Chapter 8
BEYOND GOVERNMENT
* Limited Government
* Jury
* Government is a Mistake
* Anarchism
* A Covenant for a Union of Sovereign Americans
* Limited Government
Everyone wants "less" government. But in most cases, all they want is to
get rid only of the part that they don't like. Would it be possible to place
universal restrictions on a government so as to make it a truly limited
government? In view of the fundamental characteristics of government
(especially its demand for exclusivity), effective limitations are clearly
impossible. A "limited government" would not, in fact, BE a government, but
would instead be the equivalent of a private police force. Regardless of
what it is called, any organization with the potential of implementing force
MUST be structured in a way that provides genuine protection for those who
are subject to its power.
Unfortunately, the Founding Fathers did not include in the Constitution a
provision that would have made it a criminal offense for the government to
interfere with the lawful behavior of a free citizen. That would have made a
tremendous difference in the form of our society. The revolt against England
should not have gone so far as to reject many eminently sensible provisions
of the British scheme of government. Such as the Coroner's Jury, by which
police behavior is subject to citizens' evaluation.
In the final scene of ATLAS SHRUGGED, Rand makes this proposal for an
amendment to the Constitution:
"Congress shall make no law abridging the freedom of production and
trade."
An extension of this might provide a more sweeping limitation:
"Government shall have no authority whatsoever over the freedom of
production, transportation, communication, and trade."
Another broad restriction could be patterned on the Ninth Amendment:
"The enumeration in the Constitution of certain activities which are
forbidden to government, shall not be construed to permit the government any
activity not specifically designated by the Constitution. Government shall
have ONLY the authority which this Constitution specifically grants to it.
Any attempt to exceed this specified authority shall constitute criminal
behavior."
Here are two other suggestions that might have good effect:
Government shall pass no law that has not arisen directly from the
populace via a ballot-initiative process.
It is forbidden for government to possess information about any
specifiable individual person who is not a convicted criminal or a
government employee.
In any attempt to protect people against oppression, it is necessary to
enact laws which specify punishments for criminal behavior.
If a constitution were to provide for genuine protection against
government oppression, then that constitution would have to contain
penalties for its own violation - provisions that would make it a criminal
offense for anyone in government to violate the constitution. And also
provisions that would punish the government for making any laws that violate
the rights of the citizens (e.g., victimless-crime laws) or for in any way
exceeding the authority granted to it by the constitution.
Immediately the question arises: How could such violations be judged?
* Jury
Libertarians argue that the only proper functions of government are to
provide Police, Courts and Military. Admittedly, these are indeed necessary
social functions, but there is another function equally, if not more,
important to a civilized society. This function is the protection of
individual citizens against government oppression.
This is a function that CANNOT be performed by government! There must be
an independent procedure for judging government behavior and for
adjudicating disputes between citizens and government - something other than
the presently-existing court procedures. After all, the courts are
themselves a part of the government, and when a citizen is mistreated by the
government he has no redress except to take his case to the very government
which mistreated him. But as John Locke observed, "Any man so unjust as to
do his neighbor an injury will scarce be so just as to condemn himself for
it."
The "balance of power" in our Constitution sets each branch of government
to be a counterforce against each of the other branches of government. What
this "balance of power" does NOT do is provide a check on the power the
government has over the freedom of the individual citizens. No effective
check - merely unenforceable prohibitions.
I suggest that there should be an institution to provide such a check,
and I see the jury as a likely basis for such an institution. I would set
the jury up as an entity as separate from government as possible, and
designed to act as an independent judge of government. (In fact, I would
like to see the Jury established as the fundamental institution of
governance.)
The principle of Jury Nullification should be incorporated into the
function of the jury, and that principle should be extended to include these
features:
Any conflict between an individual and the government, or any charge of
misconduct against the government, shall be resolved by jury.
Juries shall be selected by lottery (and ONLY by lot) from a panel of
volunteers, none of whom shall be a member of government, a registered
voter, or a lawyer.
All jury members shall receive a copy of the constitution (which shall
itself contain a detailed description of the function of a jury) and a copy
of the law which authorized the government's behavior in the conflict under
consideration.
Although the government (in the person of the Judge or the Prosecutor)
shall be permitted to advise the jury, the jury shall in no way be obliged
to follow that advice. (It might be a good idea also to abolish most of the
functions of a judge, a position which has grown to be more that of a
dictator than a mediator. Perhaps the function of Jury Foreman should be
extended to encompass any necessary judgeship functions. Such an arrangement
appears to work quite well in the operation of the Supreme Court, which
might itself be considered as a 9-member jury.)
Nullification of a law shall repeal the law - permanently. Nullification
shall also immediately and permanently remove from office all those
legislators who sponsored the law, render ineligible for re-election all
those legislators who voted for the law, and subject to criminal prosecution
all armed members of government who implemented the law.
To enforce these provisions, there shall be established a force of Jury
Marshals (financed by some means completely independent of government
control - perhaps by fines imposed by juries on government agencies) whose
jurisdiction shall extend only to members of government. Control over the
Jury Marshals shall be exercised only by a jury.
In a more anarchist arrangement, the jury shall appoint a Marshall and he
shall select a posse from a panel of armed volunteers. This group shall
carry out the verdict of the jury, and the posse shall be dissolved
immediately afterwards.
