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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.

QED:
"If you call a tail a leg, how many legs has a dog? Five? No, calling a tail a leg don't make it a leg." -- Abraham Lincoln
2.1.2007 2:28pm
MHeine:
The distinction between Army and Navy in constitutional terms would seem primarily to be one of capital outlay. An army can be immediately conscripted while a Navy require a capital outlay (ships) that cannot be immediately filled on demand. Thus I think one could argue that the Air Force is indeed a Navy as without planes or in the Navy's case ships they are merely an Army. Of course if we consider this interpretation significant Armor divisions are not properly part of the Army.
2.1.2007 2:37pm
The Emperor (www):
To me, the anti-originalist/textualists who are making these criticisms are being way too formalistic. Would they also prevent army forces from being transported by plane or boat in order to remain constitutional? Can army personnel jump in the air? There is no requirement that "land" forces remain on land at all times. I think it's important that whatever interpretive approach one takes, it should be applied reasonably.
2.1.2007 2:59pm
Alex 2005 (mail):
Ilya more politely summarizes my point, which I repeat here:

Rappaport's post doesn't answer anything. Nobody is debating whether one can establish an Air Force as a subpart of the Navy (or Army if you prefer). The question is whether you can create an Air Force in the absence of a Navy or Army - in other words, an independent (and stand-alone) entity called "Air Force" as we have today. And so arguing that "independence" is irrelevant by simply relabeling a division of the Navy as "Air Force" doesn't address the issue. The point is that one could create something called "navy" (or "army") but then give it all of the weapons/equipment we usually associate with the Air Force. But doing that would make the text sort of meaningless.
[or as Ilya notes, such a reading renders one part of the clause redundant]
2.1.2007 3:44pm
Cornellian (mail):
To me, the anti-originalist/textualists who are making these criticisms are being way too formalistic. Would they also prevent army forces from being transported by plane or boat in order to remain constitutional? Can army personnel jump in the air? There is no requirement that "land" forces remain on land at all times.

I thought the textualist objection to a federal Air Force was as much the fact that it was independent of the Army and Navy as the fact that it has aircraft. I don't think there's any textualist objection to the Army using aircraft. Rappaport's argument isn't all that convincing. He's basically saying the Air Force is really the Army but with a different name and that's OK because Congress can constitutionally divide the Army into two departments and name one of those departments "Air Force." That may be true but the Constitution necessarily requires that one distinguish between "Army" and "Navy" because only the latter can be funded on an ongoing basis. Why isn't the Air Force really a re-named depart of the Navy instead of a re-named department of the Army? If that kind of objection is mere formalism, why can't Congress get rid of that pesky year-by-year funding requirement by just re-naming the Army as "Navy: Department B?" Heck, why can't Congress constitutionally create the Department of Education just by naming it "Army: Department C" and arguing that it's fostering the education of future soldiers?
2.1.2007 3:51pm
Dick King:
Actually, I thought that the reason the Army was on a shorter constitutional leash than the Navy is that the Army would be more useful to a despotic government who wants to suppress a domestic rebellion.

That being the case, I would want to put the Air Force on as short a leash as the Army.

-dk
2.1.2007 3:54pm
Elliot Reed:
The key flaw in Rappaport's argument is a fallacy of equivocation between this step and the next: "Congress has Navy A use different equipment than Navy B. This is also constitutional." This is only true if Navy A and Navy B are both a "Navy" in the Constitutional sense of the term. If Navy B's equipment consists entirely of trucks, tanks, etc., with no ships, and its troops are trained for land warfare rather than sea warfare, then Navy B is a constitutional army and treating it as an army (by funding it more than 2 years in advance) would be unconstitutional.

I could see an originalist argument that Constitutional "Armies" or a Constitutional "Navy" could include an army or navy in the air, but Rappaport's argument isn't it. (The Necessary and Proper Clause argument also works, imho)
2.1.2007 3:54pm
Mark Field (mail):
I don't find Rapaport very persuasive. The posts here were much more thoughtful; he didn't add anything to the debate except a dubious hypothetical.

