" should use naval ranks and traditions."

    There is no reason that an army cannot follow naval ranks and traditions.

    The lowest commissioned officer in various armies used to be called [some may be] ensign like in most navies.

    The RAF uses "Commodore" [a navy rank] for its "general" officers for instance.

  • rsteinmetz||

    Actually the RAF uses the title "Air Commodore" as weall as "Air Marshall" "Group Captain", "WIng Commander", "Squadron Leader", "Flying Officer" and "Pilot Officer". They created entirely new ranks and titles when an independant RAF was established.

    The French call their air force "Armée de l'Air".

    It is hard to believe that mere titles of the organizations would have constitutional repercussions. The Air Force could be renamed the Air Army and the Space Force the Space Navy and the whole argument falls away.

    If the Army were renamed the "United States Self Defense Force" would it become instantly unconstitutional?

  • Rossami||

    Interesting. The point about the Necessary and Proper Clause sent me into a mental detour about logical fallacies.

    On the one hand, "the analytical moves needed to [justify the Air Force/Space Force] render originalism indistinguishable from living Constitutionalism" strikes me as a straw-man. That is, it takes a particularly crabbed view of originalism to make that argument and most people who describe themselves as originalist nevertheless have little difficulty finding the Air Force constitutional.

    On the other hand, is saying "that's not what originalism really means" just an example of the no-true-Scotsman fallacy? You haven't criticized originalism because that's not what a real originalist would say...

    I had not previously realized that those two fallacies were so interconnected. I want to say two sides of the same coin but that's not quite right. Maybe two extremes of a spectrum where the non-fallacy is down the middle? But I'm not sure that's right, either.

  • dwb68||

    point 1 "But air forces that are part of the Army and Navy are surely permissible. " raises the likelihood that any legal arrangement which is functionally equivalent to some other arrangement which itself would be acceptable to originalists, is therefore also acceptable.

    and this is interesting: "But, in the 18th century context, naval forces of an oceanic seapower like the United States often operated at a vast distance away from any of the country's land forces, with no ability to quickly communicate or cooperate with ground units. Thus, much of the Navy in that era had little plausible connection to the Army. "

    A space Force operating at great distances will have an enormous communications barrier. Communications one way to mars take a an average of 13 minutes, but can be up to 24 minutes. A lot can happen in that time.

  • bernard11||

    any legal arrangement which is functionally equivalent to some other arrangement which itself would be acceptable to originalists, is therefore also acceptable.

    Seems that way to me.

  • PubliusVA||

    "A space Force operating at great distances will have an enormous communications barrier."

    In the very long term, yes. But in the foreseeable future, a space force will have an enormous speed advantage over any other kind of force in terms of ability to redeploy assets from any part of the globe to any other part of the globe.

  • Rossami||

    That communications delay strikes me as an ineffective differentiator. Remember that ground forces during the Napoleanic wars faced communication delays far greater than 13-24 minutes. Without radios, runners had to be sent across smoke-filled battlefields and were often killed before their messages could be delivered. Communications back to the capitol took however many days for a good horse-rider to make the journey.

    Navies, on the other hand, were out of touch with the capitol for many, many months at a time. Any putative Space Force will have vastly faster communications than either of the Founding-era military branches.

    I think the better differentiator above was Peter Gerdes' claim that armies require "the power to raise masses of troops from the land (i.e. call out huge bodies of people from their homes)" and that navies are characterized by "more independent, permanent and capital focused (ship not men) instruments of war".

  • apedad||

    Per your last point, of course it depends on how much the govt wants to spend on each department.

    Total budget by department, 2016

    Total Budget FY 2016 Enacted FY 2017 Request Change

    Army 146,928,044 148,033,950 +1,105,906
    Navy 168,786,798 164,861,078 -3,925,720
    Air Force 161,783,330 166,879,239 +5,095,909
    Defense-Wide 102,801,512 102,927,320 +125,808
    Total 580,299,684 582,701,587 +2,401,903

    So for 2016/17, the Air Force is the biggest gainer.

  • Rossami||

    By the way, nothing requires the Navy to stay on water-oceans. So change the name to Space Navy and the hypothetical problem goes away.

  • PubliusVA||

    "Astronaut" literally means "star-sailor," after all! Of course, "astronaut" was patterned after "aeronaut" (a word dating to the founding era), which means "air-sailor" (originally referring to balloonists). So maybe the Air Force should be the Air Navy?

  • Josh Hill||

    Change the name of the Air Force to Air Army, hypothetical problem solved... Congress has the authority to raise "armies"

  • Lee Moore||

    The argument that laws should be interpreted so as to allow the government to do what it feels like doing, and that a theory of interpretation is flawed if it requires the law to be changed before the government can do some things, is pretty straightforwardly an argument against law itself.

