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07/02/2008

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Two things must be kept apart: (1) the constitutional documents of the United States reveal a correct understanding of the nature of a free society. However perfectible the Constitution will always remain, it is an excellent guide to freedom. (2) institutional arrangements required to protect and enforce the conditions of liberty.

Clearly, we have a deficit as to (2), especially in that effectively those who make the laws (originally and primarily intended to restrain the power of government and the state and the need for government to govern beyond ensuring that people can take care of themselves) are the government and distort the concept of law in such a manner as to bring about and "legitimise" the practice of arbitrary legislation.

We must restore the distinction between law and legislation and put into place institutional arrangements appropriate to guarantee that distinction, i.e. a meaningful restraint on any power and effective forms of the separation of powers.

I think that Professor Hoppe's notion of a world without government is a refreshing mental exercise. That world is far away and unattainable at this point in time. But as I waffle between the two worlds I can only look to our present situation and declare the Constitution as a bit of a paradox. The Antifederalists were on the right track as they wondered about enumerating the constitution of our natural rights in written form. Are we then left with words to be parsed and misrepresented to the enhancement of powerful groups willing to rule.

An excellent guide to freedom would not have led us to our current state. That guide also forms the monopoly of force which is presently disregarding my inherent rights. It has proven somewhat effective but ultimately inadequate against the powers of corruption and envy.

I would have to humbly disagree with respects to laws originally intended to restrain the powers of government. Had that been the goal, few laws would have ever been passed. Aren't most laws arbitrary?

The institutional arrangements needed to guarantee freedom are eroding at an ever-quickening pace. Is this an indication that those in government, over time, will do just what Mises and Rothbard suggest and become "the destroyer and invader of the people and property that they are supposed to protect"? Institutions seem to be ill-equipped against people with the legal authority to use force.

So I'm not so sure we can turn back to the constitution and limited government without the entire process of eroded rights happening all over again. Is anarchocapitalism viable? I don't have the slightest idea. Yet it is an interesting concept to consider.

Again, one of my favorite quotes says it well:

I don't have any solution but I certainly admire the problem. - Ashleigh Brilliant

I don' follow how you could enforce contracts under his hypothetical insurance system. How do you recoup losses from fraud.

It seems that this would ultimately be a very violent system that would lead to a factional or 'gang' justice. Whomever is strongest wins.

I don' follow how you could enforce contracts under his hypothetical insurance system. How do you recoup losses from fraud.

It seems that this would ultimately be a very violent system that would lead to a factional or 'gang' justice. Whomever is strongest wins.

I don' follow how you could enforce contracts under his hypothetical insurance system. How do you recoup losses from fraud.

It seems that this would ultimately be a very violent system that would lead to a factional or 'gang' justice. Whomever is strongest wins.

Eric,

No need to repeat yourself, I heard you the first time.

In one of the paragraphs in section IV, Hoppe states the following:

[Even though hampered by the state, insurance agencies protect private property owners upon payment of a premium against a multitude of natural and social disasters, from floods and hurricanes to theft and fraud. Thus, it would seem that the production of security and protection is the very purpose of insurance. Moreover, people would not turn to just anyone for a service as essential as that of protection. Rather, as de Molinari noted,

Before striking a bargain with [a] producer of security … they will check if he is really strong enough to protect them … [and] whether his character is such that they will not have to worry about his instigating the very aggressions he is supposed to suppress.]

He goes on to write:

[Moreover, out of the steady cooperation between different insurers in mutual interagency arbitration proceedings, a tendency toward the unification of law — of a truly universal or international law — will emerge. Everyone, by virtue of being insured, would thus become tied into a global competitive effort to minimize conflict and aggression. Every single conflict and damage claim, regardless of where and by or against whom, would fall into the jurisdiction of exactly one or more specific and enumerable insurance agencies and their contractually agreed-to arbitration procedures, thereby creating "perfect" legal certainty.]

