Via Instapundit, I found an article titled On Asteroid Defense and Constitutional Law. In in, the writer, Pejman Yousefzadeh, responds to a challenge from liberal writer Mark Kleiman for some “libertarian-leaning” person to explain why the doctrine of enumerated powers would not prevent the Federal Government from “shooting down an asteroid.”
Yousefzadeh leads off by saying
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.
Yousefzadeh then unceremoniously walks right into Kleiman’s trap. He produces an exhaustive originalist analysis of “common defense” to show that, indeed, the Federal Government has the authority to put together an asteroid defense program. In doing so, although he links to Article I, Section 8, where the term appears, he fails to note WHERE it appears. This is of critical importance because, like “general welfare”, which has been used to justify all of the entitlement programs, “common defense” is in the introductory or purpose clause of Section 8.
Any originalist exegesis of the Constitution must include the public debates that took place prior to ratification. There is no better source for these than the writings of the Federalists and the anti-Federalists. The meaning of the phrase “common defense and general welfare” in Article I, Section 8 was one of the more contentious topics debated. The anti-Federalist argument was that that this phrase, along with the “necessary and proper” clause, gave the central government plenary power.
James Madison, unquestionably the most important of the Constitution’s Framers, disposed of the anti-Federalist argument in Federalist 41. Quoting Madison:
Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction.
In the succeeding two paragraphs, Madison eviscerates the anti-Federalist interpretation on the basis of grammar, logic, and punctuation. He saves his most devastating argument for the concluding paragraph:
The objection here is the more extraordinary, as it appears that the language used by the convention is a copy from the articles of Confederation. The objects of the Union among the States, as described in article third, are ‘their common defense, security of their liberties, and mutual and general welfare.’ The terms of article eighth are still more identical: ‘All charges of war and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress, shall be defrayed out of a common treasury,’ etc. A similar language again occurs in article ninth. Construe either of these articles by the rules which would justify the construction put on the new Constitution, and they vest in the existing Congress a power to legislate in all cases whatsoever.
What the self-proclaimed “libertarian-leaning” Yousefzadeh has done is to use exactly the reasoning that the anti-Federalists warned would empower the Feds to do practically anything the legislative imagination could dream up. In this case, the imaginative Mr. Yousefzadeh proposes to use the term “common defense” to permit the Federal Government to erect an asteroid defense. Unfortunately, there are a lot of people who consider themselves libertarian and originalist who bend in the first stiff rhetorical breeze. Mr. Yousefzadeh seems to fall into that category.
Allow me to respond to the Kleiman challenge.
The first issue is, as a matter of public policy, is asteroid defense something that SHOULD be the responsibility of the Federal Government. The second issue is, does that power currently reside in the Federal Government? If it doesn’t and it should, the remedy is simple: amend the Constitution.
Starting with the second issue, the answer is, at the present time, the Federal Government has no enumerated power to establish an asteroid defense. Madison’s arguments are irrefutable and informed the state legislators who voted to ratify the Constitution. That the “general welfare” clause became the justification for the entitlement programs despite this is more a reflection on the debasement and politicization of the Supreme Court in the 20th Century than of legitimate constitutional scholarship.
It’s easy to come up with a scenario where an asteroid is discovered hurtling toward the Earth with only a short time to respond. Because, at the present time, only governments have the wherewithal to destroy or, more likely, divert an asteroid, then the U.S. and other governments would be required to act as quickly as possible. If we assume an originalist renaissance had taken place and the Feds were operating according to the Constitution then I am fully confident that a Constitutional Amendment to permit the allocation of funds for asteroid defense would be proposed and submitted to the states in a matter of hours and that state legislatures would race to be in the first 38 to ratify. I doubt the whole process would take more than 24 hours. This is, after all, the 21st Century and we have the internet, cell phones, teleconferencing, and a host of other communication technologies to make a rapid ratification possible.
As for the public policy issue: should the Feds become involved in asteroid defense, I say no. I suspect that Kleiman, like most liberals in my experience, hates the expenditure of funds for space exploration. When I was a young lad (and technocratic liberal), it infuriated me how nearly every other liberal I encountered would dismiss NASA and space exploration with the phrase, “we have to restructure our priorities.” In other words, we have to feed all of the hungry and establish social justice everywhere before we spend a cent on space. Most of those folks went on to become environmental extremists and technophobes. Perhaps I’m wrong about Kleiman but I’d bet I’m not.
Why would I oppose, on the grounds of public policy, Federal involvement? As I’ve discussed elsewhere on this blog, government bureaucracies in time become antithetical to their original purpose. They become self-perpetuating rent seekers. Consider that the Atomic Energy Commission started out with the mission of promoting nuclear energy for civilian use. It underwent a name change and became the Nuclear Regulatory Commission and regulate it did. Nuclear power was no longer promoted, it was strangled. I won’t repeat NASA’s failures here except to say that the promise to produce a cheap way to put payloads into low Earth orbit resulted in an expensive and complicated technology that has killed two crews since it debuted in the early 1980’s.
Where does the Federal government belong? The answer is in the military sphere. That would include ICBM’s, SLBM’s, ballistic missile defense, surveillance satellites, and so on. But let the market handle everything else. It will do an infinitely better job. President Obama even seems to agree with me on this, based upon his administration’s space policy. So, perhaps Mark Kleiman and I are on the same side, after all.