Commenters on my recent post about the constitutionality of the Air Force wonder whether there really are any serious constitutional law scholars who use the supposed unconstitutionality of the Air Force as an argument against originalism. A quick (and by no means comprehensive) Westlaw search reveals several examples. The use of the Air Force as an argument against originalism and textualism is not just a straw man. It's actually quite common.
Here's a sampling:
Samuel Issacharoff (Columbia Law School) [Update - Issacharoff has since moved to NYU]:
Take but one small and noncontroversial example of the problems of an aging text. Article I, Section 8 of the Constitution authorizes the Congress to provide and maintain armies and a navy, then quite explicitly defines this power as the ability to regulate "land and naval Forces." Does this make the creation and funding of an air force unconstitutional? No one that I am aware of has taken a fascination with either textualism or originalism so far as to demand the abolition of the air force, or its devolution to the states. And yet there is a difficult balance to be struck between what Hamilton disparagingly called "old parchments, or musty records" and some level of "obduracy" that constrains the exercise of governmental power.
Samuel Issacharoff, The Elusive Search for Constitutional Integrity, 57 Stanford L. Rev. 727, 727 (2004).
Erwin Chemerinsky (Duke Law School), one of the nation's most prominent constitutional law scholars:
...specific intent originalism often leads to absurd conclusions. If the Constitution's meaning is defined only by the drafters' specific views, the Constitution could not govern the modern world. Congress' power under article I to raise an Army and Navy could not include the Air Force because that was not the framers' specific intent.
Chemerinsky, The Vanishing Constitution, 103 Harvard L. Rev. 92, 103 (1989).
Robert N. Clinton (then of the University of Iowa Law School):
...in some instances the interpretive question posed either abviously is not historically resolvable or turns out, upon due investigation, not to be resolvable on the basis of the available historical materials. This statement often is true of issues surrounding the application of asserted normative constitutional principles to new technological innovations or to contexts radically different from situations the framers had in mind. For example, the advent of manned flight legitimately might have raised questions about whether the congressional powers in article I, section 8 '[t]o raise and support Armies' [FN244] and ' t o provide and maintain a Navy' encompassed the creation of an air force without the necessity of constitutional amendment. Putting the originalist interpretive methodology to an ultimate test, the appropriate inquiry in this case should be whether the framers used these terms, as well as the constitutional phrase 'land and naval Forces,' to encompass an air force. If an interpreter is truly and exclusively committed to originalism in constitutional interpretation, as some current commentators purport to be, then this question should only be answered by asking what the framers had in mind at the time they drafted and adopted the above-quoted phrases. Obviously, the delegates to the Philadelphia Convention and the state ratification conventions neither knew of nor considered manned flight! Thus, from an originalist perspective, no direct historical answer is possible to the precise question needing resolution.
Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of "This Constitution," 72 Iowa Law Review 1177, 1232 (1987).
And, as one of the commenters to my original post noted, Don Herzog (University of Michigan Law School), made a similar argument here in the course of a blog post criticizing originalism.
Some of these commentators raise the issue only against some forms of originalism (e.g. - Chemerinsky), rather than against all of them. In my view, however, even a fairly narrow form of textualism or originalism could justify the constitutionality of the Air Force. Even under the "specific intent" originalism discussed by Chemerinksy, the Air Force would be constitutional so long as the Framers intended (as they almost surely did) to allow the power to raise and regulate the Army and Navy to encompass weapons technologies unknown in their own day.
Obviously, law professors are far from the only people who bring up this issue. Students, nonacademic commentators, and others also often raise it. Bottom line: it's far from being just a straw man, and is well worth rebutting.
UPDATE: Some of those commenting on this post appear not to have read my original post on the constitutionality of the Air Force. There, I admitted that it's possible that an originalist or textualist interpretation of the Constitution would forbid an independent Air Force. But I also noted that it would surely permit an Air Force that was part of the Army and/or the Navy; as a result, we would not be left with the dangerous outcome of lacking military airpower altogether (the scenario that gives the antitextualist/antioriginalist argument most of its force). Furthermore, I argued that even an independent Air Force might be constitutional under the original/textualist meaning of the Necessary and Proper Clause.
