This article was published in the Summer 1995 issue of Formulations
by the Free Nation Foundation

Imagineering Freedom: A Constitution of Liberty

Part IV: The Rights of the People

by Roderick T. Long


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In the previous installments of this series, I have dealt primarily with the structural provisions of my Virtual- Canton Constitution. In this final installment, I turn to the document's guarantees of rights.

Below is an outline of the entire Constitution. This article reviews the material from Part 2. 


Part One: Provisions Subject to Amendment

1.1 The Government of the Free Nation [1.1.1-5]
1.1.1 --- 1.1.2 --- 1.1.3 --- 1.1.4 --- 1.1.5
1.2 The Federal Legislature [1.2.1-17]
1.2.1 --- 1.2.2 --- 1.2.3 --- 1.2.4 --- 1.2.5 --- 1.2.6 --- 1.2.7 --- 1.2.8 --- 1.2.9 --- 1.2.10 --- 1.2.11 --- 1.2.12 --- 1.2.13 --- 1.2.14 --- 1.2.15 --- 1.2.16 --- 1.2.17
1.3. The Federal Executive [1.3.1-8]
1.3.1 ---1.3.2 --- 1.3.3 --- 1.3.4 --- 1.3.5 ---1.3.6 --- 1.3.7 --- 1.3.8
1.4 The Federal Judiciary [1.4.1-16]
1.4.1 --- 1.4.2 --- 1.4.3 --- 1.4.4 --- 1.4.5 --- 1.4.6 --- 1.4.7 --- 1.4.8 --- 1.4.9 --- 1.4.10 --- 1.4.11 --- 1.4.12 --- 1.4.13 --- 1.4.14 --- 1.4.15 --- 1.4.16
1.5 The Virtual Cantons [1.5.1-9]
1.5.1 --- 1.5.2 --- 1.5.3 --- 1.5.4 --- 1.5.5 --- 1.5.6 --- 1.5.7 --- 1.5.8 --- 1.5.9

Part Two: Provisions Not Subject to Amendment

2.1 Provision for Amendments [2.1.1-2]
2.1.1 --- 2.1.2
2.2 Bill of Rights [2.2.1-18]
2.2.1 --- 2.2.2 --- 2.2.3 --- 2.2.4 --- 2.2.5 --- 2.2.6 --- 2.2.7 --- 2.2.8 --- 2.2.9 --- 2.2.10 --- 2.2.11 --- 2.2.12 --- 2.2.13 --- 2.2.14 ---2.2.15 --- 2.2.16 --- 2.2.17 --- 2.2.18

Proposed Addendum

Part Three: Amendments

Discussion is based on Version 5 of the Constitution.

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Once again, text in bold is from my Virtual-Canton Constitution, while other text represents my commentary.

Part Two
Provisions Not Subject to Amendment

2. 1 Provision for Amendments

2.1.1 The Legislature, whenever four-fifths of both Houses shall deem it necessary, shall propose Amendments to this Constitution (a process to be initiated by a four-fifths vote of the Parliament, and confirmed by a four-fifths vote of the Negative Council), which Amendments shall be valid to all intents and purposes as part of this Constitution when ratified by both four-fifths of the Virtual Cantons (to be determined as the laws of the individual cantons shall direct) and two-thirds of the Citizens, provided that no Amendment shall in any manner affect Part Two of this Constitution.

The structural provisions of the Constitution (found in Part One) I have made subject to amendment, because what is an appropriate structure for one set of circumstances may not be so for another, and I did not feel I had the wisdom to bind future Citizens of the Free Nation to one particular model for all time. Indeed, my own preference would be for the Free Nation to evolve over time into a purely anarcho-capitalist system, so I have no desire to set its initial structure into stone. In any case, I have warned in earlier segments against making a legal system's structure excessively rigid; if it cannot bend under social pressure, it may well break instead, thus thwarting the purpose for which it was instituted. Notice, however, that I haven't exactly made the amendment process easy.) Guarantees of rights, on the other hand, are not a pragmatic matter but rather a matter of justice, and so they have been placed beyond the reach of amendment.

