Dan of tdaxp reframed a question of legitimacy of the Marines the Volokh Conspiracy posed last week. Volokh suggested that since the Marine Corps "is more like armies" that perhaps it should be treated as the US Constitution treats the US Army and thus not considered an element of the US Navy. Dan extends this to question whether the Tom Barnett's SysAdmin theory is then unconstitutional. I felt it was necessary to respond with history and facts.
I had originally posted what was surely a brilliant response in Dan's comments, only to have it lost to cyberspace. Thinking again about this, I decided to post the response here because there are other more important areas that should be probed when discussing the answer to V & D's questions. Be warned, this is a long post.
Some of the information below comes from the book Warriors and Politicians: US Civil-Military Relations Under Stress by Charles Stevenson, other bits come from The Abolition of Privateering and the Declaration of Paris, and probably a few other reads thrown in like Michael Howard's book if you want to "read" along.
To start, armies were considered very dangerous by the Founding Fathers. This is most evident in the current debates in Congress about the war and hearings to approve senior officers, such as General Casey and General Petraeus. The "Iron Triangle" of control was intentionally established by the Framers. The Senate was given the power to confirm officers of the military (hence the SASC confirmation hearings), in part to keep the President from creating a military of political appointees. The House was given the power to "Declare War" (the original text was "to make war") and, more importantly considering the rarity with war was and is declared, control over the purse.
While the House has only once effectively cut off funding for a conflict, it is within its rights to do so. It has, on at least one other occasion, threatened to do so with the effect of changing strategy.
There's another unofficial privilege of Congress over the military the Executive Branch has acquiesced to over the years: oversight. The power to oversee and investigate has been a Congressional prerogative since Geo. Washington and is something we'll be enjoying in the headlines later this week with Congressman Waxman's hearings.
Considering the majority of the delegates to the Constitutional Convention has served in the regular forces of the American insurgency, with half of those seeing serious action, they knew war. They also had serious misgivings about relying on the militias. George Washington is quoted as describing the militias in words very similar to Machiavelli's warning of mercenaries: "They come in you cannot tell how, go you cannot tell when, and act you cannot tell where, consume your provisions, exhaust your stores, and leave you at last at a critical moment."
Beyond the Framers, consider the members of the Continental Congress who suffered at the hands of the British armed forces with their property looted or destroyed. Over a third of the those in Congress served in the Continental Army, one was KIA, twelve seriously wounded, and double that were taken prisoner. These men knew war.
The "Jealous Eye" Samuel Adams extolled that should be kept on the armed forces was seen in the Constitutional provision that prohibited a perpetually standing army. The Constitution lays out the renewal of the Army's budget every two years other the Army will be forced to demobilize through lack of funds. Over the years, the strict requirements over Army spending relaxed to permit "food and forage" reimbursement and to allow long term expenditures such as R&D, leases, etc.
The navy was a smaller creature to the rebels than was the Army. Ships were expensive and hopefully lasted longer than two years. The navy was also largely outsourced. With a few dozen ships in the US Navy throughout the war, over two thousand letters of marque were issued, many were blank but signed by the President for distribution at the local level. However, Congress established strict rules over the use of privateers (as they would later do again in the War of 1812, when only 7 frigates were in the Navy, they explicitly authorized the outsourcing of war while explicitly retaining their oversight rights).
Also keep in mind that it's hard for a navy to overthrow a government.
The damage the privateers did to English commerce and trade was not insignificant. Insurance rates for English ships was nearly a quarter of the ships value at 23%. Between English and Irish ports insurance was now required and ships sometimes sailed under convey because of our active privateers. Trade with West India dropped.
This was all intentional. General Washington sought not to lose the war knowing he couldn't win and thought the British would ultimately "tire of the protracted conflict" and the tactics of the privateers, barely more than pirates at times and accused of "irregularities", helped drive the conflict home to the English. On a side note, we can't of course consider this Fourth Generation Warfare (4GW) as the "Third" generation hadn't been happened yet. For that matter, neither had the Second Generation, but that's off the point.
The army was feared. The fledging American nation-state was suspicious of a standing army and very concerned about security with 11 of the 18 Congressional powers enumerated in the Constitution relate to security. Several Amendments in the Bill of Rights as indicate a concern about the military, notably those on the right to bear arms and quartering of troops in homes. This fear manifested itself in Constitutional safeguards.
The navy was not feared but profitable. The value of privateering was central the New England economy. Salem relied on it and Rhode Island vigorously participated in it by sending more privateers in 1776 than the US Navy had in the entire war. The lack of fear of the navy is why it was handled with a looser leash.
With this, does the shipboard combat element of the Navy really qualify as "army" today? The practice over the last two hundred years, as well as technological advances really make this a moot point. Otherwise, we should ask if naval transport of the Army transforms them into something else.
The importance of naval forces to day to day defense is relatively new and not central to the minds of the Founding Fathers. Years after the Revolution, James Madison, before he was President, suggested that instead of building the American Navy to address the threat and damage caused by the Barbary Pirates on American commerce that we should instead hire the Portuguese to do it for us. Perhaps more so than land forces, we considered naval forces to be inherently mercenarial. John Paul Jones, our greatest naval hero, went into the employ of Catherine the Great of Russia, hiring out his services and conducting knowledge transfer in the manner of the day.
The present Defense Department has strayed far from what the Framers envisioned. Congress has permitted certain allowances to bypass their Constitutional rights. Perhaps more importantly to the question of the distinction between the Army and the Navy (and what of the Air Force? the Coast Guard?), the Goldwater-Nichols Act vastly changed things. Likely we'll see another GNA change in the future, which is probably what will create the Department of Peace / Civilian Reserve Corps / AmeriCorps on steroids and with rank that will be the SysAdmin force.
Congress has the power of the purse, two years or not. If you want to look at more interesting questions raised by comments on Dan's blog, I'd suggest looking at...
- The recently revised (potential?) ability to deploy military forces domestically (and in the National Military Strategy here)
- The reliance on privateers (sea-borne mercenaries) as early examples of the military-industrial complex in action (how much of the political elites' money was made through this?)
Ultimately, the question posed is absolutely trivial and meaningless, and ahistorical as mark points out in a comment on Dan's blog. However, the answer is "No, based on the way the question was posed, it is not unconstitutional."