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October 22, 2005

Is the Air Force Unconstitutional?

By Neil the Ethical Werewolf

As Don Herzog points out, originalist views about judicial interpretation seem to suggest that it is:

Article I, sec. 8 of the Constitution enumerates Congress's powers; clauses 11-16 lay out war powers.  We learn that Congress can establish an army and a navy. But there's nary a syllable "in the Constitution" about the air force!

With the possible exception of Ben Franklin, who had some amusing ideas about balloon warfare, the Founding Fathers never intended there to be an Air Force.  Now if you're going to read the bit in Clause 1 -- "provide for the common defense and general welfare" -- broadly enough to allow Congress to set up an Air Force if it's important for common defense, you'll have to let Congress set up other national institutions if they're important for the general welfare. 

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Brilliant Ezra. Now I finally have a "gottcha" for those puritanical throw-backs who want to roll back the New Deal and constantly rail about the misues of the Commerce Clause.

Posted by: Mark Adams | Oct 22, 2005 9:40:16 PM


Posted by: Mark Adams | Oct 22, 2005 9:41:56 PM

Thanks Mark! Though this isn't Ezra but instead his werewolf buddy, Neil.

Posted by: Neil the Ethical Werewolf | Oct 22, 2005 9:48:31 PM

The Air Force is the weakest service, and probably the most out of touch with American strategy (at least if you believe Ralph Peters). With the end of strategic bombing and the requirement that we achieve air superiority over a great power enemy, the Air Force is involved primarily in combined arms operations with the other services. One has to think that everything would go more smoothly if the Air Force were folded back into the Army, with a bit tossed back to the Navy to work for the Marines.

Posted by: TigerHawk | Oct 23, 2005 1:03:57 AM

This is, of course, clever nonsense -- but that's the point, to counteract the clever nonsense about there being no Constitutional authority for supporting health care, education, &c.

On a more serious note, it's obvious that the Original Intent of the Framers was that the armed forces should be small, mostly reservists, and devoted exclusively to defending the several states. A force for defense, not foreign adventures.

God knows, I'd be willing to give up Federal support for all social services, if we could also scale back the military to the same degree.

Posted by: John M. Burt | Oct 23, 2005 2:45:33 AM

"Originalism," to the extent that it is even coherent, is just butt-stupid. I am really, really bothered by the fact that it is taken seriously anywhere by anyone.

Posted by: Dadahead | Oct 23, 2005 2:52:11 AM

No, the air force isn't an extension of "general welfare," it's a logical extension of the Army. At best this is just nit-picking; if you wanted to you could just fold the Air Force back into the Army, making it the Army Air Corps again. That might even logically be a good idea.

Notably, every two years the President signs an order stating that we're in a state of emergency and need to keep a standing Army. Every President's signed that going back for generations. Why? Because otherwise the Constitution would require us to disband most of the Army.

"Originalism" is in my view no more "butt-stupid" than the notion that "general welfare" means that the government's powers are absolutely unlimited in any significant way. Do the words mean what they say or are we free to simply interpret them in any way that happens to be convenient at the moment? It's not a dumb question at all. While I've long argued that some conservatives are crazy to insist on absolutist "strict constructionist" reasoning, I don't find the "well we can do anything we want in the name of General Welfare" reasoning any brighter.

Posted by: Dean Esmay | Oct 23, 2005 3:58:46 AM

<singing loudly>Nothing can stop the Army Air Corps.</singing loudly>

Posted by: pansauce | Oct 23, 2005 5:07:29 AM

I agree with Dean, that this issue is nothing more than semantics and organizational structure, but other constitutional issues have much more content.

Anyway, politicians are generally being hypocrites whenever they talk about originalism. Kevin Carson (a libertarian) has written about this a bunch.

I've got no problem with strict constructionism, if it's sincerely and consistently applied. The problem is that Federalist Society types like Roberts are very selective in their "originalism."

Posted by: Adam | Oct 23, 2005 9:52:25 AM

It's a nifty argument, but the crux of strict construction isn't quite so hidebound or extreme. It is only really invoked in questions of strict scrutiny, when the justices that ascribe to it say they can find no right within the originally-conceived writing of the constution to counterbalance the state interest in question.

