The United States Air Force is unconstitutional

But you already have an Air Force. Problem solved.

I also believe that there is an additional reason why the argument has no merit and it results from basic principles of sovereignty.

We start from the belief that the states are sovereign, had all the attributes of sovereignty that any other other nation in the world has, and only ceded those limited portions of sovereignty to the national government as strictly delineated in the Constitution. If, as you contend, the national government has no constitutional power to create an Air Force, then that would be an attribute of sovereignty that remains with the states. Your argument must admit that each of the 50 states has the power to have its own Air Force. It is unavoidable. An aspect of sovereignty cannot just be lost in the ether. It must then reside with the states.


No State shall, without the Consent of Congress…keep Troops, or Ships of War in time of Peace, … or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

So, your argument must then take the position that members of the state Air Force are not “troops.” That is unavoidable, first, because assuming “time of Peace” modifies “keep Troops” the state cannot have an standing Air Force, leaving an attribute of sovereignty in the ether, or assuming the phrase does not modify “keep Troops” then a state cannot have an Air Force at all, leaving an attribute of sovereignty in the ether.

So, your building blocks have then required a strained view of the word “troops.” And as states are forbidden to “engage in War” the constitution then would be read to allow the states to exercise sovereignty by having an Air Force for no real purpose whatsoever.

As you keep digging into your argument, it can admit of exceptions and re-definitions to support itself, but if we are talking textualism and original public understanding, the argument that a federal Air Force is constitutional flows much more easily and is only prohibited by a hyperliteral and cramped reading. As a judge, which one do you prefer?

I am not on @Max_S’s side of this argument. But even I think this is completely irrelevant to this discussion. None of the argument in this thread has been about whether the U.S. should have an Air Force. It’s purely an academic argument about whether an air force is technically authorized by a strict reading of the U.S. Constitution. And if it’s not, already having one doesn’t solve the problem - it is the problem. (And let me hasten to re-emphasize that I think the U.S. Constitution unambiguously does authorize such a force, and I think @Max_S is completely wrong about that).

I just don’t see the point of this discussion. Suppose @max_s wins the argument, somehow. What happens then? Does the United States embark on a long, politically arduous process of amending its Constitution, at the end of which the situation will remain exactly as it is today? Does it disband the Air Force? Does it keep things as they are, except now it’s doing so in open violation of the Constitution? Maybe I’m just a pragmatist who stumbled into a purely theoretical debate, but I really don’t see anything to be gained here. The system isn’t broken, so why are you trying to fix it?

The Air Force is a flying Army. The writers of the Constitution did’t know we might have planes one day.

I’m kinda shocked this silly argument has gotten so much response. I can only guess that the topic is making some type of disingenuous argument about original intent or strict interpretation of the Constitution.

Modnote: “Silly argument” is OK as it is attacking the post. But the rest of your statement is attacking the poster. Do not attack the poster in GD or P&E. BTW, here are the rules.

This is just a guidance, not a warning. Nothing on your permanent record.


Rather than specifically reply to all the points you’ve raised in detail, I’m going to try a more general approach that I hope addresses them.

Bombardments were a standard element of warfare in 1787 (“the rockets red glare, the bombs bursting in air”). Reducing an enemy stronghold solely through stand-off bombardments with no ground assault is as old as artillery. It pre-dates gunpowder - armies attempted it with catapults and ballista. It wasn’t generally a very successful approach, but it was well within a common understanding of what armies did, then and now. Not only that, it was the usual approach in naval warfare of the period. Coordinating a naval bombardment of a shore installation with a ground assault was actually the exception.

If I can launch bombs and rockets at an enemy position from land-based artillery, and from craft at sea, why can’t I do the same from craft in the air? If a battleship can conduct bombardments with no ground assault, why can’t an aircraft carrier? And if carrier-based aircraft can, why can’t land-based aircraft?

Sacking and burning cities is literally as old as organized warfare. It was widely considered rather barbaric in 1787, but it was still a well-known component of warfare that would have been considered a core function of an army. If I can hurl incendiaries at a city with a catapult, what’s the constitutional objection to dropping them from an aircraft?

Let’s take a look at some specific examples.

In 1813, during the Battle of York, an amphibious assault from a riverine flotilla resulted in the burning of the Legislative Assembly and Government House by ground troops, before they withdrew. This may or may not have been a war crime, but from what you’ve written, I don’t think you think there’s a constitutional objection to this. But if amphibious raiders could constitutionally burn York, why couldn’t the riverine force have constitutionally done the same with a stand-off bombardment (which, again, was a standard element of naval warfare)? And if that’s constitutional, what would be the constitutional objection to an aerial bombardment? Launching Congreve rockets from a hot air balloon wasn’t really practical at the time, but if someone had tried it, do you really think there would have been constitutional objections raised that a “rocket balloon” force wasn’t specifically authorized by the Constitution?

