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Disclaimer: I am not an expert. Though having read a handful of books on the subject I am probably in the 99th percentile. My knowledge and opinions are evolving. I am learning. I invite you to learn with me.
This talk will be structured around a list of eight questions which seem important to me. After reading each question I will say what I have to say in response to that question, and then will open the floor for other contributions.
These questions are not all distinct; in some cases our answers to different questions will touch upon the same subjects. These are simply questions that I have been pondering. They are:
1. What is the history of constitutions?
One source which I was reading called the U.S. Constitution the first national constitution. Another author called the U.S. Constitution the first modern constitution, implying the existence of something in antiquity. Incidentally Poland adopted a constitution a few years later, making that the second. And France, following their revolution, produced I believe the third.
So the founding fathers of America are recognized as carving some new turf. Though obviously the Articles of Confederation preceded the U.S. Constitution. I hope to learn why these authors do not regard the Articles of Confederation as a constitution. And before the American revolution I believe some or all of the thirteen colonies had founding documents, though perhaps these were thought of as "charters".
When libertarians talk of constitutions the Swiss constitution often receives honorable mention. It is notable because it offers more decentralization than others. The parts of Switzerland, called Cantons, have more independence and more responsibility for their own affairs than do the 50 states in the United States. As a result the central, Federal government, is unimportant to most Swiss, so much so that most of these citizens do not know the name of the current president. This constitution dates I believe (correct me if I am wrong) from 1848.
In the present world constitutions are pretty much taken for granted. Almost every country has one. Though the most notable, and instructive, exception is the United Kingdom. Also, Israel has none, or at least it had none through the mid-1980's when my source was writing.
In recent decades there has been a flurry of constitution writing. I went to the UNC-CH library, found the section on constitutions, and picked out as many books as I thought I could carry out comfortably. On examination it turned out that these books are largely inspired by constitutional tension and writing in the last few decades. And this does not include the activity since the fall of communism. (Those books are not on the shelf yet.)
Synonyms: [vitality, health], [character, essence], organization.
"Constitution" can mean a document.
"Constitution" can mean a way to limit the power of government.
An aside:
As I learn more, this last statement seems more obvious to me, but
the first time that I heard it, it surprised me. We libertarians have a
few renowned constitution writers. The most notable that I know of are
Leon Louw and Frances Kendall, a South African couple. I have met them
at two meetings of the International Society for Individual Liberty (ISIL),
one in San Francisco the other in Slovakia. Leon and Frances are actively
involved in the constitutional process in South Africa, consulting with
and endorsed by both blacks and whites, they are lobbying for a decentralized
system modeled on the Swiss experience, and have written at least two books
that I know of outlining and explaining their constitutional proposals.
They have twice been nominated for the Nobel peace prize.
Anyhow, so in August '92 I got to talk briefly with Leon Louw about constitutions. And he surprised me with the simple and direct statement that the primary reason to have a constitution is to limit the power of government. I had suspected that there were some other reasons - lofty reasons. But no, according to Leon the main reason to have a constitution is to limit government.
"Constitution" might be a description of what exists.
Five models of constitutions.
[Source: "Constitution-making: The Pre-eminently Political Act" by Daniel Elazar, which is chapter 9 in the book "Redesigning the state: The Politics of Constitutional Change in Industrial Nations", edited by Keith Banting & Richard Simeon, University of Toronto Press, 1985.]
This author, looking at the constitutions of the nations of the world, noticed differences among them, differences of character, of language, of intent, of context - and classifies them in five models.
In my original naivete I have tended to believe that the state could work only if there were a constitution written, on paper somewhere. But the example of the United Kingdom operating without a written constitution has left me sure that there was something more I did not understand.
I was given a glimmer of understanding by Professor Bernard Siegan in his book Drafting a Constitution for a Nation or Republic Emerging into Freedom . Siegan, employing a quote from Justice Bradley, says that "England's unwritten constitution rests in the understanding that its violation in any material respect "would produce a revolution in an hour"". (page 43)
So that makes me think it works for them because they have a tradition of revolution and they know that they have it. Perhaps it means that typical British citizens live knowing that they will not let anyone mess with their traditional polity; it is in the culture that messing with the polity provokes a fight. It is kind of like most people, even clods, know that you do not go around poking strangers in the ribs - writ large, on a national scale regarding national polity. Is that what it is? I am trying to understand.
So what does this say about libertarians, and the constitution of a libertarian realm? I believe that we have a common culture, a culture of complaining about government, but this I believe does not give us the backbone, the constitution, of a free society.
Perhaps for any constitution to survive that constitution, written or not, must reflect substantially the constitution (the vital attitudes) of the society.
One difference between a written and a non written constitution might be the confidence that people feel in that constitution. If most citizens feel that they know the constitution of their nation in their hearts then there may be little need to write it down. But if uncertainty and argument characterize the citizens' understanding of the constitution, then it might appear useful to write it down.
