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This article begins a new series explaining the reasoning behind the various detailed provisions of my Virtual-Canton Constitution. At Disneyland the term "imagineering" is used for the creative process of designing a new Disneyland attraction. I've borrowed the term to describe the process of designing a libertarian political system.
When I first started working in the Free Nation Foundation, I began jotting down ideas for what a libertarian constitution should look like. I eventually ended up with the draft of a constitution, which I called "A Virtual-Canton Constitution." I wrote up the basic ideas behind the constitution in "Virtual Cantons: A New Path to Freedom?," an article that appeared in the first issue of Formulations. The constitution itself was presented at the first FNF Forum in October 1993, along with a further elaboration of its rationale.
With this new series of articles I hope to provoke discussion, comments, suggestions, and other input from the libertarian community; I am by no means wedded to the particular provisions of this Constitution, and I hope that we can improve it together.
The Virtual-Canton Constitution is a kind of hybrid of limited government a nd free-market anarchism. There are two reasons for this.
First, a central aim of the Free Nation Foundation is to build a libertarian consensus on some set of political institutions, as a first step toward actually being able to implement those institutions somewhere. But the debate between anarchist libertarians and minarchist libertarians is a longstanding one, and although I hope the anarchists will eventually convert the minarchists, in the meantime it would be pointless to delay cooperation between the two factions until such time as agreement has been reached. Let us by all means continue to debate the issue; but while we are doing so, let's see if we cannot at the same time devise some set of institutions that both sides can live with in the meanwhile. The Virtual-Canton Constitution is designed with the intention (whether successful or not is yet to be seen) of being anarchistic enough to suit the anarchists and minarchistic enough to satisfy the minarchists. I hope the minarchists will be willing to call my federation of virtual cantons a "government"; I hope the anarchists will be able to call it an "anarchy."
Second, it seems to me that a compromise between minarchism and anarchism is needed for a different reason: the anarchistic elements are needed in order for the system both to work well and to be justifiable (for, in my view, a competitive system is both more efficient and more just than a monopoly), while the minarchistic elements are needed in order for the nation to be able to turn a governmental face toward other countries. I fear that a libertarian country without a superpower-sized defense force will not be able to maintain its sovereignty for long unless it can assume in the eyes of world opinion the "legitimacy" of a state, at least in the initial stages of its existence.
In writing up the Virtual-Canton Constitution, I drew freely on a number of sources, including the U. S. Constitution, the Libertarian Party Platform, Frances Kendall and Leon Louw's After Apartheid, Isabel Paterson's God of the Machine, Bernard Siegan's Drafting a Constitution for a Nation or Republic Emerging Into Freedom, and the mediaeval Icelandic constitution.
An outline follows. This article reviews the material from the Preamble through section 1.2.10:
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This is pretty self-explanatory. The language is basically lifted from the Preamble to the U. S. Constitution, with the following significant differences.
We the Citizens -- The U. S. Constitution begins "We the People," purporting to speak for all its inhabitants. The Virtual-canton Constitution speaks only for those who have become Citizens by signing it.
of the Free Nation -- I use "the Free Nation" as a placeholder for whatever the libertarian country's name might be.
in order to form a more perfect union OMITTED -- The original language referred to the transition from a looser to a tighter federation of states, and is not relevant here.
promote the general welfare OMITTED -- Whatever may have been the Framers intentions, the general welfare clause in the Preamble has been interpreted as a license for various sorts of socalistic legislation; it seemed safer to leave it out.
as its supreme law -- This signifies that the Constitution overrides any other laws the Free Nation might pass. I refer to "its" (the Free Nation's) supreme law, rather than using the more familiar phrase "supreme law of the land," because "land" is ambiguous as between the nation itself and the territory on which it exists, and the Free Nation does not claim a territorial monopoly.
deriving its just authority from the law of nature and the consent of the governed -- This language is based on the Declaration of Independence. The point of this passage is to indicate that any authority this Constitution has is derivative, not inherent. The reference to the law of nature is to indicate that this Constitution simply recognizes rights people already have, rather than creating new rights. The reference to the consent of the governed is to indicate that the Constitution is not binding on non-consenters.
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1.1.1 The Government of the Free Nation shall consist of a Federal Administration and a number of Virtual Cantons.
I call the political structure of the Free Nation a "government" for foreign relations purposes; as we shall see, it is questionable whether it really counts as a government. Like Switzerland and the United States, the Free Nation's political structure is divided between a number of semi-autonomous local jurisdictions and a federal government linking them. The cantons in my model, however, are merely "virtual"; that is, they are not territorially defined entities, but voluntary associations. "Local," in this context, is a structural concept, not a geographical one. The point is to drastically lower the costs of switching Canton membership, thus increasing competition.