    The Rule of Discardable Suggestions is not the sort of thing that one feels like taking up arms to defend.

  • JonFrum||

    A true originalist interpretation of the Constitution would be so much better than the cluster-f we have today that I would be happy to give up the independent Air Force - and any other non-Constitutional body this simplistic argument would demand. We either have a Constitution or we don't. And if we do, then applying the word 'living' to it can only destroy it. The whole point of having a written constitution is to make permenent - unlike legislation, which can change with the times.

  • juris imprudent||

    If this were to trigger a long overdue reconsideration of the 1947 Natl Security Act, as well as Goldwater-Nichols, that might not really be such a bad thing.

  • Josh R||

    I'm persuaded by Ilya's argument that because the functionality of a Space Force is constitutionally permissible if it is within the Army, a separate Space Force branch of the military is not a great substantive and independent power, and therefore is permissible through the N&P clause.

    On the other hand, originalism can't require that permissible incidental powers must be in some form solely authorized by an enumerated power. So, Ilya can't rely on this principle to conclude the requirement to carry health insurance is a great substantive power.

  • Brett Bellmore||

    Personally, I'm a "magic words" sort of guy: I figure that if there's a procedure to achieve an end in the Constitution, they have to use THAT procedure.

    And if they want to declare war, the words "declare" and "war" better be in there somewhere.

    This matters: Once Roberts declared the penalty, (The law actually SAID it was a "penalty"!) a "tax", the bill had to have originated in the House. And it didn't.

    The enrolled bill doctrine really needs to die, it's the Court's way of deliberately ignoring too many violations of Constitutionally mandated procedure.

  • Josh R||

    Brett,

    What do the magic words "necessary and proper" mean to you?

  • DjDiverDan||

    Whoever the anti-originalists are, and whatever alternative theory they espouse, you have to admire how successful they have been in setting the terms of the debate so that supporters of originalism are constantly on the defensive.

    Alright, originalism, of whatever brand or flavor, is not perfect. Conceded. But this observation is a lot like the observation from opponents of free market capitalism that the market is not perfect. Both observations are completely true - and completely trivial. Because nobody seems to ask the most important question never to be asked: "As compared to what?"

    There is no such thing as a perfect theory of constitutional interpretation, just as there is no such thing as a perfect free market, because both are human institutions, and humans are flawed and incapable of perfection. The right question to ask of both an imperfect free market and imperfect originalism is this: Are they, with all imperfections, better that any available alternative? With respect to the free market, we know the answer; indubitably YES, a free market works much better that any alternative offered, statism by whatever name. With respect to originalism, what the hell IS the alternative? Judges just making it up as they go along?

  • Eddy||

    "Judges just making it up as they go along?"

    No, of course not, because then they might make up a Crime Victims' Bill of Rights, or something gross like that.

    The point is getting judges with the right kind of attitude - either progressives committed to Change (TM), or "moderates" who follow progressive precedents - all this without getting too bothered by originalist distractions.

  • juris imprudent||

    Hey, if you cant trust a jurisprudence based on "three generations of inbeciles is enough", or on emanations and penumbra, why would you want to rely on a bunch of old, dead, white guys?

  • Brett Bellmore||

    Like many originalists, I routinely ask, "as compared to what?"; Originalism is flawed, but at least has the potential to force a person to accept a constitutional meaning they don't like, because the evidence points to it.

    But living constitutionalism? It isn't even a theory! It's nothing but a rejection of originalism, a declaration that you're going to claim the Constitution means something you like regardless of evidence.

  • Lee Moore||

    Alright, originalism, of whatever brand or flavor, is not perfect. Conceded. But this observation is a lot like the observation from opponents of free market capitalism that the market is not perfect.

    I agree in general, but I think there's an important difference between the imperfections of originalism and free market capitalism. Originalism is in principle a perfect interpretative system - if you believe in law as opposed to arbitrary judicial rule - because any answers you don't like can be rectified for the future by changing that on which originalism works - the law. (That's the reason why Dorf's attempts to damn originalism with inconvenient consequences is foolish - if originalism gives a silly answer it's because the law itself is silly.) Originlism's flaws have to do with uncertainty - working out what words and phrases mean now is hard enough; working out what they meant a couple of hundred years ago is harder still.

    Whereas with free market capitalism, even if one were to glide past the practical imperfections and assume it was working just as we would hope from the textbooks, it would still produce some results that we, or at least many, wouldn't like - such as a lot of inequality with attendant social resentment. And we couldn't solve those unfortunate consequences with a flick of the legislator's wrist. We're stuck with them, even when free market capitalism is working perfectly.

