Clayton Mitchell — Strict Constructionists: Please Don’t Ground the Air Force

By Clayton A. Mitchell, Sr., Esquire

Last month, President Obama’s alleged recess appointments to the National Labor Relations Board were deemed by the D.C. Circuit Appeals Court to be unconstitutional. From listening to talk show media, one might think that this was the first time in American history that a President’s actions were successfully challenged on Constitutional grounds. Lest ye forget, Mr. Obama’s predecessor, George W. Bush, participated in similar transgressions.

For example, in 2006, a federal judge struck down the part of Mr. Bush’s Patriot Act that enabled his administration to freeze the assets of alleged terrorist organizations – organizations that were put on a list of organizations tied to suspected terrorists by executive fiat and with unfettered Presidential discretion.

These days every talk show host and caller who attacks the President is a Constitutional scholar. They profess to be “strict constructionists” opining that unless the Founding Fathers placed clear unambiguous authorization in plain words in the Constitution in 1789, an activity is off limits to any federal action whatsoever. For the sake of argument, let us agree with that purist hypothesis – for if we do we will find that it creates a conundrum for those who strictly construe the document and leads to some absurd results.

An interesting online article by Steve Mount, “Constitutional Topic: Things That Are Not In the Constitution”, provides an articulate overview of the subject. Article I, § 8 of the Constitution grants Congress the power to “To raise and support Armies”, “To provide and maintain a Navy” and addresses “land and naval forces”. Note that nowhere in the Constitution does it provide for or permit an independent Air Force. If one’s frame of reference for interpretation of the Constitution is petrified in 1789, the modern American Air Force is not a permissible constitutional endeavor.

Nowhere in the Constitution does it texturally provide for the “freedom of expression”. A strict constructionist will also find that the “right to marry”, the “right to vote” and a “right to travel” are conspicuously absent; heck, the Constitution does not even declare that the United States is a “free country”.

Despite the fact that the qualifications for the President and members of Congress are set forth in the document, there are no stated qualifications for judges. A Constitutionally-qualified Supreme Court Justice nominee could be born in Kenya, be 21 years old, reside in Montreal, and not possess a law degree (of course, once on the Supreme Court, the new Justice is constitutionally required to observe “good behavior” while holding office).

Since its inception, the Constitution has been and remains the “supreme law of the land” and its ultimate interpretation is tasked to those nine American-born, Yale- and Harvard-educated people who wear the black robes. While some provisions are crystal clear – like “The Senate of the United States shall be composed of two Senators from each State”, other sections and clauses are more ambivalent or ambiguous (i.e., the meaning and scope of “commerce…among the several states” and “due process”).

The Constitution’s clauses cannot always be read and interpreted in isolation; they must be read in conjunction with other provisions and in light of the document as a whole so as not to lead to irrational results.

The strict constructionist needs to admit that – at least in part – the Constitution is malleable to a degree and cease pretending it only contains inflexible, unyielding commandments seized within a 1789 paradigm. To state otherwise will require the dismantling of the airborne fighting force General Curtis LeMay spent a lifetime establishing.

Clayton A. Mitchell, Sr. is an attorney in Stevensville and regular contributor to Center Maryland.