I know I said that, but what I meant was by mattsteinglass
January 29, 2007, 5:19 pm
Filed under: Law

Ilya Somin notes that some scholars opposed to an originalist intent stance on the Constitution claim that such a stance renders the Air Force unconstitutional. (The Constitution provides for an Army and a Navy, not an Air Force.) He thinks this is a straw-man argument.

Even under the “specific intent” originalism discussed by Chemerinksy, the Air Force would be constitutional so long as the Framers intended (as they almost surely did) to allow the power to raise and regulate the Army and Navy to encompass weapons technologies unknown in their own day.

I see your straw man, Ilya, and raise you a begged question. How do you know the Framers intended that power to encompass weapons technologies unknown in their day? If you can make inferential leaps about what you think the Framers must have intended to encompass in the altered world of the future, why can’t everybody else? What if I feel sure the Framers would have intended for Congress to have the power to regulate the standards of high-definition DVDs, for the public good?

Once we grant such extrapolations, we’re no longer in the realm of “original intent” at all. If this is a straw man, it’s one that tap-dances, moonwalks, and does a pretty good rendition of “He’s the Wizard”.

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