Note that this section, detailing which parts of the Constitution are amendable and which are not, has itself been placed in the unamendable section. In this respect it differs from the U. S. Constitution's Article V, which fails to include itself among the provisions there exempted from amendment. My worry was that if 2.1.1 of my Constitution were in an amendable section, it might be amended, in which case the "unamendable" section would lose its exemption from amendment -- a nasty loophole I was determined to close.

Some readers have asked me why the judicial rights enumerated in 1.4.9-10 (guarantees of trial by jury, habeas corpus, presumption of innocence, right of counsel, compensation for false arrest or conviction, etc.; protection from detention without trial, detention incommunicado, unreasonable search and seizure, double jeopardy, self-incrimination, etc.) are placed in the amendable rather than the unamendable section. I'm not entirely happy with this myself. My reasoning was that the structure of the judicial branch belonged in the amendable section, and I wasn't sure how to divorce judicial rights from a particular conception of the judiciary. Any just judicial system would involve some judicial rights, but I'm not so sure that any just judicial system must involve precisely these judicial rights -- as opposed to other, analogous provisions, appropriate to a somewhat different, though equally just, judicial system toward which the Free Nation might evolve, in part through amendment. For example, consider the right to trial by jury of one's peers. Why is this preferable to trial by experts? Under a government, the answer is that such "experts" are likely to be the bought lackeys of the state, and trial by jury at least creates an opportunity for the potential victims of state oppression to defend one of their own. But would trial by jury be equally necessary in an anarchist system? Maybe not; maybe experts would be kept honest through competition, and so would become an acceptable alternative tourors. To these sorts of questions, pertaining to procedural justice rather than to substantive justice, I felt it unwise to give answers that could not be amended. But I'm open to persuasion

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2.1.2 All Amendments shall collectively constitute Part Three of this Constitution; the Legislature shall have the power to enforce any Amendment by appropriate legislation, so far as such power is consistent with those provisions of the Constitution not subject to Amendment.

In many State constitutions, when the document is amended the earlier provisions are actually removed and new language is inserted in its place. I much prefer the model of the U. S. Constitution, where all the old, superseded language is retained in the sections where it originally stood, and amendments are grouped together in a section of their own; this makes it much easier to trace the process of amendment over the years and see how far the amenders have departed from the vision of the original framers.

Most of the provisions of the following "Bill of Rights" are self-explanatory (at least to a libertarian audience); so I shall comment only occasionally.

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2. 2 Bill of Rights

2.2.1 The following protections of rights shall be binding upon the Virtual Cantons and all branches of the Federal Administration. Public officials and government employees possess no special rights, immunities, or exemptions not possessed by other Citizens; nor shall crimes against the Government of the Free Nation or its officers be labeled "treason," or regarded as more serious than crimes against other organizations or individuals. Moreover, apart from the rights of suffrage, referendum initiative, and the holding of public office under the Constitution of the Free Nation, which are reserved to Citizens alone, the following rights apply to all persons equally, regardless of Citizenship or residency, with the qualification that persons judged incompetent (e.g., young children, or the mentally ill) may have their rights suspended in order to secure those ends to which, so far as can be established, they would be likely to consent if competent; but such persons retain in full force, as do others acting on their behalf, the right to challenge in court their status as incompetent no less often than once a year, and to sue for false judgment. Every person of the age of n13 or greater shall be assumed competent, and every person under the age of n13 shall be assumed incompetent, until proven otherwise in a Federal court. The standard of evidence necessary to prove incompetence shall be higher than the standard of evidence necessary to prove competence.

In general, I have striven to avoid committing the Virtual- Canton Constitution one way or another on issues that divide libertarians, but I have been forced here to touch upon the issue of children's rights, because I needed to determine the standard of competence. (Otherwise the government could simply declare all its enemies incompetent and deprive them of all civil rights.)

