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Constitutional interpretation, redux

In response to my piece this weekend answering the linguistic challenge to originalism laid out by Saul Cornell, a high school friend of mine, now a Regional Medical Officer at U.S. Department of State (and so an educated Beltway liberal, naturally), wrote:

I propose we rid our country of the Air Force as it is encroaching on our beloved freedom, for the Constitution only mentions the Army and Navy as the legitimate armed forces of our country. How dare these revisionists supposedly “interpret” the Constitution to include such a group as an air force that our Founders could not conceive of themselves.

I presume that what he’s doing is attempting a broadside on originalism by suggesting that, to be an originalist (or in my case, an intentionalist) commits one to a state of law frozen in time and unable to adapt to changing conditions and contexts. This is, of course, silly — the Founders never suggested nor demanded that progress cease with the ratification of the Constitution, a fact made clear by the amendment process itself — but it is also, as an argument, yet another rhetorical dodge: arguing that a document has a meaning fixed at the time of its signification is not the same as arguing that the document is somehow magical, and neither originalists nor intentionalists argue such a thing. But beyond that, how does the fact that the Founders didn’t (apparently) foresee flying machines loaded with weaponry change the very nature of what they did manage to write about? That is, why is it, as this argument implies, that we’re to throw out everything the Constitutional authors and ratifiers did mean simply because they didn’t mean every conceivable thing?

Because that’s the thrust of the argument: the meaning the Founders wished us to understand from their text is unimportant because, well, time moves on. Which is to say, hey, they’re dead, so it’s completely cool to go through the motions of pretending to read and interpret a document that, by virtue of our acceptance of it as a document (and not an accidental talisman we happened upon), we know to be intended and so contain a meaning the authors were eager to share with us, as if it means what we say it should mean. And we’ll call that interpretation, because to call it what it is — a legally-binding creative writing exercise being engaged in by a group of politically appointed philosopher kings using a set of pre-determined squiggles in order to rewrite the social compact to comport with their policy views — probably wouldn’t play in Peoria.

Now, I could be mistaken, but I think the current legal view is that the Air Force is a kind of specialized offshoot of [the Army Air Corps] — all under the auspices of the President and the Secretary of Defense. But if there were a real constitutional concern, I’d certainly not be averse to an amendment — and the fact that we have such a process available to us puts lie to the ostensible “concern” itself.

What I find truly interesting, though, is that people who share what appears to be this view of constitutional interpretation tend to be very territorial over the judicial opinions they favor, demanding that they be considered super-duper! precedents, etc. Funny how the Constitution is a “Living Document” to be interpreted afresh in each new context using an ever-expanding range of inferences and penumbras depending on the current political climate, but judicial opinions that comport with a certain political ideology are somehow fixed in the most impenetrable bedrock.

Why, it’s almost as if the left’s situational view of ethics carries over into a situational view of how language and interpretation are made to function.

Imagine!

48 Replies to “Constitutional interpretation, redux”

  1. Ernst Schreiber says:

    Actually Jeff, the Air Force used to be the Army Air Corps.

  2. Jeff G. says:

    Cool, thanks, Ernst.

  3. BuddyPC says:

    The “Air Force” originalism-response has been making the proggy rounds for almost a year now.

    They have quickly shut up in my necks of woods when explaining to them the Air Force’s bureaucratic origin and spin-off from the Army Air Corps.

  4. Squid says:

    Would I be wrong to guess that your friend’s missive fairly dripped with sneering condescension? I’ve noticed that a lot of people who are better than I tend to behave in the same way as those in high school who were cooler than I.

  5. McGehee says:

    I didn’t see what the post said originally, but if it said merely “offshoot of the Army,” that would suffice.

    One thing that used to indicate that lineage, before the advent of the beret as standard dress cover for all Army personnel, was the use by both the Army and Air Force of a version of the Great Seal of the United States as a cap device (unless I’m mistaken the Air Force still does). The Navy and Marines both use elements from their own branch coats-of-arms instead.

  6. Jeff G. says:

    Would I be wrong to guess that your friend’s missive fairly dripped with sneering condescension? I’ve noticed that a lot of people who are better than I tend to behave in the same way as those in high school who were cooler than I.

    Of course it did.

    But I responded in kind. Because no one is cooler than I am.

  7. Bob Reed says:

    …I think the current legal view is that the Air Force is a kind of specialized offshoot of the Navy…

    Oh, to have had this line of ridicule available over the years when engaging in good natured inter-service rivalry repartee with my bretheren in the “Chair Force” :)

    Seriously though, what a dodge. And no offense to your old pal, but it betrays a lack of historical perspective on several counts; willful or otherwise.

