Conceptually Important Constitutional Law Questions That Aren't Often Asked:

Michael Froomkin has a great list; here's a sample:

Around the country, law students who study Constitutional Law in the Fall sone will be studying for their finals; not long afterwards, those who study it in Spring will start up their course. So it's as good a time as any to list the questions that, back in the days I used teach Constitutional Law I, I used to ask my students during the first week of class.

Some of these questions are very easy (although even in those cases, the answers may surprise you); some only appear to be. Others are inspired by real and difficult cases; a few illustrate doctrines of constitutional interpretation, some more controversial than others. And perhaps one or two don't have answers, or at least not answers that everyone agrees to. Which is remarkably odd given the simplicity of most of these questions....

Read The US Constitution, and the Amendments then take the quiz...

1. What clause, if any, of the Constitution permits Congress to establish an air force? . . .

3. May Congress pass secret laws? If so, may (must?) the courts enforce them? . . .

7. What is "corruption of blood," and why do we care? (you did look it up, didn't you?) . . .

9. Can a person simultaneously be a Member of the House of Representatives and hold office in the Cabinet? . . .

11. Is there anything in the federal constitution that would prevent Congress from being chosen by a lottery among all registered voters?

12. Can Generals be impeached? . . .

18. Could Congress validly give the Chief Justice the power to appoint the Attorney General? . . .

The answer to the first question is here (though for the record I think that what Michael derides as the "wimpish" answer is actually perfectly fine, though other answers can also reinforce it).

NaG (mail):
Remember that, originally, the Air Force was established as a branch of the Army. So the issue appears to be more an issue of budgeting (does the Air Force have its own ledger or not) than anything.
11.18.2005 12:49pm
magoo (mail):
I find it curious that virtually everyone can read “land or naval forces” as used in the Fifth Amendment to include the Air Force, but some people balk at reading the Interstate Commerce Clause to include regulation of activity that, in the aggregate, substantially affects interstate commerce. I find both jumps relatively easy as an interpretive matter, but the Commerce Clause jump far easier given the constitutional text.
11.18.2005 1:02pm
Stephen M (Ethesis) (www):
What is "corruption of blood," and why do we care? (you did look it up, didn't you?) . .

Because there is no joint criminal liability on family lines, irrespective of involvement or knowledge. One of the few that is easy to remember without looking up.
11.18.2005 1:30pm
Dick King:
Magoo, the situations are different. The people who think the Interstate Commerce Clause is being overstretched are not complaining that some new kind of national business activity that does not involve goods on barges is being regulated. If it is the case, for example, that essentially all futures contracts are sold back to the producer before delivery so only electronic impulses cross state lines, most such people would not therefore conclude that the futures markets cannot constitutionally be regulated.

What they complain about is the extension of this clause to cover intrinsically noncommercial activity because if you squint hard enough they might affect someone's purchases.

Of course those who think that the second amendment only applies to muskets, or that the first amendment does not apply to internet communications, presumably don't believe section 1.8 justifies the government maintaining an air force.

11.18.2005 1:45pm
John Jenkins (mail):
That doesn't appear only in the 5th Amendment, and that's not the part of the Constitution that would determine whether the Air Force were unconstitutional, the question is whether Article I, § 8 permits the establishment of an Air Force.

The logic you're referring to re: the commerce clause is the rationale of Wickard (and Raich). The reason it doesn't necessarily make sense is that Congress is attempting to regulate the LACK of commerce, rather than commerce. If I grow X and it never leaves my property, how can it ever be properly regulated as interstate commerce? The argument is that if everyone did that, then there would be no commerce at all in X (at the far end of the argument) which affects interstate commerce. Given that the power to regulate does not include the power to COMPEL commerce (as opposed to prohibit), I think this logic fails.

