From the Magna Carta of 1215 to “Interplanetary Constitutional Law” and “Martian Constitutionalism”.

por | Jun 28, 2024 | Actualidad

Since my main areas of education and research are Constitutional Law and Fundamental Rights, it is from such approaches that I tend to appreciate the multiple phenomena on which I am invited to speak and make presentations, and which have recently been topics ranging from digital transformation and rule of law, due process, digital economy, Blockchain, freedom of expression even of marriage and other kinds relationships as a manifestation of the right to free association and the free development of personality.

As is the case with other phenomena and events, although initially they may not seem to have a direct connection with the area of ​​specialization such as Constitutional Law and Fundamental Rights, an event recently took place whose effects we may not have yet taken into account and full consequences for human civilization concerning Constitutionalism, such is that on June 6, 2024, the takeoff and landing operation of the largest rocket that has ever existed, the Starship S29, an operation that ended in an absolute success,[1] developed by one of the companies led by Mr. Elon Musk, SpaceX[2], which would be equivalent in the same line to the expressions used on the famous July 20, 1969, another great step for humanity, in this case on the path to the planet Mars and its population, project and mission that Mr. Musk has persistently insisted is one of his most cherished plan.

As I have stated in some forums, despite the surprise, disbelief and shock of many, and the discomfort of others, I am personally convinced that the technology necessary to achieve this goal of reaching the red planet is much more advanced than our culture and legal thinking facing the challenges that as a society we will encounter with new forms of interaction that will develop more and more as we get closer to that moment of actually reaching Martian surfaces, and what to say when that happens, as those who actively work on this multiplanetary project have in mind whether there is a human presence on Mars or not, challenges not only with respect to the relationships between those first terrestrial inhabitants and their potential future generations, who would technically be Martians, but also between ourselves here on planet Earth, those of us who still have superstitious beliefs about many aspects related to the idea of ​​law, legislation, Fundamental Rights, authority, among many more.

As usual in my monthly articles on the last Friday of each month since I publish in El Nacional, I make reference to historical events that occurred in such months, and it happens that in the month of June an event of great importance for the formation of constitutionalism and the formation of the notion of the Rule of Law and Fundamental Rights, such as the signing on June 15, 1215 of the Magna Carta in England, through which King John I or John Lackland is subject to it, this event being a precedent of great value in the notion that a Constitution and Fundamental Rights constitute limits of power and not an instrument for its exercise, something that unfortunately has been openly rejected not only by the totalitarians and despots, but has not ended to be assimilated into the general culture and thinking of citizens.

However, we are in the middle of the 21st century and we are facing technological deployments such as the technical possibility of unlimited access to the Internet without restrictions from anywhere on the planet, as can perfectly be done through Starlink[3], even more so with the presentation of its most portable version such as the Starlink Mini announced in X by Mr. Musk on June 17[4], and with this, as never before in history, making resources available to humanity that would never have been possible to even imagine in all areas of knowledge, must cause us great concern as from 1215 until today, in comparison with technology, there would be very few advances in terms of our culture and constitutional legal thinking directed towards freedom and guarantee of the full exercise of Fundamental Rights.

It seems more than a mere contradiction, that along with the challenges that humanity has had to overcome not only against the elements, but also against its very nature, we find ourselves with societies under despotic and totalitarian regimes installed thanks to sophist narratives, fallacies, euphemisms and other rhetorical traps, subjected to regulatory systems with an idea of ​​law and legislation that, like dogmas and superstitious beliefs, materially discourage creativity, progress and with it prosperity, which has not been in vain in some cases since stagnation to setbacks in matters of legal culture and rule of law[5].

We should undoubtedly be concerned about how practically very little, and sometimes practically not at all, progress has been made in the notion of legislative production that goes beyond the tribal idea that it is through a will other than those who actually have to be governed by such norms, and that’s why it is very difficult to even imagine the creation of regulatory systems outside the states, as it could well be through free and voluntary standards, and what can we say about the idea of ​​programmable or bifurcable law, especially in the face of the existence of phenomena and realities “allegal”, that is, they are not governed by legislated law but by other categories of regulatory systems.