It will be objected that these ideas on the Jury are not absolutely
guaranteed to infallibly ensure peace on earth. Of course they can't. But no
scheme for governance can possibly result in a greater degree of death and
destruction than government has and continues to perpetrate.
Legislatures are founded on the assumption that there is a need for the
continual production of rules to govern the lives of the citizens. Is this a
valid assumption? Is it really necessary for you to have over a million laws
in order to be able to go down to the corner store and buy a loaf of bread?
(No exaggeration: in 1992 it was calculated that among the Federal, State
and Local governments, every American citizen lives under the shroud of more
than a million laws. On January 1, 1996, one thousand new laws went into
effect in the state of California.)
America is drowning in an avalanche of legal pollution that could
appropriately be called hyperleges. But hyperleges is inevitable under the
present legal system: it is the natural function of a congress to pass laws,
just as it is the natural function of flies to make maggots. We have
legislatures at the federal, state and local levels whose only function is
to create laws, thus the inevitable result of 200 years of legislative
function MUST be a plethora of laws. After two centuries, what could you
expect but that the American court system would be drowning in laws? This is
a situation that can only get worse as time passes and congresses keep
performing their natural function.
These laws are the structure of the culture of our society. It is
universally observed that this culture is deteriorating - that there is more
crime and less personal safety than there used to be in this country. But
have the people themselves changed all that much? Are you yourself any less
civilized than your grandparents were? I really don't think individual
people have changed; what HAS changed is the social context in which we
live. We have thousands, if not millions, more laws than our grandparents
had. But we are people, just as our grandparents were. The difference is not
in the people, but in the rules which limit our individual choices and
govern our social interactions.
Eventually civilization will be destroyed in a crazy welter of laws,
taxes, regulations, and the endless proliferation of government into all
phases of human activity. Proof is overwhelming that governments are not
going to stop short at some point and quit implementing new laws. In reality
they're going to continue just as always, passing new ones at the rate of
tens of thousands per year. Can this go on indefinitely? Or is there a
finite number of things that can possibly be regulated? Personally, I'm glad
I won't live long enough to find out.
Why do we need all these laws that the congresses have laid upon us
during the past 200 years? Why, exactly, do we need an institution that
continually creates laws?
What IS needed are guidelines for applying a basic social principle.
Suppose we had no legislatures, no congresses, no senates, no councils - in
short, no gangs of goons continually passing laws supposedly "for the good
of the people." Suppose the implementation of the principle were to arise
spontaneously from the people themselves in the form of jury verdicts.
If each jury verdict were delivered in writing, and included the
principled rationale for that verdict, then the collected verdicts of all
the juries could constitute the "body of law" of the community and provide
guidelines for applying the principle, just as today we consult Supreme
Court cases for legal guidance, and refer to the Common Law, which is made
up of legal principles enunciated by judges in particular cases, and then
followed as precedent.
But notice that there is nothing binding in this corpus. Each individual
jury can decide each individual case solely according to its interpretation
of the principle.
Through such an extension of the function of the Jury, we would truly
have a government "of the people, by the people, and for the people."
* Government is a Mistake
Clearly, the suggestions I offer are not a comprehensive formula for the
establishment of a limited government, but I do think they contain the major
elements that any such formula must incorporate.
But should limited government be the libertarian goal? I think not! ANY
government, no matter how it is constructed, is by its fundamental nature an
evil institution - because the essence of the concept "government" is
coercion. I believe the very idea "government" is a mistake. In the same
category (but with much more devastating consequences) as "flat earth" and
the "geocentric cosmology."
There was once a time when men believed the earth to be flat. As long as
they held to this belief, they could not successfully navigate over long
distances. Only when they had abandoned this belief could they advance and
extend civilization over all the planet.
There was also once a time when men believed the earth to be the center
of the universe. As long as they held to this belief, they were restricted
to a very limited and inaccurate view of reality. Only when they had
abandoned this belief could they acquire a comprehensive knowledge of the
cosmos.
Today, men believe that civilization is impossible without government,
and they give their highest loyalty to their nation. This mistaken belief
has spread misery, famine, and the wholesale destruction of war all over the
earth. Someday in the future, when people stop lying to themselves about the
nature of government, they will achieve the greatness of soul to see a
higher loyalty: reality. They will then recognize the mistake, and
government will be abandoned just as other mistakes have been abandoned. The
scourge of nationalism will recede into history, like other diseases and
errors that have been conquered by advancing knowledge. Only then will it be
possible for men to live together in peace and security.
But the mere removal of government, although a necessary prerequisite for
the existence of social sanity, will not suffice to bring it about. The
absence of a negative doesn't equal the presence of a positive. We can see
evidence of this in Yugoslavia and the regions of ethnic strife in the
former Soviet Union. Just as in the application of any other beneficial
moral or ethical principle, it is necessary to LEARN how to implement social
health. The world has had freedom only by default, never by design. If there
is to be any hope for civilization in the future, a rational social
structure must be created.
The structures of the social institutions, the institutional contexts in
which individuals interact, evolve. I want to present what I believe will be
the next step in this process of evolution by suggesting an alternative to
government, an alternative which would in fact perform the valuable social
function that government merely claims to perform. I will present the
fundamental principle which is accepted by all libertarians, show that even
in a purely anarchic society there would be a need for an explicitly stated
code of behavior, and present an approach to the problems of formulating
such a code.
