Why the Air Force Is Not Unconstitutional

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.

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8 Responses to Why the Air Force Is Not Unconstitutional

  1. C.E. Petit says:

    A simpler solution, also (ironically) dependent on McCulloch, is to treat creation of an Air Force very much like creation of the Bank of the United States: A “necessary and proper” set of legislation to implement one of Congress’s undoubted powers. The question then becomes “Is a separate Air Force necessary and proper?”–something that would clearly pass rational basis review, and probably even strict scrutiny.

    Although I’m not familiar with federal cases concerning this question, there was a colloquy extending over several issues in the Air Force Law Review in the mid-1980s seeking to settle the question.

    –former USAF line officer

    • Owen says:

      A federal bank is unconstitutional period. If the power is not listed then it is not there.

      If there needs to be a change then pass an amendment. Pure and simple.

      While there was no air force when the constitution was written out founding fathers created a way to modify it for the changing times. That method is called amending. This amending the constitution idea I know seems rather novel to people like you but if you want to change the constitution then have it amended,

  2. B. M. Mount says:

    Even though I’m generally a big fan of structural readings, I tend to think that the wimpish approach is the correct one here. If “Armies”, “a Navy” and “land and naval Forces” just meant “military forces”, then these terms would have to include (i) privateers and (ii) Hessians. But if (i) were the case, then this would seemingly make the letters of marque and reprisal clause redundant; so the canon against surplusage seems to tell against this reading. As for (ii), I think there are strong grounds, both normative and (quasi-)originalist, for saying that the Constitution shouldn’t be read to encompass this possibility. At the very least it’s a dicey question. So I would go with reading “Air Force” specifically under “armies”. Out of curiosity, does Congress make Air Force appropriations lasting for longer than two years? I suppose, on my reading, that would be unconstitutional. (Although, of course, it’s easy enough to evade the biennial requirement anyway.)

  3. Pingback: The Volokh Conspiracy

  4. fred says:

    Let’s assume Strict Constructionists dominated the Court when Laird v Tatum was decided. Let’s assume they said there was no constitutional right to create an air force. What would have happened?

    An amendment to the constitution would have been swiftly passed creating a power to maintain an air force.

    What always seems to be conveniently forgotten is that the constitution has always contained a way to alter itself and adapt – far short of having judges make things up.

    The Air Force situation is not a good example of why strict constructionism is bad.

  5. DWPittelli says:

    Of course, the notion of a federal government with limited, specifically numerated powers, is generally seen as antiquated, and the possibility that the Air Force might otherwise not be constitutional could be seen as another argument against such a limited federal government. However, at most, the strict reading would require the Air Force to be subordinate to the Army (as it was through WWII), rather than represented at the level of Joint Chiefs of Staff. If so organized, the Air Force is just a collection of similar ground-based weapons, with no more constitutional import than an armor division, or any other specialized group.

    This reading would not prevent serious obstacles to our defense — arguably it would be to our organizational advantage, at least for tactical air power. (One reason the Army has long been enamored of relatively fragile and slow attack helicopters is that they don’t trust the Air Force to provide close ground support, and the Army isn’t allowed to fly combat fixed-wing craft, because that’s the Air Force’s purview.)

  6. I thin a more interesting, and Constitutionally iffy, question would be “What clause, if any, of the Constitution permits Congress to establish a marine corps?

    My uderstanding of history of the corps– an expeditionary force under control of the Navy that was first used in the Barbary Wars — seems to be totally at odds with the constitutional provisions designed to prevent the establishment of a “standing army.” It seems to me to be an “end run” around the Constitution…”Well, no, we don’t actually have an army, we just have these guys in sailor suits who go around invading other countries…”

  7. Rod Thompson says:

    Actually the Marines are a traditional part of a naval establishment and were established prior to the Constitution by the Continental Congress. http://www.history.navy.mil/faqs/faq59-14.htm. Although it is interesting to note that that act said that they were considered to be part of the army.

    —–

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