In America it seems that the original written constitution is being ignored by government, more and more as time goes on. And the American government might seem to be acting upon a new unwritten constitution which has been evolving in the populace. This unwritten constitution seems to hold that government should take responsibility for the lives of the citizens.
4. Do we subscribe to the theory of natural rights, and therefore seek only a system which protects those rights?
I remember when I was a boy, my playmate Tom had a father who said some wise things - and things that were clear, because I remember them. One of the things he said was, "my right to swing my fists in the air ends where your nose begins".
I was first introduced to the idea of natural rights only a few years ago. Wondering what it meant, I have read anything I came across that cast light upon the subject. But I have not found what I would call a good, overall introduction. Here and there I have found bits and pieces, authors referring to the subject without developing it. So I will say what I understand "natural rights " to mean. I hope anyone here who knows more than I will correct the impression I give, in the discussion which follows.
Imagine a persons living alone in nature. What rights does this person have? Basically, to act as he or she chooses. To do anything at all within his or her ability. This person has a right to build a hut and live in it, or to build a castle and live in it. But there is, of course, not right in nature to receive any thing. There is no right in nature to a roof overhead or to a full stomach. These things can be achieved - given some combination of good fortune, wise action, and persistence - but they are not guaranteed. And a person in nature must face alone the consequences of stupid decisions: You eat a poison, you suffer.
So these are natural rights, to live whatever life nature grants: to act, to possess, to risk and face the consequences. This much seems clear - natural.
The water gets muddier, and the debate less clear, when another person enters the scene, or when a whole nation-full of other persons enters the scene. Now the individual, who had the right when alone in nature to act freely, may, by attempting to exercise this right while in the company of other people, infringe on the natural rights of another - say by confining, injuring, or taking the possession of another. So all the rights that individuals would possess were they alone in nature cannot be preserved when those individuals come into society.
The theory of natural rights strives, I gather, in dealing with this tension, to preserve for each individual in society as much as possible of the panoply of rights enjoyed by individuals alone. And the approach, I gather, is to continue all rights except those that infringe, to disallow actions that do infringe, and to clarify the boundaries so that future decisions may be made within a predictable framework. This develops into a theory of property rights, which we may explore more another time.
To conclude what I have to say about natural rights, I have respect for this theory, and want to understand it better as it might find implementation in the constitution of a free society.
Does a good constitution create a structure which most likely will produce freedom because it specifies a "machine" designed to produce freedom, or does it huff and puff with authoritative language which attempts to put fear in the hearts of those who otherwise would abuse governmental power?
How could a social structure, or a governmental design, produce freedom? Here are two examples of structures which tend to maximize freedom.
The first is a jury. As I understand it, in criminal cases, a guilty verdict requires the unanimous consent of all twelve jurors. In this design the government is empowered to act, to punish a suspect, only if all twelve jurors (who are supposed to be peers) believe the suspect has done something that deserves punishment.
A second example is the requirement, in a legislative body, for a super majority. For instance a bill might pass the body only if two thirds vote for it.
6. Listed rights vs. enumerated powers?
Does a good constitution attempt to list everything government cannot do (that is list the rights retained by the people, i.e. a bill of rights), or does it attempt to list only the things which government can do (and in this latter case, by implication, limit government to only those things)?
This particular question was debated during the ratification of the U.S. constitution. Alexander Hamilton favored the latter approach, in which the powers of government were listed, with the assumption being that government could do no more. He argued it would be dangerous to start listing the rights retained by the people because that list might be assumed to be complete, leaving the people with no rights other than those the founders could think to list.
7. Can we make a safe place for socialists?
Leon Louw and Frances Kendall, in describing the constitution they have advocated for South Africa, say emphatically that it is not a libertarian constitution. It allows full blown socialism. However it also allows the opposite. So it would offer libertarians the possibility of clustering into a geographic zone, forming their own canton, and closing down almost all functions of government within that canton.
To me this has a certain appeal, to create a structure in which statists can have their way in their own place. It extends an olive branch to those people around us who now unwittingly use government against us. It is Christian, kindly - and I think downright libertarian. We libertarians who would say it is wrong for us to presume to decide what drugs other humans should consume, must likewise I think say it is wrong for us to presume to decide what political structure other humans choose for themselves.
I am not endorsing socialism. I think socialism is doomed economically, and I cannot conceive how a canton which embraced socialism could coexist with a canton which embraced individual freedom. I expect anybody with any self respect would get themselves out of the socialist canton, and this even includes the better beggars. But we are surrounded by people who embrace socialism, and their thoughts and beliefs are their own. As caring, responsible neighbors, I would say we have an obligation to try to warn them about what they are doing. But having done this I believe we - as libertarians - must let them be.
So I like that feature of Louw and Kendall's work. While getting what we want, it allows them to try for what they want.
8. What is the power of a constitution to bind what happens in the future?
Obviously, I believe, this rests with the people. With "the consent of the governed". A constitution could remain in force only if enough people with enough power have an interest in maintaining it.