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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.

Related Posts (on one page):

  1. Michael Rappaport on the Constitutionality of the Air Force:
  2. Who claims that Textualism and Originalism lead to the Conclusion that the Air Force is Unconstitutional?
  3. The Marines, the Coast Guard, and the Constitution:
  4. The Air Force and the Constitution:
Elliot Reed:
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.
Doesn't that only get you as far as allowing the Army or Navy to use planes? Don't you need a specific intent to encompass military organizations not based on land or sea warfare? You might get as far as a few aerial units as part of an army or navy, but an independent Air Force seems a bit much (and this isn't just a labeling issue, just as you couldn't get around the restrictions on Army funding by calling it part of the Navy).
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.
1.29.2007 1:52am
John_R (mail):

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;


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.
1.29.2007 2:01am
Ilya Somin:
Don't you need a specific intent to encompass military organizations not based on land or sea warfare? You might get as far as a few aerial units as part of an army or navy, but an independent Air Force seems a bit much (and this isn't just a labeling issue, just as you couldn't get around the restrictions on Army funding by calling it part of the Navy).
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).
1.29.2007 2:31am
Kevin Heller (mail):

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.
Just out of curiosity, how does this argument differ from the one -- sometimes advanced by proponents of the "living Constitution" -- that because the Framers intended the Constitution's provisions to be re-interpreted in light of social and political developments "unknown in their own day," originalism itself justifies a non-originalist approach to constitutional interpretation?
1.29.2007 2:42am
Erasmus (mail):
Ilya, under your justification, there was no need for the framers to specifically mention both the navy and army. Isn't it a basic tenant of interpretation that we assume the drafters meant something by every word they wrote and nothing was meant to be surplusage?
1.29.2007 2:55am
advisory opinion:
The US Air Army was the precursor of the USAF. Since the USAF was an offshoot of the Army and only changed its name post-WW2, it would qualify as constitutional even to the most rigorous originalist.

Are airborne troops 'land forces'? Are ICBM launchers 'land forces'? Artillery? Bullets??

Pedantry.
1.29.2007 3:06am
advisory opinion:
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.


Maybe so. But superfluity on the one hand doesn't mean unconstitutionality on the other.
1.29.2007 3:29am
Steve Lubet (mail):

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.


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?
1.29.2007 7:01am
Cornellian (mail):
The US Air Army was the precursor of the USAF. Since the USAF was an offshoot of the Army and only changed its name post-WW2, it would qualify as constitutional even to the most rigorous originalist.

If it's now entirely independent of the Army, it's not just a name change.
1.29.2007 7:59am
Cinci fan:
Ilya, Samuel Issacharoff is at NYU now, not Columbia. We stole him fair and square to bring glory for the University for situations such as this.
1.29.2007 8:39am
Andy Freeman (mail):
> the supposed unconstitutionality of the Air Force as an argument against originalism.

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.
1.29.2007 9:16am
johnt (mail):
The Army Air Corps numbered thousands of planes, literally thousands. To establish a seperate branch only ratified a pre-existing fact and took into consideration the growth of air power from a purely tactical instrument to one largely strategic. As such an extension of not only war making capabilities but foreign policy and diplomacy.
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.
1.29.2007 9:34am
JK:
johnt, you completely missed the point. No one is arguing that we shouldn't have an air force. Perhaps the department of education would also not be allowed by originalism, or perhaps it would, but its existence certainly isn't an argument for why the air force is not contrary to originalism. Go back to Powerline for your irrelevant right-wing rants.
1.29.2007 9:44am
SimonD (www):
Steve:
The Constitution quite clearly limits the federal government to the creation of two specific branches.
The Constitution quite clearly gives the federal government the power to create and maintain the two branches of military force that were known to the world at the time of the framing. It seems quite creative to suggest tht a grant of power that, set in context, gave the Federal government the entirety of the military power should be read to "limit[] the federal government to the creation of two specific branches." I'll concede that it requires a little bit of construction to get from the text to an air force, but originalism (at least, not in the form that is actually practised or advocated today) isn't implacably hostile to any kind of construction.
1.29.2007 9:45am
Dougslash (mail):
If you really wanted to stretch this, you could argue that because the Tenth Amendment says that all powers not specifically mentioned fall to the States, each state should have it's own Air Force.
1.29.2007 10:07am
Tracy Johnson (www):
I actually find it quite interesting that the Army does not have to be maintained, but the Navy does. In other words Congress can simply remove the Army with lack of funds, whereas the Navy (and it's associated Marine Corps) must be kept.
1.29.2007 10:14am
Steph (mail):
>>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.<<

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.
1.29.2007 10:17am
jdpaz (mail):
Steve Lubet and others:

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?

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.
1.29.2007 10:23am
Jule R Herbert Jr (mail):
It was Truman who split the Army's air force off into a separate branch of the military; this of course was the same Truman who sought to make the steel industry a part of the armed forces. Truman's view of constitutionality was that unless an act was specifically prohibited by the instrument to the federal government, it was constitutional. At this point in our history, the constitution was already long "in exile."

