Is the SysAdmin Constitutional?

Volokh, E. (2007). The marines, the coast guard, and the constitution. The Volokh Conspiracy. January 28, 2007. Available online: http://volokh.com/posts/1170035957.shtml.

Eugene Volokh ponders the question: is United States Marine Corp is constitutional, as it appears to be an Army administred under the Constitutionally more generous terms given to the Navy?

The tougher conceptual question is whether the Marines can constitutionally be considered part of the constitutionally specified Navy (whether or not they are part of a federal agency labeled the Navy), or must be seen as falling under the constitutional head of “Armies.” In either event they’d be constitutional, but if they are treated under the head of “Armies,” then they’d have to be funded using appropriations that are for no longer than two years; if they are treated under the head of “Navy,” they can be funded under unlimited-length appropriations. Recall that the relevant Congressional powers are:

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.

I don’t know the answer, but I thought I’d flag the question (recognizing that it is of little practical importance, especially these days).

Dr. Volokh then gives speculated on why the Army should be on a shorter lease than the Navy:

My (somewhat vague) recollection is that the constitutional distinction between armies and the navy stems from the fact that Englishmen of the time — including the American variety — saw land-based forces as much more dangerous to domestic liberty than sea-based forces, and sea-based forces as much more important to day-to-day national defense. That’s also why there was lots of concern about a standing army, but not about a standing navy. Modern Marines are in this respect at least potentially more like “armies” than like the “navy”; that’s why the question I pose is theoretically nontrivial.

Is Barnett’s Leviathan an updated version of the Department of the Navy (the few, high-tech, can only be deployed offshore and abroad) while his SysAdmin just an updated version of the Department of the Army (the many, the low tech, deployable at home and abroad). If an Office of Systems Administration is created, would it have to be funded for no more than two years at a time?

7 thoughts on “Is the SysAdmin Constitutional?”

  1. Interesting, never thought of the Constitutionality of Barnett's idea (probably because I never thought it would ever be implemented).

    However, given the purpose of the SysAdmin, were I writing legislation enacting it it would be fairly non-controversial to say “can never be deployed on the territory of the United States.”

  2. a517dogg,

    “were I writing legislation enacting it it would be fairly non-controversial to say “can never be deployed on the territory of the United States.””

    I think this is a common interpretation to the Sysadmin concept, but not the “proper” one. For example, in Bush wants his domestic SysAdmin Force now: [1]

    “But the reality is that we have both militaries: one that exists to make smoking holes and little else and one that exists to enable that first force to do its thing. I'm not talking about abusing that first force, just tapping the obvious skills sets of the latter.

    We will be told that because Louisiana's Guard was itself impacted by the hurricane, that was a major cause of the slow response, but the real story is more mundane than that. The bias against stepping in proactively is profound and pervasive across the military. When Guard personnel (from other states) already in region for training aggressively volunteer on their free days to go in and help with the clean-up, only to be told by superiors, “no thanks,” you know the problem runs very deep, despite all the rhetoric.”

    For that matter, he says the domestic SysAdmin as operating now, albeit incompetently: [2]

    “So let's not assume that getting more Israeli-like in our domestic SysAdmin force called the police will be the only answer or even the best answer to stemming any onslaught of suicide bombers here in the States. If we provide Muslim immigrant families with real opportunity for economic connectedness, by and large they will police their own, leaving the jihadist professionals to our SysAdmin professionals to handle (cops here at home and in conjunction with others cops across the Core, and the U.S. military in the Gap).”

    However, a domestic SysAdmin should expand into its international role:[3]

    “Katrina may end up helping FEMA and other domestic SysAdmin-like agencies steal back money that was taken after 9/11 and funneled so intensely in the direction of the Global War on Terrorism. Good or bad?

    Largely good, I would say, because getting America up to snuff in its own self-maintaining SysAdmin function makes us far more likely to be willing to engage in such stuff overseas, presuming the White House does a better job in enlisting allies for any future rogue regime takedowns. After all, it was Bush himself in his N.O. speech that promised “the military would play a new role in federal disaster relief.””

