On Asteroid Defense and Constitutional Law

by Pejman Yousefzadeh on February 5, 2011

Mark Kleiman asks whether a “libertarian-leaning” reader could point him “to the specific provision of the Constitution under which the Federal government could spend money on asteroid destruction.” He further tells us that “[i]t’s not, properly speaking, defense, unless the asteroid was deliberately launched at us by the Klingons. The asteroid isn’t ‘in commerce’ at all, so it can’t be covered by the Commerce Clause.”

As a libertarian-conservative, I am glad to help resolve this question. Of course, it should be noted from the outset that the framing of these kinds of questions is a common Kleimanian tactic; he tosses out an appealing public policy approach, and then dares readers to conclude that the approach may not be constitutional. I certainly agree with Kleiman that asteroid defense cannot be covered by the Commerce Clause (thank goodness that there are some limits recognized by the Left on the reach and scope of the Clause), but I don’t see why he is so quick to dismiss asteroid destruction as a defense measure merely because the asteroid was not “deliberately launched at us by the Klingons.”

Original public meaning jurisprudence assists us in showing how asteroid destruction can be justified by Art. I, Sec. 8 of the Constitution as being “for the common Defence.” I am indebted to Professor Larry Solum for his excellent and comprehensive definition of original public meaning jurisprudence, which is excerpted below:

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways.  For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text.

Once originalists had acknowledged that vague constitutional provisions required construction, the door was opened for a reconciliation between originalism and living constitutionalism.  The key figure in that reconciliation has been Jack Balkin, whose influential 2006 and 2007 essays Abortion and Original Meaning and Original Meaning and Constitutional Redemption have argued for a reconciliation of original meaning originalism with living constitutionalism in the form of a theory that might be called “the method of text and principle.”  Balkin has called his position on the relationship between originalism and living constitutionalism “comptibilism,” but it is important to understand that this means that an originalist approach to interpretation is consistent with a living constitutionalist approach to construction.

Per Professor Solum’s definition, we have to ask how “the common Defence” would “have been understood by an ordinary adult citizen at the time it was adopted.” Specifically, we have to demonstrate that the notion of “Defence” against a threat does not depend upon that threat being initiated by a sentient being, or group of beings. This entails showing Kleiman that the non-presence of Klingons or any other sentient beings in a scenario which features an asteroid threatening life on Earth does not prevent the necessary countermeasures from being considered constitutional as acts of “Defence.”

In order to proceed along this line of inquiry, a definition of “defence” or “defense” (however one wishes to spell it) is needed. I can think of no better lexicographical authority than Samuel Johnson’s A Dictionary of the English Language. Consider especially the following bit of information: In his book Dr Johnson’s Dictionary: The Extraordinary Story of the Book that Defined the World, the writer Henry Hitchings quoted Joseph Emerson Worcester as saying that “[Johnson's] Dictionary has also played its part in the law, especially in the United States. Legislators are much occuped with ascertaining ‘first meanings,’ with trying to secure the literal sense of their predecessors’ legislation . . . Often it is a matter of historicizing language: to understand a law, you need to understand what its terminology meant to its original architects . . . as long as the American Constitution remains intact, Johnson’s Dictionary will have a role to play in American law.”

So, Johnson’s Dictionary was/is quite useful when it comes to analyzing bodies of American law. Now, we have to ask what Johnson wrote about the definition of the word “defence.” Well, it just so happens that we can look. Feel free to examine the definitions of “defence,” “defenceless,” “to defend,” and “defendable.” One will find that none of the definitions in question make it necessary for a threat to have been launched by some form of sentient being, or group of beings, before one can be said to organize and implement some kind of “defense/defence” against that threat via preventive measures. Absent any competing definitions of similar or greater influence, one may reasonably conclude that “an ordinary adult citizen” would not have understood “defence” to mean a countermeasure against a threat set into motion by a sentient being, or group of beings–like Klingons, for example. A “defence” can therefore be mounted against a threat that appeared or emerged sua sponte, without any sentient beings or higher intelligence having brought that threat into being, and/or having directed that threat against us.

Indeed, if Kleiman wanted to get a libertarian legal analysis regarding this issue, he might have done well to ask Glenn Reynolds, whose blog is full of posts regarding the need for asteroid defense. I recognize that Kleiman loathes Reynolds, and has nothing but contempt for him, but it perhaps would not have been a bad idea for Kleiman to put his loathing aside and consider that Reynolds’s example might indicate that there are plenty of libertarians who (a) are concerned about defending the Earth against extinction-causing asteroids, and (b) might be able to justify it (as I have) constitutionally. As a general matter, it might be best for Kleiman to consult actual lawyers regarding constitutional or statutory interpretation, before trying to navigate legal thickets on his own. I mean, it’s his blog, and he can do what he wants, but it is worth noting that past Kleimanian efforts to play lawyer have ended quite poorly.

