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PaperclipPerfector  10d ago (text post)   26315 thread views

Culture War Roundup for the week of July 28, 2025

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There is significant interpretive difference between individual rights recognized in the Bill of Rights, due to the background of natural/retained rights tradition, as compared to enumerated, limited powers of government. In fact, much jurisprudence actually roots rights WRT television in the free speech clause. Whether or not that is accurate, and whether there should be more of a revival of the free press clause, is above my pay grade (though I have thoughts). But the entire interpretive framework is significantly different from the first step.

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?

A proposed amendment could even use more generic language

How would that work? Remember, your idea doesn't go by wording

Hold up. The words you choose for your Constitution do matter.

if the air force were called a Flying Navy that wouldn't make a difference.

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.

We have specific rules (that are different) for Armies and Navies. Which set of rules applies to the Air Force?

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."

This is an after-the-fact naming convention, trying to shoehorn something into the Constitution that isn't there.

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?

You figure it out, by deciding which one it's more similar to based on the Founders' intentions.

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.

you can't just say "it doesn't mention the air force so we can't have one at all"

Good news! You'll notice that I am not just saying that. I've said more things.

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.

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.

And you haven't really addressed freedom of the speech/the press

I wrote:

There is significant interpretive difference between individual rights recognized in the Bill of Rights, due to the background of natural/retained rights tradition, as compared to enumerated, limited powers of government. In fact, much jurisprudence actually roots rights WRT television in the free speech clause. Whether or not that is accurate, and whether there should be more of a revival of the free press clause, is above my pay grade (though I have thoughts). But the entire interpretive framework is significantly different from the first step.

You don't seem to have engaged with it.

I explicitly agreed above that what we call it after-the-fact seems irrelevant.

"After the fact" is a vague term and can mean two things here:

  • We only started calling it that long after it existed (we suddenly called the Air Force the Flying Navy so we could interpret the Constitution in a convenient way)
  • We started calling it that immediately as soon as it existed, but long after the Constitution existed. (we always called it the Flying Navy)

"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.

You don't seem to have engaged with it.

"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.

"After the fact" is a vague term and can mean two things here

I don't think your two meanings make a difference.

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".

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.

We can just look at the text and see how they made significant additional distinctions for one and not the other.

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".

I don't think your two meanings make a difference.

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".

We have specific rules (that are different) for Armies and Navies. Which set of rules applies to the Air Force?

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.

Exactly what distinction did they make?

For example, the Constitution says:

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;

There are no such additional distinctions for terms in 1A.

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

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.

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."

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?

There are no such additional distinctions for terms in 1A.

I'm not sure what you call a "distinction" but they certainly used terms that are not all-inclusive. If you're going to say there's freedom of the press, the term "press" doesn't include everything.

Where would be the part of your hypothetical Constitution where they distinguished between two separate things?

Saying something about the military implicitly distingushes between military things and non-military things. If the Air Force only became part of the military later and you are using your "after the fact" standard, then the Air Force would not be part of the military at the time the Constitution was written.

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?

I don't know. You could make arguments for either one. I'd readily agree that we can't prove for certain which one. Some interpretation is inevitable here. But not an unlimited amount of interpretation.

Saying something about the military implicitly distingushes between military things and non-military things.

But what are the actual clauses with actual words that go on to make further distinctions between things? Without that, your hypothetical isn't analogous.

I don't know. You could make arguments for either one.

Then at least try. Because right now, you're not even trying, and it's becoming ever clearer that it's because you can't. Because the Air Force just isn't authorized. It doesn't fit.

Don't worry, though. There's an easy fix. It's why we have Article V. Literally everybody really wants to have a legal Air Force. You want it so bad that you're tying yourself in knots trying to imagine that you already have it, when you clearly can't even come up with a half-hearted argument for it. Nobody is going to get in the way of passing an amendment to finally make it constitutional.

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