Why both a Federal Administration and Virtual Cantons? Why not just one or the other? I think a purely competitive system of Virtual Cantons would work well. But a Federal Administration is needed for two things: to interface with other nations as a genuine government (so the world community can't cry "Anarchy!" and invade to "restore order") and to act as a kind of centralized framework to satisfy the minarchists.
Given the Federal Administration, there's a special reason to have Virtual Cantons. The Federal Administration is going to have to be severely restricted in its powers -- crippled, really -- if it is to satisfy libertarians of either the anarchist or minarchist varieties. But if a constitution is too rigid, it will simply be ignored; the structure will break as political forces seek new channels. The solution is to take the political pressures impinging on the Federal Administration and, rather than simply standing firm and being battered by them, channel them downward into the Virtual Canton system, whose comeptitive nature will dissipate their force.
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1.1.2 If the territory of the Free Nation is held on a long-term lease from another nation, the contracting lessee shall be the Federal Administration.
This is fairly self-explanatory -- and represents another reason for rejecting a purely decentralized system.
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1.1.3 The Citizens of the Free Nation shall be any persons who, being competent, shall have signed and assented to this Constitution.
This Constitution represents a genuine social contract, unlike the U. S. Constitution. (For a critique of the social-contract theory of the U. S Constitution, see Lysander Spooner's classic essay No Treason No. VI: The Constitution of No Authority.) The criteria for "competence" will be explained at 2.2.1.
Citizenship carries with it the right to vote and eligibility for public office, which are denied to non-Citizens; it carries with it also the liability to taxation by the Federal Administration and by the Citizen's Virtual Canton, from which liability non-Citizens are exempt. Thus the Government of the Free Nation is a voluntary cooperative association, with free exit and entry, and taxation is thus likewise voluntary, being conditional on Citizenship. Citizens may renounce their Citizenship at any time, and reclaim it later as they choose.
This form of "taxation" is consistent with libertarian scruples, amounting to no more than a fee to which one is liable only so long as one remains a member of the group.
Given that Citizenship brings taxation in its wake, why would any resident choose to become a Citizen? Well, as the foreign policy interface (and holder of the lease, if any) among other things, the Federal Administration has the potential for signficant impact, positive or negative, on the lives of the Free Nation's residents. Those residents will have an incentive to influence the Federal Administration's policies through voting or seeking public office, and so will be willing to become Citizens. Thus the Free Nation is assured a source of revenue.
And if it should happen that the market supplies all the functions of law so effectively that no one sees any need to become a Citizen, and so the Free Nation goes bankrupt -- well, why keep it around if it's no longer needed?
Since the "Government" of the Free Nation is a purely voluntary association, not a government in the usual sense, it might be argued that no further constraints on its powers are necessary. But I'm paranoid about anything that looks as much like a government as this agency does. There will be more restrictions. Lots of them.
No competent person shall be barred from Citizenship. Criminal conviction shall not remove the rights, nor public office the responsibilities, of Citizenship.
In other words, convicted criminals will still be able to vote and run for office, and public officials will still have to pay taxes and so forth.
The Atlantis Project's "Constitution of Oceania" denies to convicted prisoners the right to vote or to run for political office, in order to avoid giving excessive political influence to organized crime. This is a worthy goal; a libertarian nation's laissez-faire policies are likely to attract a fair number of offshore operations from organized crime, and we need to think about ways of counteracting this tendency. But the Oceania Constitution rather optimistically assumes that most of these criminals will be in jail! In any case, the crucial argument for allowing prisoners to vote and run for office is that this measure prevents those in power from automatically disenfranchizing their opponents simply by incarcerating them. We should not let our justifiable fear of organized crime distract us from our equal fear of unrestrained government.
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1.1.4 Every Citizen shall have the right to launch a popular initiative calling for a national referendum to recall the President of the Free Nation or any member of the Negative Council, or to repeal any law, practice, or policy of the Government, exclusive of the provisions of this Constitution, by majority vote; a petition by not fewer than n1 citizens shall be sufficient to establish the referendum.
This provision serves as a democratic restraint on government power. The ability to recall officials by popular vote is restricted to the President of the Free Nation and to Councillors, and does not extend to Members of Parliament. This is because the President of Free Nation and the Negative Councillors are representatives of the people (and so may be recalled by the people), while members of Parliament are representatives of the Virtual Cantons and may be recalled only by them.