    Even PMCs may be involved [4]

    “A great example of this is how Blackwater got quickly pulled into the Katrina effort in New Orleans (the subsequent subject of many conspiracy tales). Prior to the hurricane, Prince said, the company has no intention of ever getting involved with domestic crisis response, but the reality was, when push came to shove, Blackwater could put together an effort so much faster than government entities that, once on the scene and proving themselves, the offers just poured in. Now, they have a standing capacity ready to go at a moment’s notice, which shows you how quickly they adapt to new market conditions.”

    (which is similar to what I suggested with a Military-Industrial-Sysadmin-Complex [5]…)

    [1] http://www.thomaspmbarnett.com/weblog/archives2/002368.html
    [2] http://www.thomaspmbarnett.com/weblog/archives2/002075.html
    [3] http://www.thomaspmbarnett.com/weblog/archives2/002311.html
    [4] http://www.thomaspmbarnett.com/weblog/archives2/003322.html
    [5] http://www.tdaxp.com/archive/2005/12/23/embracing-defeat-part-iv-embracing-victory.html

  3. I find Volokh's question could be answered simply by pointing out that “Marines” have historically been understood as a component of Naval forces going back to classical antiquity.

    It strains credulity to think that the framers of the Constitution were unaware of that, considering the USMC and the U.S. Constitution are virtually contemporary entities.

    In other words, an ahistorical question from the start.

  4. “Modern Marines are in this respect at least potentially more like “armies” than like the “navy”; that's why the question I pose is theoretically nontrivial.”

    Rubbish.

    It is the kind of nihilistic triviality beloved by American academics who like to gum up the works by injecting negative intellectual novelties into a functioning system in order to demonstrate their own cleverness to themselves. Law professors, being analytical reductionists are among the worst – left to their own devices they'd theorize us all into a tyranny or anarchy.

    Volokh is smart enough to know better but I guess he has a blog to fill like the rest of us…..

  5. Clearly the Marines comes under the Navy.

    The distinction between Army and Navy (with Marines) existed in our British predecessor government. The US during the revolutionary war (Pre-current constitution) had a separate Army and Navy (with Marines) so the precedent is there.

    To this day, the Marines are part of the Department of the Navy.

    I guess it is time to get of my ass and type up “Department of War, Department of Peace” as a post from my notepad.

  6. Mark,

    In fairness, Volokh's post followed his defense of the Air Force against those who doubted its constitutionality, as its neither an Army nor a Navy [1,2,3].

    If the Army and the Marines nowadays belong under an “Army” that is limited to 2 year budgets, that if anything shows how forward thinking the Founding Fathers were. There has always been a need for the SysAmin functions of an “Army,” and always a fear of what such an “Army” could accomplish.

    What would be a Barnettian analog of the force that put down the Whiskey Rebellion? Surely it'd be a SysAdmin operation, regardless of whether its bureaucratically assigned to the Army or the Marines

    Pursplelog,

    I was thinking back to Tom's CSPAN brief where he mentioned that breaking the DOD into two Departments would return us to the pre-1947 order… While the Marines are an old concept, does a USMC that deploys to landlocked states and provinces (Afghanistan and Anbar) fit that historic mold?

    [1] http://volokh.com/archives/archive_2007_01_28-2007_02_03.shtml#1170357907
    [2] http://volokh.com/archives/archive_2007_01_28-2007_02_03.shtml#1170051901
    [3] http://volokh.com/archives/archive_2007_01_28-2007_02_03.shtml#1170032632

  7. The Marines predate not only the Constitution, but the United States of America itself, founded in 1775, before independence.

    tdaxp – in those quotations, I always assumed Barnett meant something along the lines of cops working with the SysAdmin, rather than being a part of it. I've never actually read his books, I just watched his briefing thing online, so I'm no expert on Barnettology (although I think I just coined the discipline).