Related Posts (on one page):
- Michael Rappaport on the Constitutionality of the Air Force:
- Who claims that Textualism and Originalism lead to the Conclusion that the Air Force is Unconstitutional?
- The Marines, the Coast Guard, and the Constitution:
- The Air Force and the Constitution:
Even if you think that's not a difficulty, I think you picked the easy case. Isn't the Air Force is a more complicated issue for textualist originalism than intentionalist originalism? It's harder to get an Air Force out of the words "land and naval forces" than to get one out of some vague intent.
I'd argue since the Const contains the phrase "provide for the common defense" at least twice, Art. 1 sec. 8 and the preamble, it takes precedence over the 'land and naval" clauses or at least provides a catch-all that covers the Air Force. It's just a thought.
Even if you think that's not a difficulty, I think you picked the easy case. Isn't the Air Force is a more complicated issue for textualist originalism than intentionalist originalism? It's harder to get an Air Force out of the words "land and naval forces" than to get one out of some vague intent.
I covered these points in my earlier post on the Air Force and the Constitution (linked in this one).
Are airborne troops 'land forces'? Are ICBM launchers 'land forces'? Artillery? Bullets??
Pedantry.
Maybe so. But superfluity on the one hand doesn't mean unconstitutionality on the other.
Airplanes are based either on land or on aircraft carriers, so the weaponry obviously is not a problem for any stripe of originalist.
But what about the creation of a third branch of the armed forces. The Constitution quite clearly limits the federal government to the creation of two specific branches. We are often told that the framers were wary of standing armies (hence, it is said, the second amendment), so why shouldn't their limitation on the number of service branches be strictly enforced?
If it's now entirely independent of the Army, it's not just a name change.
Except that it's not. The any theory of constitutional interpretation other than "it's what the Supreme Court said" has to come up with different results in certain cases.
Besides, if the constitution forbids something that we want, we can, and should, amend it. I note that no one gets their knickers in a bunch over amending the constitution to allow 18 year olds to vote.
The exercise of both national defense and international relations would justify the creation of a new branch of service, utilizing a technology roughly fifty years old at that time.
Now if we are to criticize the creation of new branches of government I would suggest we turn our eyes to the Department of Education [ and the wonders it has performed], and the then Department of Health, Education and Welfare under Eisenhower.
Unless we are merely cherry picking our favorite inconsistencies. Such questions can turn on concepts of federalism, the 9th &10th amendments and any other goodies to be conjured up.
Yes that allows for airplains to be used by the army and navy, but not for an independant Air Force.
What is sad about this whole arguement is it loses as important distiction in Anglo-American political thought of that period. The Army was thought to be highly dangerious to liberty as it could be used to oppress the people. The navy on the otherhand was at sea and thus thought less dangerious.
As for those who sarcasticly refer to an "Air Army" and "Land Navy" what the heck do they the think the U.S. Marine Corps is? It is still part of the Department of the Navy. The navy in fact has had land and serfice forces from the beginging. It has air forces today. The army had the Army Air Corps during the interwar period and WWII. This was argueably a better arrangement than the independant Air Force of the last 60 years. The independant Air Force has all to often left the army with out close air support. Look at the fate of the A-10 as only one example.
The establishment of the Marine Corps (neither a land army nor a navy) by the framers should lay to rest any question regarding original intent.
So I fail to see how it would be an "absurd conclusion" that a separate Air Force in not authorized by the constitution. Just because something was done as recently as 1947 and we have become accustomed to it does not mean it was done properly at the time. The various "independent agencies" come to mind.
That's kind of a silly point, but I make it to note that originalism isn't inflexible. An originalist would look to the original meaning of the text, which sometimes can only be understood by looking at its historical context. If the historical context doesn't provide a clue as to the meaning of the text - or if it would lead to an absurd result - the originalist may look elsewhwere for guidance. Originalism is way to attempt to construe a text objectively; it isn't a way to to construe a text absurdly.
So the argument as a critique of textualism doesn't work.
The 18th century army was a large body of semi-skilled men with basic arms under the command of skilled officers. It was perfectly reasonable to expect men to march off the farm with their own firearm to join the army. No maintenance needed.
