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KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021)

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Kinsella on Liberty Podcast, Episode 359.

From the recently-concluded Fifteenth Annual (2021) Meeting of the PFS, Bodrum, Turkey (Sept. 16–21, 2021).

For others, see the links in the Program, or the PFS YouTube channel, including the growing PFS 2021 YouTube Playlist. Additional media of the proceedings will be released presently.

For a similar talk, see KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021).

The followup panel discussion later that day is here:

My notes are below:

State Constitutions vs. The Libertarian Private Law Code

Notes

Stephan Kinsella

Property and Freedom Society Annual Meeting

Sep. 19, 2021 – Bodrum, Turkey

 

Joke: I’ve prepared a libertarian constitution, and I hope to cover as much of its 18 parts and 45 pages as possible in the next half hour.

Part I, Section A, Subsection 1: “Definitions.”

Just kidding. I’m not going to read it. I haven’t even finished it yet. My wife said “is this what you geeks think is funny?” I said we’ll see. Half of them may be relieved, but some of them will be saying “Oh damn, I wanted to hear a Libertarian Constitution read to me.”

Tell Hoppe Porcfest choking joke.

I’m going to talk about the idea of constitutions and libertarianism—whether the idea makes sense at all.

Since I’ve been a libertarian in the early 1980s, I’ve seen various utopian libertarian projects, many of them scams, most of them failures—

  • cruise ship nations, now seasteading (Blueseed);
    • Oceania—The Atlantis Project
    • Same people: Project Lifeboat: “From the people who brought you the Oceania project so many years ago comes the Lifeboat project. An attempt to create a spaceship for the purposes of saving the human race from the singularity predicted by Vernor Vinge.”
  • crazy guys homesteading abandoned oil rigs and declaring sovereignty;
  • private justice, arbitration, and common law groups;
    • The “Creative Common Law” project (Jamin Hubner), an anarcho-capitalist project in which I was enlisted as an advisor, only for it to later turn from “Creative Common Law 1.0: Anarcho-Capitalism” to “Creative Common Law 2.0: Anarcho-Socialism/Syndicalism”
      • Always be wary of “Waystation libertarians”
    • Tom Bell’s “Ulex,” or “Open Source Legal Operating System”;
    • LiberLand, which I helped draft an early constitution for
    • Galt’s Gulch Chile, a scam that ended in disaster;
    • the Honduras special economic zones;
    • General Governance (David Johnston), the idea of leveraging Indian tribes’ special status to extend their federal tax-free enclaves or zones;
    • even the Free State Project
    • National Constitution Center’s “The Libertarian Constitution
    • Roderick Long’s “Imagineering Freedom: A Constitution of Liberty Part I: Between Anarchy and Limited Government” and Michael Darby’s “Draft Constitution for a Reviving or New Nation,” both at http://freenation.org/a/
    • Dennis Pratt https://www.quora.com/What-would-a-libertarian-bill-of-rights-look-like/answer/Dennis-Pratt-3
    • Siegen, Bernard H. (1994) Drafting a Constitution for a Nation or Republic Emerging into Freedom. 2d ed.  Fairfax, Virginia: George Mason University Press.

I’ve been dragooned into helping some of these as consultant or advisor—

  • General Governance, we met with Indian tribe north of Texas; now you get a 404, as David Johnston moved on to bitcoin, after assuring me that within 6 months we’ll have a libertarian nation.
  • Joel Bomgar, a libertarian-leaning conservative Christian businessman and Mississippi legislator.
  • LiberLand (swam with Wit Jedlicka, the president, in Turkey) Mediterranean sea.
  • Others I’ve forgotten.

Often these projects involve the drafting of a new “Constitution” or some similar code or legal document.

Why do we even use the word “Constitution”?

The modern libertarian movement originated in the US in the 1950s with the work of Ayn Rand, and others—Milton Friedman, Leonard Read, Ludwig von Mises, Murray Rothbard, and we’ve always viewed the American Founding and related documents—the Declaration of Independence, the Constitution, the Bill of Rights, Statue of Liberty, The Liberty Bell—as quasi-libertarian.