Wherever the Constitution calls for a specific number or amount of something, I have simply written the variable "n," plus a subscript in order to keep the various occurrences of "n" distinct. The actual value of any particular n will depend on such factors as population size.
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1.1.5 The Federal Administration shall consist of a Legislature, an Executive, and a Judiciary.
This follows the separation-of-powers pattern of the U. S. Constitution, and in fact embodies the distinction among the three functions of law explained elsewhere in this issue. The Federal Executive, however, is limited almost exclusively to foreign policy; the domestic aspects of the executive function are left to the Virtual Cantons. This mirrors the old Anglo-Saxon (pre-Norman- Conquest) system in which the King dealt with foreign policy only, leaving domestic policy to the Moots (local courts) and Borhs (mutual-protection insurance organization).
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1.2.1 The Legislature shall be composed of two houses: the Parliament, and the Negative Council.
This provision imitates the original unamended U. S. Constitution, which divided the Congress into one "elite" body (the Senate) and one "popular" body (the House of Representatives). Originally Senators were chosen by the state legislatures rather than by the people. This system has since been abolished, thus effectively annulling any intelligible difference between the Senate and the House, and making the entire bicameral system otiose.
As Isabel Paterson writes:
"The final and formal stroke in disestablishing the states was the Seventeenth Amendment, which took the election of Senators out of the State Legislature and gave it to the popular vote. Since then the states have had no connection with the Federal government ...."
(God of the Machine (New Brunswick: Transaction Books, 1993), p. 161.)
Since I wish to preserve the Virtual Cantons as vigorous political entities to serve as a check on Federal power, I have chosen an analogue of the pre-17th-Amendment U. S. system: Members of Parliament chosen by the Virtual Cantons, and Negative Councillors chosen by the people at large.
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1.2.2 The Parliament shall be composed of Citizens representing the Virtual Cantons. Each Virtual Canton, regardless of size, shall send exactly one representative to the Parliament. These Members of Parliament are to be chosen in accordance with the laws of the respective Virtual Cantons. Each Member of Parliament shall serve a seven-year term; no Member of Parliament may serve more than one term consecutively or three terms non-consecutively. Members of Parliament may be recalled in accordance with the laws of the relevant Canton.
I have included severe term limits for Members of Parliament (and indeed for Negative Councillors and Presidents as well). Frequent rotation in office, with politicians periodiclaly returned to the status of ordinary citizens, lessens the likelihood that government officials will form a political class with interests opposed to those of their constituents.
I have placed no age restrictions on any political office; running for office strikes me as a form of self-defense, to which the young are no less entitled than the old. Virtual Cantons are free to place age restrictions on Members of Parliament if they so desire.
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1.2.3 The Negative Council shall be composed of Citizens representing the Citizens of the Free Nation. There shall be one Councillor for every n2 Citizens. Half of these Councillors, the Councillors by Election, are to be chosen by majority (or plurality) vote of the Citizens. The other half, the Councillors by Lot, are to be selected randomly from a pool of all Citizens willing to serve. These two kinds of Councillor shall have identical voting rights. Each Councillor shall serve a seven-year term; no Councillor may serve more than one term consecutively or three terms non-consecutively. Councillors of either sort may be recalled by national referendum as detailed in 1.1.4.
As a general rule, one has to be relatively famous already in order to be elected to national office. Choosing some Councillors by lot allows less famous people their shot at office. This system worked quite well in ancient Athens, where all seats on the Council were assigned by lot. Selection by lot also serves as a check on majority tyranny. If a population is 2/3 Turk and 1/3 Transylvanian, then a majoritarian popular vote will deliver an all-Turk legislature. Random selection will guarantee a more representative selection -- a kind of proportional representation. And if you've ever thought "The average person has more sense than these politicians!" why not adopt a system that guarantees that the average person will replace the politicians?
If selection by lot is so great, why have any Councillors by Election at all? Well, there's some point in allowing the general populace to elect specific people it considers worthy. And since neither group of Councillors will have a voting majority, each can serve as a check on the other.
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1.2.4 The Parliament shall have the power to initiate legislation by a two-thirds vote; such legislation must then be approved by a two-thirds vote of the Negative Council. Every bill which shall have passed the Parliament and the Negative Council shall, before it become a law, be presented to the Executive; if at least two of the Presidents approve it they shall sign it and it shall become law, but if not the Executive shall return it with their objections to the Parliament, which shall proceed to reconsider it. If after such reconsideration four-fifths of the Parliament shall agree to pass the bill, it shall be sent, together with the objections, to the Negative Council, by which it shall likewise be reconsidered, and if approved by four-fifths of the Negative Council, it shall become a law.
