This article was published in the Winter 1994-95 issue of Formulations
by the Free Nation Foundation
 Imagineering Freedom: A Constitution of Liberty

Part II: Defining Federal Powers

by Roderick T. Long


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In this article I continue my presentation of the provisions of my Virtual-Canton Constitution. The last installment (in Formulations, Vol. I, No.4) covered the Preamble and Articles 1.1.1-1.2.10, which dealt with thestructure of a hypothetical Free Nation, designed as a compromise betweenanarchism and minarchism.

Below is an outline of the entire Constitution. This article reviews the material from the section 1.2.11 through section 1.4.16:. 


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

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To review the last installment: Under this proposed Constitution, the Government of the Free Nation is composed of a Federal Administration and a number of Virtual Cantons. These Cantons are like states for purposes of political representation, but they are not territorial entities. The Federal Administration provides a framework for resolving disputes among Cantons and providing a national defense. Citizenship (a prerequisite for taxation) is completely optional for residents of the Free Nation.

The Federal Administration is divided into Legislative, Executive, and Judicial branches. The Legislature is bicameral, with one house (the Parliament) representing the Virtual Cantons, and the other (the Negative Council) representing the Citizens as a whole; it takes a two-thirds vote for the Parliament to pass legislation, and only a one-third-plus-one vote for the Negative Council to repeal it.

We now continue the listing of the powers of the Legislature, begun last time. 

1.2.11 All elected officials in the Federal Administration shall, at stated times, receive for their services a compensation to be determined by the Legislature; but such compensation shall be neither increased nor diminished during the period for which they shall have been elected, and shall in any case exceed the average Citizen's income (to be determined as in 1.2.10) by no more than n5 percent.

(Reminder: the value of variables like "n5" would depend on conditions in the society in which the Virtual-Canton Constitution was to be implemented.)

This provision, combined with the strict term limits set down in 1.2.2-3, prevents Legislators from raising their own pay; they can only raise the pay of their successors, which they have less incentive to do.

Nor shall any Federal officer receive any compensation in any year in which the Federal budget is not balanced (nor may any budget item be declared "off-budget").

Simply declaring that the budget must be balanced may not be sufficient to bring it about; politicians can always insist that an emergency justifies a deficit. This way, the Legislature can approve an unbalanced budget if it so chooses, but must forgo salary in order to do so; this should provide the proper incentives.

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1.2.12 The Federal laws (unlike the Canton laws) shall apply to anyone within the territory of the Free Nation, whether Citizen or not.

The purpose of these laws, after all, is to protect the rights of Citizens from aggressors, including aggressors who are not Citizens; so its prohibitions against aggression must apply to non-Citizens. Since various provisions of this Constitution are designed to ensure, first, that there are as few Federal laws as possible, and second, that these laws are restricted to the enforcement of libertarian rights, this provision does no wrong to non-Citizens.

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1.2.13 The sum total of Federal laws may not exceed one million words. Any Federal laws passed after this limit has been reached, no previous laws having been repealed, are void and unlawful. Also, each Federal law, before being passed, must be read aloud, at normal speed, to a quorum of each house of the Legislature. These provisions may not be evaded by attempting to give the force of law to documents that are not Federal laws by passing Federal laws which merely refer to these documents.

Watching C-Span beats a horror movie any day, as before our eyes our "representatives" in Congress enact, without reading them, one phone-book sized thicket of legislation after another and another -- every fine-print line of which is a threat of violence against somebody somewhere. This provision would make such conduct impossible.

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1.2.14 It shall be the duty of the Federal Legislature to refuse their assent to, or to repeal, any laws in conflict with the Constitution of the Free Nation.

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1.2.15 The deliberations of the Legislature shall be open to public view and record.

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1.2.16 The Legislature may not delegate its legislative authority to any other person, body, or bureau.

These last three provisions are self-explanatory.

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1.2.17 Each house of the Legislature, subsequent to the first election, shall be divided by lot into three classes, as nearly equal as possible, with one class retiring at the end of the third year, another at the end of the fifth, and another at the end of the seventh.

This provision, borrowed from the U. S. Constitution, is designed to ensure continuity by preventing all the Legislators from coming up for re-election at the same time.

Temporary vacancies in the Negative Council shall be made up by the Executive until an election can be held. Temporary vacancies in the Parliament may be made up in such manner as the laws of the relevant Canton may direct.