Going back a few years, what about the Barbary Wars? The first Barbary War involved a ground expedition, but was fought largely by naval bombardment of shore installations, ports, and cities. The second Barbary War was fought entirely with naval power. Do you really think there would have been constitutional objections raised at the time to a “rocket balloon” force conducting the same bombardments? Again, what is the constitutional objection to air craft performing the same missions that naval craft have been performing as a standard element of warfare since the invention of the cannon?

Jumping ahead a couple of centuries, what about the U.S. intervention in the former Yugoslavia in the 1990s? It would have been counter to U.S. war aims to put troops onto the ground in Serbia and Kosovo. Does that make it unconstitutional? From what you’ve written, I’m pretty sure that you think that it would have been constitutional for a U.S. Soldier to hike into Serbia with a TOW missile on his back, use it to disable a Serbian tank, and then hike back out. What if he drove in and out*? What if a helicopter brought him in, dropped him off, and then flew him back out? If that’s constitutional, why can’t he just fire the TOW missile from the helicopter?

*This, by the way, is why I brought up the Armor Branch upthread. A self-propelled armored vehicle would have been as foreign to the concept of an “army” in 1787 as aircraft would have been, yet you don’t seen any constitutional objection to tanks with laser-guided depleted uranium rounds.

So, then…don’t participate?

No one’s trying to “fix” anything. It’s an academic debate in the Great Debates forum. I mean, this is a discussion board. It’s not a legislative assembly. There are probably a few threads where posters discussed the events of their personal lives where the discussion may have had a practical impact, but I seriously doubt 99% of the threads on this board have ever had any practical impact. Certainly, I don’t think any GD threads have ever resulted in any changes to any U.S. national policies or resolved any constitutional issues in the real world. But there have been a lot of threads in GD discussing those issues.

I also consider myself a pragmatist, by the way. That doesn’t mean I never engage in academic debates. If being a “pragmatist” means to you that you don’t see the point in theoretical debates, that’s fine of course. But, then, maybe, just don’t participate? Telling other people they shouldn’t be having a theoretical debate in the Great Debates forum because you don’t see the point of a theoretical debate seems…odd.

I get the concept of academic debate. It’s just that it seems to me that this thread is even deeper into “angels dancing on the head of a pin” territory than usual for GD.

There’s also the fact that IMHO, the concept behind this thread seems to be worryingly close to that Sovereign Citizen nonsense of there being secret codes and loopholes in well-established laws. I just want to be sure that no-one’s taking the question seriously.

One of the reasons “we” were on the winning side.

WW2 was not the USA vs Germany.

I apologize to the OP. Thank you for the clarification

I’d say the question to be raised to take the case to the Courts would be how does considering it one of the “Armies” cause some sort of harm to the constitutional order or to the rights of the people, that requires correcting?

And let’s remember, SCOTUS does not make decisions presuming a vacuum and nonexistent external factors. If the Air Force’s current statutory standing were unconstitutional on some basis, the decision would be a “narrow” decision and the remedy would NOT be to just dissolve it, but rather to have Congress either draft an amendment saying “look ya buncha pedants, we mean Armed MIlitary Forces of whatever kind, OK?” or carry out reorganizing legislation to turn the airpower elements it into something constitutional according to the narrow decision’s criteria.

. . .

Meanwhile, yeah, ISTM the notion that the “machinery operated by a human crew, that aims and propels the projectiles” has to be sitting on the surface of the land or sea at all times is putting an originalist straightjacket on actual implementation(*). Already the matter of remote-controlled drones has been raised (the operator is sitting at a ground facility, sometimes even within CONUS).

ISTM at best the contitutional argument would be that there should have never been spun off a separate Air Force Department and that both Army and Air Force should have remained administratively within one single War Department, just as the Navy and Marines remain under one Navy Department (that also absorbs the Coast Guard during declared wartime) and the Air and Space Forces remain under one department as well. I take the opportunity, with my apologies if I missed it earlier, to inquire what OP thinks of the decision to have one single overarching Cabinet-rank Defense Department to cover everyone.

(*) After all, technological evolution was not unknown even then, and it has already been conceded that replacing horses, sails and wheels with steam or gas turbines and rotors is within the scope of the definitions. Making your artillery mechanically self-propelled on tracks does not make it stop being artillery, putting your scouting cavalry on helicopters does not make it stop being scouts/skirmishers.

. . .