The navy required construction and maintenance of large, expensive machines, with required supporting infrastructure and the skilled crews. You couldn't muster a viable navy in a few weeks starting with just a core of skilled officers, so you keep the organization even in peacetime.
So, to prevent adventurism, the standing army was restricted. To promote defense, the standing navy was allowed. That was the original idea.
Applied to the 21st century situation, the 18th century army has all but disappeared. It is now impossible to muster an army in a short time around a core of officers. Our land forces have big, expensive machines, extensive infrastructure, and are (nearly) all skilled specialists. You could argue that the military is just about all navy now, based on the original intent/understanding.
But personally, I'd rather see the constitution amended to fit a changing world, instead of simply reinterpreted.
BTW, if the proponents of originalism are not claiming that originalism outlaws the Air Force, then how is this NOT a straw man argument by those who dislike originalism? Or am I late to that party?
Thats the best argument I've seen so far.
Now I hear that he is not that way, and that interpretation is okay, so long as it's reasonable! But isn't that exactly the problem, that in the past Scalia &co. thought that the constitution was being interpreted not 'reasonably' but at all?For god's sake, everyone who intereprets anything thinks they are being 'reasonable'. That's such an elastic standard as to allow anything at all.
This all reminds me of arguments about the 1st Amendment, that it protects only the 'press' and therefore not tv, radio or the internet, according to originilists. Isn't this all the same thing?
As serious critics of "textualism" and "originalism" have shown, not just by offhand remarks, is that the *real* problem of textualism (in particular) and originalism is that a textual interpretation of a 4 page document for all of our Constitutional issues is not limiting but instead limitless. Originalism, depending on your interpretation, can either be the same, or it can be so utter restrictive that it would ban the administrative state, including the military administrative state. And certainly originalism would have serious qualms with the manner of permanent standing army that America has today, given its original association with a militia style of defense and a serious concern about the impact of a military on federalism (or does anyone remember the constitutional crisis that was Shay's Rebellion?)
Issacharoff, at least, seems to be using the air force to illustrate that textualists aren't necessarily hyperliteralists.
The analogy I'd draw is to originalists who note that no serious "living constitutionalist" believes that provision setting the minimum age of the president is open to interpretation in light of "evolving standards of decency." They're not responding to a serious argument by Larry Tribe that the number "35" is a moving target. Rather, they're pointing out that there is a limit to which living constitutionalists actually believe that the constitution is open to interpretation.
This isn't particularly apt. Let's say Congress outlawed 'poisoning' someone with a definition of something like "the intentional administration of a dangerous substance in order to cause serious bodily harm". Now at the time they believed that cyanide was harmless. In the year after the law was passed there was even a court case finding that cyanide was harmless under the act and not subject to being though of as a poison. If technology improves, and it is found that cyanide really is does cause serious bodily harm, neither textualism nor originalism requires that cyanide not be treated as a poison. This is because the question of whether or not cyanide causes serious bodily harm is a factual question.
Here's my gripe with originalism. People repeatedly rely on arguments like "as they almost surely did." That's an easy cop out. It can be used in any context whenever convenient, to dismiss the important disputed issue with a casual assertion.
In fact, many of the Framers were very anti-military. There was a strong effort to have the Constitution make illegal having a standing army. It's not at all clear that the Framers would have given a blank check for all future technologies. At least, it requires evidencing.
It differs because you would have to show, in the case of the particular provision at issue, that the Framers really did intend that kind of flexibility. In many cases, they wrote a provision precisely to ensure stability and continuity over time, even in the face of new social developments. That happens not to be true in the case of military technology, but is true in many other areas.
But it's a very different thing to change the meaning of the constitution and apply it differently to things which actually existed at the time of its ratification. Homosexuality existed in 1789. So did abortion. So did capital punishment. Those are not new things, and they themselves haven't changed all that much. What's changed is society's opinion of such things (and even there, I'd note that 18th century opinions of such matters were hardly unanimous). And society should express its changing opinion through the political process, not the judicial process.
Had there been airplanes in 1789, and the constitutional framers had made a choice to not have an air force, and to not provide for one in the constitution, then our changing opinion that one was now necessary would not be sufficient to allow its creation. But because airplanes are an entirely new thing, because technology has changed, rather than our opinions about its merits, it is appropriate.