* Anarchism
Arguments against anarchism:
James A. Kuffel:
Jurisprudence is difficult and complex, and it is farfetched to assume
"competing governments" would deduce exactly the same "laws" in all areas,
not to say in one. Imagine the consequences of various "governments"
attempting to apply different "laws" within the same territory....Equality
before THE law would be impossible, that is, justice would be impossible.
Government may function improperly, taking invasive action on a large scale.
But, as a corollary, it is the only form of organized force which can ensure
the protection of rights on a large scale.
[Kuffel is attacking a straw man. It is not only "farfetched" to assume
different governments would promulgate the same laws, it is obviously false
- as you can easily see by observing the governments throughout the world
today. One need not "imagine" the consequences of various governments'
attempts to apply different laws - one need only observe the plethora of
civil wars continually being waged. To equate Justice with "equality before
the law" is absurd. Justice and Law are only accidentally (and rarely)
related. Government not only "may" function improperly - it always does! And
in fact it has NEVER ensured the protection of rights on a large scale. But
in any case, the argument Kuffel attributes to anarchists is NOT what
anarchists propose! We conceive proper laws as being enunciations of
principles of justice, not as being - as Kuffel implies - the arbitrary
pronouncements of a government.]
Don Ernsberger:
While driving home from work one day, my wife was sideswiped by a
motorist who was in a hurry to return home. After taking her car to the
garage for an estimate, she notified the insurance company (Nationwide) that
it would cost some $112 to repair the minor damages. It was then that we
realized to our horror that the other driver was insured by Allstate
insurance - a rival firm. Demanding that our rights be protected, we pleaded
for action. Nationwide dispatched a squadron of crack troops to the home of
the guilty driver. He, true to form, certainly did not permit rival agents
to enter his home as he distrusted Nationwide. He was able to hold the
Nationwide units at bay for the several hours that it took for Allstate
troops to arrive. Now the two rival firms faced each other across a
battleline. In the conflict which followed, seven were killed and twelve
wounded - but Nationwide carried the day. Out of the charred ruins of his
home the $112 was recovered and we were repayed.
[When did you ever hear of Pinkerton facing off in a gun-battle with
Wackenhut? But in 1861 two rival GOVERNMENTS faced each other across a
battleline, and the result was half a million deaths.]
Ron Heiner:
Each party may attempt to secure the services of whatever court would
favor his point of view and, consequently, there would be the emergence of
courts seeking clients some of whom hold different, antagonistic beliefs and
viewpoints (there might even emerge courts soliciting individuals with
certain religious, political, and moral views along with courts emphasizing
different principles in tort, liability, and contract disputes). The
conflicting parties could also look for protection agencies which would
enforce their views and opinions. Now if one argues that the protection
agencies would force the disputants to abide by the agreements with and the
decisions of the private courts, then one is no longer describing a system
of voluntary interaction but rather a system of coercive interaction
comprised of agencies with the power to defy the wishes of their clients (or
coerce individuals who are not clients who have for some reason antagonized
other individuals who hired these agencies).
[This is an excellent description of the inter-relationships of federal,
state and local courts, each with its own sheriffs and marshals, and we saw
it implemented in practice during the civil rights strife of the 1960s.]
John Hospers:
As for the courts, it seems to me that they would be inclined to render
the most popular verdicts - that is, those that would gain the arbitration
agency the most paid members - and the most popular decisions aren't
necessarily the most just ones.
[As for the elected judges, it seems to me that they would be inclined to
render the most popular verdicts - that is, those that would gain the judge
the most votes - and the most popular decisions aren't necessarily the most
just ones. (See the movie "Miracle on 34th Street" for an excellent
fictional portrayal of this phenomenon.)]
Arguments against competing defense agencies overlook the fact that there
is a de facto state of competing governments presently existing in the USA.
Every area of the country suffers under the burden of at least three
governments, and in some places four: Federal, State, County, and City.
It was the competition between the state and federal governments that
resulted in the Civil War. Has there ever been an instance of Pinkerton,
Wells Fargo, and Wackenhut engaging in armed conflict?
Life under a government is a continual legal civil war, where men gang up
on one another and struggle for possession of the law, which they use as a
club over rivals until another gang wrests it from their clutch and clubs
them with it in their turn. All of them continually clamoring protestations
of service to an unnamed public's unspecified good.
Arguments against competing defense agencies also overlook the fact that
the "useful functions" of government not only can be, but are presently
being performed by private agencies.
Suppose you seek the expertise of a security firm to protect your home.
You discuss the matter with 3 firms, Burns, Pinkerton, and Wells-Fargo, all
offering a different range of services and prices. You decide to hire Burns,
because they offer armed guards.
Is this not competition in the value of protective force? Is not the
force used to repel criminals subject to open-market buying and selling? Is
it not true that force is not only, in this sense, an economic good, but one
in which millions of "trades" are made daily?
"Security firms" (free market firms trading in the "administration of
law" for profit) are not fictional constructs from the anarcho-capitalist's
dream for the future. They are operating now, alive and well. The Cato
Institute proposes laws, or their abolition. The makers of "The Club" deal
in deterrence. Holmes Protection provides guards. The Mutual Detective
Agency investigates crimes. Private bounty hunters apprehend fugitives. The
American Arbitration Association offers adjudication. Corrections
Corporation of Ameria, Inc. makes a profit from incarcerating criminals. In
short, every aspect of functions traditionally considered exclusively
reserved to governments is now being performed privately.