  • Sarcastr0||

    You and Brett post this on every thread.
    And every thread I post examples from purposivism to intansionalism to current meaning to active liberty that are exactly as limiting-but-nondeterminative as originalism. And every time you seem to forget.

  • DjDiverDan||

    "And every thread I post examples from purposivism to intansionalism to current meaning to active liberty that are exactly as limiting-but-nondeterminative as originalism. And every time you seem to forget."

    We haven't forgotten. We ignore you because buzzwords do not constitute a theory, much less a coherent theory. And if, by "active liberty" you are referring to Stephen Bryer's so-called judicial philosophy, as laid out in his book of the same name, I can only assume that you haven't read that book. If you had read it, you would recognize it as the utterly vapid balderdash that it is; stupidity is not a theory of constitutional interpretation either, as should have already been clear from Justice Breyer's judicial opinions (which are only exceeded in stupidity by Justice Sotomayor's opinions).

  • Sebastian Cremmington||

    As an aside the Space Force will end up resembling the Navy and not the Air Force. So we will have space ships like sea ships.

  • Ohio Farmer||

    The interesting constitutional question is whether the Space Force, or Air Force, for that matter, is considered "armies" and therefore subject to the Constitution's prohibition on more than two years' appropriation, or "navy" and not subject to that limit. Also, if Navy Seals and Marines are used as land forces, are they considered "armies?" Are any special forces considered "armies?"

  • Longtobefree||

    Navy personnel were routinely used in land combat. The destruction of port facilities, the capture of enemy equipment that could be used against ships (fortress guns, powder and the like) all were done by ships companies, with and without help from the marines.

  • Eddy||

    At some point, you just gotta say, "let's amend the Constitution to clarify things. Congress should be empowered to raise military forces in whatever form they think serves the national security - with appropriations reconsidered at least every two years."

  • Brett Bellmore||

    We're not allowed to amend the Constitution anymore. If we were to amend the Constitution, it might throw into doubt the legitimacy of just having judges declare new meanings for it.

    I'm waiting for the next Constitutional convention. 50-50 chance the Supreme court tries to declare it's work product "unconstitutional".

  • arch1||

    "To make Rules for the Government and Regulation of the land and naval Forces"

    It seems to me that an originalist reading would be that the founders considered the Armies to be land forces. And since air (and space) forces are not land forces, Armies can't be (or include) significant air or space forces.

    Which in order to preserve the Air Force leaves N&P clause, or abandoning/nuancing originalism (yay, I think!), or amending.

  • Longtobefree||

    You go tell a Marine aviator he is not significant.

  • Longtobefree||

    If men can be women, and women can be men, the Air Force can be an army, and so can the Space Force, if and when.

  • Sarcastr0||

    It is a talent turning every topic into a pout about them transgenders.

  • ||

    This is just an academic argument. The real question is should we be weaponizing space?

  • AJD||

    > If I am right that the power to establish an army and navy gives Congress the authority to create partly autonomous air and/or space forces lodged within those services, then the establishment of a fully independent air force or space force would not be a a "great substantive and independent power," but merely imposing a new form of bureaucratic organization on a military force that Congress already has the power to create elsewhere.

    How does that jive with Article II, Section 2, which makes the President the commander-in-chief of the Army and the Navy?

    https://www.justice.gov/file/20626/download

    I'm starting to think that originalists *should* take the position that an Air Force independent of both the Army and the Navy is unconstitutional. As you note, this doesn't mean we have to do away with the Air Force altogether. It only means that the Air Force should be reorganized under the Army or the Navy (or split up with parts reorganized under each).

  • John Ashman||

    I deny that this is constitutional. That the army could, under N&P need rockets or planes, such as the A10, or, even, if we need to go to war with aliens, space ships, sure.

    But there is a BIG difference between necessary equipment and additional government organizations that are created only for the purposes of wielding them. When they said "armies", they didn't mean unlimited types, but regular armies, plural, all pretty similar to each other. Land forces based on soldiers and arms.

    What I don't understand here is that "why NOT get the amendment?" It would be easy. It would be official. "unConstitutional" doesn't mean "not in the spirt of the constitution", it just means "not yet permitted". Would the Founders want an Air Force? Yes. Would they have actually added clauses if they had known? Absolutely. If it is just "automatic" that these powers exist, why did they not just say "to raise and provide for the military". They ddin't, they used multiple clauses to define in substantial detail what the powers were.

    Saying that the Space Force is "just constitutional" is living constitutionalism, it has nothing to do with originalism whatsoever.

  • B3R||

    The Preamble specifically says "to provide for the common defense."

    Although the founders could not have envisioned supersonic aircraft, GPS navigation, radio communication or automobiles in the millions or space travel one must surely conclude that the broad language used in the Constitution was intended to encompass changes which they certainly knew would come should the Republic survive.

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