(Nota Bene: Concerning the specific Rand Paul vote that Kleiman criticizes, I haven’t studied the legislation, but I am 99.44% sure that I would not have joined Paul in voting against the bill in question, in large part because I believe that the forgoing analysis would have made that legislation constitutional.)

  • Mark Kleiman

    Good! We agree.
    I assume that the same analysis covers “defence” against slower disasters such as global warming? And if “the common defence” covers the asteroid, why doesn’t “the general welfare” cover, let’s say, National Public Radio?

    My point was simply that the Tea Party idea that everything the Right dislikes is therefore unconstitutional is completely bogus. I’m delighted to make common cause with you against Rand Paul.

    • Anonymous

      Defense against global warming would be constitutional, if there was anything to the anthropomorphic global warming.
      1. Navier Stokes equations are non-linear, preventing long term prediction from finite states.
      2. Warming is the desirable condition. Cooling is the ice age producing process that reduces the abundance of life.
      3. The major source of warming and cooling as measured on the earth is the Sun. The sun is much bigger than the earth, and is not addressed or considered by the politicians who promote government caused scarcity using global warming as a stalking horse. The sun is also outside of our control

    • MarkB

      Mark – we do this now with weather preparation based on forecasts from the NOAA/NHC and federal coordination of recovery from natural disasters. And you know what? Almost no one – Republicans and Tea Partiers included – has any problem with it because it is an obvious extension of the common defense.

      Acting as if these – and defense against an asteroid – are on the same plane as the Lefty cause du jour (NPR, individual mandate, broccoli consumption requirements), however, is an embarrasingly obvious strawman. Truly, it takes a smart person or a rank partisan to draw a comparison so devoid of contact with the real world. You will pardon us, I hope, if we don’t buy in to your attempt to blur obvious distinctions.

      • Anonymous

        I’ve always wondered why there isn’t more emphasis on the “common” in “common defense” and the “general” in “general welfare”. To me that seems like not just an important, but rather the critical, distinction. Just change a word and compare: The individual defense. The specific welfare.

        The reason we can expect the government to defend against an asteroid is that it is a common defense – no individual can do that job. It’s a protection of society in general. It certainly promotes the general welfare.

        Compare that to many lefty causes. Many of them seem to promote what I would call the “specific welfare”. Note the emphasis on the non-general nature of things – individual mandates, direct payments, direct control. They are all-too-frequently promoting intervening in individual’s lives, in areas those individuals could (and I argue should) handle themselves. They want to spend money on specific, frequently favored, people. Or have power over them individually. Compare that to spending in areas that require a group response because the responsibility and the effects are diffused on society in general. That’s what it’s always seemed to me the Constitution was getting at. Government is instituted to do things in common that individuals can’t do because the problem isn’t one individual’s responsibility.

        In the case of NPR, granted, it’s not an individual thing. But then you’d still have to make a convincing argument that it promotes the general welfare. Since in many respects the programming ignores half the population, to promote the political views of only the other half, while taking taxpayer dollars from all, that argument is available to be made.

    • ThomasD

      Before ‘attacking’ an asteroid we would have established with some degree of certainty that it posed a credible threat to the planet or the nation.

      As such, no credible proof of threat exists for ‘global warming.’ Even, arguendo, if we presume global warming exists, there is still no agreement on the likely effects, whether they are good or bad. Nor is there any agreement on man’s ability to effectively alter the process.

      Whether NPR harms or helps the general welfare also remains open for debate.

    • Pejman Yousefzadeh

      Actually, we don’t agree, seeing as how you wrote in your post that asteroid prevention is “not, properly speaking, defense, unless the asteroid was deliberately launched at us by the Klingons. The asteroid isn’t ‘in commerce’ at all, so it can’t be covered by the Commerce Clause.”
      I highly doubt that “the Tea Party idea” you reference is as broad as you claim it is; or can I say that “everything the Left likes, the Left therefore believes is constitutional”? As for making common cause against Rand Paul, you joined every other Republican Senator on that particular issue; Paul’s vote against the legislation outlawing the use of lasers to blind airline pilots was the only “no” vote registered. He is going to be a lot like Ron Paul on these kinds of issues; casting the lone “no” vote while other Republicans vote “yes,” so I don’t know what the point is of making him out to be some kind of standard bearer for the Tea Party, or for the GOP.

      • http://twitter.com/chasrmartin Charlie Martin

        Oh, hell, Pejman, I know what the point is: it’s all part of the larger effort to find anything goofy said by any Republican and ascribe it to the whole party. Like claiming “socialist” as a mortal insult while caucusing with Bernie Sanders, , it’s not an argument, it’s a tactic.

