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.

Who claims that Textualism and Originalism lead to the Conclusion that the Air Force is Unconstitutional?

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.

Michael Rappaport on the Constitutionality of the Air Force:

University of San Diego law professor Michael Rappaport, a prominent originalist scholar, has two interesting posts (see here and here) building on my earlier discussion of the constitutionality of the Air Force under textualist and originalist theories of constitutional interpretation.

I agree with most of Michael's points, particularly his argument that critics of originalism (and also some defenders) often have a flawed and oversimplified view of what originalist constitutional interpretation entails. As I explained in this review of Justice Breyer's recent book on constitutional interpretation, such misunderstandings occur even (perhaps especially) at the Highest Court in the Land.

However, I think that an independent Air Force (as opposed to one that is part of the Army or the Navy) is more difficult to justify on textualist and originalist grounds than Michael suggests. Here's the relevant part of his argument:

To focus on the independence question, lets make the following assumption: The use of airplanes and other Air Force equipment would be constitutional if used by the Navy. That is, the term Navy in the Constitution does not preclude the use of this equipment. (This assumption must hold for the use of Air Force equipment to be constitutional as part of the Navy.)

Consider the following situation. Congress decides that instead of creating a single Department of the Navy, with a single Secretary of the Navy, it creates two departments: Navy Department A and Navy Department B. They are independent of one another, but both are under the control of the Secretary of Defense and the President. Would this be constitutional? Of course. There is nothing in the Constitution that requires a single department.....

Now, add one more wrinkle: Congress has Navy A use different equipment than Navy B. This is also constitutional. There is no requirement that they be identical.

Finally, the last step: Congress changes the names from Navy A and Navy B to Navy and Air Force. This is obviously constitutional, since there is no requirement that any specific name be used. Put differently, that we call something the Air Force as a statutory matter does not decide the constitutional question of whether it is a Navy.

What this argument shows is that the independence of the Air Force is irrelevant.

To my mind, there is an important textualist objection to this argument: it renders Congress' power "to raise and support Armies" redundant. After all, if an independent Air Force can be justified by, in effect, considering it a separate Navy, why can't an independent Army be justified the same way? The issue is not so much whether we "call something the Air Force as a statutory matter," but whether the military service in question is primarily focused on land (the Army) or sea (the Navy) power or whether it has a different focus entirely. Otherwise, the power to establish an Army would be redundant, and Congress could easily circumvent the constitutional requirement that Army appropriations cannot be authorized for more than two years at a time simply by calling all federal military forces a part of the Navy. Airpower incorporated into the Army or the Navy as an adjunct to their efforts to wage war on land and sea does not raise the same sorts of constitutional issues.

To briefly reiterate the points made in my earlier post, I believe that airpower incorporated into the command structure of the Army and Navy is clearly constitutional under textualism and originalism. This dispels the nightmare scenario of having our armed forces deprived of air cover altogether, from which the anti-originalist use of the Air Force example derives most of its force. I also believe that even an independent Air Force might be constitutional on the basis of the Necessary and Proper Clause (combined with Congress' Article I powers). However, the originalist/textualist case for an independent Air Force is more difficult to make than Michael's argument suggests.

UPDATE: Michael responds to this post here. His reply is difficult to summarize, but if I understand it correctly, the key claim is that an independent Air Force is permissible under the text of Article I so long as the "powers" it exercises can legitimately be considered either "Army" or "Navy" powers. To the extent that "Army" and "Navy" powers are different from each other, Michael contends that his argument also avoids making the power to raise Armies redundant. There is a subtle shift here, or at least clarification, of Michael's original argument which focused not on "powers" but on equipment. The focus on power is to my mind, more appropriate and keeps Michael from having to argue that using airplanes to engage in maritime warfare (which is indeed a "Navy power") is the same thing as using them for other purposes. But this revised or clarified argument still falls short of justifying an independent Air Force. A modern Air Force does things that don't fit neatly into either the Army or Navy box, such as strategic bombing, which is not directly linked to either ground or air operations. If, on the other hand, Michael wants to define Army and/or Navy powers so broadly that Air Force missions such as strategic bombing can be shoehorned into one of the two categories, then at least one of them would again become redundant. Almost any Army operation could then be described as supporting the Navy or vice versa.