Finally, re the Air Force, the definition of army at the time would have been a "land-based fighting force" or something to that effect, which the Air Force most certainly qualifies as. You may as well ask whether the Marines are constitutional (clearly they are an army, but not "the Army." Given that the text is "raise and support armies" there is no real issue here. It's just trivia.
11.18.2005 1:47pm
Maybe this is why they used Naval ranks on Star Trek! When Congress helped establish the Starfleet Command it was ruled unconstitutional, so they just made it a division of the Navy. Of course, whether it's the Starfleet or the Air Force, couldn't Congress just fund both under the Spending Clause?
11.18.2005 2:00pm
John Armstrong (mail):
John Jenkins:
I think you're still cutting a bit literally with the "land-based" clause. Yes, the Air Force is "land-based" because eventually planes have to come down. But let's imagine that the U.S. manages to come up with a levitation technology and builds a giant floating platform megacity halfway between CA and HI. Are you asserting that since this isn't "land" that we can't place a military base on it?

No, the answer is that the Framers didn't say "air force" because it would be over a hundred years before such a thing were even conceivable. An ultrastrict constructionist is a man who faults the Framers for not knowing what the future would hold and writing the Constitution accordingly. A reasonable man looks at the document and realizes that if the Framers knew flying machines (and airborne warfare) would be possible, they'd have included a clause like that as well.
11.18.2005 2:04pm
magoo (mail):
There's a lot to say in response, but I'll limit it to this. 1) I doubt very much that "regulate" ever has been understood to means only prohibit. 2) Call up the Air Force and ask to speak to someone in the army, or the office of "land forces," or the person in charge of our "land-based fighting forces." They'll say you have the wrong number. 3) The textual issue is more interesting under the 5th Amendment than under Article I; that's why my post focused on it. You don't get the interpretive boost from "raise and support".
11.18.2005 2:07pm
Shelby (mail):
The problem with drawing a parallel between the Commerce Clause and the Fifth Amendment is that the Amendment serves to protect against government intrusion (limiting its power), while the Commerce Clause serves to establish government power. That structural distinction makes it futile to compare them.
11.18.2005 2:25pm
Is there not something in there about an enumerated responsibility of the federal govt, is to provide for our common defense? If we can 'create' a federal cabinet for education, than surly we can create an airforce to expand our means to secure our common defense
11.18.2005 2:30pm
John Jenkins,
I would really hesitate to call the Marines an "Army". They are a subset of the naval forces (and have been since the Revolution) though even there I would not point it out to a Marine -- I'm not one, just known a few in my days.

What will be real interesting is a space-based fleet. Is a moon or Mars garrison a "land based" force? What about interstellar ships?
11.18.2005 2:34pm
I don't understand why anyone cares about the Air Force point. The strictest of strict constructionists almost always concede the "technology" hypos when pressed. 1787 was long before the Wright Brothers, and land and sea was a comprehensive listing of where the military could go. No reasonable person would argue that the Framers meant affirmatively to prohibit military in aircraft.

Agreeing that the air force is constitutional doesn't mean that suddenly everyone's a living constitution subscriber.
11.18.2005 2:39pm
NaG (mail):
"Common defense" is not an enumerated power.

What I'd like to know is: If the U.S. government decided it was very important to establish a separate Air Force, why not simply pass a constitutional amendment enabling it to do so? Why must we perform the embarrasing jig of convincing ourselves that provisions to establish an "Army" and a "Navy" also includes forces that are clearly not armies or navies?
11.18.2005 2:41pm
D Lacey (mail):
If everyone agrees so readily on the technology issues, why have courts so obviously determined that broadcast media (radio, television, both considered as broadcasted rather than wired) are subject to far stricter regulation than the constitution would ever allow to press and speech?
11.18.2005 2:45pm
Mary Katherine Day-Petrano (mail):
I have three more interesting questions under this subject:

1. Why does it violate Art. III of the Constitution to assign undue hardship student loan proceedings involving the disabled to Art. I bankruptcy courts without right to Art. III review in forma pauperis?

2. Why does it violate the Constitution to examine all bar examinees on all other types of discrimination under the subject of Constitutional Law, but not disability discrimination?