I'm not an originalist, but I think those who are have a somewhat easier argument to make than do textualists. As an example of the textualist problem, consider the CinC clause: "The President shall be commander in chief of the Army and Navy of the United States..." There is no allowance made for any additional branch of service (which I take to be the biggest part of the dispute).

That doesn't mean I think originalists are home free. Frank Cross asked this question (which I paraphrase) in one of the earlier threads and nobody responded: On what basis do originalists believe that the Constitution is "living" when it comes to changes in technology, but not changes in society? That it does do so seems to be an axiom of originalism, but I've never seen anyone defend it and it's not at all obvious.
2.1.2007 3:58pm
The Emperor (www):
Heck, why can't Congress constitutionally create the Department of Education just by naming it "Army: Department C" and arguing that it's fostering the education of future soldiers?

Because the Department of Education has no relationship to the fundamental purpose of the Army. The Air Force, by contrast, is really just the Army carrying out a specific task, no different than tank drivers, etc.
2.1.2007 3:58pm
Anon Y. Mous:
I've seen the 2 year limit on appropriations discussed, but no one has explicitly said it: has Congress been appropriating money for the Air Force for terms longer then 2 years?
2.1.2007 3:59pm
Justin (mail):
While I find the debate interesting, I think it fits in with my larger point that textualism and originalism, particularly when combined, is just as suspect (more so, actually, to the degree one can choose amongst the two when there is a conflict) to judging by personal preference and Dworkian normative theory as conservatives complain that structural interpretations are. It's one thing to complain about a "living constitution," its another to declare for oneself what parts are alive and what parts are dead.
2.1.2007 4:01pm
r78:

Because the Department of Education has no relationship to the fundamental purpose of the Army.

Really? Could the modern army exist without educated soldiers?
2.1.2007 4:10pm
TomH (mail):
A simple and constitutional solution would be to challenge the existence of the Air Force in the Courts (who might hae standing viz a viz being "harmed" is an examply I can not give). If the SC (and of particular interest the originalists) uphold its existence, then so be it.

If not, I can not believe the Congress and the States would not take steps to ratify its existence immediately. In the meantime, its department wouold temporarily be made subordinate to the Navy or Army, or perhaps the Department of Education :)
2.1.2007 4:17pm
Mvargus (mail):
I say we just return the "Air Force" to its original name then. We can always call it the "Army Air Corp".

Heck, their theme song still can be sung with that name.
the last line used to be:

"Nothing can stop the Army Air Corp"

Trying to argue a constitutional reason to disband the "Air Force" based on the fact that there is no Army or Navy in the name is just pointless.
2.1.2007 4:19pm
Rattan (mail):
Hey what about the commerce clause? It applies as all of these branches are interstate (and inter-national) commercial activity heavyweights.
The CONSITUTION-- it lives despite the nitpicking.
2.1.2007 4:38pm
JLR (mail):
I think this problem can be solved by looking to the analysis found in McCulloch v. Maryland (1819). The necessary and proper clause would appear to make it clear that an independent Air Force is constitutional.

Chief Justice Marshall writes:
Congress may declare war; it may consequently carry on war, by armies and navies, and other suitable means and methods of warfare. So, it has power to raise a revenue, and to apply it in the support of the government, and defence of the country; it may, of course, use all proper and suitable means, not specially prohibited, in the raising and disbursement of the revenue. And if, in the progress of society and the arts, new means arise, either of carrying on war, or of raising revenue, these new means doubtless would be properly considered as within the grant.
If Congress may declare war, it may carry on war, and not just with armies and navies.
2.1.2007 4:39pm
KevinM:
Two candidates, Smith and Jones, are running for president. Smith is 35 years old, and Jones is 25 years old. Now let's call Smith "35-year-old A" and call Jones "35-year-old B." From there, it's just a short step to say they're both eligible to serve as President!
2.1.2007 4:41pm
PersonFromPorlock:

"If you call a tail a leg, how many legs has a dog? Five? No, calling a tail a leg don't make it a leg." -- Abraham Lincoln

Obviously, Lincoln was not a legal positivist.
2.1.2007 4:44pm
Confused reader:
The Constitution authorizes Congress to "provide and maintain a Navy." I'm no hotshot con law prof, but doesn't the use of the singular preclude Navy A and Navy B?
2.1.2007 4:51pm
JohnAnnArbor (www):
It really sounds like a semantic argument. Would it be different if we spoke French? After all, the French Air Force is, in French, "L'Armée de l'air," literally "the army of the air."
2.1.2007 4:53pm
Ken Arromdee:
On what basis do originalists believe that the Constitution is "living" when it comes to changes in technology, but not changes in society?