Consider the scene near the end of Atlas Shrugged, where wise judge Narragansett “sat at a table, and the light of his lamp fell on the copy of an ancient document. He had marked and crossed out the contradictions in its statements that had once been the cause of its destruction. He was now adding a new clause to its pages: ‘Congress shall make no law abridging the freedom of production and trade . . .’”

Or “The Libertarian Constitution” by Ilya Shapiro, Tim Sandefur, and Christina Mulligan: “This was probably an easier project for us than for our conservative and progressive counterparts because the current United States Constitution is fundamentally a libertarian or, more precisely, classical liberal document. So much so that, at the outset, we joked that all we needed to do was to add “and we mean it” at the end of every clause.

Others have proposed various amendments to the Constitution that would “fix” or improve it. I’ve done so myself:

  • Reviving the Kentucky Resolution of Jefferson and give states the power to nullify unconstitutional acts of the feds.
  • Allow States to overturn Supreme Court decisions:
    • Amendment proposed by Marshall de Rosa:
    • “When: a national majority of each State’s chief judicial official declares a decision by the U.S. Supreme Court to be inconsistent with the U.S. Constitution, the said decision shall thereby be negated and precedent restored. The States’ designated chief judicial officers shall convey their declarations to the U.S. Solicitor General, who in turn will notify the Chief Justice of the U.S. Supreme Court to take appropriate measures consistent with this amendment.”
    • As DeRosa explains, this would allow controversial Supreme Court decisions to be overturned “more expeditiously and competently” than at present. The states would not have to “resort[] to a cumbersome amendment process or the national congress that is significantly detached from states’ interests.” Also, the amendment would have a chilling effect on the Supreme Court, making it more reluctant to issue unreasoned or unconstitutional decisions, just as lower courts are reluctant to issue decisions that may be overturned by higher courts. In essence, this amendment would “heighten popular control over unenumerated rights jurisprudence, and to that extent a significant portion of originalism would be recovered.”
  • Because legislation is a dangerous and pernicious way to “make” law, I would support an amendment requiring supermajority requirements for any statutes at all to be enacted (even in states) [See KOL001 | “The (State’s) Corruption of (Private) Law” (PFS 2012)]
  • Limit any statute to replace a single judicial decision.
  • Requirement to cite the specific grant of authority in any federal statute.
  • Sunset provisions that automatically repeal any legislation after a given time, if not renewed (statutes expire unless renewed)
  • Jury trial in ALL cases, even civil.
  • Jury nullification (FIJA)
  • Another Amendment proposed by Joseph Sobran: “Any state may, by an act of its legislature, secede from the United States.”
  • Right to emigrate
  • Repeal the incorporation doctrine
  • Explicit recognition of the power of concurrent review (each branch can “veto” laws it things unconstitutional)
    • e., eliminate judicial supremacy (sometimes confusingly referred to as “judicial review”), the idea that the Supreme Court is the sole and final arbiter of the Constitution and constitutionality. Instead, the original scheme of separation of powers required concurrent review, sometimes referred to as Jefferson’s tripartite theory of constitutionalism. Under concurrent review, each branch (executive, legislative, judicial) has an equal right to determine the constitutionality of government action.

But there are problems with trying to write a “perfect” or “libertarian” Constitution.

First—the purpose of a “constitution” is to constitute—to compose or form, to make or create.

The purpose of the US Constitution was to create a new, centralized, powerful federal government, not to protect rights.