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.
1.29.2007 10:26am
JEB (mail):
At the time of the drafting of Article I, both the army and the navy used artillery, which presupposes that forces may send ordnance from a to b through the air.

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.
1.29.2007 10:26am
David M. Nieporent (www):
What I think is most interesting about this discussion is not the substance of issue, but that in the two original posts about this issue, a significant number of commenters refused to address the issue, preferring to accuse IS/EV of creating a straw man, assuming that IS/EV must have been dishonest simply because they themselves hadn't heard the argument before.
1.29.2007 10:29am
David M. Nieporent (www):
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.
Right. While many people call Scalia a textualist or originalist, he explicitly rejects the description of himself as a "strict constructionist." He says that he doesn't think the constitution ought to be construed strictly or loosely, but reasonably.
1.29.2007 10:31am
Jeremy T:
Well again, this Air Force argument as a critique of textualism only works if it leads to absurd results. Finding that the currently constituted Air Force unconstitutional is not an "absurd result." It would be an administratively inconvenient result, but certainly not an absurd one.

So the argument as a critique of textualism doesn't work.
1.29.2007 10:43am
Dave-TuCents (www):

the Army does not have to be maintained, but the Navy does


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?
1.29.2007 10:44am
s806:

Right. While many people call Scalia a textualist or originalist, he explicitly rejects the description of himself as a "strict constructionist." He says that he doesn't think the constitution ought to be construed strictly or loosely, but reasonably.


Thats the best argument I've seen so far.
1.29.2007 10:45am
TREW:
What is a land force? Airplanes land
1.29.2007 11:25am
Randy R. (mail):
It's been a long time since I went to law school, but I thought that Scalia and other textualists said that you CANNOT interprete or look to legislative history or anything else but the plain meaning of the words of the law.

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?
1.29.2007 11:35am
Justin (mail):
I don't think the problem with textualism is that it cannot justify an Air Force. I think it's problem is that it can justify an air force, and justify a right to an AK-47, because it can justify a modern interpretation of "army," or "arms." It can also justify restricting cruel and unusual to only those types of punishments which were considered cruel or unusual in 1786, failing to justify a modern interpretation of "cruel" or "unusual."

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?)
1.29.2007 11:36am
anonVCfan:
Just reading the excerpts, it doesn't sound like Chemerinsky, Issacharoff, et al., believe that textualists think the air force is unconstitutional.

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.
1.29.2007 11:41am
anonVCfan:
Though I'll admit that the Chemerinsky quote sounds like he's taking it seriously, but then I never did like Chemerinsky's arguments much.
1.29.2007 11:42am
Sebastian Holsclaw (mail):
"that because the Framers intended the Constitution's provisions to be re-interpreted in light of social and political developments "unknown in their own day," originalism itself justifies a non-originalist approach to constitutional 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.
1.29.2007 11:43am
frankcross (mail):

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.


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.
1.29.2007 11:49am
Ilya Somin:
how does this argument differ from the one -- sometimes advanced by proponents of the "living Constitution" -- that because the Framers intended the Constitution's provisions to be re-interpreted in light of social and political developments "unknown in their own day," originalism itself justifies a non-originalist approach to constitutional interpretation?

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.
1.29.2007 12:03pm
PatHMV (mail) (www):
It's one thing to extend the constitution to new technology by analogy or through "extended" interpretations of existing provisions. We do this not infrequently, and it's not that controversial. The Fourth Amendment does not mention that one's computer should be safe from unreasonable search and seizure, but we extend the Fourth Amendment by analogy and reason that one's computer is the equivalent of one's "papers" and "effects", and thus protected just as the 18th century equivalents were protected. Technology changed, not the constitution.

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.
1.29.2007 12:19pm
Thief (mail) (www):

If you really wanted to stretch this, you could argue that because the Tenth Amendment says that all powers not specifically mentioned fall to the States, each state should have it's own Air Force.


They do... the Air National Guard.


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?


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...
1.29.2007 12:25pm
Pine_Tree (mail):
Aw heck. The vast majority of the dang Air Force (people and aircraft, at any given point in time) are on the ground anyway.

Therefore it's arguably one of the "armies" specifically mentioned in the Constitution.
1.29.2007 12:25pm
frankcross (mail):
PatHMV, your post contains the unsupported presumption that the Framers intended for adaptation to changes in new technology but not adaptation to changes in social mores, and I see no basis for this.

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.
1.29.2007 12:47pm
John (mail):
This would be a better series of posts if anyone could define army or navy, as the terms were understood at the time.
1.29.2007 12:52pm
dearieme:
I suspect that if you want to understand the viewpoint of the "framers" you should start from the fact that they were British. The British distrust armies - they are a threat to liberty. That's why the Royal Navy has a permanent existence while the British Army exists only for one year at a time. The North American British, though, might have wanted a permanent army because of the need to continue dispossessing the Indians of their land. Once they've decided to make permanent both "arms", there surely is no objection to a permanent third "arm" when the technology comes along. For what it's worth, the existence of the Royal Air Force implies that an Air Force is more like a navy than like an army.
1.29.2007 12:57pm
Mark Field (mail):

PatHMV, your post contains the unsupported presumption that the Framers intended for adaptation to changes in new technology but not adaptation to changes in social mores, and I see no basis for this.


