The Air Force and the Constitution:

One argument that is often made against originalist and textualist approaches to constitutional interpretation is the claim that they would render the Air Force unconstitutional. Article I, Section 8 of the Constitution seems to give Congress the authority to creat an Army and Navy, but not an Air Force. It grants Congress the following relevant powers:

To raise and support Armies .....;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

Citing this text, critics of textualism and originalism claim that the Air Force must be considered unconstitutional under these theories of interpretation. I think there are at least two compelling answers to this claim:

1. At most, the argument suggests that it is unconstitutional to have an independent air force. But air forces that are part of the Army and Navy are surely permissible. That is in fact the arrangement we had during WWII, and could go back to again. The mere fact that planes are a new technology that flies through the air surely does not forbid their use by the military, even under a very narrow view of textualism. Planes that fly through the air are no more constitutionally problematic than bullets that fly through the air, or balloons (whose military use was contemplated even at the time of the Founding).

2. Even an independent air force could potentially be justified by the Necessary and Proper Clause. If, under modern conditions, it really is militarily important to have an independent air service (a point I don't express any opinion on), then the creation of an independent air force is "necessary" to the implementation of Congress' other Article I powers even in the narrow sense of the word, and is also "proper" in the sense that it doesn't seem to infringe on federalism or on other aspects of the constitutional structure.

NOTE: Part of the content of this post is reprinted from the Conlawprof e-mail list, where this issue was recently debated.

It's even simpler: the relevent phrase is "To raise and support Armies...." So the existence of a ground Army doesn't preclude the raising and supporting of an 'Air Army', which is exactly what the French call their Air Force (l'Armée de l'Air).
1.28.2007 8:19pm
LawMan 5000:
Who makes the argument that the Airforce is unconstitutional under a textualist approach. Is this a strawman? If you want to defend textualism, defend it against the best criticisms, not the worst.
1.28.2007 8:21pm
Drat. Relevant.
1.28.2007 8:21pm
Yes, but there is at least one hole still to plug. Why does the constitution distinguish land and naval forces? Critically it comes under the condition that congress may only appropriate funds for the army for a period of two years, whereas appropriations for the navy are not so constrained--ostensibly because building ships takes time.

So with this detail in mind: which funding rule applies to airplanes?
1.28.2007 8:25pm
Not a con law prof:
Following on LawMan 5000's post, which law professors who are "critics of textualism and originalism" "claim that the Air Force must be considered unconstitutional under these theories of interpretation"? I'm not very familiar with the tenure system, but can they be fired for being incredibly stupid?
1.28.2007 8:31pm
Sarah (mail) (www):
Would extreme textualism also be construed as calling the Coast Guard and Marine Corps unconstitutional, too?

(I agree that this, at least, seems especially semantical - the Air Force was the Army Air Forces for 6 years, and it was a matter of convenience and "hey, we want the pilots to feel good" thinking that led to them chopping the first word off when the USAAF was made into an independent branch of the military. 'Add "Army" back in, and we're good?' That strikes me as a sufficient argument against such an interpretation.)
1.28.2007 8:31pm
Elliot Reed:
Ilya, would you mind giving us the names of the scholars who make this argument?
1.28.2007 8:36pm
Not a con law prof:
Do these same law professors also argue that originalism means the post office must still deliver mail by horse? (Not that this would slow the mail down much from its current pace.)
1.28.2007 8:36pm
CrazyTrain (mail):
This is an absurd straw man. I have never heard any scholar or lawyer who supports a theory of constitutional interpretation different from orginalism make this argument seriously in any way as a critique of originalism.
1.28.2007 8:59pm
Jeremy T:
Critics of textualism gain nothing by this argument. As I understand it, the argument goes something like this:

Textualism is invalid if it leads to absurd results. The Air Force, as currently constituted, is unconstitutional under textualism. This is an absurd result. Therefore textualism is invalid.

The argument falls apart because a it's just not an absurd result to find that the Air Force, as currently constituted, is unconstitutional. If a court were ever to so find, a constitutional amendment would be easily passed or the Air Force would be folded back into the Army like it used to be. But so what?

I don't think it's unreasonable for a textualist to say that the currently constituted Air Force is unconstitutional, and I don't think it's a big deal either way. So textualism opponents will have to think up some other way to attack.
1.28.2007 9:08pm
Perseus (mail):
Don Herzog used the example of the Air Force to attack "the bozo distinction between what's 'in' the Constitution and what's 'invented'" (simplistic strict construction?):

...So freedom of association isn't there [in the 1st amendment]! Rehnquist made it up! But I have yet to find a single right-wing commentator denounce Dale, and believe me, I've looked. It's hard to resist the inference that the alleged jurisprudential contrast between strict construction and legislation from the bench is nothing but a mask for illicit policy concerns. Whether an opinion is called strict construction or legislation from the bench seems to depend solely on whether the commentator likes the outcome. That game is too dreary and, frankly, too stupid to be worth playing.