They do... the Air National Guard.
1. IMO, the constitution doesn't limit the number of branches to one land and one sea. (The Marine Corps, which can function as a land army but is associated with the Navy, as other commenters has said, is proof of that. Not to mention the other uniformed services... of which there are actually seven in all, believe it or not. As a further counterexample, there's the U.S. Army Corps of Engineers, which is a military organization that has had substantial domestic responsibilities and semi-independant authority throughout our history.)
2. At the time of the founding, the only two kinds of war that were known to mankind were land war and sea war, so that's what the founders put in to the constitution, to cover everything that was possible at the time. It would be 113 years before the advent of powered flight. Had the airplane been in existence at the time, I'm certain the founders would have added air forces. (Not that different from extending the 4th amendment to covering telephone calls, really.)
3. The founders may not have trusted land forces, but then again, they probably didn't trust naval forces all that much either. (Naval forces do have their uses in domestic conflicts, too...) Heck, the Congress didn't get around to actually building a navy until 5 years after the Constitution was signed, and only after the Barbary pirates started messing with us.
4. The Air Force, in organization and traditions, is conspicuously patterned after the army: the same rank structure (at least among officers), the same division between active, reserve, and guard components, and the same limitations on action. Plus, at the end of the day, it's planes need to land somewhere on terra firma...
Therefore it's arguably one of the "armies" specifically mentioned in the Constitution.
It differs because you would have to show, in the case of the particular provision at issue, that the Framers really did intend that kind of flexibility. In many cases, they wrote a provision precisely to ensure stability and continuity over time, even in the face of new social developments. That happens not to be true in the case of military technology, but is true in many other areas.
Again, I have seen no evidence that (a) the Framers intended flexibility for military technology or (b) that they wrote a particular prevision to ensure stability and continuity over time, even in the face of new social developments.
I agree. I've seen a similar point asserted in one of the other threads, but it's just an ipse dixit with no reasoning. Perhaps someone who's an orginalist can explain why this is true.
The exercise would also be useful to identify those idiots who would actually oppose such an amendment. Clear out the rubish.
My argument was, from an original understanding perspective, was that the Founding Fathers allocated the whole of the military power at the time to Congress, which they split in twain between the Army and the Navy, which they funded differently because the Founders were afraid of standing armies.
Using property language, there were two sticks in the bundle (or species in the genus) called "military", and they gave both. Consequently, since they didn't retain any sticks, people understood it as allocating the entire military power. Moreover, flight wasn't even comprehended yet as a realistic possibility, let alone one with military repercussions.
Arguing that the Air Force is unconstitutional, to an Originalist, is just as ridiculous as saying that an Originalist doesn't believe that the First Amendment protects online speech (or printing presses, or megaphones, or movies, or television...)
It is true because the interaction between a Constitution and common law interpretation was understood very well by the framers.
I don't see the connection here. Perhaps you could expand on it?
Why is that absurd? Several Supreme Court Justices, sitting in their capacity as Circuit Justices, upheld the Alien and Sedition Acts, after all
My argument was, from an original understanding perspective, was that the Founding Fathers allocated the whole of the military power at the time to Congress, which they split in twain between the Army and the Navy, which they funded differently because the Founders were afraid of standing armies.
In other words, your argument is that the Framers intended a sort of unstated residual clause (dare I call it a "penumbra"?) encompassing all other military forces that might come into existence in future but that do not consititute an army or navy. That might well be accurate from an original intention (or original understanding) point of view, but it's more of an originalist than a textualist argument.
Using property ideas of a metaphor, the Founders gave Congress the authority to raise and support embodiments of the entire military power. Based on the technology of the time, they only had 2 words for it, based on the distinction between land and sea: Army and Navy. So, they gave all (i.e., both) sticks in the bundle called "raise and support (armed forces)", or, if you prefer, gave all the "armed forces" sticks in the total bundle of rights to Congress.