That isn't to say that their arguments don't have merits. For one, it gets them out of the right of privacy mess. There's nothing written about it in the constution and the privelages and immunities clause of the 14th amendment was essentially invalidated by the court at inception. What does leave those who believe in the right? "Penumbras" underlying other amendments, broad readings of the 9th amendment, and the equal protection clause of the 14th amendment. It's a cludge, and everyone knows it, something that most everyone believes in but don't have a great argument to support.

Part of the problem is that people conflate strict constructionism and originalism. They are not the same. Rehnquist and Scalia are the former (to varying degrees) and Thomas is the latter. Scalia looks at plain language first and foremost, and then looks to original intent to see if there is any extra reading given by authority that he could use to justify the constitutional argument. That is why Thomas files so many separate dissents, arguing to take the other two's ideas even further and read plain language as the original drafter intended it first. There are subtle yet important differences between the two disciplines.

While originalism is crazy, Thomas is the only real advocate of it, and the debate should reflect that. To do otherwise makes us mostly just look hysterical and unsavvy.

Posted by: Fnor | Oct 23, 2005 11:39:28 AM

Ninth amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Originalists can kiss my ass, the Bill of Rights explictly recognizes that other rights can be recognized and the majority in Griswold drew explicitly on that.

"The Ninth Amendment had been mentioned infrequently in decisions of the Supreme Court 4 until it became the subject of some exegesis by several of the Justices in Griswold v. Connecticut. 5 There a statute prohibiting use of contraceptives was voided as an infringement of the right of marital privacy. Justice Douglas, writing the opinion of the Court, asserted that the ''specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.'' 6 Thus, while privacy is nowhere mentioned, it is one of the values served and protected by the First Amendment, through its protection of associational rights, and by the Third, the Fourth, and the Fifth Amendments as well. The Justice recurred to the text of the Ninth Amendment, apparently to support the thought that these penumbral rights are protected by one Amendment or a complex of Amendments despite the absence of a specific reference. Justice Goldberg, concurring, devoted several pages to the Amendment."

Fourth amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Nope nothing about Right to Privacy here. Just move along now.

Posted by: Bruce Webb | Oct 23, 2005 12:07:18 PM

And those who would argue that the 4th amendment only deals with search and seizure should equally explain why they demand a maximalist interpretation of the 2nd amendment while maintaining a minimalist interpretation of the 4th.

Posted by: Bruce Webb | Oct 23, 2005 12:10:16 PM

On a different note, there could be some on the extreme side that will use Article 1, Section 8 as the constitutional justification for killing off NASA completely and shunt all activities over to the various aerospace consortiums, using only congressional oversight as a control mechanism.

And on the same note as Niel's post, there could also be an argument against the Marine Corps being a seperate entity from the Navy. Imagine how all the jarheads will scream when that one comes into play.

Posted by: Off Colfax | Oct 23, 2005 3:38:49 PM

Air force was part of the army originally. Nice try.

Posted by: tony | Oct 23, 2005 5:51:57 PM

Let's be clear that the "Air force was part of the army originally" response does nothing for the originalist side here. Can supporters of big government just start their unconstitutional initiatives within some constitutional branch of government, and make them constitutional that way? If so, originalism is empty.

Posted by: Neil the Ethical Werewolf | Oct 23, 2005 6:27:15 PM

I think (and it's only think, not know) that it's not that the Air Force was part of the Army on its inception, I believe in the overall command structure it's still under the Army, thus meeting the Constitutionasl requirements. This is part of an overall peception that while there are four services, they are not entirely equal, nor treated as such.

Again, just me. I could be totally, completely off on this. That's the problem with being a big anti-vioence peacenik. :) Damn these opposable thumbs...

And anyway, um, originalism is a crock.

Posted by: weboy | Oct 23, 2005 8:07:15 PM

...there could be some on the extreme side that will use Article 1, Section 8 as the constitutional justification for killing off NASA...

Clause 9: "To promote the progress of science and the useful arts...."

As long as you end the sentence there before it empowers Congress to create the patent system, that's all the defense for NASA you need. Unless you want to argue that it's no longer scientific or useful.