Since there are innumerable free market trades in force daily, force must
be an economic good.
There are two kinds of force: Offensive and Defensive. Anarchists wish to
place only the second of these on the market - and to do so in ways that
will attempt to abolish the first. Statists, on the other hand, wish to
institutionalize the first.
An anarchic society is not a Utopia in which the inititation of violence
is impossible. Rather, it is a society which does not institutionalize the
initiation of force and in which there are means for dealing with aggression
justly when it does occur. The absence of government does not mean the
absence of violence. It simply means the absence of an official, legal,
institutionalized tool for its imposition. The basic thing that all utopian
theories have in common is that they can succeed only if they involve
utopian people. Anarchism does not make this unrealistic assumption about
human nature.
Anarchism is not a form of statism. Anarchists don't want to impose their
value system on anyone else.
Anarchism is not terrorism. The agent of the government - the cop who
wears a gun to scare you into obeying him - is the terrorist. Governments
threaten to punish anyone who defies State power, and therefore the State
really amounts to an institution of terror.
It is an oft-overlooked point that a non-government justice system should
be judged not by whether it can deliver perfection (which no system can) but
by whether it can do better than available alternatives, such as the system
we have now.
Here is what anarchists believe:
Government, which is a form of order arbitrarily imposed on society and
maintained through armed force, is an unnecessary evil.
All governments continually enlarge upon and extend their powers; under
government, the rights of individuals continually diminish.
All governments survive on theft and extortion, called taxation. All
governments force their decrees on the people, and command obedience under
threat of punishment.
The principle of government, which is force, is opposed to the free
exercise of our ability to think, act and cooperate.
Whenever government is established, it causes more harm than it
forestalls. Under the guise of protecting people from crime and violence,
governments not only do not eradicate random, individual crime, but they
institutionalize such varieties as censorship, taxation-theft and war.
Appeals to a government for a redress of grievances, even when acted
upon, only increase the supposed legitimacy of the government's behavior,
and add therefore to its amassed power.
The principal outrages of history have been committed by governments,
while every advancement of thought, every betterment in the human condition,
has come about through the practices of voluntary cooperation and individual
initiative.
No true reform is possible that leaves government intact.
Free people, when accustomed to taking responsibility for their own
behavior, almost always cooperate on a basis of mutual trust and
helpfulness.
People are capable of voluntarily organizing themselves, and the social
order resulting from the voluntary interaction of individuals can meet any
and all social needs without any necessity for coercion.
Every person must have the right to make all decisions about his or her
own life. All moralistic meddling in the private affairs of freely-acting
persons is unjustified. Behavior which does not affect uninvolved persons is
nobody's business but the participants'.
We are not bound by constitutions or agreements made by our ancestors.
Any constitution, contract, or agreement that purports to bind unborn
generations - or in fact anyone other than the actual parties to it - is a
despicable falsehood and a presumptuous fraud. We are free agents liable
only for such as we ourselves undertake.
There are two kinds of anarchist: principled and non-principled. The
critics almost always argue only against the non-principled variety. They
seem unable to perceive the principled kind.
The principled anarchist bases his political beliefs on underlying
ethical principles. The non-principled anarchist is merely somebody who
hates government, not on the basis of ethical principle, but usually merely
as a result of his perception of its inevitable tyranny. The problem with
non-principled anarchy (or any other non-principled belief) is that he who
holds it can be swindled into accepting a disguised form (such as non-
governmental tyranny) of what he opposes, because he does not have a
principled standard of judgment by which to evaluate it.
The account of human history is almost invariably governmental, leaving
little to suggest that a viable anarchist society is possible. But the fact
that an anarchist society has never existed does not mean that one cannot
exist or should not exist.
The fact that no one had ever sailed around the world - because of the
acceptance of the erroneous "flat-earth" belief - does not mean that
Magellan could not or should not have done so.
What we have today that enables the existence of an anarchist society,
for the first time in history, is the Objectivist Ethics. Using this new
truth, we can accomplish things that have never been done before.
* A Covenant for a Union of Sovereign Americans
From CIVIL DISOBEDIENCE by H. D. Thoreau:
"I heartily accept the motto, - 'That government is best which governs
least;' and I should like to see it acted up to more rapidly and
systematically. Carried out, it finally amounts to this, which also I
believe, - 'That government is best which governs not at all;' and when men
are prepared for it, that will be the kind of government which they will
have."
An animal is an animal by nature. It has no choice in the matter. But a
human being must, by nature, CHOOSE to be human. The necessity of choice
arises from the structure of his cognitive apparatus. A part of this choice
is, as an individual, to choose to think - and, as a member of a society, to
choose to live by the non-aggression principle.
We are social beings who can realize our humanity fully only in the
context of community. But the culture of a community, which depends on the
ethos of each individual within the community, can inspire the best in human
beings or the worst. The culture can value - or denigrate - freedom, and
thus either promote or retard its members' capability to realize their
humanity. Thus it is that a person cannot claim to be fully human unless he
acts from the base of non-coercion.
