Monday, January 29, 2007

Bad Originalism
Mike Rappaport

Over at the Volokh Conspiracy, Ilya Somin and Eugene Volokh have a couple of posts on the claim by some that the Air Force is unconstitutional under originalism.  Of course, this is silly.  The Army and Navy are not limited by the actual or the type of weapons that were employed in 1789.  There is no reason to believe that the terms "Army" or "Navy" would have been understood this way.  Just as new technologies such as balloons and canons would have been easily assimilated into the Army without a second thought about whether they were really part of the Army, so could airplanes and jets.

Ilya lists several prominent law professors who accept this criticism of originalism.  The question is why they accept this argument.  One reason seems straightforward.  Sadly, it turns out that critics of originalism tend not to be good at practicing originalism.  I have often heard this comment made by other originalist scholars.  So, for example, when one reviews an article making both originalist and normative claims about a matter, by an author who does not believe in originalism, it is not surprising when the originalist claim turns out to be quite weak.

Originalism is hard to do -- It only seems easy.  Thus, people who do not practice it regularly are prone to making mistakes.  But another reason also, it would seem, contributes here.  A critic of originalism would be quick to accept silly results produced by originalism.  "Hey, look here, look at this absurd result created by this ridiculous method."   Thus, it is the motivations combined with the difficulty that appears to be the source of the problem.

Of course, originalist errors are not confined to critics of originalism.  Advocates of originalism often make a similar error: they interpret the original meaning too favorably in terms of modern sensibilities.  For example, in my view, the First Amendment Free Speech provision is far less attractive than many originalists seem to assume.  The unconstitutionality of the Sedition Act was at best a hard case.  But the errors produced by advocates of originalism are less egregious because they are often practitioners of originalism and therefore have more knowledge of how the method is practiced.  Moreover, they have an incentive to practice it in a manner that has integrity.

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Mike Rappaport


I agree that the Army and Navy are "not limited by the actual or the type of weapons that were employed in 1789", but I do think their constitutional status is colored by how they potentially could be abused by an out-of-control administration.

The Constitution makes a distinction between the Army and Navy, in that the Army can only be funded for two years. This is so the Army could not be used to oppress the populace. The Navy does not have this limitation.

It seems to me that an originalist understanding would require asking the question: is the Air Force more like the Army, in that it could be used to oppress the populace and so had to be funded in a limited fashion, or the Navy, which can be funded for an indefinite period of time? Or is it a different kind of organization entirely?

So, I think the question should not be, "Is the Air Force Constitutional", but rather, "Is it constitutional to fund the Air Force for more than two years"? I think this question is valid even in an originalist analysis, and I'm not sure the answer is obvious.

Corkie the Dog

Posted by: Corkie the Dog | Jan 29, 2007 2:01:01 PM

Wait - Your post does not address the question posed. One of originalism's bedrock principles (whether you are practicing original intent, original application, etc.) is that the text of the Constitution has some significance. The words Army and Navy allegedly have specific meanings in circa 1789 United States. And the best I can tell, they do not include "oh yeah" and that unmentioned Air Force. So it can't be right that the Constitution permits Congress to create an independent Air Force under the "Armies and Navies clause." But if an originalist disagrees, then it is very difficult to reconcile how that person is practicing originalism (which as I noted requires giving the text due regard) and yet argue that text, which does not mention an Air Force (or contain open-ended phrasing like the Due Process Clause or 1st Amendment, etc.) justifies its creation as an independent entity. So the real issue as to the constitutionality of an independent Air Force is whether the another clause of the Constitution permits Congress to raise monies to create and maintain it. Thus, to "argue" that the Army or Navy could use different types of weapons not contemplated by the founders - weapons that today we would describe as being part of the Air Force does not answer the question of whether an Air Force, as an independent entity, is constitutional. It might be good (if not an essential) policy that Congress be able create and maintain an Air Force but that does not (from the originalist perspective) answer whether the act of creating the Air Force was constitutional.

Posted by: Alex | Jan 29, 2007 5:14:19 PM

I am sort of new at this, but doesn't the Necessary and Proper Clause a open-ended phrase that seems to justify the Air Force. From my basic understanding, an originalist does not take sections at literal face value, but the original meaning of the clauses and text (correct me if I'm wrong). Now one phrase provides the ability to raise and support "Armies"; to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; to declare War, grant Letters of Marque and Reprisal; and to provide and maintain a Navy. All together, as a portion of Section 8, it seems that the necessary and proper clause would provide for and legitimize a Air Force in supporting Armies, delcaring war, repelling Invasions, and suppressing insurrections. It seems to me, attempting to present a originalist rebuttal, that the Constitution provides for the creation of any type of unit in the necessary and proper clause that would further the progress and legitimacy of the forementioned phrases of Section 8, and the logistics of naming or dividing these orginizations are beyond the depth of the Constitution.

Posted by: Chris Heinsen | Jan 29, 2007 6:04:25 PM

No doubt Ronald Dworkin would make the same argument about "living Constitution" interpretation: conservatives ridicule it as result-oriented absurdity because they're not very good at it, and because they have a vested interest in making its arguments look foolish. If only they believed in it enough to study and absorb the lessons of its great practitioners, they would see that its results are all clearly compelled by the method (except in the rare cases where the practitioners have erred, of course).

Look, when you give a junta of nine people the power to run a country, it really doesn't matter what "ism" you try to inculcate into them--they'll figure out how to torture it into giving them the results they want. Conservatives used to understand this, back before the realistic prospect of using judicial dictatorship for their own ends seduced them.

Posted by: Dan Simon | Jan 29, 2007 9:33:49 PM