3. Why does it violate the Congress' delegation under Rules Enabling Act and due process for the Supreme Court to be authorized to promulgate rules that discriminate against access to the Supreme Court for review by the disabled?
11.18.2005 2:55pm
Justin (mail):
The third is wimpish because it would expand the spending clause to infinity by simply putting whatever expenditure you do not like under the technicality of the Army (or, for instance, call the gun free school zones act an "income tax" and be done with it).
11.18.2005 3:37pm

Perhaps you think that people cannot interpret the constitution as supporting tank battalions? Don't be ridiculous, the equipment used by the "army" is irrelevant. Tanks, Planes, Armored Transport... you're scraping at a false dichotomy.

Moreover, the air force in the united states is PRIMARILY associated with strategic nuclear weapons. Isn't it funny how both the Army and the Navy have their own airplanes.

That congress choose to organize the army into two units, one given responsibility for the bomb that is not supposed to be used tactically and one given responsibility for tactical operations.
11.18.2005 3:41pm
No one has discussed Question 9.
If the answer is "no," then how can [could?] it be possible to serve on the Supreme Court and in the Cabinet simultaneously?
11.18.2005 4:07pm
Sebastianguy99 (mail):
I would say that the answer to #9 would be yes. There doesn't appear to be anything in the Constitution that would require the nominated Representative to resign due to being nominated. As long as the President and the Senate(via confirmation) agree, then the Representative could hold both offices.

That said, I think it would be a matter of state law, rather than federal, that would control in this situation. Most state constitutions give the govenor appointment power if the Congressperson vacates the position. So the answer would most likely turn on if state law would allow a Representative to hold both positions.
11.18.2005 4:50pm
John Jenkins (mail):
The answer to 9 is no. Article I, § 6, cl.2 : "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

There is no Constitutional limitation on serving on the Court and in the cabinet that I recall offhand, but I'd be willing to bet there is a statutory one.

Every one of those items you're all talking about is intitally constructed or takes off from the ground, so you're not getting around my characterization. My point was that the definitions subsumed all forms of military organization to that point, so there is no reason to believe otherwise. The broadest definition of "army" would include everyone but the navy (yes even the Marines who, though not the Army are certainly an army, despite their chosen mode of transportation).


1. It doesn't. Congress can make such rules regarding bankruptcy as it sees fit. Art 1; § 8, cl. 4.

2. Your personal hobbyhorses aren't necessarily unconstitutional. Disability discrimination is statutory, not constitutinal, and so is not a proper subject for state bar exams testing on constitutional law.

3. This is nonsensical. Anyone can file a cert petition, disabled or otherwise. Again, your hobbyhorses aren't legal issues just because they're your hobbyhorses.
11.18.2005 4:58pm
John Jenkins (mail):
Oh, and establishing a common defese is an enumerated power: Art I, § 8, cl. 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States
11.18.2005 5:01pm
Joshua (mail):
Cecilius wrote:
Maybe this is why they used Naval ranks on Star Trek! When Congress helped establish the Starfleet Command it was ruled unconstitutional, so they just made it a division of the Navy.
I take it you never watched Star Trek Enterprise (the prequel series that just ended last season), which depicts Starfleet in its formative years (about 150 years from now). Short version: It wasn't the U.S. Congress that established Starfleet, it was the "united Earth" government of that time period. Eventually it would be subsumed into the Federation when it was founded. It's unclear whether the United States, or any other present-day nation-state, even still exists as such in the Trek universe at the time Starfleet was/will be founded.
11.18.2005 5:28pm
Per Son:

Read the whole clause. Provide for the common Defence is modified by "power to lay and collect . . ." This clause only pertains to funding and not establishing the character of the defence. Moreover, this does indicate whether Defence is militarily, economically, or other.
11.18.2005 5:29pm
statfan (mail):
It says Congress has the power to raise armies. That seems to me to mean that they can build an army on the ground, and then raise it into the air. ;)
11.18.2005 5:34pm
Fredrik Nyman (mail):
These questions are quite excellent. Maybe the conspiracy should consider making it a weekly feature to provide answers to this kind of questions, presumably submitted by curious non-lawyers like me.

Until Michael posts answers to question #3, could someone here please answer it?

My best, non-lawyer, guess is that secret laws violate the due process clause to the extent that you can be prosecuted under them, or otherwise held legally liable for violating them. If that is the correct answer, there presumably wouldn't be a constitutional problem with (say) congress' annual defense appropriations being classified. But is that the correct answer?

