For an anarchist libertarian, things are easy. Of course government folk find ways round every effort to limit the powers of the state – government is a malignant cancer and limited state people and minimal state people are just fools.
For those people (such as myself) who have doubt about anarchism things are difficult. We tend to fall back on ideas about Constitutions to limit the power of government – and the record of such things is not good.
Firstly few Constitutions even try to limit what things government can spend money on, and even those Constitutions that do try and do this by listing what government can spend on do not tend to hold back the state.
In the case of Australian Constitution there were amendments to the Constitution to allow the government to spend money on various welfare state programs (it is, of course, the welfare state or ‘entitlement’ programs that constitute the vast majority of government spending in all Western nations). In the American case the Constitution was simply ignored.
Some Classical Liberals and libertarians regard the fact that United States Constitution was not amended to allow for the growth of the government as a sign of hope (“the Constitution still exists, all we need to do is enforce it”), but I tend to agree with the anarchists that the fact that the United States Constitution has been used for toilet paper (without any real resistance) is deeply scary.
And make no mistake the U.S. Constitution has been smashed. Take the example of paper money. The Founders all opposed the concept of making unbacked notes money simply by government order (they had the example of the ‘Continental’ to remind them of some of the problems with the idea). And the Constitution seems clear enough. The Congress has the power “To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures” – point 5, Section 8, Article 1.
And of course no State of the United States may “make anything but gold or silver coins a tender of payment for debts” point 1, Section 10, Article I. And this is not fitted it with any words such as “this is because the Feds are going to it”.
The Tenth Amendment, of course, states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”,
I will not going into the corrupt history here (the second ‘Greenback case’ and all the rest of it). But by the 1930’s not only were government (sorry ‘Federal Reserve Board’) notes in circulation, but one could no longer claim gold for these notes and indeed contracts expressed in terms of gold were ripped up (in spite of all the words in the Constitution about upholding contracts), and even owning decent amounts of gold was a ‘crime’ punishable by imprisonment.
I give the above example in such detail in order to (hopefully) inform people who might say “but the United States Constitution is still enforced”.
After all the powers that be have managed to get two of the words from the start of Section 8, Article 1 “general welfare” to justify all the welfare state programs. In fact (of course) “the common defence and general welfare of the United States” are what the long list of powers in Section 8 are supposed to be FOR, the ‘general welfare’ is not a power itself.
When one is dealing with a power elite so corrupt that it will do the above and a general public so badly informed that it will allow it I am tempted to despair.
All one can really say is that the idea of using Judges to limit the spending and regulation of government is a nonstarter. If Judges are decent men (such as the ‘four horsemen of the apocalypse’ on the United States Supreme Court in the 1930’s) then they will be denounced as out of touch ‘economic royalists’ (or whatever).
Perhaps if there were juries of ordinary people (rather than government appointed judges) there might be a chance – but that leads on to the structure of government.
I think structure does matter.
For example if a State legislature only meets for a few days a year (as, for example, the Texas State legislature does) it is likely to do less harm than a State legislature that is in session for most of the year (the latter simply has more time to do harm). If one thinks a government needs a budget that can be worked out in a quite limited time (if it has to be so worked out), why have politicians hanging about with time on their hands? “The devil makes work for idle hands”.
Also why should politicians be paid? People in the lower house of the New Hampshire State legislature are not paid very much – are they less wise (or whatever) than State legislature people in other States?
People should not see politics as a job. They should have a real job – sitting in an Assembly or a Parliament should be a part time activity (and the hours should reflect that).
But one can go further. Why should there be a group of politicians sitting in a legislature at all?
Get a group of politicians together and they will find ways to increase government power. After all they went into politics (for the most part) to ‘help people’ – so of course they will spend lots of money and pass lots of laws (and create a big modern administration – and the administrators will create a hundred or a thousand regulations for every law the politicians create).