It turns out that on April 1, 2024, April Fools’ Day, a post on » X»[6], formerly Twitter[7], – also under the direction of Mr. Musk[8]-, that the esteemed professor at the University of Texas at Austin, Richard Albert, whom I consider one of the most influential people in the world of constitutionalism, indicating that he had been designated a permanent member of the “Interplanetary Constitutional Consortium”, being the main mission of said Consortium that of “formulating recommendations on the governance of outer space,” but more immediately the task of drafting the “Constitution of Mars”.

Beyond the considerations about whether it was April Jokes Day, and that for many countries in Latin America and Spain it is not the first of April, but rather the 28th of December, it was not only more difficult for us to fall quickly that it was a joke, but it is also absolutely plausible, and even more so given the accelerated development and advancement of the SpaceX project and others of Mr. Musk, that publication on X by Professor Albert, who pointed out in a way that we understand as humorous, but absolutely plausible, that this nomination as a member of the Consortium, would have begun in June 2023, when he would have met Elon Musk and at the SpaceX facilities in Texas and in different meetings they discussed the need to create a regulatory structure for the governance of the red planet and his vision that it could be populated in the next two decades,-a matter that which Mr. Musk insists recurrently and not necessarily on April jokes day-, and that personalities such as such as Chris Hadfield[9], Helen Sharman[10], Neil de Grasse Tyson[11], and Yi So-yeon[12]. -and who better than them to actually create a “Committee” with that function if that could be real -, although the reflections formulated here on the invitation to rethink the idea of ​​constitutionalism in times a time when we´re also referring to the notion that human beings are close of being an interplanetary specie and forming multiplanetary societies, all besides the interesting development of regulations studies by Space Law specialists such the United Nations Treaties and Principles on Outer Space, among others[13], as well as the interesting activities carried out by offices such as the Office of the United Nations for Outer Space Affairs (UNOOSA)[14], and very illustrative conferences and conversations[15].

In this state of reading, I imagine that, just as it happened to me, there are hundreds, thousands, of ideas and thoughts that come to mind about the topics that could be addressed in this whole notion and scope of what we could call and so on as I referred directly through a publication in X to Professor Albert himself, whom I had the opportunity to meet and share some ideas[16], that we would be facing an “Interplanetary Constitutional Law” or “Martian Constitutionalism”[17], even questioning ourselves from the most initial idea why and for what purpose it would be in some way useful for humanity to consider reaching Mars, and even more so, to populate it. Is it that there are not more important things on Earth and that we have not yet solved? Without a doubt, there are many reflections that this situation awakens.

As mentioned, regardless of whether this publication was made as part of a joke, as we have recently observed, it is completely plausible, and given the progress of Mr. Musk’s projects not only in that particular case of SpaceX, but the of Tesla’s robots, Optimus[18], we are not joking when we are faced with phenomena that force us to rethink many institutions of Constitutional Law and Fundamental Rights today without it being necessary for us to get to Mars for this, it is enough to analyze the current situation presented with another of Mr. Musk’s projects such as Starlink and the situation presented with the Brazilian justice in which a Court ordered to restrict the publications of certain users and Mr. Musk refused to comply with the court order arguing that it violates the right of freedom of speech, although he later indicated that he would abide by the court order[19], but also with respect to the issues of “Martian Constitutional Law” we could well point out that there are indeed interesting works, always subject to critical reading that are of interest[20].

As far as some of the topics that come to mind could be addressed in a «Martian regulatory system» program, I consider that among others, the idea of ​​an interplanetary constituent power and its founding Congress, system of government and economic system could not be missing. Should it be a reflection and mirror of the Earth or should we think of something different? The idea of ​​State, nation and city. Would it be a good idea to think about Martian city states?

What do we do with interplanetary populism? Do we adopt a legal system of continental civil law, common law, or something different? What would this new Martian system be like?

