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?


Shag from Brookline said...

Might this give rise to "Faith-Based Spaced-Out Originalism" or "Universal Originalism"?

My older brother was drafted back in WW II after the hostilities with Japan had ended and served in the Army Air Corps' Transportation Command, frequently on flights into occupied Japan. The Navy had its own air group at the time. This was all before the Air Force was established as a separate armed force. I'm not aware of any arguments being made that the Army and Navy use of airplanes violated the Constitution. The public seemed to accept the use of air power, which was supported in the many patriotic popular songs of the early 1940s praising America's "sky pilots" in "Praise the Lord, and Pass the Ammunition, and We'll All Stay Free."

As to the "Space Force," during the late 1930s early 1940s I was exposed to "Buck Rogers" on radio and movies and magazines. And recently on Jimmy Kimmel's late nite show he featured an old sit-com starring Fred Willard that was called "Space Force." The Revengelicals (FKA Evangelicals) may readily accept Trump's "Space Force" while singing "Nearer My God With Thee." Fred Willard made an appearance on Kimmel's show displaying that he still has his comic chops.

Regarding Mike's closing references to Heller, I would like to point out a recent Harvard Law Blog by Josh Blackman and another on a second look at the 2nd A based upon the use of corpus linguistics in support of originalism, raising some doubts on the originalism basis of Heller that the authors had originally accepted. Maybe corpus linguistics might be utilized to test original public meaning of Congress' powers under the Constitution regarding armies and navies. To my knowledge there was no Buck Rogers back in the days of the Constitutional Convention, unless Ben Franklin's kite flying configured air and space travel.

I'm still a fan of Mel Brooks' "Space Balls" that may have also impressed Trump's "Space Force." Brooks not only gave us the "Two Thousand Year Old Man" but took us into the future with satire and parody as well. Perhaps Mike's post will provide Ilya Simin with the "force" to respond.

Patrick S. O'Donnell said...

By way of returning to the the question of weaponization of space (distinguishable to some extent from the 'militarization' of space, which has already taken place) and international law (which I realize is not the principal focus of this post), I would like to share some introductory material that I've found helpful.

“The fact that a large number of States have been calling for the adoption of a treaty on the prevention of an arms race in space for decades now, and more recently with renewed vigour, demonstrates the international community’s belief that the existing legal regime is inadequate for halting the encroaching militarization of space. This should serve as a reason to re-examine what existing space law actually has to say on this issue.”

“The peculiar circumstances which gave birth to the entire branch of international space law imply that the international community saw a chance for a new beginning in the ascendance of mankind to the stars. It was this perception that brought about the prohibition of claims of sovereignty on celestial objects, or the obligation to help astronauts regardless of their national origin. The same is true when it comes to mandating the ‘peaceful uses of outer space.’ Militarization should be seen as antithetical to the inspired goals and ideals set by space law treaties.

While many scholars would conclude that ‘the final frontier’ is increasingly militarized, the law clearly places a number of limits on the military activities of States in outer space. The ‘pacifist’ approach to the law is therefore more than just idealism. But simply interpreting the law is not enough. International law provides a framework for any scientific, commercial or even military activities in space. As such, it can restrict specific activities, but it may not direct them. The latter remains primarily the domain of policy. If the exploration of space is truly to provide humanity with a chance to start over, it needs to be guided by the principles of true equality, solidarity and cooperation between all States — and they exclude all forms of militarism.”—Pavle Kilibarda

(Pavle Kilibarda holds a LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights. He previously worked at the ICRC’s legal training sector, the UNHCR office in Belgrade and the Belgrade Centre for Human Rights, engaging principally with the legal position of refugees and asylum-seekers in Serbia.)

See the material at the Union of Concerned Scientists:

See the analysis by Kilibarda (above) on the IRC’s blog on Humanitarian Law & Policy:

Joe said...

The "support" rationale as noted in the discussion could cover the navy too and the Civil War had various instances of the army and the navy working hand in hand to defeat enemy targets. The argument has some force but listing "army" and "navy" separately -- at least using the sort of minimalist arguments of many originalists (generally a fools game to play with them since they tend to at least be Calvinball curious) use - is fairly telling.

After all, at some point, any number of enumerated powers is redundant if used in that way. Why list the need to coin money? Isn't that simply necessary and proper to regulate commerce? Ditto postal roads? We would then go into the level of generality game. I don't think "space force" arguments alone defeat originalism but at some point a military body does raise new complexities to at least be concerned, including fighting in outer space.

At least going by their rules, but again, the rules are flexible. Maybe even "living."