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.
1.29.2007 1:14pm
KeithK (mail):
I say go ahead and declare the Air Force unconstitutional. We'd see a constitutional amendment passed almost before anyone could blink and the American people would learn something about the Constitution.

The exercise would also be useful to identify those idiots who would actually oppose such an amendment. Clear out the rubish.
1.29.2007 1:47pm
Ken Kukec (mail):
The Air Force issue seems to be a relatively easy one for originalists and even textualist. What I'd like to see a textualist explain is the double jeopardy clause. The Fifth Amendment prohibits any person from being "twice put in jeopardy of life or limb" -- no mention of imprisonment or fines, although these were punishments familiar to the framers. Is the precedent applying double jeopardy to such punishments wrong?
1.29.2007 1:48pm
GMUSL 3L (mail):
I actually brought this up last spring in Chief Judge Ginsburg's "Readings in Legal Thought" seminar, taught right here at Mason!

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...)
1.29.2007 2:36pm
Sebastian Holsclaw (mail):
"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."

It is true because the interaction between a Constitution and common law interpretation was understood very well by the framers.
1.29.2007 3:55pm
Mark Field (mail):

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?
1.29.2007 4:07pm
Justin (mail):
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...)

Why is that absurd? Several Supreme Court Justices, sitting in their capacity as Circuit Justices, upheld the Alien and Sedition Acts, after all
1.29.2007 4:13pm
Cornellian (mail):
Strictly speaking, the commenters here aren't presenting an argument that the Air Force is unconstitutional, only that it's properly within state, not federal jurisdiction. To those who say that's an absurd result, I believe the proper reply is that the Constitution provides an amending formula for a reason.

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.
1.29.2007 4:20pm
GMUSL 3L (mail):
Cornellian, I don't think I claimed that it was particularly textualist (other than that it requires analyzing the text as a starting point). I do agree that the purely textual support is not as strong as it might otherwise be, but it's not entirely absent.

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.
1.29.2007 5:21pm
Mark Field (mail):

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.
1.29.2007 6:58pm
GMUSL 3L (mail):
Thanks for the correction. Nothing specific about the CiC clause.
1.29.2007 7:44pm
Alex 2005 (mail):
I skimmed through the comments, so I apologize if this duplicates an earlier point. But isn't Ilya's point whether an originalist can justify that the "Armies and Navies" clause justified the formation of an Air Force as an independent entity? And if Congress cannot create an independent Air Force vis-a-vis that clause, is there a different clause which provides Congress constitutional authority to create the Air Force (as an independent entity - separate from the Army or Navy - to be clear). Ilya suggests that this is possible by Congress' necessary and proper powers; I would be interested in you expanding on this suggestion. Second, while I don't think it's contentious to assume that it was the original intent (original public application) of the "Armies and NAvies clause" to cabin Congress from investing in new and improved military technology, Ilya makes a second comment:

"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?
1.29.2007 8:35pm
Tim H. (mail) (www):
I'd align myself with the idea that the Air Force is unconstitutional but ought to be legalized though an amendment. My reasoning has always been that there were specific reasons for spelling out the separate authority of Congress to create an Army and Navy. As some have already mentioned, the Army's funding can only be for two years at a time, to prevent the formation of a standing army, which could be a threat to domestic liberty. But a Navy can't just be mothballed whenever there's not a war--the equipment has to be maintained--and a Navy isn't much use as an occupation force, so it's not the same threat to our liberties as the Army might be. So it's allowed to "stand."

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.
1.29.2007 9:19pm
ed (mail) (www):
Hmmmm.

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.
1.29.2007 10:29pm
Randy R. (mail):
"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....
1.29.2007 10:59pm
ben (mail):
I searched the post and comments and found 8 instance of "an army", including one by the scholar Erwin Chemerinsky who was cited in the post.

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.
1.29.2007 11:47pm
Andy Freeman (mail):
> I think it's problem is that it can justify an air force, and justify a right to an AK-47

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.
1.30.2007 12:58am
Andy Freeman (mail):
>>each state should have it's own Air Force.

>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.
1.30.2007 1:01am
johnt (mail):
JK, so sorry I missed you yesterday. As I don't assert that anyone in posts previous to mine argue against the existence of the Air Force I conclude that you are the one who missed the point. I'm happy to see that I got under your thin skin with the comparison to other federal departments, the ones the left never see as contrary to originalism.
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.
1.30.2007 8:17am
markm (mail):

Aw heck. The vast majority of the dang Air Force (people and aircraft, at any given point in time) are on the ground anyway.

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...
1.30.2007 12:32pm
WarrenN (mail):
It seems to me that the Constitution should be amended to unlimit the defense. There is simply no good argument for an air force that doesn't decide to do away with the verbiage about an army and air force. Talk about the "providing for the common defense" is nice, but all the words have to mean something.

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.
1.31.2007 12:51am