The Objectivist stand is quite clear:
"The basic political principle of the Objectivist ethics is: no man may
INITIATE the use of physical force against others. No man - or group or
society or government - has the right to assume the role of a criminal and
initiate the use of physical compulsion against any man." (From "The
Objectivist Ethics," in THE VIRTUE OF SELFISHNESS.)
It is the initiation of force that distinguishes criminal from non-
criminal behavior, and it is the acceptance or rejection of the non-
aggression principle that distinguishes a civilized human being from a
savage; a libertarian from a statist.
All civilized people, whether they are of the Anarchist persuasion or of
the Minarchist view of social organization, hold to the same basic ethical
principle - the libertarian ethic of non-aggression:
John Hospers: "Libertarianism...is a philosophy of personal liberty - the
liberty of each person to live according to his own choices, provided that
he does not attempt to coerce others and thus prevent them from living
according to their choices."
Ayn Rand: "Both parties hold as their moral absolute that neither exists
for the sake of the other and that reason is their only means of trade."
Robert LeFevre: "I will contend that each individual may rightfully do as
he pleases with his own person and his own property without asking
permission from anyone, and so long as he confines his actions to his own
person or property he cannot be morally challenged. What may he do morally
with the person or property belonging to another? Absolutely nothing."
David Boaz: "Libertarians believe the role of government is not to impose
a particular morality but to establish a framework of rules that will
guarantee each individual the freedom to pursue his own good in his own way,
so long as he does not infringe the freedom of others."
Karl Hess: "Libertarianism is the view that each man is the absolute
owner of his life, to use and dispose of as he sees fit; that all man's
social actions should be voluntary; and that respect for every other man's
similar and equal ownership of life, and by extension, the property and
fruits of that life, is the ethical basis of a humane and open society."
Many Anarchists believe that no explicitly codified statement of the
libertarian principle is necessary, and that no formal system of social
organization is desirable to ensure its implementation.
The Minarchists believe that an explicit statement is very much necessary
(in the form of a constitution) and that society would be impossible without
the existence of a formally-structured social organization possessed of the
monopolistic power and authority to enforce the terms of this constitution.
I disagree somewhat with both positions.
I believe that an explicit and formally accepted statement of the basic
ethical principle is very much necessary.
There is a standard of conduct that must be observed if man is to
flourish in a social context. In order that the members of a society adhere
to this standard, there must exist an explicit and formally accepted
statement of its underlying ethical principles. Anarchists err in
considering Rights, Justice, and other ethical concepts to be market
phenomena. They are NOT market phenomena, although their implementations
can, and should be, market procedures. The ethical concepts denote facts of
reality and therefore cannot be arbitrarily decreed but must be carefully
and accurately identified. Robert Bidinotto pointed out precisely the
mistake underlying the common anarchist position: "anarchists sincerely
believe that they are merely advocating competition in the PROTECTION of
rights. In fact, what their position would necessitate is competition in
DEFINING what rights ARE." Unfortunately, Bidinotto's colleagues, who accept
his argument and reject the idea of rights as defined by the marketplace,
simply turn the coin over and embrace the equally-mistaken idea of rights as
defined by government. I propose the alternative of rights being defined in
principle - according to reason.
Both the statist thesis and the competing-governments thesis are based on
the same premise: that rights are created by society. In the first case by
the government, and in the second by the market. Both these theories of
rights are manifestations of what Rand identified as the social school of
ethics: "The clash between the two dominant schools of ethics, the mystical
and the social, is only a clash between personal subjectivism and social
subjectivism: one substitutes the supernatural for the objective, the other
substitutes the collective for the objective. Both are savagely united
against the introduction of objectivity into the realm of ethics."
(Objectivist Newsletter Feb65)
Rights are like the elements in the Periodic Table. The structure of that
Table results from acts of scrupulous cognitive endeavor. It does not result
from a multiplicity of acts of economic intercourse, nor from the decrees of
a governing congress, no matter how many people it may claim to represent.
See Chapter 5 for a further discussion of rights.
See reference
I am swayed also by Rand's contention that an explicitly held
conceptualization is infinitely more reliable, useful, and enduring than one
that is held in a merely implicit manner. Implicit knowledge is not a
substitute for explicit knowledge. Values which you cannot identify, but
merely sense implicitly, are not in your control. You cannot tell what they
depend on or require, or what course of action is needed to gain and/or keep
them. You can lose them by means of other implications, without knowing what
it is that you are losing or why. And you cannot teach them to your
children!
While a culture results from the actions of individuals, it has its own
reality as an intellectual context within which individuals make choices.
Every society contains a network of values, beliefs, and assumptions, not
all of which are named explicitly but which nonetheless are part of each
individual's environment. Ideas that are not identified overtly but are held
and conveyed tacitly are difficult to question - precisely because they are
absorbed by a process that largely bypasses the conscious mind. Most people
possesses what might be called a cultural unconscious - a set of implicit
beliefs about reality, human beings, good and evil - that reflect the
knowledge, understanding, and values prevalent in a historical time and
place. Unless these implicit beliefs are brought to the forefront of the
mind and explicitly identified, they can be extremely difficult to change,
and they cannot be institutionalized.
