Wednesday, August 15, 2018

Originalists in Space

by Michael Dorf

Last week, Vice President Pence announced the creation of a "Space Command," a first step towards what President Trump hopes to obtain from Congress: a "Space Force" as a full-fledged new branch of the military to take its place alongside the Army, Navy, Air Force, Marines, and Coast Guard. Despite the appeal of a Space Force to pre-adolescent boys whose mommies and/or daddies tuck them into Star Wars-themed blankets (and to a president whose emotional age matches the youngest of these boys), a Space Force is a terrible idea.

Our armed forces already suffer due to inter-branch rivalry. Although inter-branch competition can lead to some benefits (in much the way that a monopolistic company can benefit from the added incentives that come from competing one division against another), such competition within the military is a net loser: extra cost due to redundancy and coordination difficulties are the main problems. Creation of yet another branch would only exacerbate these problems.

Further, although the mere existence of a Space Force would not violate the Outer Space Treaty, which the US signed and ratified over a half century ago, some tasks that the Space Force might undertake in the future could violate the treaty. Even before we reach that point, however, the Space Force creation signals a US commitment to militarize space and thus could spur a dangerous arms race.

But maybe I'm wrong about all of that. Or maybe the idea of a Space Force is just so cool that its costs are worth bearing for the boon in recruiting. Let's put the policy questions aside for now. Instead, I want to ask a different question: Would a Space Force be constitutional?

Here's the relevant text of the Constitution from Article I, Section 8:

"The Congress shall have the 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; To make rules for the government and regulation of the land and naval forces . . . ."

A literal reading of that language would mean that Congress lacks the power to create a Space Force or, for that matter, an Air Force. Back in 2007, Ilya Somin responded (here) to an argument against originalism that poses the question "what about the Air Force?" Somin (and others in the comments on his post) offered a number of ways in which an originalist might justify the existence of an Air Force. Some readers responded that Somin's response took aim at a straw man. No serious nonoriginalist relied on the "Air Force problem" as a critique of originalism, these readers said. Somin responded by citing some serious scholars who in fact had leveled that critique. He also linked a couple of posts by Michael Rappaport. (Interested readers can find the illuminating exchange at the link above.)

Before going further, I want to be clear that I don't think the Air (or Space) Force problem fatally undercuts originalism. But I do want to note that the example is not quite as easy to dismiss as one might think just based on the fact that a no-Air-Force reading of the Constitution would have potentially disastrous consequences. The problem for originalists is not that they can't justify the Air (or Space) Force; the problem is that the analytical moves needed to do so render originalism indistinguishable from living Constitutionalism and other nonoriginalist approaches. What about the Air Force? thus poses for originalists the same problem that is posed by questions like What about Brown v. Board? and What about sex discrimination?

Now, onto the Air and Space particulars.

Somin and others offered two pretty good arguments for reconciling the existence of an Air Force or Space Force with the original meaning of the language of Art. I, Sec. 8. One is that an Air Force may be necessary and proper to Congress carrying out its enumerated powers, including its raising and supporting of armies, which, under conditions of modern warfare, need air support. That works well enough for an Air Force. It might also work for various aspects of the mission of a Space Force. Troops on the ground frequently use satellite images for targeting and satellites for communications, so securing those satellites against attack seems necessary and proper to carrying out military operations (as well as various satellite-dependent civilian functions of the federal government that are legitimate exercises of other powers of Congress).

Still, there's a potential problem with using the N&P Clause this way that's rooted in CJ 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 Seblius. I don't accept that line, but others who do may have a difficulty here.

A second line of argument relies on the use of the word "armies" to mean something broader than land forces. Under this line of reasoning, "armies" means something like "military forces." But this line of reasoning is vulnerable to the same critique as the N&P inference: If "armies" simply meant "military forces," then there would be no need for a separate enumeration of a power to provide and maintain a navy.

At this point, we might expect an originalist to say something like this: If we could ask the framers and ratifiers whether they intended to preclude the creation of military forces that operate in the atmosphere or space when such technology becomes available, they would surely say no, of course Congress can do that.

Yet that path is not available to most contemporary originalists, who, for good reasons, believe that the original meaning of the Constitution, not the subjective intentions of the framers and ratifiers, governs.

The relevant question for most contemporary originalists, therefore, is what the terms "armies" and "navy" meant at the Founding. A website provides a corpus of Founding-era sources. Searching it, admit that I found a handful of uses of "armies" that included forces that occasionally ventured into bodies of water. Those could indeed support the broader understanding of "armies." So far so good for the Air Force and Space Force on originalist grounds.

I also looked at the 1828 edition of Webster's, which the Court cited in NLRB v. Canning as an authoritative "founding-era dictionary." Here's its definition of "army":
1. 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.
2. A great number; a vast multitude; as an army of locusts or caterpillars.
Putting aside the bugs in the second definition, the first phrase in the first definition is sufficiently general to encompass an Air Force, a Space Force, and, for that matter, a Navy. So, can the originalists breathe a sigh of relief?

I'm afraid not. The second sentence of the first definition seems to refer specifically to land forces. Thus, it is at least a fair inference that in 1789 the semantic content of "armies" was something like "military forces that operate primarily on land." Moreover,  even if one takes full advantage of the fact that "armies" in 1789 sometimes could refer to water-going as well as land-only forces, that does not appear to be the way it is used in Article I, Sec. 8. Accordingly, the most common ordinary meaning of armies as "chiefly land-based military forces" is reinforced by its juxtaposition in the Constitution with "navy" and "naval forces." The originalist case for an Air or Space Force looks like it's on the rocks.

Does that mean that there's no way one could massage "armies" and "navy" to encompass air and space forces? No, they can be so massaged. But here's the rub: The arguments that Somin and other self-described originalists made in 2007 when they were discussing this question didn't even try to put the meaning of the relevant words in historical context.

To be sure, we are talking about a short blog post and some comments on it, not a comprehensive law review article. Perhaps a careful historical study going beyond what any of the participants in the 2007 exchange or I have undertaken here would produce a different result. Still, one clearly senses that the impulse to say "of course Congress can create an Air Force" precedes any serious effort to unpack the 1789 meaning of the relevant constitutional terms. It does so because, to quote the late Justice Scalia, most people who call themselves originalists are not "nuts." They consider the ways in which modern warfare differs from late 18th-century warfare and conclude that the language of the Constitution should therefore be deemed broad enough for Congress to protect against contemporary threats. That's entirely sensible, but it is not originalism as a distinctive approach to constitutional interpretation or construction.

To reiterate, my point is not that self-described originalists must now invalidate the Air Force. My point is that the sorts of arguments available to avoid invalidating the Air Force either rely on a discredited what-would-James-Madison-say-if-we-had-a-time-machine? form of intentions-based originalism or on de facto living Constitutionalism that undercuts the sorts of deterministic claims originalists make in other contexts.

I'll conclude with a question to illustrate the stakes: If changes in available weaponry can expand the coverage of "armies" and "navy" in Art. I, Sec. 8 in order for the government to have greater power to protect the People against new threats, then why doesn't modern weaponry (now I'm referring to automatic and semiautomatic weapons that are more lethal and more accurate than 18th century analogues) also lead to greater power of the government to protect the People against new threats, even if we make the controversial assumption that the Supreme Court got the original meaning of  the Second Amendment right in DC v. Heller?