Back in the 1990s Roderick Long undertook what I consider to be a very worthwhile project to create a constitution that would appeal to both anarchists and minarchists. In my discussions with people, I’ve found that almost no one has heard of it. So it is my intent with this post to resurrect the idea and hopefully start a productive conversation between both camps.
Why A Constitution?
Let me state upfront that I decidedly come down on the anarchist side of the debate. Given that, it may be surprising that I am pushing a constitution. To many, the term “libertarian constitution” is an oxymoron. But let us consider that it is usually said that there are two types of constitutions — written and unwritten. The United States is usually presented as an example of a country with a written constitution. The United Kingdom as an example of one with an unwritten constitution. What most anarchists have in mind with anarcho-capitalism is something along the lines of an unwritten constitution. That is, there is still a legal system, laws, courts, enforcement mechanisms etc, all of the elements that are typically defined by a constitution, but they are instead the byproducts of custom, competition, and incentives. There is no reason, however, why we couldn’t have all of those elements behaving in the same way, yet codified into a formal written constitution that addresses the concerns of minarchists. That is more or less going to be the proposal that follows.
Before we continue, let’s consider why having a constitutionally defined system of governance may be more preferable (at least in the present) to pure anarchy:
- The vast majority of people are not anarchists and it doesn’t seem like they’re going to be in our lifetimes. Social scientists who have spent their entire lives studying markets and institutions may be able to confidently state that anarchy will work, but to the average person (even those sympathetic to libertarianism) the perceived risk of failure is too great. Having a document that clearly defines how the system is going to work may help to get them over their concerns. Most people would probably still think of it as “government”, thus we don’t need to convince them to become anarchists. There’s reason to believe that this system could be implemented at a much lower population density of anarchists than would be needed for pure anarchism.
- If we ever do take over, it would nice to have some kind of consensus on what type of system of governance should be implemented . It would be a tragedy if we got that close only to have it all fall apart because of libertarian infighting.
- There’s reason to believe a libertarian nation would need some kind of way of interfacing with foreign governments. In the absence of any formal governmental structure, foreign governments may view the territory as “lawless” and seek to invade to “impose order”.
So while I find pure anarcho-capitalism to be the most preferable social system in the long run, I tend to think that some sort of hybrid system may be more preferable as short run alternative. If done correctly, such a system could serve to demonstrate the viability of a polycentric legal order and make people more susceptible to the idea of pure anarchy.
The Problem of Constitutional Government
Both theory and history suggest that a constitutionally limited government is not possible. We don’t have a single example of a limited government in the entire history of the human race. Some like to point to the early United States as such an example, but I would submit that the U.S. government was never limited. It was small as one point in time, but not limited. George Washington signed bill into law creating a central bank despite not being authorized to do so by the constitution. The next President, Adams, passed a Sedition Act making it illegal to criticize the President despite it being a blatant violation of the first amendment. These are not the actions of a limited government. And, of course, it just got worse from there.
The public choice school in economics goes a long way explaining why this is the case. Politicians, bureaucrats, and voters respond to incentives and drive us towards more and more centralization. Constitutions in this regard are nothing more than words on a piece of paper — a wish list. There are no consequences for a government that fails to follow it’s constitution. Any checks and balances that exist are simply internal constraints that rely on the benevolence of politicians. There are no external constraints on power.
Some minarchists suggest that constitutionally limited government ultimately requires informed, vigilant voters to restrain government. For those who believe this I would point you Bryan Caplan’s The Myth of the Rational Voter. In short, this argument bumps up against another public choice problem: The costs for voters to inform themselves are typically greater than the benefits. That is, the acquisition of political knowledge is a classic public good. Hence, any system of government that requires informed voters to function will fail.
All libertarians should be familiar with Lysander Spooner’s admonition:
But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.
Institutional problems such as those identified by the public choice school require institutional solutions. For all the reasons mentioned, a traditional governmental structure just isn’t going to cut it. To guarantee that the legal system remains confined to protecting people’s rights and adjudicating disputes, we must bring external constraints into play. Doing this will require decentralization. For minarchists, I ask you to consider the following thought experiment: We all should be familiar with the basic idea of federalism. If the central government remains limited, people will be able to “vote with their feet” and competition among the state governments will flourish. Any state that abuses its authority by overtaxing or over regulating will lose population to other states, reducing its tax income and power. So there is a definite sense in which this competition serves as a check on power. And we see this play out in practice, states like California and New Jersey are hemorrhaging population.
The problem here is that while competition among 50 states is certainly better than centralized government, the competition isn’t nearly strong enough to provide an effective constraint. Notice how there aren’t any libertarian states either. The reason is that the costs of switching jurisdictions frequently outweigh the benefits. To move to a different state you must put your house on the market, take your kids out of their school, leave your job and find a new one, and move far away from your friends and family. For many people, these costs are just too high to justify moving. The further away you have to move, the higher the costs of switching jurisdiction. For example, my state, New Jersey, faces stiff competition from Pennsylvania and New York (well maybe not New York), but very little competition from Alaska. I may prefer the laws of Alaska much more than New Jersey, but the costs of moving there are astronomical to me.