This basically requires supermajorities in order to do anything -- thus ensuring that no Federal action will be taken except on matters where there is an overwhelming consensus. If this prevents the Federal Administration from taking action on matters of importance, the Virtual Cantons will handle the matter.
Any bill, before it may become a law, must embrace no more than one subject, which shall be expressed in its title; appropriation bills shall concern only spending of monies and shall not mandate any other action or conduct, nor shall any bill except a general budget bill contain more than one item of appropriation, and that for one expressed purpose.
This language is lifted, with minor changes, from the model constitution at the back of Bernard Siegan's book Drafting a Constitution for a Nation or Republic Emerging Into Freedom (Fairfax: Locke Institute, 1992). Its point is fairly self-explanatory.
In the case of bills that contain spending appropriations, the Executive may exercise a line-item veto, signing some provisions into law and sending back others with objections to the Parliament.
The reason for a line-item veto is that the Executive might hesitate to veto an unnecessary appropriation if it were bundled together with some other legislation of great importance. The reason for restricting the line-item veto to appropriation bills is that otherwise the Executive could distort the intent of a piece of legislation by selectively vetoing certain parts. (For example, suppose the U. S. Congress passed a bill to simultaneously deregulate the Savings & Loan industry and abolish Federal deposit insurance, and the President vetoed the second provision while passing the first!)
If any bill shall not be returned by the Executive within fourteen days after it shall have been presented to them, the same shall be a law, in like manner as if they had signed it, unless the Legislature by their adjournment prevent its return, in which case it shall not be a law.
This provision, lifted from the U. S. Constitution, is to prevent the Executive from holding up legislation by sitting on it, thus effectively vetoing it without having the guts to say so.
The Parliament shall also have power to propose Amendments to this Constitution as detailed in Section 2.1.
Discussion of this provision will be postponed until we get to Section 2.1.
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1.2.5 The Negative Council shall have no power to initiate legislation, but shall have, in addition to the power of vetoing proposed Federal legislation, the power to repeal any already existing Federal legislation. A one-third- plus-one vote in favor of repeal shall be sufficient to repeal the legislation; no executive review is required. The Negative Council shall also have power to pass judgment on proposed Amendments to this Constitution as detailed in Section 2.1.
This provision comes straight from Robert Heinlein's novel The Moon is a Harsh Mistress, where he suggests a bicameral legislature: one house requiring a two-thirds vote to pass laws, the other only a one-third vote to repeal! This makes sure old laws won't stay around on the books unless supported by an impressive consensus.
I have a reason for assigning this repeal function to the popular representative body rather than to the Parliament. One lesson I have learned from Isabel Paterson, that supreme student of political structure, is that any stable political regime must provide an official conduit for the "masses" to exercise a veto power:
"The property of mass is inertia. In politics, inertia is the veto. A function or factor can only be found where it is. No plan or edict can establish it where it is not. ... [In the Roman Republic] the tribunes of the people [were] invested with the formal veto power. ... At one time, the tribunes of the people 'stopped the whole machine of government' for a number of years, refusing to approve and thus permit any act of government whatever ... until their grievances were redressed. They were able to do so because the power they exercised did inhere in the body they represented. It was there. If the people will not move the government cannot2E Though laws are passed and orders given, if mass inertia is found opposed, the laws and orders will not be carried out. ... the function of mass, which is taken for granted by mechanical engineers, and usually ignored by political theorists, was understood by the Romans. They used it where it belongs for stability, by attaching to it directly that part of the mechanism proper to the factor of inertia, the device to 'cut' the motor when necessary.
The same function has been rightly expressed in modern government by placing with the representatives elected by the people on short tenure the power of the purse .... The effective veto [operates] by negation, withholding supplies. When unlimited supplies are voted automatically in unapportioned lump sums, it is obvious that the function of mass, the stabilizing element, is no longer included in government; the connection has broken somewhere. The citizens as such, the people, have no representatives at all. Their presumed delegates actually represent the spenders of supplies, as must be the case when the elections are carried by such expenditure. Then the inherent veto power can register its weight only by informal devices, indicating imminent danger that the overcharged motor, being out of control, will tear loose from the base and be smashed. ... the final expression of the intrinsic mass-inertia veto when it is deprived of legitimate representation consists of men quitting their tools and throwing down their arms. The crowning folly of governments is to suppress the signal."