The point ISTM is more with a matter of US Constitutional philosophy. Be the justices or scholars involved originalists or textualists or advocates of the “living constitution”, for over two centuries as I read it their common position towards the federal Constitution has been that we will NOT do like some other countries or even some of our states (looking at ya, Alabama, Texas, Cali) with theirs, and turn it into some sort of overglorified Uber Civil Code where we stick every item of civil/administrative/social law or policy we had not thought of before or want to prevent a lower-ranking jurisdiction or future legislature from doing different. Because, matters of administrative and social policy are what legislatures are supposed to be working with on an ongoing, continuing basis, and what is a priority of administrative and social policy is expected to change.

And so, it would seem the broad consensus in the 1940s was that “a reasonable person” would read “Armies” in the original text as logically applying to any sort of land-based military force and that the authority given to outfit and organize over “Armies” included organizing them according to a rational basis that would include environment of function, and the Air Force came into existence.

Hmm… wait, let me work this one out… So maybe the states could support an Air Militia, subject to be called up by the national authority – so technically something akin to the Air National Guard could exist, and be organized ans equipped under the aegis of Congress’ power to legislate “for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

Though I get a feeling that this would elicit a “but wait!” from the other side, with the argument that “the Militia” as understood in 1787 meant the private citizens keeping and bearing arms at home to be summoned into a land army and so we’d be back where we started.

Well, it’s really only politically arduous when it’s something that’s controversial. Should the US have an air force?" isn’t really a controversial issue. I’m pretty sure that, if this case made it on to the docket, and seemed likely to succeed, we’d have the constitution amended before anyone made opening arguments to the Supremes.

Nitpicking? You ain’t seen nothing yet!
People can’t fly.

Seems to me that the even easier thing would be to just slap the name “Army” in front of everything Air Force and call it a day; less trouble than constitutional amending. “USAAF” and everyone goes home happy.

Have you seen the current state of U.S. politics? The government couldn’t pass wind without a catfight, let alone a constitutional amendment.

That would be a consideration the Justices would have to bear in mind when considering whether to include a remedy in their decision. Because, yeah, there would be those who would say, “well, the clock is ticking… we are left without an Air Force at the end of FY 2025… unless you guys give us ______________”; or, “well, sure, but I will ONLY vote specifically for legalizing an Air/Space Force, but you must add language forbidding them from coming up with anything else or from dissolving any of the existing branches”; or conversely “no, I will only vote for language that says Armies and Navies refers to any sort of forces that may develop to carry our military operations no matter what you call them or what they do, no fixed list!”; or “where in this does it mention the armed people’s militia?”; or “how about that two-year limit?”; or, any number of things each Member may prefer.


The OPs same argument could be applied to the first amendment not applying to TV because it’s not actually “the press.”

The OPs argument wound be stronger, or at the very least more interesting, if the Constitution excluded a form of the military that existed in the 1780s. For example, if the Constitution only called for an Army, and did not discuss the Navy and there were a belief at the time that it was purposefully excluded. Some at the time believed that we should only look inward and to the west, and that we had no need or business having a Navy. If all of this was the case, the OP might have a point. But the Constitution included all forms of the military that a national government would have at that time so if follows that the Air Force would be included now.

I had assumed it meant types of forces already, with land being one type and naval being another. I don’t think internal and external matches the original meaning of land and naval, although that makes sense from an original intent perspective I do not rely on original intent.

I’m not sure what you mean by capital and recurring costs, could you explain that? As synonyms for “raise and support” / “provide and maintain”, perhaps… but if those words only mean financial support or maintenance I would not be able to justify air transportation or tanks.


It has no history behind it because although a common criticism of originalism, it is a niche legal question on what was until recently a fringe legal theory. Furthermore the question is unlikely to ever actually present itself in court, not only due to standing but also because there is no incentive - the question is academic. Without history there is little authority to draw upon. Hence my de novo take. If you want to use that against me, you are well justified.

You put me on the defensive back there with drones and missiles versus manned aircraft and I had to come up with criteria to distinguish a projectile from a military force. Since there’s no history there is no authority to rely on to answer your question, so I had to make up my own test based on what I think is reasonable. I think I refined my theory - your statement is not an accurate summary:

I used the words “or at least carry out decisions” to account for remote control drones or missiles. This is what would separate a drone from, for example, the projectiles of an Active Protection System (a computer scans the area around a tank and automatically shoots down threats). The former can carry out decisions by changing the turbine speeds or opening fire in response to remote control, the latter once fired is essentially a dumb projectile governed by inertia, resistance, and gravity.

If you know of any sources which construct these clauses, please throw them my way. Because right now I have three major theories to choose from, the one I have presented, the one where a fleet of aircraft is a land force, and the one where pilots are an army. Of these three, I am aware of no authorities to look for better understanding, only the participants in this topic.