Subjects of law beyond the notion of legal personality as it is known on Earth. Shall we delve into discussions about the legal personality of Artificial Intelligence agents?

Monetary and tax policies. Will it be convenient to export the terrestrial defects and inconveniences that we have regarding taxation or should we rethink it? 

The so-called labor law and whether it should be ended as happened with slavery as a production relationship and in which the industrial revolution played an important role. Governance, citizen participation and interplanetary or Martian citizenship, Rule of Law. Fundamental Rights, their guarantee and protection. Religious freedom, freedom of speech, right to privacy. Ownership of land on Mars and its resources.

The above are just a small sample of the many challenges that must be addressed for the formation of a culture and legal thought for a time of humanity in which interplanetary relations arise, and that, as in other times such as those of the great discoveries and great journeys arose and social and legal institutions were formed, not very different occurs today in which spontaneously and not through heteronomic impositions, and in that sense that also spontaneously, new instruments arise that serve society and its individuals to be able to freely develop their life projects, whether they be already on Earth or beyond its limits.

Although we could affirm that technologically we are very close to that moment of reaching Mars, it is not necessary to do so to reflect on our realities and how we must adapt our culture and legal thinking to what we are already a “multiplanetary” or “interplanetary” civilization. Since although no human has yet had a direct physical presence on the planet, we have through various vehicles such as the Sojourner, Spirit and Opportunity, Curiosity, and Perseverance.[21], who wander around those parts sending us a large amount of information necessary for the definitive arrival to Mars.

Being in effect a multiplanetary civilization, forces us to reflect not only on, as we have insisted, the imminent population of Mars, which will occur in years, decades or centuries, Mars will still be there; but also regarding our own situation on how to create and adopt regulatory systems for here on Earth that have as their main purpose the freedom of the citizen and not their control and submission, that are destined to the creation of prosperity, in which we can move from culture of authority to the culture of justification.

Facts such as the Magna Carta of 1215 or the drafting of a Martian Constitution, beyond the contexts that inspire them, should invite us to attend to and confront realities still present in our societies, such as the fact that there are still totalitarian regimes that violate fundamental rights, and worse, they are based on absolutely farcical narratives of supposed protection, serious violations of freedom of speech, privacy, free development of personality, abusive invasion of public powers in aspects eminently of a civil and private nature, and that to say about the ineffectiveness of the Constitution for the control of power and not as an instrument for its exercise.

Today more than ever, and with the rush to do so before actually reaching Mars and the development of “Interplanetary Constitutional Law” and “Martian Constitutionalism”, we must analyze and rethink, if necessary, with its successes and errors, our legal culture. and reflect on our own “earthness”, daring to separate ourselves from categories, concepts and institutions that are often nothing more than constructs or representations, many of them imposed, which it is difficult for us to leave aside, making it even mor difficult for us to overcome many dogmas, and in this way forming new regulatory systems designed for freedom, for humanity.

We cannot wait to reach Mars or the moon, to populate or colonize them to be critical in analyzing whether our own systems really serve freedom, property, freedom of speech and free development of personality, all of which, as we can observe, in practically every continent on the planet there are regimes that maintain their power through the systematic violation of the most essential civil liberties through intimidation, abjection and ideological manipulation, limiting aid to humanity, creativity and progress.

We need bridges, bridges between cultures, but more than those that will eventually be built between Mars and Earth, which will one day exist, just like elevators between the two planets[22], we need, as the South African Jurist, Professor of Human Rights and also computer scientist stated, Etienne Mureinik[23], a bridge between the Culture of Authority to the Culture of Justification.

Mythology rethought?

While I was writing these notes, I kept thinking about another aspect of the importance that Mars has had for human culture and thought, in its being, in its deepest reflections, and that by having it closer, to the point as we have analyzed even populate it, we would be more than tempted to rewrite its meaning, and there will be those who also intend to change some names.

