Professor Bainbridge...on law, politics, religion, culture & food

The Constitutionality of the Marine Corps?

Over at the Volokh Conspiracy, Ilya Somin and Eugene Volokh are blogging about the constitutionality (perhaps more precisely the constitutional status) of the Air Force, the Marine Corps, and the Coast Guard. It's all pretty Scholastic, but since Eugene claims "the question I pose is theoretically nontrivial," let's play along.

In the first place, let's remember that the mode of constitutional interpretation that is commonly referred to as "originalism" in fact consists of three rather distinct modes of inquiry. Let us define originalism as "the belief that the U.S. Constitution should be interpreted according to the intent of those who composed and adopted it." Next, we'll define textualism as " a formalist theory of statutory interpretation which holds that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or substantive questions of the justice and rectitude of the law." Finally, I have defined traditionalism as looking "at how the Constitution has been interpreted over time, such that well-established traditions become entrenched."