"It seems that this would ultimately be a very violent system that would lead to a factional or 'gang' justice. Whomever is strongest wins."

It is possible, yes. Again, the ideas are simply an exercise to consider and this is definitely one of the more eclectic of the posts at Red Sate Eclectic (although I think the Leningrad Cowboys video of Sweet Home Alabama tops this one). But your statement could just as easily describe our government for a good portion of its existence.

In his above post, Eric Parks has put his finger on one of the most fundamental themes of liberty, maybe the most fundamental one.

It is a difficult topic and a story of dangerous vulnerability, but I don't think we have to despair or escape into the anarchist's dream world of a society void of (legitimate) coercion and (satisfactorily accredited) government.

Before yielding to desperation or utopianism, I urgently recommend that we acquaint ourselves with the basic concepts of liberal ( = libertarian) constitutionalism.

I suppose this obligates me to write about this very topic in my next post and in my first contribution to the think tank.

For the time being, let me mention this:

Eric Parks wrote: "An excellent guide [the Constitution, G.T.] to freedom would not have led us to our current state. That guide also forms the monopoly of force which is presently disregarding my inherent rights. It has proven somewhat effective but ultimately inadequate against the powers of corruption and envy."

The Constitution "understands" the nature of freedom and its indispensable preconditions very well. And this is not a trivial matter, for without that understanding freedom would be literally "inconceivable" and practically unachievable.

The Founding Fathers also clearly understood the threats to liberty and had a perfectly respectable plan how to protect against these threats. However, their understanding of the purposes of the legislature, on one hand, and government, on the other, and their notion of the separation of powers between these was not heeded in practice, and this abuse should have required new and better institutional arrangements to enforce their basically correct vision.

The legislative assemblies were not intended by the Founding Fathers to be primarily occupied with the organisation and conduct of government, as they soon would, instead they were (correctly) meant to deal with what the Founders (again correctly) understood by law, i.e the universal rules of just conduct (applicable to all, including, of course, government) to the enforcement of which they (again correctly) intended to confine coercion.

What we got instead were "legislative" assemblies/government that are free to define the rules by which they are "bound" to play.

Well, that is not the idea of liberty, the rule of law as opposed to the rule of men.

The Constitution is not compromised, rather one failed to follow up on it when certain arrangements intended to serve the constitutional purposes proved inadequate or, more exactly, were allowed to conduct practices that they were precisely not intended to conduct.

"The Constitution is not compromised, rather one failed to follow up on it when certain arrangements intended to serve the constitutional purposes proved inadequate or, more exactly, were allowed to conduct practices that they were precisely not intended to conduct."

This is becoming circular. If one failed or practiced forbidden conduct without reprimand then did the Constitution work as intended?

I know this is hindsight but what were the founding fathers going for when they brought the Constitution into existence? It is my belief that they were forming a stronger central government. This is what had the Antifederalists up in arms (literally). Some of those Antifederalists warned what might come to pass due to the flaws inherent in the theories pushed forth by the Federalists and they have been proven correct in their assessment.

"Before yielding to desperation or utopianism"

I doubt that I will be yielding to utopianism any time soon. As for desperation, did you see that stock market today? Ouch!

One can consider alternate paths while walking in the right direction. To be open minded about such things is probably how the theory of natural rights originated, yes? To consider other alternatives which promote natural rights could lead to breakthroughs in that vein of thought. I'd be content with a nice pull in the direction of constitutional governance. Once there, however, then what? There's nothing wrong in theorizing with other scenarios.

I see no circularity. If government is placed under the regime of certain laws that it is not allowed to alter, and then government proceeds to alter these laws, we have a fundamental shift away from what we were going to do. An altogether new game. I do not see what was wrong with the original recommendation. Unless the premise is called into question that government must obey the same laws as every citizen and laws that restrain government's power, I discern miscarriage of constitutional practice but no flaw in the Constitution. My concern would exclusively focus on the question of how to ensure the original intent.

