The United States Air Force is unconstitutional

[Max_S]

@MrDibble

But your opposition earlier included specifically strategic bombing. But that is projection of military strength to the land . So by your own argument, that aspect of air force operations is allowed.

The example you quoted involves a ship bombarding a land fortification, so I think the analogy remains intact. If the ship contributes to a naval force, the bomber contributes to an air force.

I think your substantive objection is related to UltraVire’s from post #78, which I responded to in #103,

@Max_S

A projectile is, in my view, quite literally a projection of military force, and should not be considered a military force in its own right. Thus the analogy fails, a cannon ball and a manned B-52 are critically different in that one may project military force in its own right. On the battlefield the manned aircraft has the capability to make or at least carry out decisions, to adapt to the circumstances at hand. As a military force it is not to be compared with a projectile, a proper analogy would recognize that aircraft have projectiles of their own.

As another example, I would not consider turrets mounted on a coastal fortification to constitute a naval force.

~Max

Also, I just watched Laputa a few days ago. Last week the reference would have flown over my head!

[Max_S]

I understand your criticism, and I do read that much into the necessary & proper clause. I personally think it is the single most important clause in the Constitution.

The way I see it you need men and supplies and some level of bureaucracy to maintain a fleet of combat-ready ships, even in the eighteenth century. Necessary and proper covers all of that - paying the shipwrights, for example. Paying the wages of deckhands and equipping marine infantry.

Shore facilities are actually covered under a different provision in section 8. The clause before the necessary and proper clause specifically and independently empowers Congress to exercise authority over land purchased from the states to build up “Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings”.

And it has never been about improving the efficiency of a navy, but as a matter of necessity to maintain the navy. Without air support, your navy is going to be in worse shape.

~Max

[Pleonast]

@Max_S

I anticipate an objection, there was no concept of an air or space force in the eighteenth century! The fact that air forces and space forces were not concepts back then is irrelevant. The text as written is an enumeration of two specific types of military forces. There are now three or more, what with battlespace theory including domains like intelligence. Still, the text of the constitution is stuck on land and naval.

You seem to argue as if, because land and naval forces would have encompassed all military forces in 1789, we should interpret land and naval as meaning all military forces now. I think that is a flawed interpretation.

The best interpretation of the meaning of text is what the writer(s) intended. The eighteenth century writers of the Constitution did not and could not intend a limitation on military forces when they said “land and naval”, because that was the extent of military forces. Reading that phrase as a limitation is ahistorical and non-textual. The only reasonable interpretation is the phrase is descriptive.

Furthermore, the earlier clause granting Congress the power to raise “Armies” restricts it in exactly one way: a limitation on time. If the writers had intended other limitations on the power to raise armed forces, they would have listed them. It is ahistorical and non-textual to infer a limitation that is not there.

This discussion hinges on how the Constitution should be interpreted. It is not a modern law code where everything is explicitly ruled in precise legal terminology. It is a foundational document written in descriptive language. It is not reasonable to interpret it strictly. You can see this by reading the debates about the Bill of Rights. The detractors warned that it was too explicit, that it would be read as a complete enumeration instead of a set of examples. This made explicit in the Ninth Amendment:

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

When a document and its recorded discussions tell you how to interpret a document, that is how it should be interpreted.

[Max_S]

@Pleonast

The best interpretation of the meaning of text is what the writer(s) intended.

I strongly disagree, and have expressly distanced myself from original intent interpretation.

A descriptive phrasing would be ‘regulations of forces, land and naval.’ Written that way land and naval merely describe rather than qualify.

@Pleonast

Furthermore, the earlier clause granting Congress the power to raise “Armies” restricts it in exactly one way: a limitation on time. If the writers had intended other limitations on the power to raise armed forces, they would have listed them. It is ahistorical and non-textual to infer a limitation that is not there.

Alternatively if the writers had intended to confer a power to raise armed forces, they should have written “armed forces” instead of “Armies” and “a Navy”. They could just have easily have given a general power to raise and support armed forces, and then limited appropriations for a standing army to two year terms. But this is not what the text ultimately reads.

@Pleonast

This discussion hinges on how the Constitution should be interpreted. It is not a modern law code where everything is explicitly ruled in precise legal terminology. It is a foundational document written in descriptive language. It is not reasonable to interpret it strictly. You can see this by reading the debates about the Bill of Rights. The detractors warned that it was too explicit, that it would be read as a complete enumeration instead of a set of examples. This made explicit in the Ninth Amendment:

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

When a document and its recorded discussions tell you how to interpret a document, that is how it should be interpreted.

I appreciate your argument, but it falls flat because “the people” described by the Ninth Amendment under no circumstances refers to the federal government. It is a tragedy of composition if that was the intent, furthermore, that certainly was not the intent. It was made to protect the rights of the people from the powers of the government, where the Constitution enumerated rights retained by the people.

Furthermore the Ninth Amendment is referring to “rights” and not powers. The Tenth Amendment dictates how we construct powers when interpreting the constitution.

~Max

[Pleonast]

@Max_S

I strongly disagree, and have expressly distanced myself from original intent interpretation.

Yes, I know. I explaining why you’re wrong.

@Max_S

A descriptive phrasing would be ‘regulations of forces, land and naval.’ Written that way land and naval merely describe rather than qualify.

I do not see a reasonable distinction between

To make Rules for the Government and Regulation of the land and naval Forces

and

To make Rules for the Government and Regulation of Forces, land and naval

Those are identical in any English I am aware of.

@Max_S

Alternatively if the writers had intended to confer a power to raise armed forces, they should have written “armed forces” instead of “Armies” and “a Navy”. They could just have easily have given a general power to raise and support armed forces, and then limited appropriations for a standing army to two year terms. But this is not what the text ultimately reads.