Well, it turns out that the red planet, Mars, was named after the Roman god of war, corresponding in Greek mythology to Ares, and its reddish color would evoke nothing less than the blood spilled throughout history in wars, so it is not surprising that so many warriors have entrusted themselves to that god before battles, or how the notion of «martial arts» also has as its origin the idea of ​​perfecting the arts of war. .

And it also turns out that Mars, or his Greek equivalent Ares, had two twin sons with Venus and Aphrodite, according to the Roman or Greek reading, one called Metus and the other Formido, in Roman mythology, and in Greek: Deimos and Phobos, which are the names of the moons of Mars, and which personify terror and fear.

Although major thoughts and considerations about this interesting approach are not part of this article, I wanted to share them with the purpose of awakening curiosity about how phenomena that have been known for thousands of years have attracted the attention of humanity in such a way as to relate them to war, death, blood, violence, fear and terror, its closeness makes that perspective disappear and invites, as I have been able to observe in a very brief survey done to those who I mentioned about the name of Mars and its satellites, there are people who believe that they should be renamed and others on the contrary, reaching Mars would mean an important step for humanity in overcoming all these negative aspects.

Should we also rethink the affair between Mars, Venus and Vulcan?

June: A month with more coincidences than usual.

As I have pointed out, I have arranged for my publications in El Nacional to be on the last Friday of each month, and I usually deal with events that occurred in such months, which I write down in the agenda and as I think about them I then I develop the content as the months go by.

In the case of June, from the beginning of the year I had planned to draft something related to the signing of the Magna Carta through which King John I of England known as John Lackland who on June 15, 1215 in Runnymede signed his submission to the Constitution, an event that, as can be imagined, is of great importance in the formation of the idea of ​​constitutionalism and legal culture.

I was ready, I had the topic in mind, and in April with the publication of Professor Richard Albert’s  on April Fool’s Day, in which he casually points out that the alleged meeting with Elon Musk had been in June 2023, I mentioned the idea of «Interplanetary Constitutional Law» and «Martian Constitutionalism», when I was invited by Professor Xavier Philippe and Dr. Hugo Abas Frazao to talk about the challenges of constitutionalism in the digital age, within the framework of a seminar at the Sorbonne University in Paris along with the School of Federal Judiciary of Brazil, in which precisely in response to the situation posed by the Brazilian justice that ordered X, and more specifically Elon Musk, – who also once has and speech at Paris 1 Pantheon Sorbonne University[24]-, the restriction on that social network to some users as well as information from their profiles, to which he resisted, indicating that such a decision constituted a violation of the right to freedom of speech[25].

Then June arrived and although I had enough ideas for the paper, now the coincidences began that linked the topic to be discussed with the projects by Mr. Musk and related events such as on June 6 the test and successful launch of the SpaceX Starship or Tesla´s shareholders Assembly on June 13th in which, in addition to agreeing to change the company’s legal domicile from Delaware to Texas, it was approved to recognize no less than an annual compensation that exceeds 50 billion dollars.

And if you think that those coincidences are not enough, there is something else and even more impressive.

Do you remember that I mentioned that I publish in El Nacional on the last Friday of each month? Well, this year the last Friday of June is on the 28th, and who do think his birthday is on June 28th? Well yes, Elon Musk[26], and as sure as I am that this content is of his interest, I look forward to his observations and comments after he reads it, we’ll see, In the meanwhile Mars is still there watching everything from above.


[1] https://www.spacex.com/vehicles/starship/

[2] https://www.spacex.com/

[3] https://www.starlink.com/

[4] https://x.com/elonmusk/status/1802567759835844838?t=2QkWys2bNspSt5uwm0AbIg&s=19

[5] https://worldjusticeproject.org/rule-of-law-index/

[6] https://x.com/home

[7] https://x.com/RichardAlbert/status/1774693345748537523?t=92-K07A47mEmOcSNQi3Ojw&s=19