      • http://twitter.com/chasrmartin Charlie Martin

        Oh, hell, Pejman, I know what the point is: it’s all part of the larger effort to find anything goofy said by any Republican and ascribe it to the whole party. Like claiming “socialist” as a mortal insult while caucusing with Bernie Sanders, , it’s not an argument, it’s a tactic.

    • http://condign.livejournal.com/ Condign

      It’s worth noting that it’s not at all clear that Paul voted against the bill because he thought that it was unconstitutional. The argument that “this is something the states should handle” is not logically equivalent to “this is something that the federal government is constitutionally forbidden to handle.” Mark seems to conflate these ideas.

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  • dejake

    Considering that the United States consists of only 2 percent of the Earth’s surface, why would would our Constitution take precedent with an asteroid threat.

  • http://www.senseofevents.blogspot.com/ Donald Sensing

    If providing for the “common defence and general welfare” includes natural-world threats such as asteroid collisions, does that mean epidemics or even ordinary diseases are included as threats?

    Would this concept of “common defence and general welfare” also justify mandatory vaccinations of school children?

    And could it be used to justify the individual mandate of Obamacare? If not, why not?

    Just asking…

    • MarkB

      Hey Donald – as I wrote to Mark, we already and with little controversy prepare for and recover from natural disasters at the federal level. We also fund vaccination research and provide federal recommendations for preventive medical care. Where things cross the line is when individuals are compelled to take a specific action for the “common good” that may clearly go against their religious, moral or ethical beliefs. We do not compel vaccinations or even evacuations (at the federal level). If someone wants to take their chances, the assumption is that they’ll have to pay the price.

      The problem isn’t whether policies meant for “common defence and general welfare” will encroach upon liberties as you seem to worry. The problem is more subtle than that: if “individualism” as an American creed of self-control and responsibility is cast aside, then we become sheep whose only lever of control over our lives is agitation for bureaucrats in Washington to take better care of us under the pretext of the “general welfare.”

      If you don’t think that undermining responsibility and self-sufficiency is specfically and consciously a policy of the left, ask yourself why Liberals write and promote works such as Barbara Ehrenreich’s “Nickel and Dimed” (which scoffs at self-reliance as a mirage) while ignoring Adam Shepard’s “Scratch Beginnings.” Shepard started out even poorer and more desperate than Ehrenreich and ended up with much to be proud of in a relatively short period of time. The problem for the Liberal world-view is that Shepard had to practice a very high degree of self-discipline and responsibility to make the most of his freedom. While most successful Liberals like Kleiman obviously practice these virtues themselves, they simply don’t believe that others are capable of the same.

      • http://twitter.com/donaldsensing Donald Sensing

        Oh, I agree with everything you’ve written – I’ve written about that myself. I just don’t think that the argument can be as clearly drawn as you think.

  • http://www.facebook.com/profile.php?id=1404672049 Jeff McCabe

    Donmeaker covers the global waming thing, and NPR would be covered under general welfare about the same as Rush Limbaugh would be.

  • Anonymous

    Appreciate the detailed analysis, but perhaps a simpler explanation is that Kleiman wants certain policies, and will find any available path to get to them, including being deliberately obtuse where it suits his purposes.

  • Gnargtharst

    We already have a defense against natural disasters: insurance. The proper function of government is to defend us against _evil_, not _nature_.

    • gb_in_tx

      Insurance does us no good in the face of an extinction event. If we are dead, and the insurer is dead, what good is insurance?

      • Gnargtharst

        Insurance, or, more likely, other privately-funded enterprises, could invest in technology to protect against such an extinction event. Government, on the other hand, acting outside the scope of an agent of protection of individual rights, is more likely to become an agent of the extinction.

    • http://pulse.yahoo.com/_VDAR52G7EKVDUY5PFNW3EOP7LY John

      So police and firemen should only respond to “man-made” disasters? Good to know.

      • Gnargtharst

        Yes, police should only respond to “man-made” disasters (i.e., “crimes”). The force of government should really take no position on the consequences of, e.g., building your house on a floodplain.

        As for firemen, you apparently assume that they are properly and necessarily agents of government. I disagree.

    • wilky

      I have always thought of government as a necessary evil, hence the limited government refain from our founders. So the government is suppose to protect me from itself?

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  • http://pulse.yahoo.com/_VDAR52G7EKVDUY5PFNW3EOP7LY John

    So if a group of rabid wolverines came across the boarder from Canada (but not sent by the Canadian government) and started attacking towns and devouring citizens, then we could not use the Federal Army to curtail such attacks because it does not rise to the level of defense? Really? Normally speaking, providing for defense is a pre-attack function. Doesn’t help to start building castle walls when the Mongols are already in the city. So in the end, if the external threat is creditable, does it matter the source? I mean, if the government purchase weapons to fight against the Soviet Union, can they no longer be used to fight against Iceland? If we prepare for a valid external threat, in the end, we are prepared, doesn’t matter if the attack came from the Klingons, or a random act of nature.

