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.
So with this detail in mind: which funding rule applies to airplanes?
(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.)
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.
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.
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.
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!
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.
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.
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.
Of course, this means that Marines are an army for Constitutional purposes.
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
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.
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.”