Spaceship Arrivals Won’t Shake the Constitution

Anthony Sanders · April 8, 2021

Have you ever heard someone say the Second Amendment only applies to flint-lock pistols? Or claim that the First Amendment is not designed for the internet? Or suggest that the police should not need probable cause to search cars because they did not exist in James Madison’s time?

Last month the U.S. Supreme Court offered a couple of examples of this kind of thinking—and why it’s wrong. The Constitution was written in a different time with different technology, but it does not change. The principles it embodies are timeless and can protect our freedoms whether we are riding a horse or flying a spaceship.

Yes, a spaceship. On March 22 the court heard an argument about whether California took a pair of farm business’s property when it forced them to allow union organizers access to their land for up to 120 days a year. The property owners’ lawyer argued that this was a “taking” under the Fifth Amendment.

In contrast he argued that government inspectors could require access to land without “taking” it because the Founders recognized government inspections as something outside the Fifth Amendment’s application. But a right of access by a private party was not.

Justice Stephen Breyer seemed skeptical of this distinction. He asked if the government would have the power to inspect spaceships. After all, they did not exist at the Founding. And if the government could inspect spaceships, then why doesn’t it also have the power to require access for union organizers?

The attorney in the hotseat had a succinct answer. “It’s the searching power, not the thing they’re searching, that matters,” he said. Technology changes, the principle stays the same. Government had the power to inspect in 1791 and still does.

Flash forward three days to March 25 when the court issued an opinion on a botched police encounter in New Mexico. The case concerned two officers who approached a woman getting into her car. She claims she did not notice that they were police, but did see they had guns.

Thinking she was being carjacked, she sped away. The police fired at her 13 times and hit her twice, but she continued to drive and got away—although she was arrested in a hospital the next day.

The constitutional issue for the court to decide was whether hitting someone with a bullet constitutes a “seizure” under the Fourth Amendment. The court first concluded that when an officer grabs a fleeing suspect it constitutes a “seizure,” even if the suspect gets away, as long as the officer in some way touches her. As Chief Justice John Roberts said for the court, during the time of the Founding the principle was often called “laying of hands.”

Citing a multitude of cases from old English law and early American jurisprudence, the court’s majority found no functional difference between literal “hands” and a bullet fired from a gun held by those hands. The principle is the same in either case.

This is true even though there are not cases from the time applying the principle to a bullet. That may be explained, the court said, through the fact that until the 19th century police officers did not often carry firearms.

Something lurking in the background both of Justice Breyer’s question and the seizure case is the “O” word: Originalism. The doctrine—embraced by many justices and scholars and attacked by many others—holds that the text of the Constitution should be understood as it was at the time it was enacted, and not as we would have it today.

Justice Breyer, who has made no secret of disagreement with this idea, suggested with his question that according to Originalism the fact that spaceships didn’t exist when the Constitution was adopted means it doesn’t have much to say about them. And that, he implies, means it’s not a terribly useful method of interpretation.

But that, again, conflates the principle with the thing. Whether you’re an Originalist or simply a student of history, it’s impossible to deny that the Constitution’s framers and ratifiers knew that technology would change over time, and that new customs and inventions would shape the lives of their descendants. But they also knew “these truths to be self-evident,” as some of them had affirmed in the Declaration of Independence just a few years before.

When those truths are applied to our changing world, we are doing what the Constitution expects us to do: Apply old principles to new facts, even new spaceships.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.