  8. The most excellent “The Anglosphere Challenge” (Lexington Green is much more familar and eloquent about this than I could be and his input would be great for this post) discusses this issue in detail (pg. 188-192).

    Historically (before the Cold War created the national security state with its sizeable disgression from Constitutional & Anglo concepts and foundations), the Navy & Marines were considered the Dept. of the Navy, because both were intended to function in peace as well as war, while the Army (The Department of War) was expected to exist (except for the few necessarily permanent functions) only in time of war.

    The Marines then and today are utilized for expeditionary purposes first and foremost. They are able to go anywhere anytime with the help of airlift and the Navy in as little time as possible. This sounds like Levithian, which if its the Marines, belongs with the Dept. Of The Navy.

    The Army was only supposed to be around in wartime, but since this nation has been at war nearly non-stop since 1945, things have been skewed now and concepts are confused. Chet Richards has an intriguing solution for that problem of course.

    Barnett's SysAdmin would appear to also fit with the concept behind the Department of the Navy. The SysAdmin force would be a permanent fixture of US and Allied foreign policy.

    The problem appears to be what to do with the Army (back to Richards or an expanded realization of Barnett's vision). Its the historical and Constitutional anomaly.

    Domestically, SysAdmin should follow the fundamentals of the expeditionary SysAdmin but should be within the confines of the Justice Dept or whatever will replace the DHS nightmare. Domestically, the need for drastic reforms in the drug war, the legal system, the education system and the very concept of urban communities predates any serious standing up of SysAdmin forces. You have to create the new rules for the new force first. The market-state is emerging regardless of any of this of course.

  9. You pose an interesting question, Dan. Instead of posting a comment, I expanded a bit and responded with a complete post here. The short of it is mark is right, the question is ahistorical and lack context of the “what” and the “why”. There are other questions you should be asking, two of which I suggest at the end of my post.

  10. Let's take a trip back to 1776 for a second. An army was a bunch of guys who trained to march in rows, and load and aim muskets quickly. You can put together such an army fairly quickly. Consider how long it would take to put together a frigate, and how much it would cost. We “provide and maintain a Navy” because it's expensive and time consuming to build the ships involved, much more than to maintain a group of people to march around and shoot at targets.

    Of course, the Army became much more than that over time, and the provision and maintenance of artillery and tanks and helicopters and all the things that keep us safe approaches the level of a classic naval warship.

  11. Something else to consider; to project power (the job of the Navy and Air Force), you need some place to project from.

    Consider, if a plane runs out of fuel, it has to land for refueling or crash. If a ship runs out of fuel, it won't sink, but it's mobility will be hampered or eliminated. Ammunition (especially the high-tech kind) can't be scavenged from the sea, or even from most foreign ports. Ditto spare parts, pay for the crew, advanced medical supplies. . . The point is, these forces HAVE to have safe land bases where they can acquire these things.

    If a rogue admiral or AF general decided to launch a coup, how could it succeed? They could threaten armageddon on any city that defied them, but what if enough cities defied them? How would they maintain order in those cities? What's to stop non-rogue army units (or informal militias) from striking at their bases? They could make alliances with foreign powers to use their bases, but how many such powers have the combination of interest, technology, and proximity to be effective? By the same token, if it was the Army that went rogue, what could a non-rogue Navy or Air Force do to stop them. It's probably not a coincidence that army colonels and generals are usually the parties responsible for coups in other countries.

    While missions and technologies have changed, that vulnerability has not. Armies can invade, take over, and control military bases, industrial sites and cities. Navies and air forces can only threaten and destroy them.

    To (finally) get to my ultimate point, one would have to conclude that- from a coup-prevention point of view- it's safer to treat the Marine Corps like the Army; being ground troops, they potentially have the same abilities as the Army to go rogue.

  12. D'oh!
    I got so wrapped up in my argument, I forgot the point of the thread was Sysadmin:P

    It depends on how the Dept. of Everything Else (or whatever you want to call it) is set up. If parts of the military are put entirely under its jurisdiction, then (assuming ground forces would have to be part of the mix) it would need to be treated as an Army in constitutional terms; that potential to launch a coup would be there. If it maintained no standing fighting force and needed a separate military to take care of combat, then the danger wouldn't be there; the consitutional issue wouldn't exist.