[8] https://x.com/elonmusk

[9] https://chrishadfield.ca/

[10] https://www.helensharman.uk/

[11] https://youtube.com/@startalk?si=IdLvzdv5u8NRPjg9  

https://en.m.wikipedia.org/wiki/Neil_deGrasse_Tyson

[12] https://en.m.wikipedia.org/wiki/Yi_So-yeon

[13] https://www.unoosa.org/pdf/publications/STSPACE11S.pdf  

https://legal.un.org/avl/pdf/ha/tos/tos_s.pdf

[14] United Nations Office for Outer Space Affairs, UNOOSA. https://www.unoosa.org/

[15] On the subject, I am pleased to remember a pleasant conversation on the occasion of the week of the 51st anniversary of the moon landing with Elisa Gonzalez (Spain), Juan Cruz Gonzalez (Argentina) and José Godinho (Venezuela) (July 21, 2020)

https://youtu.be/NcJfMpSCb38 (Parte 1)

https://youtu.be/UeDRGbmkHac (Parte 2)

 https://youtu.be/S0yLFg8Bb6s (Parte 3)

[16] The International Forum on the Future of Constitutionalism.

We had a very nice conversation with the wonderful team of “The International Forum on the Future of Constitutionalism” that are organizing and promoting “The Global Summit” that will be held live online via Internet from January 12 to January 16, 2021. (10 nov 2020) https://www.youtube.com/watch?v=SrNJxp_07Do

[17] https://x.com/robertohungc/status/1774993475068432434?t=fxsidjpj91yPKiQNtn372Q&s=19

[18] See: https://x.com/tesla_optimus

https://www.tesla.com/AI

[19] https://www.bloomberg.com/news/articles/2024-04-16/musk-s-x-retreats-pledging-to-comply-with-brazil-court-orders

[20] Ver entre otros:

Harvard Business Review. The Commercial Space Age Is Here. Private space travel is just the beginning. by Matthew Weinzierl and Mehak Sarang. February 12, 2021

https://hbr.org/2021/02/the-commercial-space-age-is-here

Interplanetary Constitutionalism: A Martian Constitution. 14 Case W. Res. J. L. Tech. & Internet 132 (2023)

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4372303

THE UNIVERSITY of MISSISSIPPI. SCHOOL OF LAW / AIR AND SPACE LAW PROGRAM JOURNAL OF SPACE LAW VOLUME 46, NUMBER 1 2022

https://airandspacelaw.olemiss.edu/wp-content/uploads/2023/08/Journal-final-46.1-1-1.pdf

JOURNAL OF LAW, TECHNOLOGY & THE INTERNET • VOL. 14 • NO. 1 • 2022 – 2023. INTERPLANETARY CONSTITUTIONALISM: A MARTIAN CONSTITUTION. Mia Bonardi

https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1146&context=jolti

The Constitution of Mars.md

https://gist.github.com/avar/610721#file-the-constitution-of-mars-md

[21] https://spaceplace.nasa.gov/mars-rovers/sp/

https://spaceplace.nasa.gov/mars-rovers/en

[22] https://www.businessinsider.com/space-elevator-pros-cons-japan-design-revolutionize-space-travel-2024-5 

[23] Etienne Mureinik (1994) A Bridge to Where? Introducing the Interim Bill of Rights, South African Journal on Human Rights, 10:1, 31-48, DOI: 10.1080/02587203.1994.11827527

https://doi.org/10.1080/02587203.1994.11827527

[24] https://mediatheque.univ-paris1.fr/video/3985-conversation-avec-elon-musk-a-luniversite-paris-1-pantheon-sorbonne/

[25]  “The challenges of constitutionalism in the era of digital societies: aspects of comparative law”. Seminar organized by the Institute of Legal and Philosophical Studies of the University Paris 1 Sorbonne Pantheon and the School of Federal Magistrates of the first region of Brazil. May 22, 2024

New Dimensions of Fundamental Rights in Digital Societies. Roberto Hung.

New Dimensions of Fundamental Rights in Digital Societies. Robert Hung.

[26] Elon Musk by Walter Isaacson. 2023.

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