    What we refer to as the Air Force today was separated from the Army actually, following WWII. Prior to that it had been known as the Army Air Corps, and represented as much of a logic outgrowth of technological development as the evolution of the Cavalry into today’s armoured formations. And although not done via Constitutional amendment, the division was mandated by a formal act of Congress as opposed to any executive or general staff fiat.

    Still, authentic military aviation can trace it’s roots firmly to the year 1910 when Eugene Ely took off from the USS Birmingham and on another flight a few months later successfully landed upon the USS Pennsylvania…

    At least, that’s how I remember it happening :)

  8. Silver Whistle says:

    Well, seeing as the Constitution reflects the deep flaws of the country, it’s only natural to try and tidy up the messy bits. Out, damned spot!

  9. Bob Reed says:

    Oh and for an added measure of absolute moral authority and righteousness?

    The US Air Force was the first of the service branches to be officially desegregated in 1948…

    DIVERSITY!

  10. mojo says:

    Plural, Jeff – Corps

    A single corp is a stiff.

  11. Bob Reed says:

    I hate citing wiki-anything, but

    http://en.wikipedia.org/wiki/National_Security_Act_of_1947

    delivers the tale of the tape, so to speak.

  12. Ernst Schreiber says:

    Sure, Bob, but isn’t it true that air power didn’t really take off (so to speak) until Billy Mitchell (Army) bombed the Navy?

  13. Jeff G. says:

    Plural, Jeff – Corps

    A single corp is a stiff.

    My computer is dying. Slowly and painfully. Please excuse any and all typos. Any messed up keystroke and, to backtrack, I get a spinning beach ball of death. I’m at my wit’s end here.

  14. PCachu says:

    Today’s important mathematical equation:

    Sneering Condescension + Historical Ignorance = #FAIL.

  15. eleven says:

    “I propose we rid our country of the Air Force as it is encroaching on our beloved freedom, for the Constitution only mentions the Army and Navy as the legitimate armed forces of our country.”

    Pure sophistry. In his head I bet this sounded all Ben Frankliny.

    I’m assuming you’ve never lost an argument to Saul.

  16. Bob Reed says:

    Gee Ernst, I thought air power really took off when Roger Staubach bombed army as a midshipman :)

    No seriously, you point out what is widely regarded as the moment when it became apparent that capital ships were vulnerable to aircraft and that, in general, aircraft could be formidable attack “surface attack” weapons instead of just a weaponized reconaissance platform.

    Of course, no one was shooting back at Billy Mitchell…

  17. DarthLevin says:

    This is akin to arguing that eating peanut butter sandwiches is a sin because Jesus didn’t eat them.

    (now, I’ll find out that Jif isn’t kosher and my argument will blow up in my face…)

  18. Ernst Schreiber says:

    Just shit stirring Bob.

    “Spig” Wead wrote the screenplay for one of my favorite movies, and was the subject of another.

  19. Bob Reed says:

    Wead was a giant of Naval aviation. Those who came after stood upon the shoulders of men like him.

    Those are two great movies you referenced.

  20. dicentra says:

    the Constitution only mentions the Army and Navy as the legitimate armed forces of our country

    Where does it say that? Right here?

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; (Article 2, Section 2, Clause 1)

    Is there language in the Constitution that prescribes which armed forces are legitimate and which are not? Does it proscribe the formation of other armed forces without an amendment? Does it address the issue at all?

    If you’re going to be juvenile about the interpretation, argue instead that the president is NOT the CiC of the Air Force, Marines, or Coast Guard.

    Sheesh.

  21. Abe Froman says:

    Virtually all liberal arguments – when on paper – seem just as likely to have come from Joy Behar’s anus as from one of our “betters” like Jeff’s high school classmate. That’s the true beauty of emotive left-wing claptrap, it’s completely egalitarian. People on the left have no fucking idea how stupid they are because they relentlessly pat one another on the head.

    We, by contrast, are saddled with an elite which finds the unwashed to be rather embarrassing. That, to me, is what’s perverse about Beltway and chattering class sorts. I mean, why the fuck do I keep hearing that a cock faced imbecile (Anthony Weiner) who graduated from a retard college and holds a seat in a district full of Queens and Brooklyn trash is a smart guy? He isn’t a smart guy. He’s a cheeseball who would be villified for his strident imbecility were he a Republican. But yeah, certain Republicans embarrass David Brooks.

  22. B. Moe says:

    I have been trying to have a serious discussion with a lefty acquaintance for the past year or so, trying to remain calm and rational rather than just unload on him like I usually do to leftoids, and what I have discovered is almost every discussion eventually devolves to the point that I feel I am explaining things to a child.

    You have to simplify every concept to the point that it can’t possibly be misunderstood.

    Yet they are the smart ones, or so I’m told.

  23. Squid says:

    I was thinking of Article I, Section 8:

    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;

    As shallow arguments go, this one at least has a basis in reality. Still a weak and shallow argument, but that’s really all you need to get by in the ranks of our nuanced superiors.