Why not just let the people assembly each year and decide what they want to spend money on directly. Like a New Hampshire township or a couple of Swiss Cantons – and with no ‘mandates’ from on high, telling them what they must spend money on. Would this not be the ‘democracy’ that we are all told is a good idea?
The nation is too big and needs a defence budget? Still no need for politicians to sit in Congress or Parliament, just select a few hundred people at random (a big jury) and have the military and the anti military activists make there case before them.
If there really is a need for professional politicians (which I doubt) it is in the Executive.
But does this really have to be one person? A Prime Minister or a President who can pretend that “I am the nation” – “I am your father” – “I speak for you” (and so on). The Big Dad or the Big Mother.
Why not an Executive Council (say of five people – the traditional number) small enough to make quick decisions in a crises (say the nation has just been invaded) but not a single ‘Head of State’ or ‘Head of Government’. True one of the five would end up the head person – but it would not be quite the same.
Remember the nature of law.
One thing that all libertarians can agree on is that the system of allowing a group of politicians to make laws in an assembly or a parliament has proved to be a very bad one.
Give politicians (people who tend to be rather interested in ‘doing things’ and are, by definition, interested in power) the ability to ‘make laws’ and it is like letting young children loose in a sweet shop. The young children may learn a valuable lessons when they are sick – but what the politicians do will make the nation become very sick indeed (and the various gangs of politicians are not likely to learn anything).
No libertarian (I hope) would defend the practice of broad statutes that allow civil servants to make up rules and regulations (“delegated legislation”) that it is said that a “modern state” can not survive without delegated legislation just shows how unlimited the modern government is.
However, it is also time to say that politicians (‘democratically elected’ or not) should also not make laws. Whether one believes in the concept of “nature law” or regards the concept as absurd one can still see that Parliament made law is crazy.
Some libertarians favour a grand law code written by libertarian legal philosophers (for although the principles of justice may be “natural” the details of applying them in the circumstances of time and place will still need a lot of working out) and some libertarians believe that law should be ‘judge made’ or ‘discovered by judges’ – i.e. law should emerge by the settlement of disputes on a case by case basis (the common law way).
But for all of the above structure still matters. If a legal code who writes it? Will it really be libertarian philosophers of jurisprudence – How did they get in this position?
As for common law. Which judges will decide disputes – modern government appointed judges, taught all about ‘social justice’ and ‘human rights law’ in their university days?
The ancient system of such lands as Ireland and (more often) Iceland are pointed to – where people choose which judge they went before and judges were not appointed by a government. Of course their might be no agreement on the judge or his judgement might not be accepted (in which case, in ancient Iceland, the matter still went to the people assembled), and one would still have to worry about the corruption of the structure (even in ancient Ireland the the rights of jurisdiction eventually got concentrated into a few families and there was strife – “and his sons walked not in his ways” as the bible says of the sons of Judge Samuel in a different context).
Not everyone can be a good judge, and people tend to demand that judges (even if they are arbitrators) have a certain standing, in religion, or in learning, or in family tradition – and such standards can be abused.
Perhaps it is my silly British pride, but for all the absurd judgements they have made I still have a soft spot for ordinary juries. By the 16th century non government judges and other such had died out in the known world and juries were confined to the British Isles.
This little bit of structure these grand and petty juries, these bastard offspring of a mixture of Anglo Saxon and Norman French tradition formed (by judging facts and law – jury nullification) helped limit the power of British rulers in the centuries ahead – when the rulers of most other lands had made themselves depots.
It was not that the British were better people, or that they had better ideas, or even that they had better laws, it was a little bit of structure (an absurd feudal relic – as it was thought of the great legal scholars of the civilized world) that helped contain Britain’s rulers.
Structure does matter.
I’m an anarchist. But still… a constitution is possible, it just isn’t kept where most people think it is. It’s not kept on paper, but rather in the minds and opinions of the populace. The people punish constitution-breaking, or not, by moving their political support around. In this Britain has always been the most astute, having an “unwritten” constitution with no paper to distract from the reality.