But it is what it reads; you’re just refusing to accept the writers’ word choices (because you seem to be using a legalistic modern interpretation instead of an eighteenth century descriptive interpretation). “Armies” means “armed forces”. They give Congress the power, put an explicit limit on it, and then an exception on that limit. You want to add a limitation that is not in the text. It was also not intended by the writers.

@Max_S

I appreciate your argument, but it falls flat because “the people” described by the Ninth Amendment under no circumstances refers to the federal government.

You are correct about what the Ninth Amendment is about. But that was not what I am talking about. I am referring to how the amendment describes interpretation: the Constitution is not intended to be an explicit enumeration.

[Max_S]

@Pleonast

I do not see a reasonable distinction between

To make Rules for the Government and Regulation of the land and naval Forces

and

To make Rules for the Government and Regulation of Forces, land and naval

Those are identical in any English I am aware of.

Okay, you have a point there.

@Pleonast

They give Congress the power, put an explicit limit on it, and then an exception on that limit.

If you are implying the power to raise a Navy is merely an exception to the two year appropriations limit on the power to raise and support Armies, I think that is counterintuitive enough to set aside.

There is strong parallelism between each clause of section 8, each clause sharing the same subject and verb, and even stronger parallelism between the army clause and the navy clause.

The army clause already has an exception, self-contained, and it makes little sense to put an exception to that exception in a separate clause. Some clauses have multiple sentences so it is doubly unreasonable to think the army clause was constrained for style.

To suggest the navy clause runs not in parallel but as an exception to the army clause goes against reasonable construction of the text.

@Pleonast

You are correct about what the Ninth Amendment is about. But that was not what I am talking about. I am referring to how the amendment describes interpretation: the Constitution is not intended to be an explicit enumeration.

Then how do you explain the Tenth Amendment?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Not only is an enumeration assumed to be exhaustive as a matter of general statutory construction (federalists used this principle to argue against the necessity of the Tenth Amendment), it is made explicit that the enumeration of powers delegated to the United States is exhaustive.

~Max

[Pleonast]

@Max_S

Not only is an enumeration assumed to be exhaustive as a matter of general statutory construction (federalists used this principle to argue against the necessity of the Tenth Amendment), it is made explicit that the enumeration of powers delegated to the United States is exhaustive.

Again, I am not talking about the details of the amendments, but what they imply about how to interpret the meaning of the text. That is, the powers being enumerated does not imply a limited interpretation of specific clauses.

(I’ll have to reply to the unquoted portion of your post later; it is well formed.)

[Max_S]

@Pleonast

That is, the powers being enumerated does not imply a limited interpretation of specific clauses.

If you are referring to ‘land and naval forces’ being an exhaustive enumeration, that follows from the general principle that enumerations are exhaustive. Hence why you see contracts specify, “including but not limited to”. I can dig up cites of eighteenth century (or earlier) sources acknowledging this general principle, if the Treaty of Tordesillas hypothetical did not convince you.

ETA: And ‘land and naval forces’ is an enumeration. The only other interpretation I can think of is that it describes a set of forces, where each force is both land and naval. Obviously that is not a reasonable construction.

~Max

[Melbourne]

@Max_S

ETA: And ‘land and naval forces’ is an enumeration

It can be read as an enumeration of types of forces, rather than of locations of forces. It permits both internal and external forces: it permits both capital and recurring costs.

[Alessan]

How does cancelling the Air Force benefit the people of the United States?

[UltraVires]

@Max_S

A projectile is, in my view, quite literally a projection of military force, and should not be considered a military force in its own right. Thus the analogy fails, a cannon ball and a manned B-52 are critically different in that one may project military force in its own right. On the battlefield the manned aircraft has the capability to make or at least carry out decisions, to adapt to the circumstances at hand. As a military force it is not to be compared with a projectile, a proper analogy would recognize that aircraft have projectiles of their own.

That would be a fine position if we were talking in a board meeting about how to classify certain things. But you are arguing that something is unconstitutional based on what seems to be your own personal predilection of what constitutes “land” versus presumably “air.” We would have to determine constitutionality of drones and computer controlled missiles and the like and treat them differently solely because a human being personally is not on board the projectile. That is pretty weak sauce to declare an 80 year old branch of the armed forces unconstitutional, and it has no intuitive, legal, historical, or any other meaningful force—again, other than @Max_S just has a gut feeling about it.

But the argument gets better (well, much worse ). These items are fully constitutional, but only if used in particular ways, like in support of ground invasions. So the use may or may not be okay, contingent upon other actions taken or not taken. Again, that seems to be just your own ipse dixit and not anything based on law, tradition, or history.

Bottom line is I disagree. You have based your premise first on a unduly cramped view of the text. You then pile a belief upon another belief, when both beliefs are simply your own idiosyncratic view, and after doing all of the above you conclude that a necessary portion of the armed services, a basic and legitimate function of all governments in history, not some runaway power grab by the federal government, is a violation of the constitution.

I think your argument has an extreme amount of work yet undone.

[Miller]

@Alessan

How does cancelling the Air Force benefit the people of the United States?

I’m assuming Max S’s preferred remedy here is to amend the Constitution to allow the creation of an Air Force, not to actually abolish it.

[Alessan]

But you already have an Air Force. Problem solved.

[UltraVires]

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.

But:

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?

[gdave]

@Alessan

But you already have an Air Force. Problem solved.

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).

[Alessan]

@gdave

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?

[Somethingwitty1]

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.

[What_Exit]

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.

[gdave]

@Max_S:

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.

[gdave]

@Alessan

I just don’t see the point of this discussion.

So, then…don’t participate?

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?

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.