"Originalists in Space" sounds like a TV Trope --

Peter Gerdes said...

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.

Peter Gerdes said...
This comment has been removed by the author.
Peter Gerdes said...

I'd point out once you focuse on the raising/support of the armies not which department they report to there is no longer a way to interpret army/navy broadly enough not to be obviously absurd to the ratifiers but narrowly enough to cause problems for the air force. After all they would have understood that scouts, mules, wagons, etc.. etc... were all covered to assist the army and I see no reason that air power or even space power would be any different. In other words if your units take up positions occupying (for significant periods) the ground they are army, the sea, navy and even with Trump's space force it is primarily designed to assist other units to occupy and defend either parts of the land or parts of the sea.

Also, the N&P clause could be non-superfluous in the sense that it foreclosed the argument that the kind of people who saw militia's as bulwarks of freedom and standing militaries as potential oppressors would have likely made against spending money to send warships around the world if they hadn't. They didn't have to believe the argument they were foreclosing was good, merely disruptive.

Finally, I'd argue that you're being a bit unfair to originalists here by trying to force them all to be narrow literal textualists. The original public meaning people could just assert that it wasn't read as limitive at all in the original public meaning because that wouldn't have occurred to anyone.

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Shag from Brookline said...

Over at the VC Ilya Somin has responded to Mike's post. Somin begins his closing paragraph with this:

"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."

I suspect that both Mike's post and Ilya's response each have a tad of tongue in cheek, a bit of relief from the Omarosa diversions. Perhaps Netflix has a "Space Farce" in development. If so, Mike and Ilya deserve credits. "May the Farce be with you!"

Joe said...

It is interesting that Star Trek and the like treat space as a sort of celestial sea with "Captain Kirk" and "ships" and so forth. Perhaps, space force should just be part of the navy.

I think overall that "what about the air force" sort of arguments only take you so far, but reading over the recent comments, still think some originalists (a flexible bunch, to be sure) as a matter of theory (if they didn't realize they had to fit an actual thing into the originalist box) would argue that there is a point there is an "army" and "navy," and if you are going to set up a whole new branch of the military which is after all a third place, the right thing to do is to amend the Constitution.

It is not that something cannot be done to fit the air/space force in. It is the reasoning takes you to places that lead to the open-ended places some originalists find troubling. It is not that the text doesn't quite reasonably get us where liberals (so-called "living constitutionalists") want to go.

Shag from Brookline said...

Perhaps the New Originalism might accommodate a "Space Zone" within its "Construction Zone" when the original public meaning is not clear.

r_r said...

Your article went to the 1828 dictionary for army, but seems to have declined to do so for navy.

, "NAVY, noun [Gr. From to swim. To swim then is to move up and down.]

1. A fleet of ships; an assemblage of merchantmen, or so many as sail in company.

The navy of Hiram brought gold from Ophir. 1 Kings 10:11.

2. The whole of the ships of war belonging to a nation or king. The navy of Great Britain is the defense of the kingdom and its commerce. This is the usual acceptation of the word"

This, of course, brings us to the question of what a ship, and what a ship of war is.

, "Ship

SHIP, as a termination, denotes state or office; as in lordship.

SHIP. [See Shape.]

SHIP, noun [Latin scapha; from the root of shape.] In a general sense, a vessel or building of a peculiar structure, adapted to navigation, or floating on water by means of sails. In an appropriate sense, a building of a structure or form fitted for navigation, furnished with a bowsprit and three masts, a main-mast, a fore-mast and a mizen-mast, each of which is composed a lower-mast, a top-mast and top-gallant-mast, and square rigged. Ships are of various sizes and are for various uses; most of them however fall under the denomination of ships of war and merchant's ships.

SHIP, verb transitive

1. To put on board of a ship or vessel of any kind; as, to ship goods at Liverpoll for New York.

2. To transport in a ship; to convey by water.

The sun shall no sooner the mountains touch,

But we will ship him hence. Shak.

3. To receive into a ship or vessel; as, to ship at sea.

To ship the oars, to place them in the rowlocks.

To ship off, to send away by water; as, to ship off convicts."

A ship under what seems to be the most relevant definition merely has to be adapted to navigation OR floating on water, not AND. I think that, shown a military airplane and it's function, a reasonable person at the time of the founding would regard it as being a ship, specifically a ship of war, albeit an unusual one-- and therefore a force consisting of them as a navy.
The same would be applicable to spacefaring war vessels.

Asher Steinberg said...

I'm sorry; what 1828 "ships" were adapted to navigation but incapable of floating on water? It's nice that the dictionary said or but I can't see why.