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.