  • Yet libertarians still worship the US Constitution and the ideas and sentiments of the Founding generation. As noted, some of them think it’s nearly libertarian and just needs a bit of tweaking to be “perfect.”
  • Women and blacks didn’t have rights, Native Americans were massacred and robbed, the War for Independence conscripted slaves and poor whites and executed deserters and benefitted mostly white male landowners, George Washington took teeth out of slaves’ mouths to make his false teeth, and the Constitution set in motion a new, powerful central state that has become the most powerful and dangerous entity in world history.
  • The US Constitution was part of a centralizing coup. It was not libertarian at all.
    • Hoppe “pin drop” –
    • Lew Rockwell, A Life of Ideas: “I recall when he spoke at a conference we held on American history, and gave a paper on the U.S. Constitution. You might not think that a German economist could add anything to our knowledge on this topic. He argued that it represented a vast increase in government power and that this was its true purpose. It created a powerful central government, with the cover of liberty as an excuse. He used it as a case in point, and went further to argue that all constitutions are of the same type. In the name of limiting government—which they purportedly do—they invariably appear in periods of history when the elites are regrouping to emerge from what they consider to be near anarchy. The Constitution, then, represents the assertion of power.
    • When he finished, you could hear a pin drop. I’m not sure that anyone was instantly persuaded. He had challenged everything we thought we knew about ourselves. The applause was polite, but not enthusiastic. Yet his points stuck. Over time, I think all of us there travelled some intellectual distance. The Constitution was preceded by the Articles of Confederation, which Rothbard had described as near anarchist in effect. Who were these guys who cobbled together this Constitution? They were the leftovers from the war: military leaders, financiers, and other mucky mucks—a very different crew from the people who signed the Declaration of Independence. Jefferson was out of the country when the Constitution was passed. And what was the effect of the Constitution? To restrain government? No. It was precisely the opposite, just as Hoppe said. It created a new and more powerful government that not only failed to restrain itself (what government has ever done that?), but grew and grew into the monstrosity we have today. It required a wholesale rethinking of the history, but what Hoppe had said that shocked everyone turns out to be precisely right—and this is only one example among many.”
      • Excerpt From: Hans-Hermann Hoppe. “Property, Freedom & Society.” Apple Books.

A libertarian constitution is a contradiction in terms.

And it’s futile expect paper limits to prevent the state from violating our rights, since the state has a monopoly and the state itself (via its courts) interprets its own limits. (Hoppe)

Joe Sobran: What we need is an amendment forbidding the circumvention of the Constitution.  It could read: “The Constitution shall not be circumvented.”  I just got a big laugh from any lawyers who may be reading this.

I like how libertarian sci-fi novelist L. Neil Smith, in his alternate history novel Tom Paine Maru, uses “Constitution” as an epithet or swear word: “’Constitution, Lucille,’ It was the first time that I had sworn in Confederate.”

So what do we mean by a libertarian constitution? It’s impossible to tweak them to meaningfully limit the state or to create a minimal state. And any state is unlibertarian, and that’s essentially what constitutions are.

What do we need? Any free society needs law—private law based on libertarian principles.

So there is a need to identify and clarify our basic libertarian principles, and for law to develop to implement and apply these principles.

See Rasmussen & Den Uyl on rights as “meta-norms”

Randy Barnett: basic libertarian principles concern abstract natural rights or “background” rights; “legal precepts” are the concrete legal rules that develop to implement the basic principles.

Some libertarians talk of a need to develop a libertarian “constitution” or “law code”. Rothbard, for example:

  • “While the book establishes the general outlines of a system of libertarian law, however, it is only an outline, a prolegomenon to what I hope will be a fully developed libertarian law code of the future. Hopefully, libertarian jurists and legal theorists will arise to hammer out the system of libertarian law in detail, for such a law code will be necessary to the truly successful functioning of what we may hope will be the libertarian society of the future.” —Murray N. Rothbard. “Ethics of Liberty.”
  • “there exists anotheralternative for law in society, an alternative not only to administrative decree or statutory legislation, but even to judge-made law. That alternative is the libertarian law, based on the criterion that violence may only be used against those who initiate violence, and based therefore on the inviolability of the person and property of every individual from “invasion” by violence. In practice, this means taking the largely libertarian common law, and correcting it by the use of man’s reason, before enshrining it as a permanently fixed libertarian code or constitution. And it means the continual interpretation and application of this libertarian law code by experts and judges in privately competitive courts.” https://mises.org/library/how-have-law-without-legislation

And yet any law code that libertarian theorists devise cannot be hyper-detailed and all-encompassing.