Other scholars also realize the need for a formal statement of
principles:
Rose Wilder Lane: "I think there is a natural necessity for a civil law,
a code, explicitly stated, written and known; an impersonal thing, existing
outside all men, as a point of reference to which any man can refer and
appeal. Not any form of control, for each individual controls himself; but a
law, acting as a nonhuman third party in relationships between living
persons; an impersonal witness to contracts, a registrar of promises and
deeds of ownership and transfers of ownership of property; a not-living
standard existing in visible form, by which man's acts can be judged and to
which men's minds can cling."
Ayn Rand: "Even a society whose every member were fully rational and
faultlessly moral, could not function in a state of anarchy; it is the need
of objective laws and of an arbiter for honest disagreements among men that
necessitates the establishment of a government."
Robert James Bidinotto: "In any society, human life and well-being
mandate that there be a set of objective procedures to distinguish
aggression from self-defense, and some way of imposing the final verdicts
upon the victimizers on behalf of the victims."
Joel Myklebust: "'The market will handle it' amounts to little more than
a disguised form of majority rule. That the identification of justice is not
a market function seems clear from the fact that, given a demand, the market
will supply murder, theft, and arson, in addition to protection. It will not
determine right and wrong, it only reacts to supply and demand. Any attempt
to deal with complex problems of right without recourse to basic ethical
principles is hopeless."
Murray Rothbard: "In my view, the entire libertarian system includes: not
only the abolition of the State, BUT ALSO the general adoption of a
libertarian law code."
John Hospers: "They (private protection agencies) should be able to
enforce only THE LAW OF THE LAND... - a body of law already enacted, and
known in advance, so that one would forsee the consequences of any
violation. In other words, laws should...be ENACTED by the state, even
though the ENFORCEMENT of them might be left to private agencies."
Brick Pillow: "I agree with you that people should solve their own
problems....But at some point, if there isn't a peaceful procedure to settle
the dispute, it will be settled without being peaceful, and quite possibly
the violent solution will not be a just solution. What I envision is
that...when the antagonist refuses to yield, decent folks will need an
authority that they can turn to....Of course, this presents the next level
of perplexing problem: What prevents our pristine Justice League of America
from exceeding its mandate, from becoming as evil as the government it
replaces?"
Nicholas Raeder: "It makes no difference whether the consumers desire
automobiles, frozen foods, heroin, murder or censorship; if allowed to do
so, the market will provide them. The market is not a slave to the good of
the individual, and it does not dispense justice. The market follows desire.
It will act rationally in fulfilling desires, but it is the desires of the
consumers that it follows.... Neither human nature, rights, justice nor
rationality are market phenomena. The actions of the market, as well as the
actions of every individual within the association, must be in adherence to
a certain standard of conduct in order to make justice and the exercise and
protection of human rights possible."
These are indeed powerful arguments for a need to establish some code of
basic principles, existing in visible form, codified and publicly known - a
code that would produce a set of instructions for civilized life and
indicate the direction toward which the men and women of good will should
choose to strive.
Given that volition is a first cause, man must choose to invest human
relationships with causality. Socially, the need for tranquillity requires
that man impose lawfulness - reliability - upon the apparent chaos of human
relationships. He requires an ethics of non-contradiction - the knowledge
that his rights will be protected from violations. A contract is one way in
which man imposes order on the apparently chaotic in that if the parties can
rely on each other, they can plan long-range. They can foretell otherwise
unknown futures.
The problem is one of providing a social organization that can
effectively combat aggression and ensure the rights of the people, but which
will not itself be able to encroach upon non-aggressive citizens. An
arrangement of such a nature that a libertarian anarchist would have the
OPTION of ignoring it completely, whilst de facto still living within its
jurisdiction. It would have to assert no influence over, nor contact with,
his life at all - so long as his behavior was non-aggressive.
What we must strive for is an arrangement wherein the necessary power (to
combat aggression) is so balanced against other, independently existing,
power (to prevent encroachment) that the probability of its misuse becomes
as small as it can be got. Can this be done by means of a government? Either
a constitutionally "limited" government, or several government-like,
competing defense agencies? I think not.
When I examine the idea of government and contemplate the nature of
governments as they have existed and do exist in the world, I see their
fundamental distinguishing characteristic to be "the strongest group of
aggressors in a given area at a given time." Herein lies my objection to
both the Minarchist proposal for a government limited by a constitution, and
the Anarchist proposal for competing defense agencies. In fact, there is no
limit to the power of a gun except another gun. A constitution cannot limit
the power of an armed group that chooses to ignore it. A "limited"
government would in fact be limited only if its members chose to adhere to
the constitution - and as we Americans have seen very well, this is no real
limit at all. LeFevre observed that "experience over the past ten thousand
years reveals clearly that governments are never limited." I think it
inevitable that any "limited" government would eventually become a tyranny.
I am strongly opposed to any social organization that has a monopolistic
power to compel - no matter what formal documentary restraints may be placed
on such an organization. There is a good deal more promise in the Anarchist
"competing defense agencies" scheme, but it too is open to such a
degeneration if one (or a consortium) of the defense agencies should become
"the strongest group." The Anarchist proposal is further flawed by the fact
that political power rests on an exclusive authority over the military and
police. (Exclusivity is mandated by certain "either-or" issues such as
whether or not a man - or merchandise -will be allowed to cross a border;
whether or not a given behavior is illegal.) Because this authority is
exclusive, two independent governments cannot permanently share a single
geographical jurisdiction.