And regardless of what the correct answer is, should unpublished judicial opinions be considered "secret law"? My thinking here is that they should, to the extent that they set precedent and are binding on the opining court. Do they set precedent and are they binding; that is, do courts ever cite unpublished opinions?
11.18.2005 5:34pm
John Jenkins (mail):
PerSon, unless your argument is that they can raise money to provide for the common defense but can't provide for the common defense, yours is a distinction without a difference. Making the common defense an indirect object of collecting taxes makes it a power enumerated in the Constitution. To argue that you can collect taxes for X but that you can't do X is seemingly nonsensical.

COURTS typically do not cite unpublished law, though attorneys sometimes do, but they must provide a copy to the court and the opposing party AND the unpublished opinions are not binding on any court, but they are persuasive in that they give the lower court judge an idea of how the higher court might rule on the issue if the unpublished opinion is recent enough.

Number 3 seems tough to me. As to criminal laws, a defendant must know what is prohibited before he can be convicted and a law that no one knows exists certainly doesn't provide any sort of notice. Congress may not secretly pass laws because the Constitution requires that votes be recorded in the Journal of the body voting. Any law that was secret would definitely result in a violation of due process were the law ever enforced against someone to take life, liberty, or property (i.e. civil penalties) in the non-criminal context. Appropriations must be made public as a matter of Constitutional law. See Art I. § 9.
11.18.2005 5:49pm
BruceM (mail) (www):
Why not just amend the Constitution to allow for an air force so we don't have to stretch the meaning of a phrase? I don't think there would be much opposition to such an amendment.

Didn't Congress pass a secret law (or was it an FAA regulation) requiring travelers show ID before being able to board a plane? I recall someone suing over the secret nature of the law/reg not too long ago.
11.18.2005 5:52pm
frankcross (mail):
Of course you can interpret the Constitution to authorize an Air Force, if you want to. You can interpret it to allow anything that you want. And, interestingly enough, you interpret it to disallow those things you don't want. People on this blog prove that all the time.
11.18.2005 6:22pm
Alex R (mail):
I too am intrigued most by question #3... John Jenkins commented "Congress may not secretly pass laws because the Constitution requires that votes be recorded in the Journal of the body voting," but Article I, sec 9 explicitly allows proceedings to be secret and only requires the votes to be recorded if enough members request it.
Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
Due process does require a *criminal defendant* to be made aware of the charges, but I'm not sure that it says anything about what happens before one becomes a defendant...
11.18.2005 6:30pm
Per Son:

I disagree. That is the Tax and Spending Clause. The clause which discusses the army and navy is the money clause. Btw, I believe the Air Force is constitutional, but do not see common defense as an enumerated power.

I can get slammed for saying this, but common defense is inherent in the nature of the sovereign - but that is too close to an unenumerated power.
11.18.2005 6:39pm
John Jenkins (mail):
It's also sometimes called the "General Welfare" clause. Naming it doesn't change its character. I think you'd be hard pressed to argue that a charter that was expressly written to "provide for the Common Defence" and permitted taxing "to provide for the Common Defence" actually did not permit the government constituted thereunder to "provide for the Common Defence."

The enumerated power of raising armies would also imply the power to provide for the common defense (otherwise what the heck do you need an army for?). I just don't see a way to interpret the document, giving effect to all of its provisions, that doesn't allow for providing a common defense.

As to "unenumerated powers" well, that's another bag of worms, but the question here is not whether the federal government has the power to do something, but whether the means by which they are doing it is "necessary and proper" which we all know means "convenient."

For Congress to do something for a reason unrelated to its enumerated powers should be unconstitutional, but the question there will always be the relation question, i.e. how attenuated can it be (see Wickard v. Filburn).
11.18.2005 6:50pm
Jay Louis (mail):
18. Could Congress validly give the Chief Justice the power to appoint the Attorney General?