Well, I won't necessarily call myself an originalist, but how about this: The function of a law is to shape society. Deciding that the current state of society should shape how we interpret the law negates the whole point of having laws to begin with.

Needless to say, technology doesn't have this problem.
2.1.2007 5:07pm
Terry:
The explanation in the post seems to parallel what actually happened. The Air Force was originally part of the Army. The government separated it, presumably for specialization, and gave it the name Air Force. See: http://www.af.mil/factsheets/factsheet.asp?id=2
2.1.2007 5:08pm
jelewis (mail):
I may be the first to mention this - but remember the Marine Corps is part of the Navy. There is no "Marine Corps" academy - future Marine officers go to Annapolis. It would be interesting to see the history of the creation of the Marines and why they were made part of the Navy. This might shed light on the policy issues concerning the Air Force's constitutionality
2.1.2007 5:38pm
Steve:
I think this problem can be solved by looking to the analysis found in McCulloch v. Maryland (1819).

That's a good find, but ultimately it strikes me as 100% dicta. It's not like every one of John Marshall's words needs to be regarded as though it issued from a burning bush.
2.1.2007 5:51pm
Thief (mail) (www):

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...


As Terry noted above, this is essentially how the Air Force was created, except it was originally "Army B" instead of "Navy B". Also worth noting is that the Air Force is organized along the same lines as the Army: There's an active component at the immediate disposal of the President, a reserve component that the President can call up to supplement the active force, and a National Guard/militia component (the Air National Guard) that falls under the authority of the states but may be federalized by the President if needed. (The ANG was itself created out of the Aviation units of the state National Guards post WWII, and retains the status of a militia, i.e. they can engage in law enforcement activities when operating under state control).

Also, I found the following from the CRS Annotated Constitution while searching for an official statement on whether the two year appropriation clause applies to the Air Force. The Opinions referenced may be relevant here.


In 1904, the question arose whether this provision would be violated if the Government contracted to pay a royalty for use of a patent in constructing guns and other equipment where the payments are likely to continue for more than two years. Solicitor–General Hoyt ruled that such a contract would be lawful; that the appropriations limited by the Constitution “are those only which are to raise and support armies in the strict sense of the word ‘support,’ and that the inhibition of that clause does not extend to appropriations for the various means which an army may use in military operations, or which are deemed necessary for the common defense. . . .” (25 Ops. Atty. Gen.105,108 (1904)) Relying on this earlier opinion, Attorney General Clark ruled in 1948 that there was “no legal objection to a request to the Congress to appropriate funds to the Air Force for the procurement of aircraft and aeronautical equipment to remain available until expended.” (40 Ops. Atty. Gen.555 (1948)).
2.1.2007 6:28pm
The Emperor (www):
r78: Really? Could the modern army exist without educated soldiers?

Probably not. But I'm eagerly awaiting your explanation as to why a Federal Department of Education is necessary to in order to have educated soldiers.
2.1.2007 6:28pm
Cornellian (mail):
Heck, why can't Congress constitutionally create the Department of Education just by naming it "Army: Department C" and arguing that it's fostering the education of future soldiers?

Because the Department of Education has no relationship to the fundamental purpose of the Army. The Air Force, by contrast, is really just the Army carrying out a specific task, no different than tank drivers, etc.