There is a fundamental structural flaw in the American Constitution: the
principles upon which the government of the United States was based, as well
as the plan for the construction and operation of the government were
contained in the same document. To allow for the possibility of future
improvements there was a provision placed in the document allowing it to be
amended. This provision left the basic principles upon which the government
was founded also open to alteration.
Obviously the PURPOSE of governance should not be changeable, but on the
other hand, the MEANS used to fulfill this purpose must be changeable so as
to take advantage of new, more efficient technology and to correct errors.
When Jefferson prescribed a revolution every few decades, he spoke not
only politically but also about the need to remain flexible, ready to adapt
to changing circumstances - to innovate at need, while at the same time
staying true to those values we hold unchanging and precious.
To permanently fix the purpose of governance, it is necessary to state
the purpose in a binding form that cannot be altered or eliminated short of
revolution. Once this binding form is enacted, and the purpose of governance
thereby fixed, one can turn to constructing an agency to carry out this
purpose. But these two things, Purpose and Agency, should be explicitly
recognized as two separate phenomena. Thus governance should have two
foundation stones, rather than one: a fixed and immutable statement of
purpose - and an amendable implementation of that purpose. This "statement
of purpose" could then serve as a standard against which to judge the "means
of implementation." As things are now in America, there is no principled
standard against which to judge Amendments made to the Constitution, or the
practices by which the Constitution is implemented.
I believe the best, and safest, arrangement would be a modification and
linking of BOTH the Anarchist and Minarchist ideas into a scheme that would
place that ultimate power DIRECTLY into the hands of the individual members
of society. I believe, with Jefferson, that there is "no safe depository of
the ultimate powers of the society but the people themselves." I am NOT,
however, an advocate of majority rule. I do not mean "a majority of voters,"
I mean each and every citizen.
It is claimed that a constitution limits a government. What is it that
gives a constitution its power? Nothing but the behavior of the people who
have chosen to abide by its specifications. A statement of authority,
according to which a country is governed (such as our Constitution), is only
as valid - as faithfully enforced - as the fidelity of those individuals who
implement it. Thus the Constitution of the USA is implemented only to the
extent of the honesty, competence and reliability of those who have taken
the oath to "support and defend the Constitution of the United States
against all enemies, foreign and domestic." The foundation of our
government, in its actual implementation, lies in the behavior of those
individuals who have taken this oath.
The ultimate democracy would be one in which all adult citizens have
taken such an oath, in just the same way as physicians take the Hippocratic
Oath. Carl Sagan approached this view when he lamented, "I wish that the
Pledge of Allegiance were directed at the Constitution and the Bill of
Rights rather than to the flag and the nation." I would go a step further
and advocate a confirmation ceremony such as the Bar Mitzvah, passed through
by each person as he or she becomes a fully-adult participating citizen of
the society. A ceremony in which an oath of fidelity would be taken, NOT to
an institution or to a document, but to a clear and explicitly stated set of
ethical principles. An oath expressed in the form of a contract between the
individual and the community in which he lives; a formal social statement
that would specify a libertarian restraint on individual behavior; a
statement making explicit the principle of non-aggression as the foundation
of social organization and interconnecting the individual to the
organizational structure of society in such a manner as to commit him to
support, uphold and manifest this ethical principle in his social
relationships; an oath that would make the individual consciously aware of
his responsibility to ensure the perpetuation of a free society. This oath
would be a Covenant formally establishing the principled basis of
relationships among individuals, rather than a Constitution setting up a
potentially dangerous coercive institution. It would establish a society
based, not on command and coercion, but on consent and contract.
I envision the Covenant as a "statement of purpose." It would state
ethical principles, but not deal with the specific implementation of those
principles. The Covenant would be an absolute, not open to amendment, but
any accompanying Articles of Implementation would be amendable so as to
accomodate technological and social changes in the culture. Thus there might
be several institutions (defense agencies among them) established for the
implementation of the principles, but each agency, as an organized
institution, would be bound by the Articles of Implementation. And each
agent, as an individual citizen, would be bound by the principles of the
Covenant.
The next step in this line of endeavor is, of course, to formulate such a
covenant. Here there are two basic problems. One is to conceive the
structure of a libertarian society and embody its principles in a specific
statement - the other is to establish a transition procedure that would
carry us from the presently existing state of affairs into that libertarian
society.
A procedure should be established whereby the new society can grow from a
small kernel. My suggestion is to establish an association similar to
something like the Black Muslims or the Quakers. This would be an inward-
directed society that withdraws as much as possible from participation in
the coercive world and in which each member lives as much as possible in
accordance with the ethical principles of the Covenant. I propose the name
"Union of Sovereign Americans" as a label for this association.
I envision the long-term goals of The Union of Sovereign Americans as
being the perpetuation of the libertarian ethic, being the seed of a new
society, (either to replace the present one if it should collapse, or
perhaps growing through time to the extent that it would extinct the present
one) and being a social group in which people of good will could find
companionship.
To begin the Union of Sovereign Americans there must exist a Covenant and
some guidelines (Articles of Implementation) on how to live one's personal
life in accord with the principles of the Covenant.
