Would protecting the Earth from an asteroid be Constitutional?

A reduction ad absurdum for the Tenthers and the GOP politicians who pretend to Tentherism.

Updated here. Some libertarians think I’m maligning libertarianism by suggesting that any libertarian could object to asteroid destruction. Other libertarians say that taxing people in order to destroy an asteroid would be a violation of their rights. No one has a principled distinction between destroying the asteroid and funding the Department of Education or NPR or any of the other things that are sometimes described as being beyond the Constitutional powers of the Federal government. Which was, after all, my point.

When I saw that Rand Paul (R-Comedy Central) had voted against a bill outlawing the use of lasers to blind airline pilots on the grounds that “the states ought to take care of it,” I was reminded of this week’s best Onion story imagining an effort by Republicans to repeal a law providing for the destruction of an asteroid coming at the Earth.

The Onion story didn’t mention lawsuits seeking to have asteroid-destruction declared unconstitutional as a violation of the limited, delegated powers of the Federal government. But I’d be grateful if one of our libertarian-leaning readers could point me to the specific provision of the Constitution under which the Federal government could spend money on asteroid destruction. It’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.

No doubt some socialists would assert that the reference to “the General Welfare” in the first sentence of Art. 1, Sec. 8, plus the Necessary and Proper clause at the end of that section, would cover asteroid destruction. And I might agree with them. But of course from the libertarian perspective that proves way, way too much.

So I offer this as a challenge: If you think that the doctrine of limited powers forbids much of what the federal government currently does, please explain why that same argument wouldn’t forbid spending money to shoot down an asteroid.

Footnote If your objections to “big government” are based on economics rather than constitutional law, please explain why the public-goods argument that justifies shooting down the asteroid doesn’t apply to the programs you don’t like.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

42 thoughts on “Would protecting the Earth from an asteroid be Constitutional?”

  1. Careful about quoting from the Onion, Mark! When they had that story about a frustrated Obama sending the nation a long, rambling e-mail a while back, there were conservatives who seized on it as a real story and vented their outrage!

  2. Sorry, Mark, but even the most glib of libertarians would categorize asteroid impact prevention as “defense”.

  3. Yeah I think they’d say it qualities as defense, so long as it enriched defense contractors and killed a few thousand people in the developing world.

  4. Interfering with an incoming asteroid in any way would be as impious as pulling the plug to drain Noah’s flood.

  5. Whatever the objection could be it can easily be sidestepped by recognizing the asteroid as a sovereign nation and declaring war on it and any ungodly little green heathens that may be lurking and plotting there. No matter what it costs war is always good! Kick some asteroid butt!

  6. (Mark): “If your objections to “big government” are based on economics rather than constitutional law, please explain why the public-goods argument that justifies shooting down the asteroid doesn’t apply to the programs you don’t like.
    Simple: a public good must be in the first place a good.

  7. @Michael O’Hare –

    Perhaps you’re already familiar with this story: apparently when Ben Franklin invented the lightning rod, the fundamentalists objected in the most strenuous fashion to their use, on the grounds that lightning was sent by God, and to interfere with His will was blasphemy.

  8. Defense is an enumerated federal power, but not because it’s a public good. It’s because it is a subset of foreign policy. Non-foreign-policy related defense/disaster/etc. issues are the province of state National Guards. An asteroid, like any other weather or natural disaster, is handled by the states only. They can request federal help (FEMA) but the feds cannot force help on them. Sorry! It’s nice to shoot down asteroids, just like it’s nice to have a functioning health care system, but that’s not what the Founding Fathers put down on paper.

    Anyway, maybe the voters of Kentucky want to revitalize their state nickel- and iridium-mining industry. They might be asking their state legislature to attract as many asteroids as possible. Those left coast anti-asteroid carpetbaggers can keep their noses out of it.