Really? How about the Naval Academy at West Point? The Air Force Academy at Colorado Springs? ROTC programs? Scholarships to entice people to join the military? Do they all have nothing to do with the fundamental purpose of the Army? Bear in mind that Congress has the power to "raise armies" not just to deploy them.
2.1.2007 7:21pm
Mark Field (mail):

Well, I won't necessarily call myself an originalist, but how about this: The function of a law is to shape society. Deciding that the current state of society should shape how we interpret the law negates the whole point of having laws to begin with.

Needless to say, technology doesn't have this problem.


The problem I have with this argument is that it treats technology as independent of society. I don't see it that way. Technology appears to me to be integral to society, both resulting from it and shaping it.


I think this problem can be solved by looking to the analysis found in McCulloch v. Maryland (1819).

That's a good find, but ultimately it strikes me as 100% dicta. It's not like every one of John Marshall's words needs to be regarded as though it issued from a burning bush.


Isn't the greater problem that most originalists and textualists would rather be struck dead by lightning than rely on Marshall?
2.1.2007 7:22pm
DJB (mail):
Every piece of equipment used by the Air Force is either land-based or sea-based (actually I think it is all land-based, but I could be wrong).

Yes, the Air Force makes use of the air, but so do bullets and cannon shells. The forces themselves are land-based, and therefore part of an Army.
2.1.2007 8:11pm
cac (mail):
One of the things that has always puzzled me about the US Air Force is that even after becoming a separate service, it continued to use army rank titles (Commonwealth air forces have their own ranks - pilot officer, wing commander, air marshal etc). I've never heard a good explanation for this. Is it possible that they were trying to maintain an ongoing link with the army with a view to this constitutional issue?
2.1.2007 8:13pm
Elliot123 (mail):
I think the Army has more water vessels then the Navy, and more aircraft than the Air Force.

Isn't this all simply an exercise in labels?
2.1.2007 8:25pm
dew:
“jelewis: I may be the first to mention this - but remember the Marine Corps is part of the Navy … It would be interesting to see the history of the creation of the Marines and why they were made part of the Navy. “

I am sure you can find much better information with a little looking, but the marines were not really created and made part of the navy, they were created more-or-less as part of creating the navy (the “Continental Marines” were created about a month after the “Continental Navy” in 1775). Sailors were originally, and still are typically, trained to run the ships and work the “big guns” on those ships. Navies have always also had a need for some professional soldier-like troops for ship and base security, boarding parties, landing parties and such, with somewhat different skills than land troops, and they also needed to be under the naval commanders, thus “marines”. The British navy and many other European navies had marines or something like them long before the US was around – “marines” comes originally from the French term for the same thing.
2.1.2007 8:26pm
RMCACE (mail):
Sorry kids, Rappaport's argument doesn't work from a textualist. The Art. I, sec. 8 power enables Congress to "provide and maintain a navy." As in, just ONE NAVY. Not two, as Rappaport suggests. By contrast, Congress can have as many "armies" as it chooses (respecting the 2 year limit).

You can argue that Congress can create separate governments for Naval Forces under the "make rules for the government and regulation of the land and naval forces" clause. But its a stretch.
2.1.2007 8:28pm
wooga:
I like DJB's simple argument. I think it also realistically avoids the slippery slope - it would allow us to still argue that a military force which resides in space would still be unconstitutional.
2.1.2007 8:31pm
The Emperor (www):
Heck, why can't Congress constitutionally create the Department of Education just by naming it "Army: Department C" and arguing that it's fostering the education of future soldiers?

Because the Department of Education has no relationship to the fundamental purpose of the Army. The Air Force, by contrast, is really just the Army carrying out a specific task, no different than tank drivers, etc.

Really? How about the Naval Academy at West Point? The Air Force Academy at Colorado Springs? ROTC programs? Scholarships to entice people to join the military? Do they all have nothing to do with the fundamental purpose of the Army? Bear in mind that Congress has the power to "raise armies" not just to deploy them.


I'm not sure I follow you. Are you saying we couldn't have the Naval Academy, West Point, etc. wihout a Federal Department of Education? Why couldn't the armed forces run these programs on their own? And what portion of the Department of Education is related to military training? 1%? 2%? Sorry, I'm not convinced. Calling the Air Force part of the Army is pretty reasonable; calling the Departement of Education part of the Army is not.
2.1.2007 9:20pm
ReaderY:
I think it's an appropriate question for the courts to determine if an air force is more like an army or a navy and hence whether the limitation on appropriations applicable to armies applies. And I think there's a good argument to be made that an air force is more like a navy than an army.

