(to table of contents of FNF archives) (to start of essay)
Outline
--introduction
Time and Tide
A Different Past
Natural Rights versus Property
The Visual Basic Approach to Individualism
Contracts
Contracts versus Constitutions
Contract versus Convention
Devil in the Details
In "Constitutions: When They Protect and When They Do Not" (Formulations, Vol. III, No. 2 (Winter 1995-96)), Randy Dumse argues against the protections offered by constitutions. Unfortunately, he leaves it to others to offer something to go beyond them to better protect liberty.
As the principal author of The Atlantis Papers, I object to his characterization of my work as self-contradictory. Of course my book points out that the United States Constitution is not the law of the land, and that the Bill of Rights is daily violated. That does not mean that the United States Constitution is useless, only that its enforcement is vital. When those who take the oath to uphold and defend the Constitution do not carry out that oath, indeed when many who take that oath have never even read the document, then it ceases to have effect.
Time and Tide
Henry David Thoreau noted in "Civil Disobedience" (1848) that the United States government was excellent, but daily losing some of its integrity. It was reputed to be powerful, but so weak that one man could bend it to his will. Over the last 150 years, many men have bent the United States to their will many times. Names of some of the most egregious violators of the Constitution include Lincoln, Roosevelt, Wilson, Hoover, Roosevelt, Johnson, Nixon, Ford, Carter, Reagan, Bush, Clinton....
Today, the United States Constitution is not the Supreme Law of the Land. Instead, we live in a nation of men, not of laws. We live in fear of the man with the badge and gun who may at a whim, for cause or by chance, kick in the door and gun down the occupants. We live in fear of the traffic stop which can lead to endless searches, identity checks, even beating or murder. We live in fear of the tax investigator who can empty our bank accounts, seize our papers, close our business, foreclose our property, and imprison even those who can afford lengthy court battles. We live in fear of the man who would accuse our property in civil court of being used in a drug-related crime.
A Different Past
Randy quotes the "Declaration of Independence of These United States" in pointing out that to defend rights governments are instituted among men, deriving their just powers from the consent of the governed. A rather significant work of liberty-oriented fiction, The Probability Broach by L. Neil Smith considers what might have resulted had there been just one word added to that famous clause. Had Jefferson written, "...deriving their just powers from the unanimous consent of the governed," we might now live in a very different world, one in which far fewer laws would have been created or tolerated.
Today, a nearly universal response to every situation is "there ought to be a law." The enthusiasm for this approach can be illustrated by the recent case of a family dispute which has caused a teenager who prefers to live with her mother to emigrate to New Zealand to avoid complying with a court ordered custody decision. The sympathy for her situation, which has been portrayed in the media as one individual's fight to avoid living with an abusive parent, has led one Congressman to propose a bill of attainder. This bill would make it a law of the United States to specify the custody of this child by her mother, a law which would, incidentally, violate the Constitutional provision against bills of attainder, laws that single out individuals for special legal action.
Noting that power corrupts, history scholar David N. Mayer (author of The Constitutional Thought of Thomas Jefferson) points out that vesting power in the hands of the majority does not protect against violations of individual liberties. Just because access to power in the hands of the people is harder does not mean that it is any less corrupting.
Natural Rights versus Property
Randy (and I avoid the journalistic approach of using his last name because Randy is a valued friend and has been an excellent customer) also reiterates arguments against natural rights. Certainly there are many fallacies in the natural rights arguments that held sway in the time of Jefferson and Madison. Equally, however, there are principles which are derived from the theory of natural rights which are greatly valued by the friends of liberty.
If natural rights theory lacks robust character, is there a philosophy which might underpin a better approach to government? For many years now, I have been enthusiastic about what I term the "propertarian" approach.
Begin at the beginning. You are born. What do you have? You have a body. Is it yours? What else could it mean to have a body? Who else has control of its nerves, its muscles, its bladder? Okay, for a while no one controls the bladder, but that comes with time.
Do you own your body? My response is, of course. If you don't own your body, then someone else owns your body, in which case you are a slave. There are innumerable economic and philosophical arguments against slavery. As a practical matter, all slavery requires the cooperation of the slave. An uncooperative slave may quickly become a dead person, but then the issue of ownership is determined. The slave that won't cooperate is demonstrating that the ownership of his body is his own.