  9. @ Foster:

    I also seem to remember reading that when the oil extraction industry began, there were fundamentalists who objected on the basis that this was depleting the fuel which God had laid aside to burn up the earth at the end of days.

  10. There is no “defense” power in the words of the Constitution. There are provisions for funding and regulating an Army and Navy, a commander-in-chief provision, a foreign policy provision, declaration of war, and some stuff on militias. I might have missed something else.

    Remember, wingnuts treat their Constitution like hard-shell Baptists do their Bible: something that should be interpreted with no regard to interpretive history, and that can only be interpreted by an individual believer. The rest of us can infer a defense power from the Constitution, and can even infer that armed forces can do things other than kill enemies: e.g., destroy asteroids. But the wingnuts will have none of this in their hermeneutics. So Mark’s point stands.

  11. It seems that fred has a good point about declaring war on an asteroid, since there are precedents for declaring war on inanimate objects: the war on drugs and the war on smut come to mind.

  12. Ebenezer Scrooge: Article I, section 8, clause 1 states, “The Congress shall have the Power To … provide for the common Defence and general Welfare of the United States … .”

  13. I’m still waiting for an actual libertarian to explain either why asteroid defense would be Constitutional while funding NPR isn’t, or why it’s a good thing to have a Constitution that wouldn’t allow the Congress to prevent a catastrophe.

    Malcolm at least is clear: it’s not that he’s got any principled objection to public intervention in the market, as long as he approves of the objective.

  14. I think everything depends on how much money Bruce Willis wants to lead the expedition.

    Keep waiting, Mark. Maybe Stossel has an answer.

  15. Typo. Please delete my previous version.

    (Mark): “Malcolm at least is clear: it’s not that he’s got any principled objection to public intervention in the market, as long as he approves of the objective.”

    The principle is cost/benefit analysis, broadly conceived.

    The difference between defense against an Earth-crossing asteroid and mohair subsidies is simple: the (imagined) asteroid is a threat while the mohair subsidy does more harm than good. Considering deadweight costs alone, any argument for subsidy starts in a hole, from a cost-benefit point of view. If space aliens were to threaten the Earth with destruction unless Congress subsidized mohair production, then mohair subsidization would supply a public good. Otherwise not. There’s no reason to suppose that ag subsidies enhance aggregate welfare. While the argument for charity as a public good makes sense in abstract, the effect on employment and the diplacement of non-State actors in the charity business imposes real costs. There’s abundant evidence (see Murray, __Losing Ground__) that the displacement of non-State agents by tax-funded welfare degraded aggregate social welfare. There’s no comparable moral hazard problem with Earth-crossing asteroids.

    1. The use of “Murray” and “evidence” in the same sentence suggests a degree of confusion. But let that pass.

      As it happens, Malcolm and I agree on the asteroid, and on mohair subsidies. On other things, we disagree not about whether the public-goods market failure is a justification for public intervention, but about whether specific interventions in specific instances have benefits in excess of their costs.

      That’s not the disagreement I have with the hard-core libertarians who imagine that they have principled arguments in favor of “small government.” I’m still waiting for one of them, or one of the defenders of “small government” on Constitutional grounds, to distinguish (as the lawyers say) the asteroid case from the case of funding the National Science Foundation.

  16. Maybe now is the time to point out that there is an incoming asteroid called global warming, whose consequences have filled the news this week. The melting of the global ice caps has created vast stretches of open water which remains warm and conducive to the formation of huge amounts of water vapor, which fall on the Midwest in the form of feet and feet of snow. Abnormal summer heat creates crop failures and shortages of grain in the worldwide market, spiking food prices and fueling citizen discontent in Tunisia, Egypt, and other countries, with consequences yet to be seen. But the libertarians are nearly unanimous in saying that the government has no business interfering with the approaching catastrophe.

