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!
Nitpick:
(Ahem)
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.
This.
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.
~Max
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.
~Max
I would also like to point out that there are cases where the Constitution is NOT followed to the letter and nobody has an issue with it. The Second Amendment, for instance, if read strictly to the letter, says that no infringement on arms is permitted - in other words, people should be allowed to own nuclear weapons and howitzers if they can afford them - but nobody in their right mind interprets it that way. Otherwise, every single gun-control legislation would be unconstitutional.
In other words, the Constitution allows for plenty of “fudge factor.” It doesn’t have to be read 100% strictly, just 90% will do.
So an air force fits perfectly well within the fudge-factor margin.
I agree, but that only reflects a common way of speaking and understanding statements. It isn’t a “fudge factor” but reality. Literally no statement in English is presumed to be absolute down to the minute levels of absurdity, even when they seem unqualified.
If my sixteen year old kid asks if I think he is old enough to drive, and I say “yes,” that doesn’t mean that I have given him permission to drive across the country with his friends or that he may come and go, driving wherever and whenever he pleases, in any car he pleases, stolen or otherwise. However, a hyperliteral parsing of his question and my answer might suggest that.
So, it is a minor nitpick, but I disagree with the idea that we are just faking things to make them work. They are interpreted, not strictly or broadly, but fairly, consistent with context and understanding. And part of that understanding is that no (or very very few) things are stated in absolutes. Even my last sentence. 
You have to pay an army, but you have to own a fleet. The constitution (arguably) permits both things.
Personally, I think that ‘owning things’ and ‘recurring costs’ are very different things in an organization, which cause dissent and even court cases involving the constitutions of volunteer organisations, so I immediately pick that up when I see it in a constitution.
Ah, but why cannot both the state and national government be prohibited from exercising a given power? Surely you recognize that neither level of government holds the power to pass ex post facto laws. The Constitution specifically prohibits the federal government from doing so in Art. I sec. 9 cl. 3, and the states are prohibited by Art. I sec. 10 cl. 1. So in contradiction to your premise, the sovereign power to pass ex post facto laws has indeed been “lost in the ether”.
Assuming Congress is not granted the power to create an air force, the only question remaining is whether that power is prohibited of the states. See Amendment X.
Nevertheless I do not consider airmen to be troops, unless someone can find evidence that “troops” was then understood to also encompass, for example, seamen. The closest usage I can find after a precursory search is that Col. George Washington once referred to François-Marie Le Marchand de Lignery as “Captain of a company of detached troops from the marine”. de Lignery was a French captain with command of the Ohio country; the French colonial military was named “troops from the marine” in reference to their being overseas, and de Lignery was commandant of a detached force based at Fort Duquesne (now downtown Pittsburgh).
I agree that “in time of Peace” modifies the word “keep”, and as such applies to keeping troops and ships of war.
Thus Congress not having the power to raise an air force, and the states not being prohibited from doing so, it does follow that states could raise an air force. But they would not be able to use their air force to engage in war unless 1) Congress consents, or 2) the state is actually invaded or in such imminent danger as will not admit of delay. If a state wanted to use their air force for some other purpose other than engaging in war, for example search and rescue (eg: Alaska State Troopers SAR), I think that would be fine.
~Max
Here’s the text of the 3rd Amendment:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Would you contend that the U.S. government is perfectly free to quarter Sailors in private houses without the consent of the owner in time of peace, and in a manner not prescribed by law in time of war?
Originalism is a major theory of constitutional law in the United States, it used to be a fringe theory but now between three and five of the nine Supreme Court Justices are considered originalists. (Thomas, Gorsuch, Barrett, and possibly Roberts and Alito.)
A common criticism of originalism is that it leads to the absurd conclusion that the Constitution is flawed. Things like there being no constitutional right to privacy (therefore no right to same-sex marriage or contraceptives or abortion) or that it is unconstitutional for the federal government to force desegregation in state schools, or that Congress is powerless to enact federal welfare such as Social Security.
One common specific criticism which was actually raised in the linked thread, and therefore caused this thread, is that originalism leads to the USAF being unconstitutional.
~Max
(out of order)
I don’t think a sailor could properly quarter in a private house, at that point they are properly a soldier. Unless it is some sort of boat-house.
~Max
Wait. You think when Sailors are on shore, they’re no longer Sailors? Are they still in the Navy? If a ship is in drydock, does it become a landship? If a Soldier gets on a ship, do they become a Sailor? If they jump into the air, are they Airmen? I don’t mean to be snarky (well, I guess I do, a little), but if you honestly believe that U.S. Naval personnel are Sailors only when they’re on ships, and are Soldiers when they’re on land…there really doesn’t seem to be any point to this thread. Frankly, at this point, I think your idiosyncratic definitions of common terms are so divorced from how any of those words are actually used, I’m personally willing to concede. Sure, using your definitions, the United States Air Force is unconstitutional. But your definitions are completely at odds with how any of those words were used in 1787 or are used in 2021.