Since the Members of Parliament are representatives of the Virtual Cantons rather than being elected by popular vote, the method for replacement should be determined by the Cantons. Logically, then, the method of replacement for the popularly-elected Councillors should be determined by the people at large; but I take the people at large to do precisely this by signing this Constitution with the provision as it stands.

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1. 3 The Federal Executive

1.3.1 The Federal Executive shall be composed of three Citizens: the President of the Parliament, elected by majority (or plurality) vote of the Parliament; the President of the Negative Council, elected by majority (or plurality) vote of the Negative Council; and the President of the Free Nation, to be elected by majority (or plurality) vote of the Citizens. The will of the Executive is to be determined by a two-thirds vote of the Presidents.

After having just freed themselves from subjection to a foreign monarch, many of our nation's Founders were apprehensive about the strong figure of the President in the U. S. Constitution, fearing that in giving so much unchecked power to a single person, the Constitution was simply reestablishing a monarchy. Hence, many of the Antifederalists -- opponents of the Constitution -- argued in favor of a "plural executive." They suggested that the power of the President should be shared between two people, as in the Roman Republic, so that each could serve as a check on the other. (A slight concession to this worry appears in the U. S. Constitution's original provision, since abolished by Amendment, that the Vice-President should be the President's main rival for office, rather than a "running-mate" selected by the President himself.

A problem with having two Presidents, though, is that there is no way to break a tie. Gridlock is a good thing as a rule, I think, but if there is too much the system will simply shatter under the impact of political forces it cannot channel. Hence the attraction of a three-person Executive, where one member can always break a tie between the other two. And if you're going to have three, then it seems natural (in order to ensure some diversity of interests among them) to make them representative of different groups.

Each President shall serve a term of no longer than five years; no President may serve more than one such term consecutively or three such terms non-consecutively.

In other words, term limits -- for the usual reasons.

The Executive term of the President of either house of the Legislature shall expire prematurely on the expiration without renewal of said President's Legislative term.

Since two of the Presidents will also be Legislators, some provision needed to be made for cases in which the Legislative term expires before the Presidential term does. This is it.

The President of the Parliament may be recalled as the Parliament's rules of procedure may direct; the President of the Negative Council may be recalled as the Negative Council's rules of procedure may direct; the President of the Free Nation may be recalled by national referendum as detailed in 1.1.4.

This simply requires that each member of the Executive be recalled by the body he or she represents.

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1.3.2 The Executive shall from time to time publicly give to the Legislature information of the state of the nation, and recommend to their consideration such measures as the Executive shall judge necessary and expedient.

This provision, borrowed from the U. S. Constitution, doesn't really give the Presidents any power, and so seems harmless enough.

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1.3.3 The powers of the Executive shall be restricted to the following:

1.3.4 In time of war, any President may delegate his or her decision-making authority to any other President, for a stated period revocable only by majority vote of both Presidents, and not to exceed three months(but renewable thereafter).

One objection sometimes raised to the idea of a plural executive is the inconvenience of having three Commanders-in-Chief needing to meet and vote on every military decision. This provision makes it possible for the Presidents to designate a single Commander-in-Chief when necessary.

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1.3.5 Any President shall have power to grant reprieves and pardons for any offenses tried under the laws of the Free Nation, except in cases of impeachment.

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1.3.6 It shall be the duty of the Federal Executive to refuse assent to or execution of any laws in conflict with the Constitution of the FreeNation, and to grant reprieves and pardons to any persons accused of violating such laws.

The purpose of 1.3.5 is to authorize 1.3.6.

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1.3.7 The three members of the Executive, subsequent to the first election, shall be assigned terms by lot, with one retiring at the end of the first year, another at the end of the third, and another at the end of the fifth.

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1.3.8 The Legislature may by law provide for the case of removal, death, resignation, or inability of any member of the Executive, declaring what officer shall succeed to that office, and such officer shall act accordingly until the disability be removed or a new President shall be selected in the usual manner.

These are analogous to the corresponding Legislative provisions in

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1. 4 The Federal Judiciary

1.4.1 The Federal Judiciary shall be composed of a Supreme Court and an= independent judiciary.

Here is another example of my attempt, in drafting this Constitution, to strike a balance between anarchism and minarchism, in order to produce a document with a higher degree of acceptability to both camps. As willbe come clear, my compromise solution combines aspects of the U. S. Constitution system on the one hand, and aspects of a private law system on the other.