There is a substantial difference between armies and navies, and that difference has legal effect, and it's appropriate to determine which analogy is more apt. So while I agree completely that Congress can't avoid the limitation on armies simply by calling an army a department of the navy. But this doesn't make the constitution irrelevant. The answer is to determine whether an air force is more army-like or more navy-like, just as in interstate commerce it is necessary to determine if an act or thing is interstate or local in nature or effect. In general, aircraft seem to have a lot more in common with ships than with ground troops.
2.1.2007 9:45pm
Tom Tildrum:
As in, just ONE NAVY. Not two, as Rappaport suggests.

OK, but can't this objection be circumvented simply by using the titles "Navy Division A" and "Navy Division B" instead of "Navy A" and "Navy B"? Or, if you prefer, "First Fleet" and "Second Fleet"?
2.1.2007 9:58pm
Cornellian (mail):
I'm not sure I follow you. Are you saying we couldn't have the Naval Academy, West Point, etc. wihout a Federal Department of Education? Why couldn't the armed forces run these programs on their own? And what portion of the Department of Education is related to military training? 1%? 2%? Sorry, I'm not convinced. Calling the Air Force part of the Army is pretty reasonable; calling the Departement of Education part of the Army is not.

We definitely could have West Point, the Air Force Academy etc. without a Department of Education. My question was, if Congress can create an agency (the Air Force) separate from and independent of the Army on grounds that it performs similar functions, presumably it can also have West Point, the Air Force Academy, ROTC and scholarships for new enlistees on the theory that these are functions to raise armies by training people to become qualified to be in the military. And on that basis, presumably it can have a Department of Education to administer all of those programs. And on that basis, why can't the Department of Education go a bit further afield, and provide scholarships to a broad range of people on the theory that they want a bigger pool of college grads from which to recruit for the military? Why can't they propose national standards for high school education on that basis as well?

Or put another way, if you're willing to allow Congress to create agencies independent of the Army pursuant to the Army power, to what extent are you going to limit that power? Is the Army Corps of Engineers unconstitutional? Would you be willing to have the Supreme Court undertake case by case inquiries into the agency in question to ensure it's sufficiently "like the Army" or sufficiently "supporting the Army?"
2.1.2007 10:32pm
plodding blockhead (mail):
There is a persistent assumption here that "Armies" as it appears in Article I, section 8, means military forces that are based on land, and that "Navy" means a military force that is based on water, consistent with the current nomenclature for branches of the Armed Forces. That's probably not what those words meant to the Founders. I don't consider myself an originalist, but it seems that the 18th century definition of Army and Navy would be relevant to an originalist argument.

Samuel Johnson's Dictionary (published in 1755) defined Army more simply as "a collection of armed men obliged to obey one man." "Navy" is defined as "an assembly of ships, commonly ships of war; a fleet." One might argue that an "army" in the sense of the time is a group of armed men under the command of the government; a "navy" is a group of armed ships. The illustration for the definition of navy is consistent with that. Johnson quotes Dryden, "The narrow seas can scarce their navy bear, or crowded vessels can their soldiers hold."

I should also think that the Founders would feel differently about "raising Armies" and "providing and maintaining a Navy," which might explain the seprate references. Armies (groups of armed men) might be necessary for defense against foreign powers (England, France, and Spain each had a presence in North America), but still cause concern that they might be used as an instrument of oppression (thus the limitation on appropriations for the Army to 2 years). A Navy would be important for defense, but would raise less concern about domestic oppression.
2.1.2007 11:00pm
The Emperor (www):
We definitely could have West Point, the Air Force Academy etc. without a Department of Education. My question was, if Congress can create an agency (the Air Force) separate from and independent of the Army on grounds that it performs similar functions, presumably it can also have West Point, the Air Force Academy, ROTC and scholarships for new enlistees on the theory that these are functions to raise armies by training people to become qualified to be in the military. And on that basis, presumably it can have a Department of Education to administer all of those programs. And on that basis, why can't the Department of Education go a bit further afield, and provide scholarships to a broad range of people on the theory that they want a bigger pool of college grads from which to recruit for the military? Why can't they propose national standards for high school education on that basis as well?

