The United States Air Force is unconstitutional

Great Debates
262

Yes, there is overlap between ‘army’ and ‘navy’, as several people have pointed out. My idea is that between them, they cover all the critical elements of ‘military’, and that standing alone, they wouldn’t have done so. Because the navy is something ‘out there’, and the army is being restricted precisely because it isn’t ‘out there’. And the army is something you are calling up because you don’t want a standing army, but the navy is something you own because you do want a standing navy.

I think that capital and recurring costs are critical elements in constitutions in general, and that occupation and projection seem to have been important to the USA constitution, and that between them ‘army’ and ‘navy’ seem to make those critical elements clear in a way that merely ‘army’ or merely ‘navy’ would not have done.

I don’t have to think that ‘army’ and ‘navy’ are entirely different things to think that between them they solve the constitutional questions that I see. We could be arguing about if the government was constitutionally able to own tanks: clearly not thought of. We could be arguing about the navel militia: but we aren’t. Between them, ‘army’ and ‘navy’ as referenced in the constitution answer the arguments that matter - both then and now.

I’m not the supreme court, nor a historian, nor the common will of the people, this is just what it looks like to me, after trying to make constitutions work when I was younger, and I haven’t seen anything new here that makes me think that earth and air and water were something people cared about then or now.

I come from a political tradition that explicitly rejects ritualism, which I don’t deny, so I may be conscripting the originators into my own beliefs, but it seems to me that the originators also mostly were part of that same political tradition, and the constitution was and remains about real political questions like ‘how much power will the central government have, and in what (logical/political) areas’

263

Yes, of course.

264

You are correct sir; if this is the remnant substance of your post #155, having struck down the second premise and thus the conclusion, I concede this first premise.

There is an argument that can and has been made, that the constitution as written is not a suicide pact or that as a matter of pragmatism it should not be interpreted to arrive at absurd results. It is not a terrible argument, if you want to adopt it.

But here I think we agree, it is possible that while the language used may have led to sound policy in 1789, unforeseen changes in technology and culture may lead to the very same language making less sound policy today. Your main point advocating a cleaner read is stronger, if only I could be convinced as to its propriety. By your leave, we can return to that line of discussion.

By my own standard, is the infantryman making decisions in the air? Whereas a paratrooper with a long descent will have time to make decisions, I am not sure if there is enough time to do so with your average jump from ground-level.

You are free to keep pushing the line, but it is a bit like asking how many granules of sand make a heap. At some invisible level of microscopic proportions, man may never actually touch the ground.

My standard is probably not perfect, but your alternative interpretation where “land force” includes air forces but not naval forces is not (yet) intuitive to me. The results of your interpretation are less absurd, yes, but I still don’t understand what reasoning leads you there - unlike some others who have argued for a more broad definition of “Armies”, you seem to agree that “Armies” are “land” forces.

~Max

265

While I recognized that the definition of “army” (or “Armies”) at the time was a collection of armed individuals, I also argued that its use in the Constitution was more narrow than that.

I had originally passed over your post, but eventually got around to it here:

~Max

266

Can it be fairly argued otherwise? Is it reasonable to interpret “Armies” and “land” forces as encompassing SAC/AFGSC? Of course, that’s the whole other side of the debate.

The only thing is, you cannot use the absurdity of my interpretation as the only argument in support of your alternate interpretation. Nor may I argue my own interpretation is justified by the absurd result. That would be arguing in a circle.

Let us consider your interpretation and see where that leads us. Let us construe “Armies” and “land” forces broadly enough that it directly includes strategic bombing (ETA: we can look at necessary & proper and supporting armies separately, at a later time). Your argument goes, the pilots spend most of their time on land. Their craft are manufactured on land, and for the sake of argument, let us assume this outfit launches from a land base and attacks land targets.

You may remember my objection - I raised it upthread - all of these qualities are present in the case of a squad of seafaring vessels sent on a short mission to bombard a coastal fortification. Presumably you agree with me when I categorize the seafaring vessels as a “naval” force and thus part of the constitutional “Navy”.

