The Literal Meaning of the Constitution and the Air Force

By Nick Levinson

Interpreting the Constitution literally is called for by some people, and there are good points in its favor, but it can be taken too far. One should be careful what one wishes for.

Consider that where the Constitution enumerates military forces it lists an army and a navy (Article II, section 2). Does that mean that the existence of the entire United States Air Force is unconstitutional? After all, the U.S. was likely already aware of flight for military purposes, such as with Chinese rockets, so, arguably, the omission from the Constitution must have meant that the Framers of the Constitution concluded that the best way to keep the U.S. from having misadventures in the air (never mind in outer space) was by not allowing a military branch to jump into the air. I don’t know if the Federalist Papers said anything about air travel or if the First Congress said or enacted anything relevant (some members of that Congress were among the Framers), but those sources may not matter.

Doubtless, there are potential plaintiffs worldwide for lawsuits. And abolishing the Air Force would not end the flying service, because, as late as World War II, what became the modern Air Force was part of the U.S. Army, so, presumably, the pilots could simply report to infantry commanders, who could be given a few instructions on managing air strikes, which experienced senior aviators could write. So judges and justices would have little to worry about in declaring the whole Air Force as being outlawed by the Constitution.

This won’t be happening. Neither will pure literalness.