Of course, I would strongly assume, the founding fathers wanted a government as strong as possible so it would be in a position to carry out its legitimate duties.

Unfortunately, it appears, it was not strong enough to enforce effectively the constitutional notion of the separation of powers.

Admittedly, I do not know much about the historic details, and I cannot say whether the founding fathers or other early proponents of the Constitution failed culpably to defend the principles they espoused.

But my point is one of logic, and as I said, I see neither circularity nor contradiction in the constitutional idea of the separation of power.

Of course, I am most curious to learn about "the flaws inherent in the theory" underlying the Constitution.

Georg, below are some examples of the writings and speeches of the Antifederalists which depict some of their concerns at the time about the ratification of the Constitution:

{start}
Brutus #11
The same learned author (Blackstone – EP) observes, "That equity, thus depending essentially upon each individual case, there can be no established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to a positive law."
… The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: — I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.
That the judicial power of the United States, will lean strongly in favour of the general government, and will give such an explanation to the constitution, as will favour an extension of its jurisdiction, is very evident from a variety of considerations.

Centinel #1
From this investigation into the organization of this government, it appears that it is devoid of all responsibility or accountability to the great body of the people, and that so far from being a regular balanced government, it would be in practice a permanent ARISTOCRACY.

Patrick Henry speech #1
Have they said, We, the states? Have they made a proposal of a compact between states? If they had, this would be a confederation. It is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing — the expression, We, the people, instead of the states, of America. I need not take much pains to show that the principles of this system are extremely pernicious, impolitic, and dangerous. Is this a monarchy, like England — a compact between prince and people, with checks on the former to secure the liberty of the latter? Is this a confederacy, like Holland — an association of a number of independent states, each of which retains its individual sovereignty? It is not a democracy, wherein the people retain all their rights securely. Had these principles been adhered to, we should not have been brought to this alarming transition, from a confederacy to a consolidated government. We have no detail of these great consideration, which, in my opinion, ought to have abounded before we should recur to a government of this kind. Here is a resolution as radical as that which separated us from Great Britain. It is radical in this transition; our rights and privileges are endangered, and the sovereignty of the states will be relinquished: and cannot we plainly see that this is actually the case? The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, and inconsiderately by others. Is this tame relinquishment of rights worthy of freemen? Is it worthy of that manly fortitude that ought to characterize republicans? It is said eight states have adopted this plan. I declare that if twelve states and a half had adopted it, I would, with manly firmness, and in spite of an erring world, reject it. You are not to inquire how your trade may be increased, nor how you are to become a great and powerful {45} people, but how your liberties can be secured; for liberty ought to be the direct end of your government.

{end}

A good source for the writings of both Federalists and Antifederalists can be found here:
http://www.constitution.org/afp/afpchron.htm.


From Wikipedia, we learn of the preparedness for violence by those opposing the Constitution and their success at injecting into it the Bill of Rights:

{In Rhode Island resistance against the Constitution was so strong that civil war almost broke out on July 4, 1788, when anti-federalist members of the Country Party led by Judge William West marched into Providence with over 1,000 armed protesters.[1]
By this point, five of the states had ratified the Constitution with relative ease, but the Massachusetts convention was far more bitter and contentious. Finally, after long debate, a compromise (known as the "Massachusetts compromise") was reached. Massachusetts would ratify the Constitution with recommended provisions in the ratifying instrument that the Constitution be amended with a bill of rights.
Four of the next five states to ratify, including New Hampshire, Virginia, and New York, included similar language in their ratification instruments. As a result, once the Constitution became operative in 1789, Congress sent a set of twelve amendments to the states. Ten of these amendments were immediately ratified and became known as the Bill of Rights. Thus, while the Anti-Federalists were unsuccessful in their quest to prevent the adoption of the Constitution, their efforts were not totally in vain. Anti-Federalists thus became recognized as an influential group among the founding fathers of the United States.}