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1.4.2 The Supreme Court shall consist of n6 Citizens, and shall judge by majority vote. Appointments to the Supreme Court, barring impeachment, shall be for an indefinite term, or until such age of retirement as may be specified by law (except that legal changes in the age of retirement shall not affect the term of existing appointments), and shall be made by the Executive and confirmed by a majority vote of both houses of the Legislature.

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1.4.3 The independent judiciary shall consist in a private judicial service or services, under contract to the Federal Administration. Such contracts are to be established and revoked by majority vote of both houses of the Legislature. Such private judicial service shall be considered a division of the Federal Judiciary (and thus of the Government under this Constitution) for the duration of its contract and no longer.

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1.4.4 Cases brought before the Federal Judiciary shall be first heard by the independent judiciary; the Supreme Court shall serve as the final court of appeal, but may refuse to hear any appeal.

Under a pure market anarchism, there would be competing protection agencies and competing judicial services. Astute consumers would be wary, I should think, of a protection agency that provided its own judicial services; a more likely scenario is that protection agencies would contract with an independent judicial service, one that had other customers besides that one protection agency. Such a judicial service would be more likely to render an unbiased verdict. I have incorporated the anarchistic element into my judicial system as far as possible; the vestigial governmental element is the Supreme Court.

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1.4.5 Fees for Federal court services shall be determined by Federal legislation.

Recall that, by Article 1.2.7, Federal tax revenues must be applied to "paying the debts and providing for the common defense of the Free Nation." In other words, no provision has been made for funding the Judiciary through tax revenues; this service is expected to pay for itself, through user fees.

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1.4.6 The power of the Federal Judiciary shall be restricted in the first instance to the adjudication of disputes

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1.4.7 In addition,

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1.4.8 Disputes between the independent judiciary and other divisions of the Government are to be adjudicated as provided by contract.

These provisions, while complicated-sounding, are governed by two considerations: First, the Federal Judiciary -- and indeed the Federal Administration as a whole -- is meant to be a mere adjunct to a thriving C anton system. The Canton system is basically an anarcho-capitalist competitive system, and the Federal Administration serves as a kind of safeguard -- "anarchy with a net" -- to resolve disputes if and when the competitive system breaks down. Thus, in the interests of Canton sovereignty and autonomy, the Federal Judiciary is denied jurisdiction in cases of disputes between members of the same Canton (unless the Canton consents)

Second, it is never desirable for any department of the government to be allowed to serve as a judge in its own case. Hence the bars to self-judgment in 1.4.7.

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1.4.9 No person shall be convicted, sentenced, or imprisoned without due process of law, including the right to trial by jury and habeas corpus, and there shall be no detention without trial, nor shall any person either before or after trial be held incommunicado. An accused person shall be assumed innocent until proven guilty. A person who has been arrested, detained, imprisoned, tried, or sentenced either illegally or in error shall receive restitution. At every stage of criminal process, an accused shall be informed of the charges against him or her, and to the privilege of counsel. An accused who does not speak the language in which the proceedings are conducted shall be provided without expense the services of an interpreter.

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1.4.10 The right of the people to be secure in their persons, dwellings, vehicles, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized; nor shall any person be subject for the same offence to be twice put in jeopardy of penalty; nor shall any be compelled in any criminal case to be a witness against him or herself, nor be deprived of liberty or property without due process of law. Where illegally obtained evidence is judged to be admissible in court, those who obtained it remain subject to criminal prosecution.

Most of these provisions are self-explanatory. Let me simply touch on three points that may require explanation.

First, the final clause of 1.4.10 (inspired by a similar provision in the Oceania Constitution) offers an alternative to the law of evidence in force today. Officially, under the current system, if Officer Eager is shown to have acted illegally in obtaining the evidence that proves Boss Scum is guilty, then both wrongdoers go free. Under this provision, on the other hand, both Officer Eager and Boss Scum would be prosecuted.