  • Mark B

    Pejman – I am not sure it was worth your time and considerable talents to deconstruct what is clearly a petulant and nonsensical snit from Kleiman. Of course destroying an asteroid likely to wipe us out would be in the common defense.

  • http://anthroblogogy.blogspot.com/ DirtCrashr

    What about asteroid harvesting? Don’t look a gift-horse in the mouth. Here nature sends us a wonderful bounty of deep-space metallic ore from the dawn of the Big Bang and all we can think of is destroying it?
    We should strip-mine the damn thing, set tolerable parcels of it into low-earth orbit for convenient access, and make back our Deficit by selling the rare-earth metals to the Chinese who still have a manufacturing capacity.
    We still have the best mining and drilling technology, let’s take that thing apart and use it.

    • http://twitter.com/Waltlaw Walt Guyll

      I’m sure Jefferson would approve of an “Icarus Purchase.”

  • Transfinite

    Excuse me but wouldn’t simply pointing to the Necessary and Proper Clause be the best and most straightforward justification allowing the government to provide for asteroid defense?

    “The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

    • Pejman Yousefzadeh

      The Necessary and Proper Clause is not a standalone justification for Congressional power. Rather, it is a statement that the Congress shall have power to make laws to fulfill all of its other powers, as enumerated by the Constitution. In order to justify the invocation of the Necessary and Proper Clause, it is necessary to justify the invocation of the clauses it depends upon, including the “common Defence” clause.

      • Transfinite

        In general I agree but in this case it seems rather obvious. I mean, it seems like it would be really hard for congress to carry “into Execution” any other power vested to it by the Constitution if the planet has bashed to bits by a big rock. So which clause it affects is all of them.

  • Mr. G

    Do Libertarians disagree with Fire Departments? I haven’t found one that does and we do have a National Guard in states as well which can respond to disasters and I haven’t found a Libertarian who has a problem with responding to disasters.

    Finally, shouldn’t Kleiman want to engage the Klingons and not fight them?

    • http://condign.livejournal.com/ Condign

      Even if libertarians agreed with fire departments or national guards, it would have little to do with this post, as a grant of power from the U.S. constitution is required for neither.

  • Mr. G

    Do Libertarians disagree with Fire Departments? I haven’t found one that does and we do have a National Guard in states as well which can respond to disasters and I haven’t found a Libertarian who has a problem with responding to disasters.

    Finally, shouldn’t Kleiman want to engage the Klingons and not fight them?

  • Keg O’Beer

    Asteroid protection is something that the government would be singularly inapt at undertaking. The reason is that it would require international cooperation with over 200 governments throughout the world, so that the costs can be equitably shared. Not doable in anybody’s lifetime, not even Methusaleh’s if he were still with us.

    Rather, this is a case where we can better rely on the private market to set up competing operations and sell shares or insurance to private citizens around the world, or to governments too for that matter. Yes, there may be some free riders, but if you can’t get people to pay up a small but reasonable amount for their own survival, they damn don’t deserve to survive.

    So, constitutional or not, keep the govt out of the asteroid killing business. Please.

  • Rob Natelson

    I’ve written fairly extensively on the origins and original understanding/meaning of the Necessary and Proper Clause, and I agree with Mr. G that it authorizes defense against asteroids. It is true that use of the N&P Clause requires execution of an enumerated power, but if an asteroid threatens life on earth, it is necessary to destroy it for Congress to continue to execute ANY enumerated power. An analogous case: Congress may defend federal land from avalanches and landslides to protect its power, under Article IV, to control that property.
    Not to quibble, but Mark Kleinman’s hypothetical is not really worth this extensive a response. Questions of this nature are usually based on a caricature version of the original Constitution by people who don’t know very much about it.
    BTW: I would not recommend relying exclusively on Johnson’s Dictionary. It is useful, but its author was a bit ideosyncratic, and often that bleeds over into his definitions. Johnson should always be checked against the many other English dictionaries available at the time.

    BTW-2: original meaning is useful, but the Founders themselves would have given primacy to the original understanding of the Ratifiers, where available and coherent.
    Rob Natelson

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  • http://pulse.yahoo.com/_SWPGX7UF2EACU742T4LLOCGRBE tally j

    if the oceans had begun to rise about the time of our countries forming the founders certainly would have appropriated funds to protect our strategic installations near the coast or to rebuild them. no doubt they would have perceived such actions as providing for the common defence.

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  • Damon Lacovic

    Is it constitutional to capture asteroids and move them into Lunar orbit?

    http://asteroid.webs.com/

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