This is an interesting question. Art. II, Sect. 2, clause 2 of the Constitution states:

"He [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

The language of this Advice and Consent clause would appear to indicate that it would not be constitutional for Congress to pass a law giving the power to appoint the Attorney General to the Chief Justice of the United States. The phrasing of the clause implies that "other public Ministers and Consuls" are to be distinguished from "all other Officers of the United States"; the Attorney General would likely be considered a "public Minister," while the "inferior Officers" would be equivalent to "all other Officers of the United States." More importantly and compellingly, the Attorney General, as head of the Justice Department and member of the Cabinet, would be one of "the Heads of Departments" to which Congress could grant the power of "Appointment of such inferior Officers." That would imply that the Attorney General would not be one of the "inferior Officers" covered under the last part of II.2.2, thus indicating that Congress would not be able to constitutionally give the Chief Justice the power to appoint the Attorney General. (II.2.2 does appear to indicate, however, that Congress could pass a law granting the Chief Justice the power to appoint lower level Cabinet officials, such as the Solicitor General, or for that matter assistant secretaries in any Cabinet department.)
11.18.2005 7:01pm
Splunge (mail):
Doesn't Congress pass secret "laws" all the time? I mean, if they establish a black agency and direct it to do X and Y, have a staff of Z, and appropriate for its use a budget T, don't all those actions have the force and general character of law? They're not laws about crimes, to be sure, but most of what Congress does is not about crimes anyway. I'd say it's mostly about spending money, and they spend money secretly all the time.

If they *did* pass a secret law on crime, I don't see how the Fifth Amendment can help. You can certainly be indicted and informed of the charges against you in secret. I mean, the law won't be secret to *you* anymore, but it will still be secret to the general public.

Maybe a prohibition is found in the barring of ex post facto laws? I mean, isn't the operational definition of an ex post facto law a law that cannot possibly, even theoretically, be known by people before they commit the action it bans? That is to say, suppose Congress weirded out and passed a law completely in camera on Friday, swore everyone to utter deep dark secrecy until Monday, and then on Monday revealed the act. Wouldn't we be logically justified in saying that the law was, in effect, passed on Monday? Hence if someone violated its provisions on Saturday, they could not be charged, inasmuch as the law did not, in effect, exist until Monday.

This is sort of like Orin's argument that it's the viewing by human eyes that constitutes "seizure" of computer-file evidence, not the possession of the disk on which it's stored. In essence we argue that a law hermetically sealed up so it is known only to lawmakers isn't really a law at all -- it only becomes one when it's promulgated, however inefficiently or slightly, to citizens.
11.18.2005 7:08pm
Cornellian (mail):
Assume the Department of Education is unconstitutional (not within the Commerce Clause and not within any other enumerated federal power).

Could Congress make the Dept. of Education constitutional by turning its employees into Army officers and enlisted personnel and calling it the Army Corp of Educational Engineers?
11.18.2005 7:25pm
John Jenkins (mail):
Splunge, that's just incorrect as applied to criminal law. The rule is that the defendant must have been able to ascertain that his conduct was illegal (which is where we get the void for vagueness doctrine).

"It is well established that a conviction under a criminal enactment which does not give adequate notice that the conduct charged is prohibited is violative of due process." Wright v. Georgia, 373 U.S. 284, 293 (1963). It seems abundantly clear that a law of which there was no notice does not "give adequate notice that the conduct charged is prohibited" and is therefore unconstitutional.
11.18.2005 8:16pm
I agree with those who say that the Air Force is constitutional because it's an army, albeit one that flies through the air, and Congress has the power to "raise and support armies."

However, I disagree with those who say that the Framers couldn't have conceived of an air force. The Montgolfier brothers had invented the manned hot air balloon in 1783, not long before the Constitution was written. If the First Congress had wanted to establish an army that traveled by balloon instead of on land, that might have been considered impractical at the time but it probably wouldn't have been considered unconstitutional.
11.18.2005 9:47pm
Jam (mail):
Historically marines were an "army" within the navy and technically navy.

Here is another question:

Can the SCOTUS invalidate an "amendment" not properly ratified according to Article 5 but "certified" by the Secretary of State?
11.18.2005 10:23pm
Jam (mail):
Why is the Army Corps of Engineers not a violation of Posse Commitatus?
11.18.2005 10:24pm
John Jenkins (mail):
The Army Corps of Engineers doesn't violate posse comitatus because it acts under express congressional authority and the posse comitatus act exempts actions taken by the armed forces that are permitted by the Constitution or an Act of congress. 18 U.S.C. § 1385.