The first problem with this fact is that the typical constitution is long, involved, and mostly technical. Few people not lawyers care to read it. The result is that only the memorable parts are protected.
The second problem is that a drift in public opinion of how the constitution “ought to be” allows you to rewrite even the memorable parts incrementally, with each rewrite being taken as a baseline from which to re-rewrite, by the next generation. This process needs no conspiracy, just the tendency of power wielders to push against restraints.
As to structuring government to be inconvenient… like any other constitutional feature it’s a fact only if the people want it to be. And it would be the thing against which the politicians pushed the hardest, every time a “worthy cause” was thwarted.
Remove the politicians and have transient citizen juries? Doesn’t work. National politics needs experience to do well, and information needs to be stored about the ten thousand unofficial nudges-and-winks that make up political manoevering. Wherever institutional “memory” is, there too is the power.
So yeah, structure can delay “the fall”, but in my opinion never wholly halt it. The problem of the need for experts tends to focus power, and then it’s back on the ratchet of “closing loopholes” and “worthy causes”.
Julian’s point is the start of mine. The enforcement of Constitutional constraints on any government is the responsibility of the citizens or subjects of that government. It requires more than voting. It requires that they be heavily armed and willing to act when they see their limited delegation of powers to the State perverted or transgressed.
An anarchist society would face the same requirement. Unless the people were generally armed and willing to act against injustice when they learned of it, an anarchist society, however hopefully begun, would result in the birth of another government — and quite possibly a worse one than the kind born of a Constitutional Convention.
Reviewing the above, I realize that I’ve just effaced one of the central distinctions between an anarchy and a modern State. In either one, there could well be one or more organizations that assert the privilege of using force. The remaining divergence is that in an anarchy, there’s no widely recognized instrument of legitimation for that use of force… but plainly, absent the vigilant armed defense of liberty and the enforcement of justice by someone, there will be no liberty and no justice in either.
At this point we need to mention the Collective Action Problem. It’s in nobody’s individual self-interest to resist expansion of government power — the odds of success are low and the costs of failure are high. But if creeping tyranny is not resisted, everyone loses.
The way to limit the government is not to limit how it can spend money, but to limit how it can raise money. The U.S. government couldn’t really start to grow until the sixteenth amendment, allowing direct taxation of citizens, was passed in 1913. If you want to control the size of the U.S. government simply repeal the sixteenth amendment.
Or… pass an amendment saying that the only taxation allowed is a direct tax of the citizens, at least that way everyone would know how much government costs, per capita. Set a limit to how high a percentage of an individuals income could be levied. Certainly no higher than 10%. After all, a 10% tithe is enough for God, it should be more than enough for congress.
Have the percentage include all taxes, including social security and medicare. Government will be so strapped for money that it will have to get rid of all those deductions, a flat tax. And it will apply to all citizens with income, giving all citizens a reason to care about what government does with their money.
Francis W. Porretto said:
It requires more than voting. It requires that they be heavily armed and willing to act when they see their limited delegation of powers to the State perverted or transgressed.
I reply:
I don’t think that’s truly necessary or sufficient. Just a general refusal to play along is enough, if the populace agrees. The political system is wholly dependent on public belief in its legitimacy and strength in order to rule. If those collapse, you get a revolution – the more widespread the collapse, the “softer” the revolution. It’s rarely necessary to turn it into a shooting war.
Guns etc are much more useful on the small local scale. They can be used to prevent localized tyrannies (eg: a rogue sheriff), to stabilize anarchies, to dissuade foreign invasion, and obviously as self defence.
Interesting and thoughtful post. Thanks Paul.
I agree with Francis that the issues you raise are not just problematic for Minarchists. Obviously Minarchists have to deal with the question “How do we stop the State getting too big?”. It is a hard question and the answer isn’t at all clear. Constitutions don’t seem to work very well and structural solutions also have their problems (as Francis points out).