If you grant the ownership of the body to the self, if you agree that you own your own body, then much can be agreed. If you own your body, you have the capacity to own things. Your body is a thing, indeed it is many things. If you are able to own one thing, you are able to own other things. You have the capacity to acquire property, having been born with that capability. Is it "a natural right"? Dunno. I would prefer the term "an inherent capacity."
Just as your ownership of your body conveys complete freedom in choosing how to clothe it, dress its hair, pierce its ears, move its parts, use its voice, end its life, or do none of these things to it, your ownership of other property has similar implications. To own property, you must be in control of it, to the same extent that you control your body. You must be able to move it, shape it, change it, destroy it, or do none of these things as you choose. If your property is not yours to do with as you please, it is not exclusively your property.
If you do not convey part ownership of your property to another person or group, but they exert control through force, extortion, or fraud, they are stealing your property, just as they would be enslaving you if they exerted control over your body. Therefore, no government on Earth has a legitimate right to tax property or income.
But what if you yielded some control of your property? Why might you do that? Jefferson said that to secure liberties, governments are instituted among men. Traditionally, the associated philosophy suggested that a Social Contract yielded certain rights of the individual to the group. In return, the balance of the rights of the individual were protected. Among the rights traditionally yielded was the right to do violence or exact retribution.
The Visual Basic Approach to Individualism
From a propertarian perspective, there are no rights. There is only ownership of property such as your self, your land, your car, your guns, your computer, your books. Either you own these in whole or in part. You might, for instance, have agreed with a bank to share ownership of your car. You provide payments to the bank and the bank conveys ownership after a fixed term.
If you own a gun and bullets to match, you have the capacity to fire those bullets at any target. You may forebear your use of your gun against certain targets, or you may contractually obligate yourself to such forebearance, but you always have the capacity. Do you have the right to use the gun? If you own that right, where do you keep it at night? How do you safeguard your rights while you are asleep? They don't store well in your absence. So rather than owning the right to use the gun, you simply own the gun and the bullets and the body which combine into deadly force when you choose.
The capacities you have might be likened to the properties of objects in Visual Basic or other object oriented programming languages. These capacities or characteristics are identifiable, measurable, real in every sense. Rights, in contrast, are a philosophical construct, as ephemeral in practice as they are in attempts to measure them.
Contracts
I don't wish to defend the flimsy concept of the Social Contract, especially as I seem to be expected to live by the terms of one without ever having been dignified with the opportunity to sign it. However, there is a great deal of value in the concept of a contract. Rather than yielding certain rights by convention, perhaps you should consider yielding certain aspects of your property by contract.
Rather than agreeing with the conventional approach that you should give up the right to kill your neighbor in the interests of not being killed, perhaps you should seek a specific contractual obligation on the part of your neighbor and yourself. Look at your property and decide what parts of it or which uses of it you could live without. Would you be willing to commit yourself to not using your guns except in self-defense or in defense of your property? Would you be willing to exchange that aspect of your ownership for the agreement of your neighbors to avoid the same?
In other words, would you agree to a contract in writing that set forth the extent of your property ownership, the limitations and restrictions thereon, and the specific terms and conditions which might be exceptions or otherwise justify a contract dispute? Notice that contracts have a great history. It is quite likely that they pre-date history, as there are numerous artifacts of accounting which are 25,000 years old and more. Some archaeologists contend that the exchange of items bearing marks counting the number of a herd or other set of items was a means of symbolizing the exchange of the items themselves. In other words, the exchange of accounting artifacts was an early form of contract.
Contract law has a certain elegance which it derives from the process by which it came into existence. Contract law is largely common law with only a few exceptional legislative standards imposed upon it. Thus, it is a body of law that has evolved through use rather than being brought about by design.
Suppose then, that the basis of your government was a contract which stated in explicit terms what aspects of your property you would yield in order to gain protection from the contractual obligation of your associates. That would seem preferable in many ways to the current formless government we have.
Contracts versus Constitutions
Lysander Spooner argued eloquently that the US Constitution is not a contract. Indeed, no government on Earth is contractual in nature. Those born under the flag of a certain government abide by its rules largely out of fear of reprisal. In the case of the United States, only those who choose to be naturalized agree to the terms of the Constitution. Curiously, those who lead as President may not be naturalized. Although the members of government are sworn to uphold the Constitution, the individual members of the body politic are not.