  17. (Eli): “…there is an incoming asteroid called global warming…But the libertarians are nearly unanimous in saying that the government has no business interfering with the approaching catastrophe.
    What I find most annoying about the AGW discussion is the close relation between belief and skepticism, on the one hand, and political orientation, on the other. It appears to me that people are predisposed to accept the case or dispute the case based more on their preference for or objections to State intervention in general than on the statistical case for the AGW hypothesis.

    Celestial mechanics is far more mechanical than paleobotany and statistical inference from noisy time series. The misbehavior of Mann, et. al. in manipulating the peer review process and hiding data does not inspire confidence.

  18. “I’m still waiting for an actual libertarian to explain either why asteroid defense would be Constitutional while funding NPR isn’t, or why it’s a good thing to have a Constitution that wouldn’t allow the Congress to prevent a catastrophe.”

    Why is whether it’s a good thing relevant to determining what the Constitution means? Are you somehow claiming that the Constitution can’t mean bad things? What is it, divinely inspired, or some such nonsense? My position is that the Constitution damned well does mean some bad things, and when we agree that something it means is bad, we should use Article V to change the actual text so that it ceases to mean something bad.

    The problem with deciding that using Article V in such cases is too hard, is that your system for circumventing Article V will get used in cases where we don’t agree that the thing the Constitution means is bad. You don’t have to convince many people that an ‘amendment’ is a good idea to get 5 members of the Supreme court to ‘ratify’ it…

    As for the first part of the question, while I can think of a half dozen ways to rationalize Congress having the power to do this one way or another, why not propose an amendment to give Congress the power to deal with impending natural disasters NOW, and get it ratified before the asteroid is found? Since you’ve discovered this deficiency in the Constitution as presently written?

    Why not be proactive, and make the Constitution actually suited to the challenge, instead of using it as an excuse to set the Constitution aside yet again?

  19. (Mark): “…we disagree not about whether the public-goods market failure is a justification for public intervention, but about whether specific interventions in specific instances have benefits in excess of their costs. That’s not the disagreement I have with the hard-core libertarians who imagine that they have principled arguments in favor of “small government.” I’m still waiting for one of them, or one of the defenders of “small government” on Constitutional grounds, to distinguish (as the lawyers say) the asteroid case from the case of funding the National Science Foundation.

    I need an analogy here: I’m no Christian, but strident atheists make me cringe. Someone (Chesterton?) once asked: “Who’s more insane, the man who believes in a God he can’t see or the man who is angry at a God in whom he does not believe”.

    I don’t call myself a libertarian (and neither do my libertarian friends call me libertarian) for a couple of reasons, but basically it’s because I believe that law, morality, and custom result from biological and cultural evolution while libertarians seem to believe that rights, including most especially property rights, entered our universe through a crack from the fifth, sixth, and seventh dimensions, or something. Dunno. It’s not clear to me what it means to say that someone believes something that you do not.

    Anyway, Professor Kleiman is the strident atheist, here. An atheist defines himself by his opposition. Practically, I believe that traditional property rights, as understood by fundamentalist libertarians, usually survives a cost-benefit analysis, while the anti-libertarianism of technocrats opens huge opportunities for self-dealing by technocrats in power.

  20. Is Foster Boondoggle right? Were the fundamentalist in 1742 upset with Ben Franklin’s lightning rod invention because it interfered with God’s will? Steeples (and Minerets) were built by then simply to get closer to God, right? Ask Ibsen. so when church builders put a metal spire or even a crucifix atop, they never thought to grounding it by wire to the earth as did Franklin. the review of a book in the Journal of American History in 2006, In Stealing God’s Thunder: Benjamin Franklin’s Lightning Rod and the Invention of America, author Philip Dray opined that “a mere mortal could in effect control lightning, once the exclusive province of a sometimes-wrathful God, was a stunning claim that generated debate in religious, philosophical, and secular circles…Franklin’s invention became a powerful symbol that instantiated the Enlightenment ideal that man, through reason and experience, could affect his own destiny.”

