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I like how you fail to quote the remainder of that paragraph. The criticism of such a position. But I would go further. The clauses which distinguish between Armies and Navies aren't really providing separate "powers"; that bit was mostly done already. There's some notion of "powers" here, but it's more that they're outlining substantially different modes of operation within the government, speaking even of constraints.
I mean, you're the one saying that it counts under one of them. Which one? Why? Do you think it's both somehow? How?
Not "just because". Primarily, it doesn't allow for it, because it's just not in there! It's nowhere to be found! Instead, you're trying to say, "Well... I think it's kinda like these other things... but I can figure out which one or how, what rules will apply, etc., because, well, it's not in there anywhere." The straining gets more obvious every time you try to patch the hole without actually amending the Constitution and patching the hole. Wouldn't it be vastly mentally easier to just amend the Constitution and patch the hole rather than try to continue juggling such epicycles in your head? A proposed amendment could even use more generic language that actually enables future military forces of
It's not in there in the same way that radio, television, and the Internet are not in freedom of speech or the press. Do we really need to have a new amendment just to keep the government from censoring the radio? The founders thought that the categories they were using were exhaustive, even if the future proved that to be wrong.
How would that work? Remember, your idea doesn't go by wording--if the air force were called a Flying Navy that wouldn't make a difference. So no matter how generic the law made the category, you could always claim "this new thing isn't enough like the category they described, so it isn't included". Suppose the Constitution said that freedom of speech applies to all communications media. When radio was invented, you could still say that the Constitution doesn't apply to radio. Sure, the words "communications medium" now include radio, but we're not going by words, we're going by meaning, and the Founders clearly didn't mean to include radio.
Now please answer the actual question? We have specific rules (that are different) for Armies and Navies. Which set of rules applies to the Air Force?
Hold up. The words you choose for your Constitution do matter.
This is an after-the-fact naming convention, trying to shoehorn something into the Constitution that isn't there. You can just use different, possibly more general, wording in your Constitution. How general you actually choose to be is a difficult question, but you can obviously do it.
You figure it out, by deciding which one it's more similar to based on the Founders' intentions. Obviously this process has some uncertainty, and it leaves room for decisions that may ultimately be arbitrary. But it doesn't leave unlimited room; you can't just say "it doesn't mention the air force so we can't have one at all", just like you can't say "television doesn't involve any printing presses. It obviously doesn't count as the press."
By this reasoning if by some quirk of English we had actually called the Air Force the Flying Navy and not just made it up, the Constitution would allow an air force after all. This can't be right either.
And you haven't really addressed freedom of the speech/the press, and I think that's a much bigger problem for your idea than the Air Force is. Do you seriously think that the government should be free to censor radio and television all they want until we pass a Constitutional amendment that covers them?
I kinda did (it's not authorized, and we should specifically authorize it and determine what rules to use). But you don't like the conclusion.
Good news! You'll notice that I am not just saying that. I've said more things.
Nope. Please try reading my argument again. This is not what I've claimed. I explicitly agreed above that what we call it after-the-fact seems irrelevant.
I wrote:
You don't seem to have engaged with it.
"After the fact" is a vague term and can mean two things here:
"It doesn't matter if we called it the Flying Navy all along" implies the second meaning. And with that meaning, deciding that radio and TV count for freedom of the press is also after the fact. Even if the Constitution had said "the media", it would still be after the fact, because we didn't decide that they are media until they existed, which is long after the Constitution existed.
"The scenario with obvious bad consequences is above my pay grade" is not really something that can be engaged with. And as far as that's saying anything at all it sounds like "the Bill of Rights shouldn't be interpreted that way but the reference to armies and navies should". Which seems like arbitrary gymnastics to me--surely if you want to be literal, you should be consistently literal.
I don't think your two meanings make a difference.
This is literally true, though. Both from a philosophical/historical standpoint and a textual standpoint. We can just look at the text and see how they made significant additional distinctions for one and not the other. Ergo, we can pretty quickly realize that there may be different interpretive considerations.
You're still refusing to answer the actual question that is posed by this significant difference in the text, itself. We have specific rules (that are different) for Armies and Navies. Which set of rules applies to the Air Force? This is within the Constitution, itself. It is not some possible external difference, such that we're considering whether or not it is relevant for the text of the Constitution (as may be the case for 1A). It's a baseline, threshold consideration that one must address before one even gets to any sort of consideration that could plausibly be analogous to that of interpreting 1A.
Exactly what distinction did they make? They certainly didn't say "the bill of rights applies to things that are sort of like what we wrote, but everything else is absolutely literal".
Yes they do. There's a difference between "long after the Constitution was written" and "long after we invented the thing we're asking about". At any rate, the problem is that if you mean "after the Constitution was written" you have no choice but to be arbitrary. If the Constitution just said "the military" you could claim that the Air Force only became part of the military after the Constitution was written, so this is still after the fact and "the military" should be read so as not to include it. There's nothing that could possibly have been put in the Constitution that by your standard wouldn't allow someone to say "you can't count the Air Force, that's after the fact".
You ask yourself "in what ways is the Air Force similar to an army and in what ways is it similar to a navy. Do what is appropriate based on the similarity."
As I noted, this isn't a perfect process. People may disagree on which is more similar or exactly how to apply a rule meant for the army or navy. But it's not unlimited discretion either; there are things that this just doesn't allow.
For example, the Constitution says:
There are no such additional distinctions for terms in 1A.
Where would be the part of your hypothetical Constitution where they distinguished between two separate things? This example just isn't analogous in any way.
So, uh... which category does the Air Force fall into, given the distinction above? I keep asking this question, and you keep not answering it. Is it an Army or a Navy?
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