I approach this topic by considering the following question: Why is paternalism legitimate in the case of children but not in the case of adults? It will not do to simply answer that children are better off when treated paternalistically, because libertarians are committed to rejecting paternalism for adults even when adults would benefit. So the crucial difference between children and adults with regard to paternalism cannot be a matter of benefit. Rather, I think, the difference is that a child's capacity for genuine consent is impaired (whereas an adult is ordinarily assumed to be capable of making wise choices even if he or she actually makes foolish ones). In that case, a child should be regarded in the same way as a normal adult temporarily under the influence of drugs, hypnosis, insanity, or Homeric sirens.

In turn, an adult whose capacity for genuine consent is impaired is analogous to an adult whose capacity for consent is completely disabled -- a comatose person, say. When we make decisions for a comatose patient, we are obligated to follow the decisions the patient would have made (as best we can determine) if conscious. The reason is that it is only to the extent that we are acting as the patient's agent that our decisions can escape the charge of aggressive interference. The same principle applies where a person's capacity for consent is impaired; if a person's mental condition is such that what they appear to be consenting to is not what they would consent to if in their right minds, we may override their "false" preferences in pursuit of their true ones. But the mere fact that we disagree with other people's preferences is not sufficient to justify labeling those preferences as false; the crucial factor is the presence or absence of the capacity for making intelligent choices, not the presence or absence of intelligent choices themselves.

In short, then, my position is that it is the undeveloped nature of a child's capacity for rational judgment that justifies paternalistic interference in that case. But of course such development or lack thereof is a matter of degree; as the child matures, its expressed preferences (as manifested in action) become a more and more reliable guide to its true preferences, and paternalistic impulses must govern themselves accordingly. At full maturity, barring unusual mental ailments, there are no longer any grounds for assuming a gap between expressed and true preference.

Yet not all children mature at the same rate, or reach full rational capacity at the same age; and it would create social havoc to decide each instance on a case-by-case basis. On the other hand, simply creating an ironclad, universal "age of majority," while it lowers uncertainty, is surely unjust to those who mature more quickly or slowly than the "benchmark" child (as well as to those entering into contracts with them). Such hard-and-fast line-drawing also creates such absurdities as, e.g., the legal fiction that any sexual contact between a person of age 18-plus-one-day and a person of age 18-minus-one-day is the statutory equivalent of rape. The fairest solution, to my mind, is to pick a single universalge of majority, but allow exceptions through litigation; the age of majority simply determines the point at which the presumption of incapacity yields to a presumption of capacity, rather than serving as a rigid inescapable iron barrier. Once this flexibility is introduced, the precise age that is picked as the cut-off for majority becomes less important (I have represented it here as a variable), though my own personal suspicion ishat 18 is rather too high. (I may change my mind as I grow older, especially if I have children!)

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2.2.2 The laws of the Free Nation shall apply equally to all persons regardless of gender, ethnicity, opinions, religion, national origin, or peaceful lifestyle.

Originally I included economic status on this list. One reader pointed out that some Virtual Cantons might seek to means-test some of their provisions, and I could see nothing wrong with this. So I dropped economic status from the list. I'm now inclined to think there's nothing wrong with a Virtual Canton attempting to establish itself as a lobby for a particular religious or ethnic constituency, so perhaps the entire list should be re-examined. One possibility is to keep these restrictions as binding on the Federal Administration, but to release the Cantons from them. I'm torn here between wanting to give the Cantons maximum flexibility, and trying to guard against Canton-level tyranny. I welcome suggestions.

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2.2.3 No law shall abridge the right of each person to do as he or she chooses with his or her own person and property, so long as he or she does not interfere, by force or fraud (or the threat thereof), with the equal right of others to do as they choose with their own persons and property.

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2.2.4 No law shall abridge the right of persons to the peaceful control of their own bodies, nor interfere with voluntary consensual or contractual relations among persons, or the right to form cooperative ventures of any kind; nor invade the privacy of peaceful persons, nor by confiscation, expropriation, regulation, redistribution, restriction, control, or any other means abridge the right of any person to acquire property by homestead, purchase, or gift, or to use, control, exchange, lease, sell,ransfer, bequeath, dispose of, or in any manner enjoy, their property without interference, until and unless the exercise of their control infringes the freedom of others; nor shall private property be fully or partially taken for public use without the consent of, and mutually agreeable compensation to, the owner.

