Is our Air Force constitutional? Maybe not. This interesting question is discussed by Tom Van Flein in the article cited. Here is what is in the Constitution regarding armed forces (Article I, Section 8):
- To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
- To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
- To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
- To provide and maintain a Navy;
- To make Rules for the Government and Regulation of the land and naval Forces;
- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
- To provide 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;
One notes that land and naval forces are mentioned; armies and a navy are mentioned specifically. There is no mention of air forces. As Tom Van Flein writes:
The document clearly and separately refers to navies and armies, and omits the Air Force. Had the drafters meant “army” to include everything, they would have said so.
It seems unlikely that the Supreme Court will take up the question of the Air Force anytime soon; doing so might put those favoring strict interpretation of the constitution’s text on the spot. It is interesting that while SCOTUS is unlikely to find the Air Force unconstitutional, the constitutionality of Affordable Health Care seems to hang by a thread.
© William Hungerford – January 2015