  21. “Why not be proactive, and make the Constitution actually suited to the challenge, instead of using it as an excuse to set the Constitution aside yet again?”

    That’s just too good not to savor: Rather than interpret the constitution, amend it, when addressing movie plot threats.

    “Mr. Speaker, as the President of the United States, I am invoking the Godzilla Clause of the nine-hundred sixty-eighth amendment to the constitution…”

  22. Buildings burning are movie plots, too, this means that we don’t need fire departments? The problem with asteroid impacts is that they exist outside of fiction, too.

  23. Got to love Malcolm. It’s by cost/benefit analysis! It’s scientific! Unless it results in something I don’t agree with then I make evidence free dispersions about people and say it is all a conspiracy!

  24. (Rob): “Got to love Malcolm. It’s by cost/benefit analysis! It’s scientific! Unless it results in something I don’t agree with then I make evidence free dispersions about people and say it is all a conspiracy!
    When?

  25. Mark —

    I’m a libertarian, and I think this one’s easy. Under almost any theory, the spending power — that is, the power to provide for the common defense and general welfare with tax money — allows for expenditures that, by their nature, benefit the nation as a whole. Even under a fairly restrictive view of the spending power, such as that advocated by Jefferson or Madison, the asteroid defense would pass muster. I’m not convinced by the arguments some libertarians make that certain welfare programs exceed the scope of the spending power because of their redistributive aspects, but the asteroid prevention initiative would survive these even-more-restrictive theories as well, because it would defend the nation as a whole, and would not benefit a particular region/class/faction/etc. For similar reasons, an anti-asteroid initiative would survive the takings-based restrictions on federal power put forward by Richard Epstein. The asteroid protection initiative is also not threatened by the theories put forward against the individual mandate because a) it relies on different grants of power, b) there are good reasons to think the the political branches should determine what constitutes an expenditure for the “general welfare” that don’t apply to the use of regulatory powers to compel private action. Among other things, the abuse of the taxing power is constrained by the structural limits on how taxes can be raised (a point made in McCulloch v. Maryland) that do not apply to regulations.

    The other question — why it’s a good thing to have a Constitution that wouldn’t allow the Congress to prevent a catastrophe — is really quite silly. I don’t know many libertarians who argue that Congress cannot “prevent a catastrophe.” And I don’t know many non-libertarians who believe that the Constitution allows any and all means to “prevent a catastrophe.” That is, libertarians and non-libertarians alike recognize that the Constitution places some constraints on the means government may use to achieve desirable ends. Just as the Right should not pretend civil libertarians are “anti-defense” or “anti-security” because they would constrain what the government can do in the name of national defense, those on the Left should not pretend libertarians or other believers in constitutional contraints on federal power are against “preventing catastrophe” just because they might limit the means that could be used to achieve that goal.

    JHA

  26. (Mark): “Malcolm at least is clear: it’s not that he’s got any principled objection to public intervention in the market, as long as he approves of the objective.
    Something’s been nagging me about this for days. Note the second person singular. This characterizes the difference between free marketeers and socialists, I suggest. Professor Kleiman represents the choice between constitutionally limited government and a market order, on teh one hand, and bureaucratic fiat, on the other, as a matter of individual taste (he prefers apples to mangos while I prefer mangos to apples, he prefers a society in which public-sector bureaucrats rule while I prefer a stabile legal environment and a market order), while I believe the choice depends on a matter of fact, the different results which different decision-making mechanisms yield. Moynihan’s adage “Everyone is entitled to his own opinion, but not his own facts” applies.

    I’m at chapter ten (on law) of Hayek’s __The Constitution of Liberty__ at the moment. It’s on my bedside table and when I wake at 2 a.m. I read it to fall asleep–it’s a snore. As Hayek observes, effective laws summarize experience about what works. If we rank our preferences by their durability over time and the generality of their acceptance, the highest ranking preferences we call “principles” and the lowest we call transitory individual whims. Ultimately, the distinction whicj Professor Kleiman draws between “economics rather than constitutional law” falls apart.

