Launching a Legal Regime: Applying Constitutional Law to Space Law

Abstract

This Article analyzes the applicability of constitutional law to rules governing outer-space behavior. By analyzing the uses of text, history, and practice in the interpretation of the United States Constitution and space agreements, I conclude that living constitutionalism provides the best template for interpreting space law. Its method of reading texts to fit modern society aligns with the New Haven School of International Law’s realist focus on values such as equity and human dignity. Beyond interpretation, constitutional law may be particularly informative for rule promulgation. It provides examples of how leveraging John Rawls’s veil of ignorance can enable the creation of rules less tainted by self-interest. This principle can apply to space-law issues such as property rights, debris, and militarization. However, there exist strict limits on applying constitutional law to space law. Constitutional law and international law operate with fundamentally different governance structures. Thus, suggestions that the Outer Space Treaty of 1967 (O.S.T.) is tantamount to a “Space Constitution” reflect an insufficient understanding of the fields’ differences. Still, the O.S.T. is akin to a constitutional preamble that outlines guiding principles and invites us to continue shaping new rules for the global space order we desire.

Keywords

• outer space treaty of 1967
• u.s. constitution
• living constitutionalism
• veil of ignorance
• property rights
• space debris
• space militarization