Land and naval forces are two different types of forces. I have admitted that there exist such things as hybrid land-naval forces, but the naval force just described is not, in my opinion, a hybrid force - it is purely naval. As such, I cannot argue that the strategic bombing outfit is a land force based only on qualities found in a purely naval force.

This analysis is, I think, immune even to your recent assertion (post #258) that a military force on the water is not necessarily a naval force. There may be another argument for considering an air force to be a land force, aside from their spending time on / launching from / attacking targets on land, but I think the onus is on you to present it, or to clarify how your rationale holds up against my critique here leveled.

~Max

267

Why do you interpret it this way? That’s the question I have been trying to get you to answer? Why is this interpretation the best one or even a good one?

I submit it is not because it is not original public meaning, nor is it even textualism, but as I have said, it is hyper literalism. The drafters would not have mentioned air forces or air power because there was no such thing back then.

They thought of a way to word the idea that Congress had the power to regulate all military forces of the United States. They could have come up with many various phrasings, but settled on “land and naval” and you will readily admit that this particular choice was not one for a purpose to remove future air power from Congress’ control.

If so, then why do you use the interpretive method that must strictly match land and naval to Armies and Navy in a prior clause? IOW, I repeat, what, other that your own gut feeling, supports an interpretation that you alone rest upon?

268

A few things:

  1. The onus is not on me to prove the Air Force to be constitutional. As the individual who is proposing that an 80 year old branch of the U.S. Military, enacted by Congress, and supported by presidents of both political parties with nary a peep of unconstitutionality, is nonetheless unconstitutional, I feel that the burden is certainly on you, not just to state your bald assertion, but to state why your method of interpretation is the best or even plausible. Not just say “I interpret that to mean…” and therefore your position is proven.

  2. Yes, armies are typically on land and navies are typically on water (I hope you have conceded that there is overlap) but that was not the distinction that made a difference to the founding generation. As another poster said, the Navy is “out there” patrolling the seas, bombarding pirates, and most importantly “not here” screwing with free people. A standing army was seen as dangerous (hence the two year limitation) and an army was “here” bothering us. The water v. land distinction is meaningless in this context. The founders would no more want a standing Navy that patrolled the Potomac River harassing the good townsfolk than they would a standing Army.

  3. If there simply must be a constitutionally meaningful distinction between land and water (and I disagree with that) then why does it follow that there must be a distinction between land and air? And if there is a distinction (with which I disagree) why must you take the most uncharitable view of it (i.e. based on land isn’t good enough, the decisions must be based on land) and construe a necessary part of the armed forces to create an absurd result?

269

My argument is quite the reverse, that strategic bombing can be a sound military practice but that it is unconstitutional. I operate on the fundamental assumption that government action is unconstitutional by default, however - as pointed out by bump in post #13 et cetera. Thus my arguments are in substance, that strategic bombing is not covered by the armies clause or the navy clause or the necessary & proper clause.

I agree with you, until you conclude that it is constitutional to use aircraft. I don’t think constitutionality flows from intent - I recognize that the theory carries weight for many, but it doesn’t for me. That would be a different debate, in my opinion.

~Max

270

Where do you draw the line? Which weapons that didn’t exist in 1787 are constitutional and which are not?

271

Why wouldn’t Washington’s force be considered a naval force? Not only did he have infantry with guns on boats, experienced seamen from Glover’s regiment navigated the waters. (Glover’s regiment operated the first incarnation of the Navy, although those ships had been returned/destroyed by December 1776). Artillery was ferried too, but possibly not on the same boat as troops and/or in a manner where it could be safely fired.

Would you consider the Peloponnesian fleet at Rhium to be a naval force? Those too were transport ships, ferrying troops. They were triremes, operated by oar power like Durham boats. The only difference I can see is that the Peloponnesian fleet was actually caught by the enemy, thus precipitating a naval battle.

~Max

272

I understand that the reason behind limiting army appropriations is to serve as a check on standing armies. And there is good reason to own a standing navy rather than rent ships every couple of years. But it doesn’t follow that ‘navy’ includes every long standing military force. You mentioned tanks; certainly a nation will want to ‘own’ a force of tanks instead of renting them for two-year periods. Tanks have high upfront capital and will incur recurring costs for maintenance, fuel, etc. But I would not call a force of tanks a navy, would you?