  24. Squid says:

    …almost every discussion eventually devolves to the point that I feel I am explaining things to a child.

    I’ve had similar experiences on many occasions, B. Partly, I chalk it up to the fact that most of the political “thinking” common in this crowd is little more than feel-good emotion-based assertion. Another big part of it, I believe, comes from the fact that we often are picking up where our middle-school Social Studies teachers fell down. It’s little wonder that you would feel like you were speaking to a 12-year-old when in fact you’re teaching a seventh-grade class in Civics.

  25. dicentra says:

    I have discovered [that] almost every discussion eventually devolves to the point that I feel I am explaining things to a child.

    Pat Santy is doing a lovely series of articles on The Political Left and the Seven Deadly Sins of Narcissism:

    Part I: Shamelessness and Magical Thinking
    Part II: Arrogance, Envy, and Entitlement
    Part III: Exploitation and Bad Boundaries (tbd)

    It’s nice to see what we constantly experience all laid out like this.

  26. dicentra says:

    Jeff: Is there a link to Cornell’s response to you?

    The sophism in the responses to the original are breathtaking. AMERICA IS AND ALWAYS HAS BEEN FASCIST AND THAT’S WHAT THE WINGERS LIKE ABOUT IT! is the gist of most of them.

    Cripes, they’re evidence for extensive mercury poisoning in the water supply.

  27. cranky-d says:

    Per Squid, note that there is still a vote every two years (at least) to continue to fund the Army, as well as, presumably, the Air Force.

    In general, the idea that the defense of this country is not clearly constitutional is ludicrous. It’s one of the few things the Fed does these days that is constitutional.

  28. B. Moe says:

    A lot of it though is due to the lack of honesty and respect for intentialism they operate under, often unconsiously. Rather than try to understand what I am saying they look for ways to twist the words to their benefit. You wind up being unable to communicate complex ideas because it gives them too much wiggle room.

    Their thought processes basically doom them to stupidity.

  29. cranky-d says:

    Cripes, they’re evidence for extensive mercury poisoning in the water supply.

    They also seem to lack understanding of what the word “fascism” means. Which, I suppose, could still be blamed on the mercury.

  30. Jeff G. says:

    Cornell didn’t respond. A high school friend of mine who works at the State Dept did. On Facebook.

  31. dicentra says:

    Cornell didn’t respond. A high school friend of mine who works at the State Dept did. On Facebook.

    My misunderstanding.

    And I’m not on Facebook, thank all deities.

  32. Squid says:

    (Forgive my tone, but just imagining the times I’ve lectured my moral and intellectual superiors puts me in an unfortunate frame of mind.)

    Rather than try to understand what I am saying they look for ways to twist the words to their benefit.

    Fortunately, most of them lack courage, so when you’re having a face-to-face conversation, you can call them on their misbehavior. It’s of a piece with the “talking to a 12-year-old” theme: if you want to get anywhere at all, you really do need to assume the role of the wise mentor. When I get into this mode, I’m no longer interested in having a conversation; I’m giving a lecture. Fortunately, because they lack training, because their playbook is so thin and their understanding so shallow, it isn’t difficult to make yourself seem wise, simply by anticipating and preempting the objections you know they’ll make.

  33. JHoward says:

    The “Air Force” originalism-response has been making the proggy rounds for almost a year now.

    They have quickly shut up in my necks of woods when explaining to them the Air Force’s bureaucratic origin and spin-off from the Army Air Corps.

    There’s another, even more organic argument:

    1) The Air Force does precisely what the constitutionally-enumerated Army and Navy do.

    2) Meanwhile, a century of progressive liberalism has brought — by nearly any vague definition of the words you care to use — original classical liberalism’s divided powers and personal liberties and even properties to the point of visible extinction.

    We have federal everything and we are dead broke and virtually shackled to the government teat and prison. That assertion has at least this blog’s decade of argumentation to validate it. That is, should your friend care to note it, JG, hopefully at such time as he also notes that his contention about the Air Force is bullshit.

    Everything about politics and political thought these days is absurdly asymmetrical and this is just more of that same. This is because the true dynamic is the lie of authoritarianism versus the truth of individualism, no matter how you wish to reasonably define it.

  34. Bill M says:

    You really should tell us his name, Jeff. Because if I’m overseas and they tell me he’s the only doctor that can see me, I think I’ll let the local clitoridectomy peforming witch doctor treat me instead of an idiot faux-sophisticate liberal. In other words, to paraphrase a friend of mine, I’d rather have a sister in a whorehouse than a brother whose a liberal State department flack. I guess I don’t like your friend. Now I’m guilted into hitting the tip jar.