This last provision is derived from the "takings" clause of the Fifth Amendment, but improves on it in ways a libertarian will recognize

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2.2.5 No law shall create a class of victimless or consensual crimes.

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2.2.6 No law shall abridge the right of freedom of association; any person may associate or transact with any other person or refuse to associate or transact with any other person for any reason, and the proprietor or lawful possessor of any movable or immovable property may exclude or refuse admission to any other person, except where such property is being used to violate the rights of others.

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2.2.7 No law shall abridge the freedom of thought and feeling, or their peaceful expression or dissemination, as in speech, press and other media, artistic depiction, or religious practice; nor shall any law be made to promote or hinder religion, artistic culture, scientific research, or communication; nor shall the Government of the Free Nation operate or support any school, college, or university.

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2.2.8 No law shall abridge the right of the people peaceably to assemble, or to petition the government for a redress of grievances.

The U. S. Constitution's version of this last says "and" rather than "or," making room for the interpretation that the right of assembly is limited to the purpose of petition; hence my revision.

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2.2.9 No law shall countenance the existence of slavery, conscription, indenture, or any other form of involuntary servitude within the Free Nation, or in any place subject to its jurisdiction.

This too is controversial; many libertarians see nothing wrong with indentured servitude, contractually entered into. My case against it may be found in "Slavery Contracts and Inalienable Rights: A Formulation," in Formulations, Vol. II, No. 2 (Winter 1994-95). In general, as I've mentioned, I've tried to avoid committing this Constitution one way or another on issues that are controversial within the libertarian movement, since this document aims to attract libertarian consensus. But on this issue I feel too strongly; as I wrote in the article cited:

"Our classical liberal forebears fought a long hard battle against slavery, that disgrace upon human civilization. Two centuries ago, a newborn Free Nation's compromise with slavery started it down the path that eventually destroyed its freedom. As for our future, a Free Nation that undertook to enforce slavery contracts would not be a Free Nation worth fighting to build or to defend."

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2.2.10 No law shall restrict or hamper the free and peaceful movement of persons, goods, or ideas within or across the borders of the Free Nation.

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2.2.11 No law shall abridge the right of any person to use or issue any commodity or item as currency; nor shall the Government of the Free Nation engage in monetary regulation or issue of any sort.

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2.2.12 No law shall abridge the right of self-defense by victims or their agents against initiators of aggression (including governments or their agents), including the right, to own, manufacture, sell, and bear arms; but the right of self-defense shall not be construed to license resistance on the part of such aggressors to the legitimate use of force against them in defense of the rights of their victims.

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2.2.13 No law shall establish occupational licensure, nor make or claim grants of monopoly privilege, nor restrict competition or free entry into any profession or industry, including the services of adjudication, protection, and enforcement of legitimate rights.

This provision establishes the Free Nation as technically an anarchy rather than a state.

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2.2.14 No person shall be convicted for violating government secrecy classifications unless the government discharges its burden of proving that the publication violated the right of privacy of those who have been coerced into revealing confidential information to government agents, or disclosed defensive military plans so as to materially impair the capability to respond to attack; but it shall be a valid defense to such prosecution that information divulged shows that the government has violated the law.

This last language is borrowed from the Libertarian Party Platform.

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2.2.15 Any owner or owners of land may secede with their property from the jurisdiction of the Free Nation, whereupon their territory shall become a sovereign independent state in accordance with international law.

This provision makes possible a number of competing free nation experiments, organized along different lines, within the circumference of the Free Nation but not within its borders. Imagine one nation adopting the Oceania Constitution, another organizing itself as a proprietary community, still another going for full-fledged anarcho-capitalism with competing protection agencies, while others try out systems based on cash charity or labor charity (as described by Phil Jacobson in his article "Three Voluntary Economies," on page 9 of this issue). What better way to ascertain the strengths and weaknesses of different approaches, than to let the free-market discovery process do its work?