It doesn't yet follow that there is no principled jurisprudential contrast to be drawn here. But is there one? Article I, sec. 8 of the Constitution enumerates Congress's powers; clauses 11-16 lay out war powers. We learn that Congress can establish an army and a navy. But there's nary a syllable "in the Constitution" about the air force!

I can't imagine anyone actually wants to bite that bullet. And yes, I can draw distinctions between Roe, Dale, and Congress's setting up and funding the air force. But those distinctions are not the bozo distinction between what's "in" the Constitution and what's "invented." On and off the bench, when it comes to constitutional law, interpretation is the only game in town. The contrast that matters is that between good and bad interpretations, not between people who "faithfully apply the letter of the Constitution" and those who "make stuff up."
1.28.2007 9:54pm
Ilya Somin:
Ilya, would you mind giving us the names of the scholars who make this argument?

I'm not sure it would be appropriate for me to reveal the names of people who posted on a closed list. However, as other commenters point out, Don Herzog is one of a number of scholars who have used this example against originalism and/or textualism. The issue is also often raised by nonacademic commentators - so much so that it's almost a cliche in constitutional law circles.
1.28.2007 10:09pm
Ilya Somin:
It's even simpler: the relevent phrase is "To raise and support Armies...." So the existence of a ground Army doesn't preclude the raising and supporting of an 'Air Army', which is exactly what the French call their Air Force (l'Armée de l'Air).

An interesting argument, but I'm not sure it works. If "Armies" is broad enough to include an "air army," it would also be broad enough to include a "sea army," but that would make the power to "provide and maintain a Navy" superfluous.
1.28.2007 10:22pm
Dave Hardy (mail) (www):
Yes, but there is at least one hole still to plug. Why does the constitution distinguish land and naval forces?

It stems from the British fear of standing armies, which could take over a government (and did so under Cromwell), whereas navies were not in a good position to do so (and could hardly be replaced by the militia, altho Jefferson with his "gun boats" -- small oar-driven vessels with a single aimable gun, tried). The British control on them wasn't fiscal ... Parliament passed a "Mutiny Act" that allowed courtmartial for desertion (otherwise, a deserting soldier was, at worst, an escaping apprentice, subject to a modest penalty in civilian courts, and a soldier who punched out an officer was only guilty of simple assault) and made sure it was only of year by year duration. Either approach was designed to make sure that Congress had the Army firmly under civilian control.

How you'd fit an air force into this I don't know -- but it did start out as a division of the army, and was such thru WWII. US Army Air Force, as I recall. The argument for separation was largely that the Army would neglect long range strategic missions (hitting the USSR) in favor of close range troop support, which would suggest it is more like a navy than an army. And if one wants to be REALLY textualist, they are "air ships" that became known as "aircraft" (OK, so tanks have hulls and hatches).

The issue would only come up if Congress wanted to fund the Air Force on more than a 2 year appropriation, which is not likely to occur in our lifetimes. They have enough trouble doing the budget one year at a time!
1.28.2007 10:29pm
Dave Hardy (mail) (www):
And in any event, if "army" was broad enough to include cavalrymen, artillery, and civilian contractors (who were used to move supplies and, until the mid 18th century, to move the artillery), it certainly seems broad enough to include the AF. The only question is whether the AF is subject to the 2 year requirement, which is equally problematic under textualism and under any other approach, and equally irrelevant given appropriations practices.
1.28.2007 10:36pm
Charles Thomas (mail) (www):
I am a textualist, though not an originalist. For my money it seems completely obvious- at the time of the framing, the sum total of all available military technology did not permit for air combat, so a clause of the Constitution allowing for an air force would have been absurd. However, the Constitution did empower the Congress to raise military forces for combat on the land and sea, or to put another way, on every square of Earth. The limitations on armies (i.e. the limitation on appropriations) had more to do with the fear of standing armies as objects of oppression against the American people themselves, and not with any desire to limit the military power of the United States (this is why the Navy has no such limitation- in 1789, sea power meant world power, and the Navy is far less likely to be used against the people- since you can't really sail to Cheyenne, Wyoming.