Additional support for this is in the Commander-in-Chief clause, Art. II, S.2, cl. 1: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." So, basically, the Prez is the head of all the armed forces serving the United States, including state militia under certain circumstances. Is anybody suggesting anything even more ridiculous than the cited profs -- i.e., that the President is NOT the commander in chief of the Air Force or Marines or Coast Guard?
It gives an absurd result for the Constitution to allow independent armed forces (however created) not subject to Presidential command. Given the familiarity of the founders with the Parliament-Royalty military struggles in England less than 150 years earlier (1642-49 -- Charles I, Cromwell, Charles II), they would not have allowed Congress to command any armed forces. Reading those three clauses in conjunction, there's no historically plausible and logical way to read the "army and navy" clauses to allocate anything less than the totality of the power to create armed forces.
If it helps, think of it as a language problem -- there was no way to describe anything a regular military force other than "army" or "navy"; "armed forces" would not be specific enough I'll go pull my copy of Jefferson's notes on the constitutional convention tonight and see if there's anything specific about those clauses in there.
You mean Madison's Notes. They're available on line here.
"In many cases, they wrote a provision precisely to ensure stability and continuity over time, even in the face of new social developments. That happens not to be true in the case of military technology, but is true in many other areas."
My question is: How do you know that? And how do you identify which provisions of the Constitution are "static" and which are "dynamic" - in the sense to accomodate social and technological changes?
In their separate provisions of an Army and Navy, our Framers had some particular constitutional concerns in mind about the protection of domestic liberty. There wasn't a catchall "defense forces," even though the Federal government is to "provide for the common defense."
So which kind should the Air Force be? It relies on specialized training that takes time, which might argue for a "standing" Air Force. It can't hold territory well (also like the Navy), but it can attack anywhere (like the Army). So it would be a more blunt, less practical, threat to domestic liberty than the Army.
The Air Force was perfectly Constitutional (in my mind) when it was part of the Army. I say, let's pass an amendment to allow it to properly exist on its own. I think a standing Air Force is, in practice, acceptable from the Framer's point of view.
If this constitutes the singularly most applicable argument against textualism then textualist have nothing to fear.
The debate is ridiculous, vapid and without value.
If nothing else "To raise and support Armies" is more than sufficient because the USAF is nothing more than an "Armies" of aircraft.
If nothing else "To make Rules for the Government and Regulation of the land and naval Forces;" is more than sufficient because the USAF is not independent of either and is intimately bound by both.
Nor is the USAF actually independent in any way as it is governed equally by the POTUS, Sec Def and Joint Chiefs.
...
Frankly I'm reminded of atheists attacking Christians by misreading and misinterpreting Scripture with this silliness.
yeah, not to mention all those ridiculous Christians who misread and misinterpret Scripture and having the gall to form their own breakoff cults and religions....
The actual text of article I section 8 states
"To raise and support Armies", emphasis on the plural
If we want to argue about very technical semantic distinctions about what the constitutions says, ie that the air force is not an "army", then we need to be equally precise in reading the document.
Or a high speed printing press, photography, movies, sound recording, etc.
Actually, "1st amendment" technologies are far more different now than 2nd amendment technologies. Repeaters predate the revolutionary war. In fact, one of British forces was armed with breech loaders (and commanded by a Scot who was trying to convince the British army that more modern gun tech was a good idea). Puckle had described something close to a Gatling gun long before.
The guns known during the revolutionary war were a lot more advanced than you'll see watching Daniel Boone on the Disney Channel.
>They do... the Air National Guard.
No, they don't. The various national guards are basically branches of the federal military. The feds own the weapons and in the event of a conflict between the state and the president, the president's orders take precedence.
A counter suggestion, go back to Daily Kos, where both your own rants, uncalled for personal attacks, limited reading comprehension, and general all around nastiness, fit in perfectly.
As a former F111 avionics technician, I can certainly confirm this. It took about 100 men and women days of work to get a two-man aircraft into the air for a few hours. If that makes the Air Force something different than an army, then the infantry should be forbidden from boosting a few men up into trees lest they turn into something other than the Army...
This approach has the added benefit of maintaining a rule of law, and killing off the stupid idea of a living constitution that evolves with new meaning when 5 of 9 say so.
The document can be changed, and should be from time to time, and we should be more afraid of its disuse than a more frequently used amendment process.