    So long as we are not really faced with an asteroid, some strict constitutionalist’s “not even then” insistence on limited powers signals his dedication to limited government, just as the correct answer to the question: “Who’s the most beautiful woman in the room?” is always “My wife” (unless, like me, you’re not married).

  27. This is an extremely simple question. Defending the country is not a question of the motivations of the attackers, regardless of whether the attacker in question is an aggressive empire, a microbe, or a gigantic piece of rock from galaxies far, far away.

    Your pronouncement that the attacker in question has to be an intlleigent being(s) acting with deliberate premeditation is not only nowhere in the text, it is not even hinted at or alluded to, such as implying that the Army and Navy can only be used against human fors. It’s just something you made up.

    Since the specific purpose of tossing out the Articles of Confederation and adapting the Constitution was to make coherent, effective national policies possible (i.e. “a more perfect union”), defending against asteroids–you know, providing for the “common defens(c)e”–is what the Constitution is for.

  28. A few points:

    a) Mark seems to be conflating “libertarian” with “originalist.” There are, indeed, a lot of libertarian originalists, but the two groups are by no means co-equal. There are libertarians that are not originalists, because libertarianism is a political theory, not a theory of constitutional interpretation. More importantly, there are originalists that are not libertarian. I make this point only because I’m not a libertarian, which gives Mark a perfect reason to discount every argument below as non-responsive. Still, there’s nothing that is inconsistent with libertarianism.

    b) It would be nice if Mark would clarify a point in his first two paragraphs: whether the reference to Paul was simply a mention of what started his thought processes, or part of his argument. If the latter, it should be noted that he links to a somewhat misleading Washington Post article. The first few paragraphs describe Paul’s federalism argument that “the states should take care of it.” This is not–or at least not necessarily–an argument about the bill’s constitutionality. Paul can easily believe that the bill is within the set of Congress’s enumerated powers, and yet still be something best left to the states as a prudential matter. (It’s a common mistake–see, e.g. this article which turns an argument about which level of government should regulate into an argument about constitutional limitation.)

    I can’t find any online reference to Paul’s remarks as a whole, so I can’t confirm what Paul meant. That said, “should take care of” implies that Paul was more focused on which branch is the more suitable regulator. In any event, I found this post slightly confusing because the first half didn’t have much to do with the second.

    c) Speaking as a conservative, non-libertarian, spending for asteroid defense is pretty clearly not a problem for originalism. As JoeYnot points out, there is no precedent suggesting that “defense” is limited to “defense from attacks by sentient beings,” or that the Army and Navy can only be used for such purposes. Nor would the prudential arguments above have much salience: where the threat endangers every life in the nation (or the world), it would be hard to argue that a fifty-state response is better suited than a single, coordinated one.

    The AGW point is a bit of a non-issue, as there are several powers that Congress unquestionably enjoys that can be used to combat global warming that have nothing to do with common defense (or even general welfare). Taxing carbon emissions, for instance, falls squarely within the taxing power. But the taxing power won’t be of much use against an incoming asteroid. Similarly, I can’t think of a policy to prevent global warming that would easily be considered a provision for public defense (or at least, one that wouldn’t fit much more easily under another enumerated power, making the discussion academic). Here again, the argument isn’t constitutional, but prudential.

  29. Malcolm:

    “What I find most annoying about the AGW discussion is the close relation between belief and skepticism, on the one hand, and political orientation, on the other. It appears to me that people are predisposed to accept the case or dispute the case based more on their preference for or objections to State intervention in general than on the statistical case for the AGW hypothesis. ”

    That’s odd, because acceptance has spread across scientific discipline after scientifict discipline, with each year bringing more and more confirmatory evidence, and proving denialists to be liars (after they have to repeatedly explain away inconvenient data, and to repeat debunked claims).