By requiring each member of our society to agree to contractual obligations for mutual defense, we may be able to provide for the common defense in a better way. By requiring an agreement in writing that certain forms of mediation and jury trial will govern disputes arising from the contract, we may be able to better provide for justice for ourselves and our posterity. By requiring a contract for self-sufficiency, we may at last be able to provide for the general welfare.
Contract versus Convention
A government which rules by convention, by having predated the population, by existing before the current voters were of majority, is a government which may be converted to the rule of men. The US Constitution established adequate guidelines based on sufficient principles as to slow this conversion process to a matter of generations, but the conversion still took place.
Indeed, Jefferson argued that every nineteen years government should be revised in accord with the living generation's views. His attitude was that the Earth belongs to the living, not the dead. If the living generation does not find the current form of government, they should be free to amend it.
A government which exists not by convention but by contract, which is not empowered to do anything but that which is contractually agreed, and which is limited not by the tension among its powerful agencies or some alleged checks and balances, but which is limited by the individual concerns of every signatory, is a government which must remain one of law, in this case of contract law. The kind of sovereign individuals who would sign such a contract are the kind of people with whom I wish to live.
Contracts have another advantage. They can provide for individual amendment. If a contract change requires the approval of other contract holders, that is now possible with modern communications technology. However, provision for a variety of standard exceptions and corresponding fees can be established, making individual acceptance of the conditions of government more likely.
Devil in the Details
However, Randy's ultimate point is well taken. The paperwork which precedes the practice of living together may be significant, it may be essential, and it may be written well or poorly. Ultimately, however, the paperwork is only as meaningful as the intentions of those who live by its words. The strength of a new nation lies as much in who lives there as in how they live.
You live among looters. If you doubt it, look about you. Circumspice. What you see is theft in one form or another everywhere. Property is taken for common use. Property is seized under civil forfeiture laws. Property is condemned for public utilities or infrastructure. Defending one's property is not widely accepted as proper conduct. In a recent case, a man was charged with second degree murder because in defending his home against a thief, he fired twice into the man's chest and seven times into the man's back. By this reasoning, it is okay to shoot a robber, as long as you stop when he runs away. Ridding society of such individuals is not considered a reasonable and proper behavior, but is apparently reserved to the state.
Would you consent to be governed by a contract knowing that many of those signing have the moral character of a jackal? I would not. However, the contract, by itself is a form of filter. Given the choice between living among lions who are governed by convention and lions who are governed by contract, the average jackal chooses the conventional lions.
The contract can be enhanced as a filtration mechanism with a property requirement. Payment of a contract signing fee of $10,000 to the governing corporation might enhance the character of the average signatory.
As well, the choice of territory can act to filter for those who are truly dedicated to living in liberty. If a new nation is needed, it is because the one we live in is so corrupt that it can only be reformed successfully if there exists an example of a successful land of liberty. Perhaps the offer of the Seychelles of an island paradise free from intervention for a mere $10 million might be just the thing. Other countries might be evaluated as much on the basis of who would avoid living there as on the basis of what could be done there once you arrived.
Indeed, there is a good argument, and Randy has made it, that the United States achieved a sensible and somewhat lasting form of government because it was populated by individuals who pushed through an enormous filtering medium. Only those who were willing to forsake the comforts of Europe and undertake a lengthy sea voyage to arrive in a land of hostile natives and limited amenities became Americans. These hardy adventurers formed the entrepreneurial backbone of the nation, and derived the motto, "Don't Tread on Me."
Randy is clearly right. Who you live with makes an enormous difference. How you choose to live together in detail is ultimately what determines the success of your nation. However, we are not now in a position to set up a filter to select liberty lovers. We have some candidate territories to evaluate, but none to which to move immediately. Thus, we are not able to live together as befits the sons of liberty.
We are, however, able to consider what the terms might be under which we would consent, in writing, to be governed, and by what manner of entity we would yield our consent. As shareholders in a corporation, as partners in a general partnership, as members of a club, or in some other way, we might find ourselves one day bound by a contract that establishes the terms and conditions of our lifestyle.
Might we not then want to begin by examining the specifics of that contract? As Thoreau said, "Let every man make known what kind of government would command his respect, and that will be one step toward obtaining it." D
(to table of contents of FNF archives) (to outline) (to top of page)