  • For one thing, many of the particular rules in a given setting will depend on contractual relationships and choices. Libertarian theorists, such as Rothbard, David Friedman, Hans-Hermann Hoppe—envision various territorial enclaves whose internal legal rules are based on local preferences, custom, and contract.
  • Hoppe’s “covenant communities”: “a libertarian world could and likely would be one with a great variety of locally separated communities engaging distinctly different and far-reaching discrimination” (“e.g. nudists discriminating against bathing suits,” as Jeff Tucker points out in Idiot Patrol).
  • Rothbard: “In a country, or a world, of totally private property, including streets, and private contractual neighborhoods consisting of property-owners, these owners can make any sort of neighborhood-contracts they wish. In practice, then, the country would be a truly “gorgeous mosaic,” … ranging from rowdy Greenwich Village-typecontractual neighborhoods, to socially conservative homogeneous WASP neighborhoods.” —Rothbard, from his 1991 Rothbard-Rockwell Report article, “The ‘New Fusionism’: A Movement For Our Time”
  • Or as David Friedman thinks, some enclaves might have private versions of intellectual property.

So we cannot predict what rules will be voluntarily adopted.

  • And while libertarian philosophers can help systematize and identify the abstract, general libertarian principles, we have to be wary of the limits of armchair theorizing.
    • We cannot deduce all the legal rules that would flow from abstract libertarian principles.
    • Law should develop organically and in response to real disputes where solutions may be found and used to develop the law further in subsequent legal disputes.

A less libertarian society would be one in which basic libertarian principles are universally recognized and respected, and these inform the development, over time, of developed bodies of private law.

  • The basic libertarian principles derive from the common moral sense of a decent, humane people, with influence from libertarian political philosophers.
  • Libertarian scholars help identify and clarify our basic principles—the basic principles that reason shows us are necessary for us to live together in peace, cooperation, and prosperity.
  • Then concrete legal precepts (laws) develop over time as the basic libertarian principles, as well as previously developed private law, are applied to solve disputes between people.
  • As the body of private law develops and grows, legal scholars restate, summarize, codify, and critique the law:
  • The Code of Hammurabi, 1755–1750 BC
  • The Roman Corpus Juris Civilis (529–34), including The Institutes of Justinian and the Digest of Roman Law (or Pandects);
  • Coke’s Institutes of the Lawes of England 1628–44
  • Blackstone’s Commentaries on the Laws of England. 1765–70
  • The French and other European Civil Codes;
  • American Law Institute’s Restatements of the Law(compilations of American caselaw)
  • Corpus Juris Secundum (encyclopedia of American law, named after the Corpus Juris Civilis) and its competitor American Jurisprudence Second

This is what happened in the world more or less:

  • The Roman law and Common law
  • Roman law  Civil Law and civil codes
    • Legislation and legal positivism
  • Common law: British commonwealth: UK, India, Canada, Australia, US
    • Increasingly swamped by statutes
  • Many libertarians praise the common law, most fail to understand the civil law in Europe also came from a decentralized legal system (Roman law)
    • In Professor Hoppe’s lecture on The Production of Law and Order: Natural Order, Feudalism, and Federalism, starting at 1:07:30 (loosely transcribed):
    • “A little side remark, in English speaking countries there is a certain amount of pride in having the so called “common law,” which is in a way non-codified law, case law. The continental tradition has been for a long time different. There we have had codified law.
    • “Anglo-Saxons look down on codified law and hail their non-codified common law. I want to remark that Max Weber has a very interesting observation regarding this. He sees the reason for the non-codification of the common law in the self interest of the lawyers to make the law difficult to understand for the layman and thus make a lot of money. He emphasizes that codified law makes it possible for the layman on the street who can read to study the law book himself, and go to court himself, and point out “here this is written down” and so forth.
    • “So maybe this excessive pride that Anglo-Saxons have in their common law might be a little bit overdrawn.”