The Constitution was to bring about a new form of government that would shackle the powers of the government. It’s enumerated powers were based on the enlightened thinking of the founding fathers but its purpose as promised by the Federalists would be a central, yet very limited government. It’s function was not to define the liberties or the theories of natural rights as much as it was to prevent the government from violating those rights. The circle of which I speak concerns the idea that the Constitution is perfect but the people are not. Its design to prevent government growth should have enabled it to prevent the government’s growth despite the people. It is because of the people that such precautions were written into it with words like “Congress shall make no law…”
The Antifederalists have proven to be prescient about the Constitution’s ability to live up to the reassurances of the Federalists. If not for the Bill of rights, I don’t think that our freedoms would have lasted this long.

I'm so glad--a vigorous discussion that I wasn't a part of--too busy today playing real life politics.

Laura,

I hope you will share your experiences in the realm of real-life politics. I think I'm all "theory-ed" out.

Eric is digging deep, making excellent points. In fact, his probing coincides with a sense on my part that some important issues are being systematically neglected in the public discussions. The function of federalism, what was it supposed to achieve, what status does it have today, how did it develop? What do we mean, when we say, let the states decide (as opposed to the Feds), what safeguards of liberty do we find in the states?

The other issue Eric has picked up (see his below comments) - I suspect, we can say that the USA have never in their history known an effective separation of powers.

I tend to approach the issues (see below discussion) from a theoretical angle; I lack the time to study the history of the American Constitution in detail; so it would be a great gain if Eric Parks or other contributors could tell us more about the history of the American Constitution.

Maybe we can learn from history what went wrong and how it could be improved.

First an apology for my Blackberry that insists on replying multiple times.

What a fascinating discussion - almost like being back in the 1780s with the foresight of knowing how things would turn out.

I wonder how they would have added protections to prevent the massive expansion of government. Would it have been adequate to more explicitly state what the bodies could/couldn't do?

I suspect that no matter what contract is drafted the overarching philosophical leanings for the day can win irregardless of the governing document/system. The fact that our gov't is still somewhat recognizable after the storm of socialism/communism/progressivism is remarkable.

I think any system works so long as people in general recognize natural rights and their logical extensions.

Eric (L.),

I agree with your assessment which, to me, only shows that we have to be vigilant all the time and that the defense of liberty is an ongoing process - in fact, there will never be that perfectly free society, even if we get much closer to that ideal, we are likely to suffer setbacks and make mistakes. All the more, it is important that we are willing to accept challenges to our convictions, constantly put our thinking to the test and remain open for new thoughts. Eric P.'s post and his comments have been such a valuable challenge.

PS

My Blackberry is undermining the legitimate separation of powers between the two of us, it is "dancing on my nose" (doing what it likes with me) as the German saying goes.

I suppose I should RTFM, eventually.

Eric L. writes: “I think any system works so long as people in general recognize natural rights and their logical extensions.”

This seems, to me, to be the proper framework for liberty. Two hundred plus years ago, the philosophical viewpoints were of natural rights – to those who were in favor of independence anyway. When someone would speak out in defense of a break away from England, they would be vilified as reckless utopians. Some things never change.

In his book, “The Politically Incorrect Guide to American History”, Thomas Woods describes the thoughts of the revolutionaries at the time:

{ (page 14) Because the colonists had enjoyed the practice of self-government for so long, they believed it was their right under the British constitution. The British constitution was “unwritten” – it was a flexible collection of documents and traditions – but by an American conservative’s reading, the British government had acted unconstitutionally in its restrictive acts and taxation.
While Americans sought the self-government to which they believed they were constitutionally entitled, the colonists did not seek the total transformation of society that we associate with other revolutions, such as the Industrial Revolution, the French Revolution, or the Russian Revolution. They simply wished to go on enjoying self-rule when it came to their internal matters and living as they always had for so many decades before British encroachment began. The American “revolutionaries” were conservative, in the very best sense of that word.}

Notice how the constitution was described: an unwritten code, of sorts, based on a collection of documents and traditions. When governments would do anything to the contrary of these ideas, they would be accused of being “innovative” – a derogatory term at the time. Today, innovations are quickly embraced as the next best solution.