I would say that the power to create an army and navy allows for Congress to create the military academies, and I suppose some department to manage them. But I don't see how it would justify a general "Department of Education" that would go "further afield." The connection between the program and the Constitutional language just gets too tenuous at that point.
2.1.2007 11:20pm
The Emperor (www):
Or put another way, if you're willing to allow Congress to create agencies independent of the Army pursuant to the Army power, to what extent are you going to limit that power? Is the Army Corps of Engineers unconstitutional? Would you be willing to have the Supreme Court undertake case by case inquiries into the agency in question to ensure it's sufficiently "like the Army" or sufficiently "supporting the Army?"

I'm not sure what other option there is. The Supreme Court does have the power to interpret the Constitution, so ultimately it's up to them. My view is that Congress can enact anything with a close connection to the fundamental purpose of the Army, and the Air Force meets this test (as do the academies). I'm not sure about the Corps of Engineers. I don't really know what they do.
2.1.2007 11:29pm
Lev:
How does the 3rd Amendment fit in here?
2.2.2007 12:18am
RMCACE (mail):
"How does the 3rd Amendment fit in here?"

Get your Army out of my house!!!
2.2.2007 1:25am
Cornellian (mail):
"How does the 3rd Amendment fit in here?"

Get your Army out of my house!!!


I suppose they can enter your house, they just can't set up their bunk beds there.
2.2.2007 4:32am
NicholasV (mail) (www):
The question that comes to my mind is, if there's controversy over whether the constitution allows for the existence of an independent air force, why not just amend it? I can't imagine that the states would fail to ratify such an amendment, after all the Air Force has existed for a long time now with a presence in practically every state and none of them seem to have objected too badly. So why not just make it official?

I feel the same way about all the arguments over the right to bear arms, the commerce clause etc. If you object to the literal interpretation of those clauses, why not try to start a campaign to modify them, rather than argue over how far you can stretch the meanings?

Personally I think the best constitution is one which can be enforced literally, and when it turns out the interpretation which is being enforced is not aligned with the original intentions, it's time to modify the document and clarify it. Of course then we open up the can of worms over what the original intentions were. But in this case, I think we can pretty much all agree that had Air Forces existed back when the US constitution was drafted, they would explicitly have been mentioned.
2.2.2007 7:12am
Mark Field (mail):

How does the 3rd Amendment fit in here?


Nah, let's change the subject entirely: How do textualists and/or originalists justify paper money?
2.2.2007 12:54pm
Bruce:
"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."

Maybe strategic bombing could be justified under the foreign commerce clause. It regulates foreign commerce, in a sort of very direct way.
2.2.2007 2:35pm
Ilya Somin:
Maybe strategic bombing could be justified under the foreign commerce clause. It regulates foreign commerce, in a sort of very direct way.

It definitely has more to do with foreign commerce than growing marijuana in your own backyard for your personal consumption has to do with interstate commerce:).
2.2.2007 5:28pm
Lev:
It appeared to me you were doing originalist textualist things and comparing and contrasting army members and marines while trying to come to an assessment of whether the air force is fish or foul fowl.

The third amendment, from the time of the founding fathers, refers to quartering soldiers in the homes of citizens.

Are soldiers all members of the military, or are they only members of the army? Soldiers does not sound like marines, are marines soldiers, or are they not, so that it would have been ok to quarter marines in homes? Or are marines not soldiers because they "live" on ships, and what about when they are in port?

Are members of the air force like soldiers - members of the army, or marines?

But of course, such considerations are not relevant to the matter under discussion, which seems to be whether the air force is constitutional only as a part of the army, or whether it is separately constitutional, and what about the naval air forces.
2.2.2007 11:33pm