To say we should interpret the constitution so that tanks are considered navy is, in my opinion, to misinterpret that document.

~Max

273

No, I would not call a force of tanks a navy. The constitutionally import points in a constitution, by my thinking, are not what you call things.

To say we should interpret a constitution by what things are called is, in my opinion, to misinterpret that document.

274

My interpretation is a mix of original meaning and textual, at least in my own opinion.

I have and continue to concede that “army” at the time could mean any organized armed force. But usually it referred to an organized land force, as opposed to naval forces which are organized as a navy. Something not mentioned earlier, is that “force” itself is often defined - today and in the eighteenth century - as an army/soldiers or navy/ships as in military or naval force. It has already been pointed out by Falchion that ‘military’ at the time pertained to armies or soldiers.

The most important piece of evidence is the constitution’s own distinction between army and navy:

  • In Article I section 8 (“To raise and support Armies” vs “To provide and maintain a Navy”; structure implies that “Armies” does not encompass “a Navy”)
  • In Article II section 2 (“of the Army and Navy of the United States, and of the Militia of the several States”)

There is also Art. I section 8’s provision allowing Congress “To make Rules for the Government and Regulation of the land and naval Forces”. What land and naval forces? The ones just described: Armies and a Navy.

As further evidence the same device is used again. Immediately after that provision just cited, Congress is granted the power to provide for calling forth the Militia. And immediately after that, Congress is granted the power to regulate the Militia so called into service.

This is simple parallelism: first give Congress the power to create a military force, then give Congress the power to regulate that very same force.

We can also look at other documents from that time period. Here is an excerpt from the Articles of Confederation:

The united states, in congress assembled, shall also have the sole and exclusive right and power of […] appointing all officers of the land forces in the service of the united States, excepting regimental officers - appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the united states; making rules for the government and regulation of the said land and naval forces, and directing their operations.

The united States, in congress assembled, shall have authority to […], - to build and equip a navy - to agree upon the number of land forces, and to make requisitions from each state for its quota, […]

The united states, in congress assembled, shall never […], nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander in chief of the army or navy, unless nine states assent to the same […]

You see in this document, the direct ancestor to our Constitution, that the equivalent power to raise armies is given in the form “to agree upon the number of land forces, and to make requisitions from each state for its quota”. Furthermore the device employed in the third paragraph reproduced is to list the various powers previously granted and subject them to the assent of nine states. It is readily apparent that “naval forces”, “navy”, and “sea forces” are synonymous; also that “land forces” and “army” are synonymous, on account of their being a commander in chief of the army or navy, when the United States only has the power to appoint officers of the land and naval forces.

This is of course only background, the text of the Articles of Confederation do not override textual considerations of our Constitution.

I’m sure I could find further evidence that armies are land forces and that navies are naval forces, but I hardly think it necessary - the dichotomy survives into present day as a trichotomy between land, air, and sea. Sometimes additional domains are added, in modern battlespace theory you have cyber, space, etc.

~Max

275

I have here presented my position, you made some counterarguments, chief among which is that your interpretation is better. I made some counterarguments against your position, and when I say the onus is on you, I mean only if you wish the debate to continue along that path.

Nevermind the intent, which I agree with you on. Land and naval forces are distinct on a strictly textual basis according to the mere facts

a) that they are enumerated (as “land and naval”), and
b) that the word “Forces” is plural.

I would not construct a sentence, “my right and right hands” unless for comedic effect, so clearly “the land and naval Forces” refers to two different things.

There may be intention to distinguish between forces that can harass citizens at home and forces in foreign lands - but the written text carries the day, in my opinion.

I think you may have mixed up two threads of discussion. My specific criticism of your argument, as I understand your argument and which you replied to, does not rely on a distinction between land and air. Only between land and naval.

Your argument as I understand it is that aerial strategic bombing can be considered a land force. My counterargument is that the reasons you gave are not enough to distinguish it from a decidedly naval force.

I did not, in the post you responded to, defend my own position about decisions being the line between air/land/sea. I only offered criticism of your position.

~Max

276

Article I Section 8 of the Constitution seems to give Congress the authority to create an Army and Navy, but not an Air Force,”