To be sure, some of the new nations formed by secession from the Free Nation might be statist in character. But it might be no bad thing to allow the statists an "out" from a libertarian system that might initially frighten them. Let them establish their statist utopias and see for themselves that they don't work; meanwhile, the Free Nation will be next door, providing asylum to those who find they have had enough

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2.2.16 The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

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2.2.17 The powers not delegated to the Federal Administration by this Constitution, nor prohibited by it to the Virtual Cantons, are reserved to the Cantons respectively, or to the people.

These last two provisions are borrowed from the U. S. Constitution.

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2.2.18 The existence of a state of emergency shall not be construed to limit the individual rights, or to expand the governmental powers, herein enumerated.

And there, for now, my Virtual-Canton Constitution ends.

Let me close with a few remarks about the status of this constitution. To start with, I make no claim to have thought through everything a constitution like this would need. Certainly there is nothing final about the provisions set out so far; this series of articles has been based on Version 5 of the document, and I am already at work on Version 6. I'm sure there's plenty I've overlooked, expressed ambiguously, given insufficient attention to, and so forth. If anything like this document were ever to be implemented in reality, I would expect it to pass through manyore revisions, and not just from my own pen. (Legal experts would have to go over it with a fine-tooth comb!) One of the aims of this Virtual-Canton Constitution was to serve as a possible starting-point or talking-point (no doubt one among many) for future constitution-making by participants in the free nation movement; I eagerly invite advice,riticism, suggestions, and other input from the libertarian community.

Nor do I present this Virtual-Canton Constitution as my vision of the ideal free society. For one thing, my ideal free society wouldn't have anything in it that so closely resembled a government. For another, my ideal free society would contain protections of rights that are absent from this document. The Virtual- Canton Constitution is adapted to the goals of the Free Nation Foundation: to build consensus, within the libertarian community, on an institutional arrangement toward which the free nation movement could then work. While I am pessimistic about the ability of any institutional arrangement to attract a particularly large libertarian consensus, I think an institutional arrangement that combines features of anarchy and minarchy stands a chance of attracting a larger libertarian consensus than any purely anarchistic or purely minarchistic set-up. (Also, leavening anarchy with a bit of minarchy would allow a free nation to turn a governmental face to the outside world, thus gaining an international legitimacy vital to its security.)

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The aim of attracting a libertarian consensus has also motivated me to leave out of my Bill of Rights various rights-protections which I would favor, but which are controversial among libertarians. If I were writing this Constitution to my own specifications, it would include such items as the following:

Addendum to 2.2.1: Any animal possessed of intelligence above a certain level shall be considered a person (competent or incompetent, as the courts may judge) under this Constitution, the specification of such level, together with the manner of testing it, to be determined by law; except that such specification shall not exclude the average dolphin or gorilla,r any minimally competent human.

Addendum to 2.2.2: Nor shall the courts grant to any profession or body of thought an effective "monopoly on truth" by permitting its findings to be entered as evidence while at the same time denying the same privilege to its rivals.

Addendum to 2.2.9: Nor shall any person be compelled by law to serve as an incubator for an unborn foetus; the right to defend one's bodily integrity extends to the right to abort an unwanted pregnancy.

Addendum to 2.2.12: Retributive punishment, or any coercive treatment disproportionate to the seriousness of the aggression or exceeding that required to restrain an aggressor, protect actual or potential victims of that aggressor, or secure restitution, is hereby prohibited.

Addendum to 2.2.13: Nor shall any law grant copyrights or patents, or recognize their legitimacy; this provision shall not, however, be construed to license the fraudulent marketing of one person's work under the false pretense that it is another's.

These provisions, I suspect, would be severe impediments to widespread libertarian acceptance, so I have left them (and others like them) out.

Nor is my work on this Constitution meant to suggest that I dismiss rival approaches, such as the proprietary-community approach championed by many in the New Country Foundation. I see the free nation movement as encompassing a variety of different strategies, each with its own strengths and weaknesses. But I suspect that a sizable group within the prospective participants in any free nation endeavor would favor a constitutional approach, and so this Constitution is meant as a starting point for discussions within that group; in dealing with other groups I might well peddle something different. My hope is to participate in as many libertarian conversations as possible, learning from each, and contributing whatever I can.

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