What if we just decreased the size of the jurisdiction? For example, Jefferson believed the optimal size of the political unit was six square miles. Certainly this would significantly increase competition while simultaneously increasing representation, but it still isn’t perfect. Switching costs would still be fairly high and now you start to bring economic inefficiencies into play due to lack of economies of scale. What if there were a way to bring switching costs down to zero while eliminating the problem of scale economies? The logical way to do this would be to simply deterritorialize the jurisdictions. Rather than having one jurisdiction per territory, we would have overlapping competing jurisdictions. People could then switch jurisdiction without changing residence. Switching costs would be driven down to zero and competition would be maximized. There is, after all, no reason why jurisdiction has to be tied to territory. It exists this way largely as a remnant of the origins of government in conquest and exploitation. Someone might find it odd that you could be member of one jurisdiction and your neighbor a member of another, but this really isn’t any different than if a municipal border were to run between your houses.
The New Constitution
The basic governing unit under this new constitution would be a Canton (Roderick pulled this term from the Swiss Confederation of Cantons which was part of the inspiration). Cantons would be the equivalent of municipal governments except that their jurisdiction would not be territorial. Each Canton would be free to determine its bylaws or political constitution, hold elections (if it feels they’re still necessary), and make laws as it sees fit provided that these laws are only binding on its members. People would chose their Canton membership and would remain free switch Cantons at any time.
I’m going to pause at this point and mention that the only other major attempt to create this type of polycentric legal system was the Icelandic Free State which lasted from 930-1262 AD. As far as political systems go it was a resounding success, lasting for over 330 years. Longer than most governments and longer than the U.S. Constitution will most likely last. The lessons learned from the ultimate breakdown of this system can serve inform our new constitution. While the basic political jurisdictions in Iceland were, in fact, overlapping, there was no viable mechanism for creating new jurisdictions. As jurisdictions merged over time, no new ones replaced them. Eventually, the Icelandic legal system became territorialized and the country fell into civil war.
For our system to avoid the same fate, we have to allow people to create new Cantons at their own discretion. To put it another way, there needs to be free entry and exit. To the anarchists reading this, it should be clear by now that the Cantons are more or less identical to the “protection agencies” envisioned by most anarcho-capitalist theorists. To the general public, however, they are nothing more than municipal governments.
Now the primary concern Minarchists have about this type of system is that various Cantons will not be able to resolve their disputes with each other without violence or warfare. As I wrote before, I think there is reason for optimism in the regard. We will resolve this by allowing each Canton, regardless of size, to send one representative to a National Assembly (a Parliament, a General Court, whatever you want to call it). The Assembly’s primary role will be the adjudication inter-canton disputes, in the last resort, where no prior arbitration exists. Thus, we create a fallback mechanism in case the Cantons cannot effectively resolve their disputes. It will also have the authority to manage the nation’s foreign affairs (and common defense if you want to give it that power). The assembly will select the President who would then serve as head of state and the top diplomat.
We have to be careful, however, that the National Assembly doesn’t usurp power and become a new government. This is where I will part with Roderick’s draft of the constitution. He grants the Parliament (his term) full legislative power then attempts to limit it through supermajority voting requirements, enumerated powers, a bill of rights, etc. While all those things are good, for the reasons I listed before, I don’t think they will actually work to limit the central government. If this constitution is going to fail, it will be because the National Assembly will start passing laws and attempting to enforce them. To prevent this, I would completely strip the National Assembly of all legislative power. There’s a joke among libertarians that the first amendment to the U.S. Constitution should have read: “Congress shall make no law — period.” I agree. I would make it abundantly clear that any legislative, regulatory, or enforcement powers lie exclusively with the Cantons where they are subject to competitive pressure. The National Assembly’s authority would only be judicial and even then it shouldn’t be able to overturn binding arbitration where both parties have consented. It should be noted that the assembly doesn’t need legislative power perform the functions I’ve described. Consider NATO as an example. Believe it or not, there is a NATO Parliament. Yet, we don’t worry about this parliament passing universal health care legislation or gun control since it isn’t a legislative body. It is merely there to provide oversight and direction as it relates to NATO affairs. We could think of our National Assembly as functioning the same way, like a board of directors for the courts and state department (or military/militia if there is to be one).
The only other aspect to be worked out is how the National Assembly will be funded. You could go with the Articles of Confederation model where each state remitted funds to the Continental Congress. That seemed to provide a pretty good check on power as states simply refused to remit funds when they thought the Congress would just waste them. Although people did start bellyaching when the Congress wasn’t adequately funded which gave rise to calls to scrap the articles in favor of the constitution.
In his constitution, Roderick Long defines a citizen as one who has literally signed and consented to the constitution. Citizen’s are given some limited voting rights and in exchange they are obligated to pay taxes to the national assembly (separate from the Canton membership fees). A person would be free to renounce his citizenship at any time and reclaim it later at his choosing. Thus, taxation is essentially voluntary. The cool thing about this approach is that it creates a genuine social contract based on explicit consent, not some bogus implied consent or tacit consent or hypothetical consent.
So what we end up with is a constitution that combines the best parts of anarcho-capitalism with the more formal institutional safeguards that minarchists desire to bring about a vibrant, flourishing, libertarian social order. Attached at the bottom is draft of what such a constitution could look like. I wouldn’t expect you to read it and agree with it 100%. The more important part is the framework described above. The actual text is just flushing out the details. Also note that maybe 90% of this constitution was written by Roderick Long while maybe 10% of it are my edits. Also, I needed a placeholder for the name of this libertarian country. Since I have signed the Free State Project pledge, I figured it appropriate to use New Hampshire as the placeholder.