This article was published in the Spring 1996 issue of Formulations
by the Free Nation Foundation
 
A State Can Be Designed To Shrink
 
by Richard O. Hammer

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Outline
--Introduction
Objections Which Will Be Raised
Possible Devices
Say It: We Trust Voluntary Order, We Mistrust Government
The Flexibility of This Power
References
 
 

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Governments grow. This seems inherent. But why not design a government to shrink? I propose that we can.

Consider the idea that Roderick Long put into his Virtual-Canton Constitution: the idea that one house in the legislature might have power only to repeal legislation (while the other house has power only to pass legislation). Roderick adopted this idea from Robert Heinlein's science fiction novel The Moon is a Harsh Mistress.

I propose that we can take this idea, generalize it, and build upon it. A part of the government which has power to repeal laws is my favorite part. So why should we limit ourselves to designs for governments with just one of these wonderful parts? Maybe we could build in lots of powers to repeal laws.

This insight, if it is one, is my contribution to our discussion on how we can keep a nation free. Assuming we must set up a government, we can set up one in which the privatizers have more powers than the regulators.

I have the impression that the founders of America knew that they were creating something that they feared, the power to legislate. So they built into the U.S. Constitution ways to limit that power. And perhaps, in this one regard, government in the U.S. runs as the founders intended: sometimes the legislature gets away with its attempts to pass new laws, and other times those attempts are blocked. But the result is probably something that the founders did not intend: government grows. The checks they built in keep it from growing rapidly, but it does grow slowly. It probably did not occur to them to take the additional step of building in ways to dismantle power.

To illustrate, join me in thinking of these powers in government as numbers, the number 1 (one) and the number 0 (zero). Think of the power to legislate, the power to pass new laws, as the number 1. And think of the power to block new legislation as 0. In America sometimes 1 happens, sometimes 0 happens. But on average we must expect the result to be somewhere between 0 and 1 a government which is growing. The U.S. Constitution, I assert, constitutes a government bound to grow.

I propose that we libertarians might constitute some powers in government which would be represented as the number minus 1. Minus 1 is the power to repeal legislation. Thus, with the powers existing in government ranging from minus 1 to plus 1, the result over time does not have to be greater than 0, and might be less than 0, depending upon the relative powers of the branches, and upon how the electorate votes.

 
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Objections Which Will Be Raised

Detractors might say that this in nothing new, because legislatures in the U.S. now have power to repeal laws. That is true. But I think there might be something new in constituting branches which have only the power to repeal laws. If the people holding office in these branches want to appear to be doing something, they must repeal laws. Also, I imagine, numerous incentives may be constituted to hearten the forces of privatization. For instance, we might pay them in proportion to the number of laws they repeal.

Detractors might also say that this idea has never been tested. This concerns me too. It seems possible that special interests could buy the favors of deregulators (to do nothing), just as they buy the favors of regulators (to pass the pork). But I think we can adjust our design to counter this shortcoming. For instance, one mighty power which we could put into the hands of our friends would be power to repeal laws through national referendum, a power which would require only X% of the vote. And we could set X as low as we dare, as low as we think we could without threatening the constitution (by which, in this usage, I mean the glue) of the nation.

Also, I would assert that the idea has been tested in part in the U.S., in that the U.S. system constitutes many powers to block, if not exactly repeal, legislation. The President can veto; the executive can neglect to prosecute. The Supreme Court and juries can nullify. So, using my little numbers again, the U.S. Constitution gives some officeholders the power of 0. And they use the power of 0, at least some of the time, to our benefit. This suggests that officeholders might also use the power of minus 1, to our benefit, if just we create those offices.

 
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Possible Devices

What are the ways that this power to repeal laws might be built into the constitution of a free nation? In passing I have mentioned two: a house of elected representatives with power only to repeal; a provision allowing repeal through referendum.

I do not claim, in this paper, to present a good list of possible devices to repeal legislation. But I can think them up, and so can you. Here are a few:

Provide a way for minorities to define themselves, and then give those minorities power to repeal legislation, by referendum, requiring Y% of only the minority.

Give juries the power not only to nullify, but to actively repeal legislation.

Give rewards to activists who lead successful campaigns to repeal legislation. If taxes cannot be raised, allow for the private financing of these rewards.

Penalize legislators, from the regulation-creating branch, who vote to pass laws which are then repealed within one year.

Provide for repeal of legislation during sporting events, if the half-time crowd responds to a such proposal with an ovation exceeding Z decibels.

Perhaps this could be overdone. But I mean to point out that we can find constitutional tools with all the power we want, and more. In general, if detractors complain that a particular minority might fall victim to unfair legislation, then we can respond by constituting a power for that minority to repeal legislation.

 
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Say It: We Trust Voluntary Order, We Mistrust Government

This is my main idea, that we take the step which the founders of America did not take: We should announce that we have greater faith in voluntary order than in coerced order, and that therefore we constitute ways to dismantle coerced order.

To illustrate, here I suggest a preamble for the constitution of a new free nation.

We, the founders of Emergonia, believe that the voluntary and spontaneous order which forms naturally within society almost always serves human needs better than an order which might be coerced by a state. Yet, impelled by the following three circumstances, we find it wise at this time to constitute a state.

First: To secure our independence from the other states which presently cover Earth, Emergonia must receive recognition as a peer among states.

Second: At the outset the populace of Emergonia will rely upon some institutions of state to fulfill certain of their needs; they have no other experience. While we desire to see these institutions of state replaced by institutions of civil mutual consent, we recognize that growth of voluntary institutions requires time.

Third: We recognize that, for reasons beyond our understanding or desire, human society may require some few powers vested in state.

Therefore we constitute the State of Emergonia which incorporates, in initial code, those institutions of state to which the populace are initially inured, but which possesses more powers to repeal old code than to enact new code.

 

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The Flexibility of this Power

An advantage of this idea is that it could conceivably be applied to any existing nation or populace. There need be no sudden change. A nation adopting new constitutional powers to repeal laws could keep, for starters, all its familiar institutions of state. And, by adopting a timetable of decreasing percentages required to repeal laws, the shrinkage of government could be gradual at first.

The paradigm we in FNF most frequently mention for attaining a free nation, that of leasing an underpopulated area and then populating it with like-minded souls, would not need this constitutional power to repeal laws as much as would a paradigm which included a population of non-libertarians. But still this idea might be useful for a nation composed almost entirely of libertarians, because, heaven knows, even most of us rely in ways upon familiar state institutions. D

 

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References

Roderick T. Long. I can no longer sort out how many of these ideas originated with Roderick. For starters see his papers in the Proceedings of our first Forum, on Constitutions, which met on 2 October 1993.

Frances Kendall & Leon Louw, Let The People Govern. Amagi Publications, 1989.

 

Richard O. Hammer, of Hillsborough, NC, for the time being works full-time on the Free Nation Foundation. In the past he has worked as a residential builder and engineer.

 
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