Joshua, if someone were able to claim standing and were able to challenge the ratification of an amendment (i.e. only 38 states ratified it) and the amendment were ratified impermissibly (other than by the state's legislature or a convention), then SCOTUS could probably invalidate it, or at the very least rule that it were not yet effective. If 39 or more states had ratified it, then the court would dismiss the case as moot.
11.18.2005 10:56pm
LawyerDad (mail):
As to Question 9-
a similar issue is before the Court of Appeals for the Armed Forces, an Article I court that sits atop the military courts-martial system. And it's an Air Force case! (How's that for continuity??) See post #1 and post #2 from JAG Central
11.18.2005 11:08pm
Tim Hamilton (mail) (www):
I have thought about the Constitutionality of the Air Force for some time. Although I'm a big fan of the Air Force, I have to say that it is unconstitutional to have it as a separate force. Subordinate to the Army, as the Army Air Corps, was permissible, of course. The reason I believe it is not permitted on its own is that the Army &Navy are listed in separate clauses (Art. I, Sec. 8, clauses 12 &13), and the Army is restricted in a way the Navy isn't. The Army isn't restricted to two-years of funding at a time for no reason. Our founding fathers regarded standing armies as threats to liberty. They wanted the Congress to have to approve of an army on a regular basis, so the President would not be able to rule like a king and oppress the people. But the Navy can't occupy territory, as an army can. The Navy is not the threat to domestic liberty that an army could be.

So our Founding Fathers didn't simply mean "military," collectively and without distinctions. They provided separate rules for armies and for the Navy. If you believe the Air Force is inherently included, then which of these is it? An Army in the air, or a Navy in the air?

Incidentally, if it's just the Army, but in the air, then why wouldn't the Founding Fathers have regarded the Navy as just the Army, but in the sea?

Let's pass an amendment and Constitutionalize the Air Force!
11.18.2005 11:21pm
TJ (mail):
Tim Hamilton,

an air force can't occupy ground like an army, either.
11.19.2005 1:07am
Jam (mail):
John Jenkins, thanks for your response.

I still not sure about your Article 5 violation.

Which copy of the uSC does the SCOTUS reads as the official document?

When is the [old] official document replaced by the new official copy?

What is the exact mechanism of swapping official copies?

Is there such thing as an official uSC copy?

Does SCOTUS even reads the uSC anyways?
11.19.2005 8:56am
Jam (mail):
Re: Army Corps of Engineer

It bothers me that the military has authority over the civilian.
11.19.2005 8:58am
Bruce Hayden (mail) (www):
The Air Force can't occupy ground - but the Marines can and do on a regular basis. So, maybe by that distinction, because they do occupy ground and are part of the Navy, they are unconstitutional? (Note, in particular, all those famous Marine battles of WWII - and don't we still occupy some of that territory, including, for example, parts of Okinowa?)
11.19.2005 11:09am
Bruce Hayden (mail) (www):
This sort of thing is one of the reasons that Froomkin remains one of the most amazing people I have ever met intellectually. Simple questions. Very difficult answers.
11.19.2005 11:13am
Bruce Hayden (mail) (www):
My take on secret laws is that, to some extent, they are passed all the time. For good reason, much of Congress doesn't know the contents of the Black Programs passed every year. To them, and to most of the public, they are, indeed, a black hole, into which funding is poured on a routine basis.