Posted by: Grumpy | Oct 23, 2005 9:02:24 PM

Er, science & patents are Clause 8. My mistake.

Posted by: Grumpy | Oct 23, 2005 9:03:33 PM

"Originalism" is in my view no more "butt-stupid" than the notion that "general welfare" means that the government's powers are absolutely unlimited in any significant way.

I agree that such a position would be just as butt-stupid as originalism.

Luckily, I've never heard anyone argue such a thing, so I think we're cool.

Posted by: Dadahead | Oct 23, 2005 9:42:05 PM

"that it's not that the Air Force was part of the Army on its inception, I believe in the overall command structure it's still under the Army, thus meeting the Constitutionasl requirements."

Hmm, no. Not since 1947 when the Air Force became its own independent branch of the military. http://en.wikipedia.org/wiki/National_Security_Act_of_1947

I could explain the Joint Chiefs of Staff, the odd fact that the Commandant of the Marines is still included on the Joint Chiefs even though the Marines still report to the Secretary of the Navy. Or I could suggest a resort to something called "Google".

Posted by: Bruce Webb | Oct 23, 2005 9:49:46 PM

Many countries have rather long, explicit constitutions. The U.S. has a rather short, vague one. I think many people -- not all of them conservatives -- would rather we have a legal system defined by narrow statutes, along the lines of a Napoleonic civil code. We don't have such a system, except in Louisiana, but I can plausibly see the advantages on both sides of the civil law vs. common law argument.

The thing is, though, that once you start arguing against an expansive reading of the constitution, it's possible that the SCOTUS loses the power of judicial review entirely. While judicial review can be inferred from article 6 clause 2 (This Constitution... shall be the supreme Law of the Land) and article 3 section 1 (The judicial Power of the United States, shall be vested in one supreme Court), it's an inferrence (IMHO, a correct one), not an explicit part of the constitution. So those who seek to pare back Congress's enumerated powers with a very literal reading of the constitution may also find that they've also pared back the Supreme Court's ability to review Congress's enumerated powers and overturn it when it oversteps them.

Posted by: Julian Elson | Oct 23, 2005 11:51:38 PM

Well, Bruce, I said "think" not "know" - I suppose I was remembering the relationship of the Marines to the Navy. All of it's more than I want to know anyway (non-violent...opposable thumbs... somthing like that).

And originalism is still a crock. :)

Posted by: weboy | Oct 24, 2005 12:03:33 AM

Originalism as explicitly amended

The advantage to this this system is that it's much more objective than other systems of interpretation.

Posted by: Fred Jones | Oct 24, 2005 10:47:51 AM

Hey, fnor. Tell me please because I dying to know. How can the 9th Amendment NOT be read broadly? Hmmm? It is broadly written and thus should be broadly read and interpreted. How in the hell can it NOT be read broadly? How the hell can one read at least a 3rd of the Amendments and NOT see that there must be an underlying, implied, and logical right to privacy there in the first place? Do these Amendments thus simply fall out of someone's ass? What logical, consistent, reasonable basis can use to read virtually the entire Bill of Rights and NOT see an inherent, natural, logical, right to privacy? Where were the Founders violating the inherent right to privacy in their day? Hmmm? Where are the examples of them storming into bedrooms to see who was getting nailed by whom? Where are the examples of them tracking women to prevent them from having sex or, gasp!, having abortions which were available at the time?. Show me the many examples of the Founders acting in any way, shape, or form that clearly indicates that they saw no such thing as a natural right to privacy. And again, explain how a broadly written 9th Amendment is not to be read broadly. Are you saying that in this case one CAN'T be a so-called literalist, originalist, or whatever nonsense moniker one applies to justify one's personal political/moral desires TODAY?

Posted by: Praedor Atrebates | Oct 24, 2005 10:54:17 AM

"Do these Amendments thus simply fall out of someone's ass?"

In fact, Constitutional scholars believe that amendments 1-4 and 7-10 fell out of Alexander Hamilton's ass, while 5 and 6 descended from the ass of John Adams.

(Actually, I agree with you.)

Posted by: Neil the Ethical Werewolf | Oct 24, 2005 12:20:35 PM

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