 

So:

  • We need a society that respects basic libertarian principles and values
  • A clear statement and explanation of these principles
  • A body of concrete legal rules
    • Not by legislation
    • Not deduced apriori by libertarian philosophers from their armchairs
    • Developed in a decentralized law-finding process
      • Common-law, Roman law
    • Legal scholars to restate, present, categorize, and publicize the law
      • Legal codes

So the libertarian constitution starts with a concise presentation of libertarian principles, which can be used for further development of libertarian theory and also could be relied on by courts in developing legal rules to settle disputes.

And this is where Kinsella’s Libertarian “Constitution” will start.

The better title: “State Constitutions vs. the Libertarian Private Law Code”

Tired of working by committee so here will prepare my own Declaration of Libertarian Principles:

  • Hierarchical, systematic, principled, anarcho-capitalist
  • Carefully defines and uses terminology
  • Drafts so people can see changes, and adopt it (like Creative Commons)
  • Totally open (no copyright) so can be adopted and modified
  • Anchored in Rothbardian anarchist libertarian principles and Austrian economics
  • Links or footnotes for elaborations or related material

 

Basic Principles:

  • In order to achieve peace, prosperity and cooperation, and to avoid disputes, in a world of scarce (rivalrous) resources, property rights are assigned to all scarce, rivalrous resources where conflict is possible
  • The owner of a contested resources is determined thusly:
    • In the case of the human body, each person is prima facie the owner of his body (“self”-ownership).
    • In the case of previously-unowned, external resources, the owner is determined in accordance with three principles:
      • Original appropriation: the first user of a resource has a better claim than latecomers
      • Contractual transfer: Ownership may be acquired by consensual title transfer from a previous owner
      • Rectification: transfer as a result of a tort or offense—use of another person’s owned resources without consent (trespass) gives rise to a claim by the victim on resources owned by the aggressor, for purposes of restitution.
      • Meaning: The initial user of a resource presumptively has a better claim to the resource than anyone else; unless he has transferred it to a second owner by contract or as a result of rectification for an offense.
      • None of this implies that title must be traced back without “original sin” to a pristine first homesteader; Rothbard himself clarified this in 1974 when he added language to a 1969 article implying otherwise
      • Other principles:
        • Retribution (punishment)
          • Proportionality
        • Restitution
        • a “propensity to arbitrate”, negotiate, compromise
        • Body of property law
        • Body of contract law
        • Treaties
        • Family law
        • Role of insurance
  • Hoppe:
  • “In conjunction with the privatization of all assets according to the principles outlined, the government should adopt a private property constitution and declare it to be the immutable basic law for the entire country. This constitution should be extremely brief and lay down the following principles in terms as unambiguous as possible: Every person, apart from being the sole owner of his physical body, has the right to employ his private property in any way he sees fit so long as in so doing he does not uninvitedly change the physical integrity of another person’s body or property. All interpersonal exchanges and all exchanges of property titles between private owners are to be voluntary (contractual). These rights of a person are absolute. Any person’s infringement on them is subject to lawful prosecution by the victim of this infringement or his agent, and is actionable in accordance with the principles of the proportionality of punishment and of strict liability.[19]
  • “As implied by this constitution, then, all existing wage and price controls, all property regulations and licensing requirements, and all import and export restrictions should be immediately abolished and complete freedom of contract, occupation, trade and migration introduced. Subsequently, the government, now propertyless, should declare its own continued existence unconstitutional—insofar as it depends on noncontractual property acquisitions, that is, taxation—and abdicate.[20]” Excerpt From: Hans-Hermann Hoppe. “Democracy: The God That Failed.” Apple Books.
  • Implications and applications
  • TBD…

 

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