    Truthfully, though, both sections are a bit outdated. As the services are forced to work together more often, can they really be said to be separate from one another in terms of coup danger? Would a rogue general really have to be operate independently of the Navy and Air Force, or would he just recruit friendly elements into his coup? And (to repeat a comment made by others) could ANY of the services, separate or unified, be able to do their duties with a two-year limitation on funding?

  13. Is the caveat “but no Appropriation of Money to that Use shall be for a longer Term than two Years” a protection against a rogue general or a rogue President? The founding fathers seem to be saying, “The President has full leeway to use the standing Leviathan as he sees fit, but any Systems Administration requires Congressional approval every two years.”

  14. That's a good point I hadn't considered; maintaining the balance of power within the government was (and is) important.

    From what I've heard, though, there were people actively hoping for Washington to become a King– a military dictatorship, effectively. The frontier nature of much of the US at the time- already a source of rebellions and insurrections going back to Bacon's rebellion- would have made fertile ground for a rebellious general. And the history of Rome, which suffered from several military coups of one sort or other would have been on the minds of many of the more educated Founding Fathers. It's not unreasonable to assume that preventing a military coup would have been an active consideration for many at the Constitutional Convention, including Washington himself.

    Even if containing Presidential power was the sole purpose of these clauses, though, the question of vulnerabilities still applies. An army can occupy and live (to a certain extent) off of occupied territories. A navy cannot. If a tyrranical President controlled an effective Navy, but not an effective Army, his reign of terror would last just long enough for a congressional army (or local militia) to take or destroy the shore facilities they need to stay effective. At most, this hypothical tyrant would then be a pirate king; preying on our shipping, but nothing more.

  15. Purpleslog,

    Wouldn't a true son of a Marine simply believe that the rest of the military apparatus is optional? 😉

    Michael,

    “An army can occupy and live (to a certain extent) off of occupied territories. A navy cannot. “

    A central truth, and I agree 100%. Same for the SysAdmin / Leviathan split. SysAdmin forces can occupy and live (to a certain extent) off an occupied state. A Leviathan cannot even hold a city.

    “At most, this hypothetical tyrant would then be a pirate king; preying on our shipping, but nothing more.”

    Good point — Mountainrunner agress with you, I think. [1]

    Dave,

    “You can put together such an army fairly quickly. Consider how long it would take to put together a frigate, and how much it would cost.”

    Also a good point, and also typical of the SysAdmin (the many, the cheap) and Leviathan (the few, the expensive) split.

    Eddie,

    “while the Army (The Department of War) was expected to exist (except for the few necessarily permanent functions) only in time of war.

    The Marines then and today are utilized for expeditionary purposes first and foremost. They are able to go anywhere anytime with the help of airlift and the Navy in as little time as possible. This sounds like Levithian, which if its the Marines, belongs with the Dept. Of The Navy.”

    Great point — indeed, I should quote your entire comment!

    The historical Army may be a forerunner of what a true SysAdmin force looks like — a bureaucratic and operational hub around

    As Tom wrote [2]:

    “Does it matter that the U.S. moves in the direction of sufficiently investing in their own Sys Admin elements? You bet. Without our “hub,” nobody plays effectively in the Sys Admin universe.”

    and quoted [3]:

    “The Center for Complex Operations would be a “hub” for integrating existing training, education, research and lessons-learned efforts throughout a stability operations and irregular warfare “consortium”…”

    a517dogg,

    I'm pretty sure I'm getting Dr. Barnett's thoughts right, though I'm open to correction.

    [1] http://mountainrunner.us/2007/02/posing_the_question_is_the_sys.html
    [2] http://www.thomaspmbarnett.com/weblog/archives2/001057.html
    [3] http://www.thomaspmbarnett.com/weblog/archives2/003995.html

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