In an article (http://www.lewrockwell.com/rothbard/rothbard137.html) by Rothbard, we gain some more insight into the origins of the thought patterns of 18th century American colonists:

{ It used to be thought that all Americans had read John Locke and were simply engaged in applying his concept of natural rights, of rights to liberty and property, and right of revolution against tyranny. But now we know that the process was not that simple. Even in those enlightened days not everyone was interested in or equipped to read abstract philosophy. What most Americans did read were intellectuals and libertarians, like Tom Paine, who took Locke's abstract philosophy and radicalized it to apply to the conditions of their time. By far the most influential such writings throughout the eighteenth century were "Cato's Letters," written by two libertarian English journalists, John Trenchard and Thomas Gordon. Trenchard and Gordon not only put Locke's ideas into stirring and hard-hitting phrases; they took Locke's "if ... then" proposition: that is, if the government transgresses against rights of person and property, then it is proper to rebel against it, and added in effect this insight: "The if is always here." In other words, they pointed out that it is the essence of power, of government, to expand beyond its laissez-faire limits, that it is always conspiring and attempting to do so, and therefore that it is the task of the people to guard eternally against this process.}

According to Rothbard, we go from abstract theory to radicalization of the theory to action by the people. At the time, Britain’s government was moving away from the ideas of natural rights and the unwritten constitution. Here is where the friction comes in between the king and the colonists. The ideals of self-government were still firmly entrenched in the minds of many in the colonies and this clash of philosophies led to the Revolutionary War.

But if we take those theories and try to form a government based on them we return to what was discussed in a previous response concerning Blackstone’s misgivings about a written constitution and the interpretation of same by government:

{ … there can be no established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to a positive law."}

That right there is a bummer. So could the founding fathers have done it? Could they have written the Constitution in a way that would have prevented the series of events leading to this particular outcome? I have no answer. It seems that the great experiment of communism/totalitarianism was coming to a head by a different yet parallel track – an economic one which always goes hand in hand with governments. But if the federal government could have remained bound to the smallest of sizes, allowing individual states to remain sovereign and therefore experiment individually with such dead end theories as Marx’s labor theory of value and Keynes’s General Theory, maybe some states would have resisted. The comparative laboratories might have caused a halt to the process much sooner. One of many outcomes, I suppose.

So this was a long-worded way to write that I agree with Eric Larson’s comments concerning the need for a recognition of natural rights and their logical extensions. This recognition can be a very simple understanding as the following story (also from Thomas Woods’ book, page 15) illustrates:

In 1842, Judge Mellen Chamberlain interviewed ninety-one-year-old Captain Preston, a veteran of the Battle of Concord in 1775, to understand why Preston fought against the British.
Judge Chamberlain: Did you take up arms against intolerable oppressions?
Captain Preston replied that he had never felt any oppressions.
Judge Chamberlain: Was it the Stamp Act?
Captain Preston: No, I never saw one of those stamps.
Judge Chamberlain: Was it the tea tax?
Captain Preston said no again.
Judge Chamberlain: Were you reading John Locke and other theorists of liberty?
Captain Preston: Never heard of 'em. We read only the Bible, the Catechism, Watts' Psalms and Hymns, and the Almanac.
Judge Chamberlain: Why, then, did you fight?
Captain Preston: Young man, what we meant in going for those redcoats was this: We always had governed ourselves, and we always meant to. They didn't mean we should.

Eric P.,

What a great comment (especially referring to your last comment below). I hope you will use this material in future posts, as I assume that posts attract more attention than comments.

At any rate, your excellent post has opened up a new avenue of important discussions at RedStateEclectic. I am looking forward to more.

Thanks, Eric.

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