    “Celestial mechanics is far more mechanical than paleobotany and statistical inference from noisy time series. The misbehavior of Mann, et. al. in manipulating the peer review process and hiding data does not inspire confidence”

    This would be the criticism of the peer review process that was done at the behest of the GOP, conducted by a plagiarist who has taught numerous plagiarists, who had to edit his plagiarized texts to reverse their meanings, and in the end had to be covered for by a Koch Industries brothel?

  30. Wow — I just saw this on Volokh Conspiracy. This is embarrassing nonsense coming from a professor.

    Your little website has the following (overused) quote: “Everyone is entitled to his own opinion, but not his own facts.” You seem to be trying to entitle yourself to your own facts about libertarianism, Prof. Kleiman.

  31. The Navy has the discretion to shoot at an asteroid as a weapons test or training exercise, if nothing else. They can shoot at a bunch of rocks on the ground too. I am a LP member.

  32. First off, its defense.

    Second, even if its not under the constitution, that means we need to amend it, not insult people who read the constitution as if its an enforceable legal document. I disagree with many parts of the constitution, and I don’t respond by pretending it says what I want it to say.

    Finally, to Yoyo, who says libertarians would be fine with shooting down the asteroid so long as it gave money to defense corporations. I assure you, that if the government said an asteroid were coming at us, the first thing libertarians would do is accuse it of being a fraud perpetrated by defense corporations. We coplain about the military industrial complex more than anyone else, and for many of us (including myself), our general theory of government is that it grows in response to private corporations “capturing” it, and using it to either shield itself from competition or merely make an easy buck. One of the greatest critics of the Iraq War was Milton Friedman, the economist, and one of his main arguments (paraphrasing) was that ‘the Iraq War has been successful at one thing, and one thing only, funneling hundreds of billions of dollars to defense corporations.’ Your comment assuming that we like defense corporations, or for that matter tend to be pro-war, is incredibly ignorant.

  33. Section 8

    “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and “””””provide for the common Defence””””” and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

    I think the problem some conservatives have with the Health Care bill is that being forced to buy health insurance FEELS like a violation of a right and the commerce clause implies a restriction of federal powers in which forcing individuals to purchase something is not within the powers of the federal government. Of course that is just one interpretation. It will be up to the supreme court to determine if it is the right one.

    I tend to support the restrictive interpretation because otherwise, the ‘general welfare’ clause of the quote from section 8 above gives the federal government a blank check to do pretty much anything they want. I don’t have a huge problem with the individual mandate per se, but I do have a problem with the massive power the federal government has that the mandate implies. Most naively assume that such power wouldn’t be abused in the future, that we wouldn’t be forced to buy (or do) other things that we find reprehensible. History teaches us that such assumptions are often wrong.

    The democratic congress could have simply raised taxes (on the wealthy) in order to pay for the health care bill. Instead, they thought the bill would be more palatable if they raised money by imposing the individual mandate. They traded constitutionally firm ground in order to increase the odds the bill would pass (which wouldn’t have been necessary if the bill had actually been more popular). Now they are complaining that they have to pay the price.

  34. Of course the Federal Government could shoot down the asteroid, per national security powers within Art. 1, Sect. 8. Every Libertarian and Conservative knows at least this point. It’s nearly everything else which the Feds do which is unconstitutional. Try reading the Constitution and Declar. of Indep.,paying particular attention to the above Section & the 9th, 10th, & 14th Amendments.

  35. In addition, looking at paragraph two of the Declar of Indep. we see that the purpose of government is to protect individual rights. Well, I can’t think of a more important right than the protection of my life, hence, what’s the issue? Of course defense against asteroids is constitutional. Dah.

  36. Prof. Adler,

    “Even under a fairly restrictive view of the spending power, such as that advocated by Jefferson or Madison, the asteroid defense would pass muster.”

    Didn’t Jefferson and Madison essentially hold that there *is no* independent spending power?

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