Second, much of the language in these Articles is borrowed from the U. S. Constitution, but I have altered that language so as to avoid the endorsement of the death penalty implicit in the original. While I am against the death penalty, and indeed against any punishment beyond forcible restitution to the victim (see my "Punishment vs. Restitution: A Formulation," in Formulations,Vol. I, No. 2 (Winter 1993-940)), I have not placed any explicit prohibition of the death penalty in this Constitution (except insofar as 1.4.14 below might be interpreted to exclude capital punishment -- but I have left the interpretation of that Article to the Judiciary). In general I have tried to avoid having this Constitution take a stand one way or the other on issues that divide libertarians (capital punishment, abortion, animal rights, intellectual property rights, and so forth) -- not because I think these issues unimportant (I have strong stands on all of them), but because I am trying to design a document that can appeal to libertarians across the broad spectrum of our particular differences.

Third, some readers have asked me why the various judicial rights enumerated here are placed where they are, among the provisions subject to amendment, rather than in the Bill of Rights (Section 2. 2), which cannot be amended. I'm somewhat uncomfortable about this myself, but I do have my reasons; however, they can be explained more clearly when we get to the subject of amendments.

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1.4.11 The Judiciary shall have no power of compulsory witness, nor of compulsory jury empanelment.

There will be a prohibition of involuntary servitude in the Bill of Rights, but since the presence of a similar provision in the U. S. C onstitution has failed to prevent these judicial practices here, it seemed worth excluding these forms of involuntary servitude more explicitly.

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1. 4. 12 It shall be the chief aim of judicial adjudication to secure restitution for the victim to the fullest degree possible at the expense of the criminal or wrongdoer. Likewise, the government (whether Federal or Canton) shall as far as possible make full restitution for all loss suffered by persons arrested, indicted, restrained, imprisoned, expropriated, or otherwise injured in the course of criminal proceedings that do not result in their conviction. When they are responsible, government employees or agents shall be liable for this restitution.

Much of this language is borrowed from the Libertarian Party Platform. Note that I say "chief aim" rather than "sole aim," in order to accommodate those libertarians who desire a role for punishment in the judicial system.

The claim of a victim (or class of victims) to restitution shall be a marketable claim, which may be acquired through gift or sale (or, in the case of deceased victims, through bequest or homesteading).

Judicial systems relying on user fees have been criticized for giving no protection to the poor. Likewise, judicial systems emphasizing restitution and victim-directed prosecution have been criticized for providing no incentives for defending the claims of victims who die without close friends or relatives. The provisions in this passage are meant to overcome these difficulties. The marketing of claims to restitution worked fairly well in medi=BEval Iceland. (See my "The Decline and Fall of Private Law in Iceland," in Formulations,Vol. I, No. 3 (Spring 1994).)

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1.4.13 The victim shall have the right to direct the prosecution in criminal cases, so far as is consistent with full respect for the rights of the accused.

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1.4.14 Excessive bail shall not be required, nor excessive fines imposed, nor torture or other cruel, unusual, or degrading treatment inflicted. Convicted criminals shall not have their liberty restricted except so far as is necessary for the protection of others, nor their property seized except so far as is necessary to make restitution to the victim and to pay the costs of the criminal's capture and trial.

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1.4.15 It shall be the duty of the Federal Judiciary to strike down as void and unlawful any laws, whether Federal or Canton, in conflict with the Constitution of the Free Nation.

These are pretty self-explanatory, but 1.4.14 may require some comment. Does this provision rule out punishment? No.

First, it is up to the Judiciary to decide whether punishment as such counts as "cruel, unusual, or degrading treatment." I would vote yes if I were on the Supreme Court; but I haven't forced that decision on others.

Second, those who consider punishment a deterrent to crime may treat such deterrence as making punishment pass the test of a restriction on liberty "necessary for the protection of others." Again, that is not how I would interpret it if I were on the Supreme Court; but this is precisely the sort of dispute we may want to leave to the judicial process in order to increase libertarian consensus on the basic political structure.

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1.4.16 The Federal Judiciary shall not construe any part of this Constitution to be without effect, or to be judicially unenforceable.

The point of this provision is to forestall the sort of shocking neglect that the U. S. Supreme Court and various statist scholars have given to the Ninth and Tenth Amendments. (Chief Justice Rehnquist has referred to the Bill of Rights as "the first eight amendments," and his would-be colleague Robert Bork declared the Ninth Amendment "meaningless" and urged judges to ignore it.)

To be continued

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