  35. antillious says:

    My beef is always that these hand-waver re-definers of the consitution expressly can’t be bothered to write up their imaginings as ammendments. The very process that exists for such re-writings. I guess it’s because A) it doesn’t stand a snowballs chance in hell to be ratified, and B) it’s written right there, can’t you feelsee it? (waves hands)

  36. Jeff G. says:

    I haven’t seen him since high school, but he was quite bright, so I’m not surprised he’s gone the way of the educated Jew. To do well in school, we were all taught to study study study and parrot back what our teachers told us. That made us A students, but it also made us particularly susceptible to indoctrination. Many of this typed stopped learning a long time ago; instead, as I said this morning in a different thread, they feel as though their education grants them wisdom and intellectual heft, and they simply maintain, with their baseline being the horseshit they picked up from the leftist professors at their Very Respectable Universities.

    The arguments are typically facile and evasive. They try to protect their arguments by trying to twist and attack yours — very seldom mustering the intellectual strength to defend their own premises and assumptions.

    In grad school, I used to marvel at the game — the professor would pretend to talk about something substantial, and the students would pretend to join in, “discussing” and “answering” in an endless string of references to others who referenced others. Name dropping, jargon — bullshitting, is what it was. The academy has become the last place to learn anything. You are to be molded into a liberal voter and dismissed with enormous student loan debt, so that you are beholden to the left for years and years and years.

    It’s all a fraud.

  37. Stephanie says:

    their education grants them wisdom and intellectual heft,

    Credentialed Morons?

  38. JHoward says:

    Or dogmatism, JG?

  39. zino3 says:

    “But I responded in kind. Because no one is cooler than I am.”

    Jeff,

    I respectfully disagree. Everyone who responds on this blog is cooler than anyone else I know of.

    Truly.

    A compliment, BTW. Too bad we are all considered to be whack-jobs.

    TLD

  40. Ernst Schreiber says:

    The academy has become the last place to learn anything. You are to be molded into a liberal voter and dismissed with enormous student loan debt, so that you are beholden to the left for years and years and years.

    It’s all a fraud.

    Good excuse to link Harvey Mansfield again.

  41. dicentra says:

    Too bad we are all considered to be whack-jobs.

    By whom? Anyone that matters?

  42. SDN says:

    “Too bad we are all considered to be whack-jobs.”

    You say that like it’s an insult.

    “Why, it’s almost as if the left’s situational view of ethics carries over into a situational view of how language and interpretation are made to function.”

    Which is precisely why I consider them too dishonest to live with.

  43. DarthLevin says:

    Which is precisely why I consider them too dishonest to live with.

    Exactly. You wouldn’t play poker with somebody who thinks they can change the rules while the game is playing, why should we run a government that way?

  44. motionview says:

    Linked by insty, 2nd time in a month I believe.

  45. The Monster says:

    I was thinking of Article I, Section 8:

    If you could use a time machine and show the Constitutional Convention WWII footage of airplanes with machine guns and bombs, I suspect that every single man in the room would agree with the proposition that the people operating and maintaining those machines constitute one or more “Armies” under Art. I, § 8.

    A good argument could be made for moving the USAF back into the Department of the Army, just as the Marines (and Coast Guard during wartime) are under the Department of the Navy, although that’s not really much of a Constitutional argument so much as it is a “one less bureaucracy to fight turf wars” thing.

  46. Carin says:

    In grad school, I used to marvel at the game — the professor would pretend to talk about something substantial, and the students would pretend to join in, “discussing” and “answering” in an endless string of references to others who referenced others. Name dropping, jargon — bullshitting, is what it was. The academy has become the last place to learn anything. You are to be molded into a liberal voter and dismissed with enormous student loan debt, so that you are beholden to the left for years and years and years.

    Ha! Just had a college flashback.

  47. Ernst Schreiber says:

    The obvious retort here is that one doesn’t require “emanations” from “penumbras” to infer an air force from Art. I Sec. 8’s authorization of land and sea forces; nor does such an inference cause the “elastic clause” to stretch into shapelessness.

    So obvious in fact, that it took two days to think of it.

  48. zino3 says:

    “SDN posted on 6/1 @ 8:46 pm
    “Too bad we are all considered to be whack-jobs.”

    You say that like it’s an insult.

    “Why, it’s almost as if the left’s situational view of ethics carries over into a situational view of how language and interpretation are made to function.”

    Which is precisely why I consider them too dishonest to live with.”

    An “insult”?

    BZZZZZZZZT! Wrong!

    I consider it a badge of honor to stand up to all the asshats who know nothing about our history, or even the history of the world. Would we be better served if the Soviet Union still existed?

    My answer is a resounding “YES”!

    We no longer have a pile of chicken shit to point to when discussing our future.

    I WILL NOT SURRENDER TO THE ASSHATS!!!!!!!!

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