(God of the Machine, pp. 46-48.)
The function of a representative body should correspond, at least roughly, to the power it represents if power is to flow through constituional channels rather than around them or over them. Thus, the veto power should be placed in a body whose constituents can actually back up that veto -- the Negative Council. (The provision for referenda in Section 1.1.4 serves a similar function.) And on the other hand, assigning the positive side of legislation to the representatives of the Virtual Cantons -- that is, to the Members of Parliament -- helps to ensure maximum participation of various interest groups in the legislative process.
The Continental Congress chided George III for "prostituting his negative." Here's hoping the Negative Council will prove a Whore of Babylon in this regard.
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1.2.6 Each of the two houses of the Legislature shall regulate its own affairs, determine its own rules of procedure, and choose its own officers, including its President.
I couldn't see any harm in this provision. Maybe I've missed something!
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1.2.7 The powers of the Legislature shall be restricted to the following provisions:
These are pretty self-explanatory. With regard to (c), recall that taxation depends on voluntary Citizenship. If revenues from this source prove insufficient, service fees and voluntary donations should fill the gap. Remember, the residents of the Free Nation (Citizens or otherwise) are going to be making money hand over fist, and the Federal Administration should benefit from their charity.
Note that revenue may be applied only to national defense. I really conceive of the Federal Administration as being analogous to a consortium of private protective agencies formed for national defense purposes. (The salaries of Federal officers will also come out of the Treasury, since this, being mandated by 1.2.11, will count as a legitimate debt.)
These likewise seem pretty self-explanatory.
This provision was inspired by a similar provision in the Oceania C onstitution. I really hate this one; but on practical grounds, in light of the fact that powerful established nations pose the single greatest threat to any newly-established Free Nation, and are likely to seize any pretext to flex their muscles, I grudgingly admit that we need to allow for the possibility of prohibiting nuclear weapons and international drug trafficking, on grounds of national security.
As an anarchistic rights-fanatic, I'm naturally uncomfortable with such prohibitions. But I believe they can be justified on libertarian principles, as follows:
Suppose there were powerful magnetic bombs floating above the Free Nation. Then anyone who erected powerful magnets on his property, thus attracting these bombs down to earth and causing them to explode -- thus destroying not only his own property but that of his neighbors -- would have violated his neighbors' rights. And just as powerful magnets can be predicted to attract floating magnetic bombs, so nuclear weapons and drug trafficking can be predicted to attract the equally destructive attention of national powers, to the equal detriment of innocent third parties. Hence these activities too may legitimately be restricted in order to protect the rights of those third parties.
I have inserted a "sunset clause" so that this provision will self-destruct after enough time has passed for the Free Nation to gain legitmacy in the eyes of the world community. Notice also that no restriction on domestic manufacture, use, or sale of drugs is authorized.
The analogous provision in the U. S. Constitution reads: "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." Over the years this grant of power has been interpreted very broadly. My version is worded so as to make a broad interpretation much more difficult.
1.2.8 The privilege of the writ of habeas corpus shall not be suspended; no bill of attainder or ex post facto law shall be passed.
This provision is lifted from the U. S. Constitution, except that with regard to the guarantee of habeas corpus the phrase "unless when in cases of rebellion or invasion the public safety may require it" has been removed.
Most Americans probably do not remember what a bill of attainder is. Webster's New World Dictionary defines it as follows:
"Bill of Attainder. A legislative enactment against a person, pronouncing him guilty, without trial, of an alleged crime (esp. treason) and inflicting the punishment of death and attainder upon him.
Attainder. Forfeiture of property and loss of civil rights of a person sentenced to death or outlawed."
This is clearly something we would want to prohibit.
Incidentally, nothing counts as "treason" under this Constitution.
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1.2.9 No money shall be drawn from the Treasury, but in consequence of appropriations made by Federal law; and statements and accounts of the receipts and expenditures of the Federal Administration shall regularly be made public.
This is borrowed from the U. S. Constitution, and is self-explanatory.
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1.2.10 The average Federal tax burden shall rise no higher than n4 percent of the average Citizen's income, this figure to be determined or approximated by statistical methods involving no compulsory disclosure of information on the part of Citizens.
I wanted to place a cap on taxes (even voluntary ones, since I'm worried about the Federal Administration's trying to become a government), but naming a precise dollar amount would fail to allow for inflation or deflation; hence this provision.
To be continued