Inferring from this, it becomes apparent that 1) the Constitution permits Congress to wage war on land and sea, and, 2) that in 1789, warfare on land and sea represented the full extent of all available technology. Therefore, I believe it is obvious that the Constitution permits air forces because it is consistent with empowering Congress to take full advantage of all technology available and to wage war in every theatre possible. Had flight existed in 1789, the Constitution would have surely permitted an air force.
1.28.2007 11:29pm
It's very important to distinguish between decisions which quite properly bring clearly stated Constitutional requirements in line with modern technology, and decisions which constitutionalize judicial values having no obvious or necessary connection to textual requirements.

The fact that people don't physically "press" their publications, that their "papers and effects" are often stored on distant computers, as well as the fact that the military includes air (and space) components, that people practice religions unknown to the Framers, require the extension of constitutional protections to these obvious modern analogues of earlier technologies and practices in order for constitutional protections to have modern meaning. The fact that technological change issues are sometimes debatable is no problem; many issues in the law are sometimes debatable.

This is a completely separate issue from such questions as whether "Due Process of Law" prohibits restrictions on slavery, the working hours of bakers, or abortion. These are issues where there isn't the same straightforward (or at least highly arguable) analog between the constitutional text and modern practice as there is regarding the issue of changes in technology.
1.28.2007 11:37pm
A. Zarkov (mail):
The Marines (a part of the Navy) are also land forces. Why doesn’t that make them an “object(s) of oppression?” Now it’s true that unlike the Army, the Marines aren’t equipped for long marches over land because they are basically an amphibious force brought to the scene of battle by sea craft. But we can still get them close enough to Washington to overthrow the government.
1.29.2007 7:37am

An interesting argument, but I'm not sure it works. If "Armies" is broad enough to include an "air army," it would also be broad enough to include a "sea army," but that would make the power to "provide and maintain a Navy" superfluous.

Well, the Chinese Navy is officially the "Peoples' Liberation Army Navy," so there's nothing intrinsically impossible about a "Sea Army." That the Framers chose to make special provision for a Navy says nothing about whether other armies are permissible.
1.29.2007 8:02am
Benjamin Ross Hoffman (mail):
C'mon. From the previous discussion about the army as a potential instrument of oppression, it should be fairly obvious that a "sea army" does not qualify as an army. This is because it has no infantrymen. Infantrymen are really the force capable, if any force is, of taking a country by force. All other parts of our armed forces are either information-gatherers, support for infantry, or ways of projecting force directly (strategic air force and navy, for instance). Missiles, planes, boats, even tanks cannot take and hold a city.

Of course, this means that Marines are an army for Constitutional purposes.
1.29.2007 8:20am
Eli Rabett (www):
1 is not an argument against the Air Force as an independent service. It merely says that one could constitute an air arm of the army and navy. That concedes the point. 2. is an interpretation that extends the text of the constitution. It also concedes the point.

There were no planes at the time of the signing. You might make an argument for a hot air balloon force, but that is really what textualism and originalism are. Radically new things by their nature require interpretation or modification of the Constitution
1.29.2007 9:31am
Allen G:
One benefit of returning to a constitutionally-sound arrangement of it being part of the army is that we'd no longer have to listen to a song that tries to rhyme "US Air Force" with "hell of a roar", "ever to soar", and "followed by more".
1.29.2007 10:21am
Jason J. (mail):
It's kind of disingenuous to just cavalierly assert that the Air Force can be justified under the necessary and proper clause even if it's not itself w/in the enumerated powers, only because it is precisely the kind of argument that originalists routinely frown upon.

E.g., Scalia argues against Roe on the grounds that the right to an abortion isn't in the Constitution, "nor can it be logically deduced from the text of the Constitution," despite the fact that any reasonable reading of the 14th Amendment guarantees the right. If strict logical necessity is the test, certainly the power to create an Air Force independent of the Army &Navy cannot be "logically deduced" from any enumerated power.

Of course, the N&P clause and the 14th Amendment are different issues, but my point is that originalists like to mock any Constitutional interpretation that has a result they don't like by saying things like "I can't find the right to sodomy in the Constitution." E.g., Scalia's comment about the N&P clause: "the last, best hope of those who defend ultra vires congressional action."

However, when the strict, logical entailment approach would produce a result they DON'T like, they quite readily "find," e.g., the power to create an Air Force in the Constitution.
1.29.2007 12:59pm
A. Zarkov (mail):
“… despite the fact that any reasonable reading of the 14th Amendment guarantees the right. [abortion].”

Are you saying the 14th Amendment guarantees the right for abortion and not to vote? If it guaranteed both then why did we need the 19th Amendment?

The problem is in your use of the term “reasonable.”
1.30.2007 12:17pm