I forget sometimes just how diverse the readers of this blog are, although one need only to look at the readers’ self-descriptions from those kind and generous enough to leave one to be reminded of this fact. So I suppose I shouldn’t be surprised at how many people — mostly non-lawyers — asked, in one form or another, for me to not just post the questions but also the answers to my Constitutional Law Scavenger Hunt. (Lawyers, and especially law students, probably knew better than to expect a law professor to actually answer a question.)
Although this may risk turning my hobby into something that more closely resembles my job, I’m going to give it a shot for a while and see how it goes. My vague goal will be to do at least one a week, aimed primarily at the non-legal reader or first-year law student (I hope that specialists reading these will take the time to correct my errors, but I won’t be presuming in this series of posts to try to tell you anything you don’t already know). Along the way I hope also to address a few of the classic chestnuts I left out of my original list such as “who presides at the impeachment trial of a Vice President?”.
I’ve created a new category for these posts to collect them in a handy form for those who come in late. Who know, maybe I’ll even publish the lot on a dead tree some day.
So, by popular demand, here’s the first one.
Q1: What clause, if any, of the Constitution permits Congress to establish an air force?
A: Article I, § 8, provides that Congress may “raise and support Armies,” and “provide and maintain a Navy,” and make “Rules for the Government and Regulation of the land and naval Forces.” The Air Force is “comprehended in the constitutional term ‘armies.’” Laird v. Tatum 408 U.S. 1 (1972) (Douglas, J., dissenting).
The question illustrates the dangers of adopting an overly literal “strict construction” or “clause-bound interpretivist” approach to the Constitution as opposed to, say, a more expansive Marshellian approach (“it is a Constitution we are expounding here”). If we were to read the “Armies” and “a Navy”, and the “land and naval” forces language literally, it would be tempting to read it as excluding an Air Force. It also shows the power (and perhaps virtue) of a structural or holistic approach to constitutional interpretation. “Land and naval forces” was, after all, all the armed forces known at the time of the Framing. Why not read that text to mean “armed forces”? Surely, after all, that is what was intended. (There is a third, wimpish, approach to this issue, which is to note that the Air Force was initially part of the Army, and thus to argue that it is just another Army, one that happens to fly.)
A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a Constitution we are expounding.
–Marshall, CJ, in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
As far as I can tell, no judge has ever seriously suggested that the Air Force is unconstitutional. Indeed, Justice Douglas’s dictum (in dissent) may be the only discussion of this issue by a federal appellate court in the law reports.
On the one hand, this may reinforce our faith in the fundamental sanity of legal discourse. On the other hand, this absence might be traced to modern standing doctrine (the doctrine that unless at least one plaintiff has a unique and personal interest in the outcome of the case, courts should not hear it at all), which creates few opportunities for the issue to arise. Few, but not none at all, as demonstrated by the creative lawyering before the U.S. Air Force Board of Review in U.S. v. Naar, 951 WL 2298 (AFBR), 2 C.M.R. 739 (1952). There, appellant, an Air Force officer, argued unsuccessfully that he had been prosecuted unlawfully because the Fifth Amendment states that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment of a Grand Jury, except in cases arising in the land or naval forces” and the Air Force was neither. The tribunal made short work of that argument.