"THE GALLATIN DIVERGENCE" by L. Neil Smith (Ballantine book #30383)
contains a covenant, (fictionally proposed by Albert Gallatin at the time of
the Whiskey Rebellion and resulting in a complete alteration of the course
of history). This covenant has been extracted from the book and widely
circulated with a provision for registry of all signatories. It has been
signed by dozens, if not hundreds, of people. But I observe something of
critical importance regarding this covenant: in Smith's fictional account,
the signing of the covenant always resulted in a profound change in the life
of the signatory, because the people in Smith's story actually lived their
lives according to their professed principles. However, in the real world of
the present time, I am not aware that the behavior of any person has been
changed in any way as a result of having signed Smith's covenant. The
signatories simply continue their previous lives - working to support
government (and in some cases working FOR government) - with no causal
connection between their stated principles and their daily behavior. This is
not the fault of Smith's covenant, and I am not criticizing that covenant. I
criticize the lack of integrity in the lives of modern-day people. This same
lack of integrity is seen in Randites (who explicitly disapprove of
Shrugging), and in many of those who take the non-aggression oath of the
Libertarian Party: "I certify that I do not believe in or advocate the
initiation of force as a means of achieving political or social goals."
These people grumble about the condition of the society they live in, but
few of them choose to take the only effective path open to them for societal
change: the transformation of their own lives.
So what can be said of any kind of covenant or oath that requires no more
of a signatory than a mere verbal assertion? The world is filled with
hypocrites! Is a man who works as a drug-law enforcer really an advocate IN
PRACTICE of personal freedom and moral self-responsibility? (Could a priest
be a practicing abortionist?) Not hardly. How can you claim to be one of us
when you serve our enemies more than you serve our cause? Such a person
would not be a suitable member of The Union of Sovereign Americans. One must
not only assert fidelity, but also practice fidelity. One must establish a
lifestyle suitable to the set of ideas he professes. My point is that no
oath of allegience to any principle would preclude people for whom there is
no connection between principle and practice (This is why the American
Constitution has been betrayed over the course of two centuries). I believe
that to be successful the Union of Sovereign Americans must involve a whole
way of life - not just an oath. It must involve the learning of a set of
ideas and the practiced application of those ideas in one's life. It must
include not just an embracing of the libertarian ethic, but a resolve to
combat - or at least withdraw support from - the coercive aspects of the
society we live in.
My own belief is that a good place to begin would be with the act of
Shrugging that Rand proposed. This would be a way to separate those who
merely pay lip service to freedom while continuing to support the status
quo, from those who are really serious in their intention to devote their
lives to the practice of freedom.
This statement of principles might be a good starting place for the
formulation of the Covenant:
"Each individual is an end in himself, not a means to the ends of others.
Each has the right to use and dispose of his own life and his own property
as he sees fit. The only real crimes are those activities which separate
people from their rightfully achieved values without their voluntary
consent. The only proper use of force is in response to coercion. I will
never initiate the use of force or fraudulent dishonesty, I will never
tolerate the initiation of force by other people, and I will recognize the
desirability of helping to keep my community free from coercion by assisting
other people in preventing coercion and in defending the right of each
individual to resist coercion. I will condemn any person or association
acting to contravene this principle and will have no dealings with them, and
upon all occasions treat them with the contempt they deserve."
It has been almost 30 years since I Shrugged in 1965, and after all those
years of watching the Libertarian Party and the various new country/enclave
projects, I am convinced that there is no seed population within the present
culture of America that can give rise to the scheme I envision. The process
of cultural value-deprivation has gone on too far for there to be any
significant number of people willing to drastically alter their lifestyles
to accomodate "mere philosophical principle." They are so immersed in
fantasies that they are blind to the existence of any rational morality and
ethics.
Thus, I do not know what to propose as a practical implementation of the
ideas I have presented. I don't see any real present use for them, but have
written them up and will circulate them in the hope that they will be
preserved for some future generation to whom they might have some functional
significance. All I hope to accomplish is to create an atmosphere within
which the times might have the possibility of change.
"Libertarians have one thing going for them that others lack: they are in
tune with reality. Human beings are all that really count and libertarians
know that. A man and his wife drinking coffee at the kitchen table, an old
woman warming herself by the fire, a child playing in the mud: these are the
only reasons governments should exist. All the giant industries and
superhighways, all the wonderful technology and fabulous medical knowledge,
everything that seems to stand so loftily above us is only there to serve
these people and their desires. One of these days, people are going to
understand what is real and what is illusion and that is the day when
anarchy will triumph." ... Allen Thornton
"From the conclusion of this war we shall be going downhill. It will not
then be necessary to resort every moment to the people for support. They
will be forgotten, therefore, and their rights disregarded. They will forget
themselves but in the sole faculty of making money, and will never think of
uniting to effect a due respect for their rights. The shackles, therefore,
which shall not be knocked off at the conclusion of this war will remain on
us long, will be made heavier and heavier, 'til our rights shall revive or
expire in a convulsion." ... Thomas Jefferson
Men, women, of every nation, every race and condition: how much longer
are you going to let yourselves be used? When are you going to tell your
rulers, "Enough!" and claim the right to live your own lives? If you
continually cling to government you are ensuring your own doom. The thing
you worship is destroying itself, and when it is gone you will perish
because you will not know how to live without it.
On to Chapter 9
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