The Constitution and the Air Force

[Rosenthal, Lawrence]

I am equally lost.  I do not see how the Commander-in-Chief Clause exposes any defect in originalism, at least as it is presented by its more thoughtful proponents.
 
Justice Scalia uses a pertinent example in A Matter of Interpretation.  The First Amendment prohibits any abridgement of "the freedom of speech, or of the press," yet Justice Scalia explains that this does not mean that electronic media lack First Amendment protection.  Constitutional provisions are written to outlast the particular circumstances that give rise to their drafting, and their original meaning must incorporate that aspect of the original understanding.  Wooden literalism will therefore frequently be untrue to the original meaning.  Thus, when the press became electronic, it kept faith with original meaning to apply the First Amendment to electronic media because it is a new form of the press.  Similarly, in the warrantless thermal imaging case, Kyllo v. United States, Justice Scalia explains that although in 1791, the Fourth Amendment could be based on the concept of trespass becaue it was adequate to protect the privacy of the home, but now that the privacy of the home can be penetrated electronically, it keeps faith with the original meaning to construe the Fourth Amendment's Warrant Clause to apply to any invasion of the privacy of the home that in 1791 would have been accomplished through a trespass.  And similarly, armies could not fly in 1791, now they can, and therefore it keeps faith with the original meaning of Article I to extend the Commander-in-Chief Clause to the air force, the original meaning of which to centralize control over the military in the executive. 
 
The Lessig piece referred to in my previous post is valuable, at least in my view, because it explains how central these acts of translation are to originalism.  To ignore this aspect of originalist thinking does a real injustice to originalism.  There may well be serious objections to originalist interpretation of at least some constitutional provisions, but the Air Force example is not one of them.
 
Larry Rosenthal
Chapman University School of Law


________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Sean Wilson
Sent: Sun 1/28/2007 5:25 PM
To: Marty Lederman; Ilya Somin
Cc: Con Law Prof list
Subject: Re: The Constitution and the Air Force



.. I'm lost here. How is it that Congress escapes this same problem? 

 

They have the power to "provide for the common defense ... to raise and support armies ... [and] to maintain a Navy." Surely, if the President has no power to command the "innovated army by a different name" because of a way that we read words, then those same word-reading rules would seem to not allow Congress the power to create one either, unless you read the "common defense" clause as granting something greater than the specific grants (making them superfluous).

 

Look, here is the point: what is an Army? Does it mean THE army as in a proper name, or does the phrase refer to a behavior -- i.e., the formal organizations that carry out war. It is not true to say that a word-based theory of interpretation requires "army" to be proper name, anymore than a word-based theory requires speech to exclude photographs or movies -- or "searches" by satellite.What is being called textualism here is really a mindless version of positivism (let's call it literalism). One could still use a word-centric approach and say that commanding armies means "armed forces," and that this is what is being said.

 

The fallacy with literalism is that it defies the way that minds process language. If you talked like this to any other person, you would not be able to have a conversation. Go try it. Go into the living room right now and start talking. Pretend your mind is a computer. When someone speaks, treat every utterance as literal. You cannot converse, I guarantee it. The reason is because the mind does not process alphabetic symbols the way a computer does syntax.

 

These words in the constitution are like a brief encounter with someone from another time. They say X; and you have to chase it down. In human communication, X never says itself -- you always have to put it together. (Look, I have a teenage daughter; I know quite well how this works).

 

Regards.

  

Dr. Sean Wilson, Esq. 
Penn State University
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