That said, it is a lot different for laws that you could go to jail for. There, I think Due Process would prevent prosecution. You can't be held to violate a law you don't have a reasonable expectation of knowing about. And if it is secret, then you won't. (I think we may see this litigated some in the future with cities passing, for example, photo-radar laws that significantly modify state law - can the drivers really be expected to know the unique laws of all the cities they can, and often do, traverse in one day?)
11.19.2005 11:22am
Bruce Hayden (mail) (www):
Looking at Michael Froomkin's blog, I do see that he has an answer for the Air Force question. Apparently, in Laird v. Tatum 408 U.S. 1 (1972), The Air Force is "comprehended in the constitutional term 'armies.'"
11.19.2005 11:30am
Siona Sthrunch (mail):
Can't we get an Air Force out of Necessary and Proper?
11.19.2005 12:08pm
Tim Hamilton (mail) (www):
TJ &Bruce Hayden--
Good points on ground occupation. In comparing the Air Force to the Navy in terms of not being able to occupy ground (let's ignore the Marines, briefly), I agree. The Air Force is analogous to the Navy that way, and so is not the potential threat to liberty that an army could be. Of course, it can attack ground targets inland, where the Navy cannot, but it still can't hold ground. If we were to pass an Air Force amendment today, it should be written as the Navy clause is (no time restrictions on funding).
Now, as to the Marines. Yes, that causes a problem with my premise that the Navy can't hold territory. And we've had Marines from the beginning--I think even before the Declaration of Independence, right? Now, they've always been small in number, compared to the Army. How far inland are they ever sent, I wonder? They were employed in the Pacific Theater of WWII because these were islands--the Marines are part of the Navy, and you need Navy ships &planes to get them from one place to another. So they were better suited to the ground fighting in the Pacific than the Army was.
What about in Iraq? How far in did the Marines go?
Anyway, the Marines could, in principle, be a threat to domestic liberty in the way an army can. So limiting only the Army to a 2-year time-limit isn't a perfect prophylactic.
On a related note--I wonder if one additional reason for not restricting the Navy the way the Army is, is that the Navy's ships can't take being ignored, untended, for indefinite amounts of time, in-between periods of war. A citizen-army of the old kind was often raised for a particular fight, then disbanded afterwards. Arms could be stored in armories without needing constant maintenance. Just a guard. But an old wooden ship couldn't sit out in the harbor for years between wars without being maintained, and be expected to function well when a new navy was "raised." You had to (and still have to) keep them (ahem) "ship-shape."
As a former NASA scientist, I also have a fondness for one other unconstitutional branch of the Federal Government. We ought to Constitutionalize NASA, as well, or resubordinate it to the military, where it had been. I like a civilian space agency, though.
11.19.2005 12:17pm
Steph (mail):
With out rereading the constitution or the linked article.

1. What clause, if any, of the Constitution permits Congress to establish an air force? . . .

None, only the army and navy are constitutionaly authorised. The air units should be under these services, as they were until after 1945.

3. May Congress pass secret laws? If so, may (must?) the courts enforce them? . . .

No a law that was passed in secret could not be enforced because it would be ex post facto law.

7. What is "corruption of blood," and why do we care? (you did look it up, didn't you?) . . .

Corruption of blood is when the heirs of a person convicted of High Treason (as oposed to peit treason) are legally debared from inheriting the estate of the person attainted of treason.

9. Can a person simultaneously be a Member of the House of Representatives and hold office in the Cabinet? . . .

No, I forget which cluase forbids it, but representatives are debared from holding an other office funded by the federal government. In fact there is a court case about a member of congress who is also a military lawyer before the federal courts.

11. Is there anything in the federal constitution that would prevent Congress from being chosen by a lottery among all registered voters?

I happen to be an advocate of sortition, but I think the wording of article one is that the representatives must be elected. However if just says chosen from among, then sortition would be an option.

12. Can Generals be impeached? . . .

Yes, as can any employee of the federal government

18. Could Congress validly give the Chief Justice the power to appoint the Attorney General? . . .

No the appointment of federal officials is either in the hands of the president and senate jointly or by an act of law in the president alone.
11.19.2005 4:15pm
George Booth (mail):
To be perfectly honest, the invention of a separate "air force" has - IMHO - reduced the effectiveness of the force.

Let's roll it back into the Army until they can figure out that the A-10 is a fanatasic ground support aircraft and they *will* learn to love it.
11.20.2005 10:30pm
Urijah (mail):
The constitutionality of the Air Force comes from it being an extension of weapons that fly through the air. The Air Force is a very sophisticated bullet, arrow, or trebuchet missile.
11.21.2005 1:56am