However, Anarchists have to address the question “How do we stop the State starting in the first place?” (in fact they also have to answer the question “How do we get rid of the bugger?” but I’ll assume in their favour that the job has already been done).
To me, it is not intuitively obvious that this question is any easier to answer than the question which Minarchists have to answer. In fact (although this may reflect my limited knowledge rather than any gap in the literature) I have yet to read any plausible account of how a libertarian-anarchist society would stop States sprouting up like weeds.
So whilst I don’t necessarily agree with Nozick that a minimal State is justified (I’m still thinking on that one!), I suspect it may be inevitable.
David
Bullshit blogroach deleted.
Two quick comments: First, is it at all possible to get rid of that off-topic spewpost from Annika and Mugu? It reminded me of the imperial carrier opening scene from “SpaceBalls,” going on, and on, and on, to comical effect.
On the topic: I agree that the people are the real enforcers of a constitution, that the US constitution has been used as toilet-paper, that the people have not been doing their proper job of enforcement, that it is still possible for them to set things right, but that the history of the past century does not give much hope that the people will step up to the plate. I disagree that having an “unwritten” constitution, as in Britain encourages or facilitates citizen enformcent of a constitution any better than having a written one does. I think the US founders had the right idea: write a relatively short, simple document in plain English for all to read and embrace, the text of which can serve as an anchor against semantic drift over the decades and centuries.
The US constitution — especially as compared with flatulent, pale imitations such as the UN Declaration of Human Rights, the UN charter, or any number of national or state constitutions I have read — is a marvel of brevity and plain-speaking. Ignorance of THIS law is no excuse. In fact, it is the duty of every US citizen to have read the Constitution, and to use a personal understanding of that document as a yardstick, by which to measure the performance of federal officials. Citizens need to turn out elected officials whose efforts to “preserve, protect, and defend” the constitution fall short of the mark. They need to reject initiatives and referenda that seem unconstitutional TO THEM. (Incidentally, the capacity for citizens to vote on legislation directly, which we use a lot in California for state matters, is similar to the idea of a “citizen jury” for passing or judging laws, which was mentioned in a comment further up the thread.)
Finally, I agree that the key to smaller, more manageable and responsive government is to choke off the funds. We’ve seen in California how “balanced budget amendments” at the state level are ignored as routinely as the national constitution’s “constraints” on government. A national BBA would fare no better, in my opinion. US Income Tax amendment delenda est!
To bring together a couple of thoughts on how structure matters and how to choke off the funds to government:
A major problem with the U.S. these days is hidden taxation – taxes are deducted from your paycheck before you get your hands on it, so the money never feels like yours and you never miss it; taxes are added in to products and services upstream of the consumer and disappear into the price, etc. Making a couple of changes that would make taxation apparent would change people’s thinking dramatically about taxation and the size of government.
First, do away with all corporate, VAT, and other indirect taxes, as suggested above, so that all taxes are levied on real persons. Ideally, there would be a single tax, preferably a flat-rate income tax. I prefer an income tax because that tax will be paid all at once, rather than in relatively painless smaller bites, like a sales tax.
Second, do away with payroll deduction. Make everyone write a check out of their own funds once a year for the entire amount that they owe to the state, federal, and local governments. Believe me, this will hurt, and will piss people off.
Third, tax day and election day should be the same day. Write your massive check to the feds, and then go vote. I think this would create a vastly different political dynamic in the U.S.
If I could wave a magic wand . . . .
Some of you simply don’t get it. Passing more amendments or more laws won’t do shit. Pass an anti-tax law? The Supremes will find it unconstitutional. Pass an amendment to end taxes? It will be interpreted by Congress to mean the exact opposite.
Scraps of paper don’t defend liberty. Only actions do.
How many of you who want to scribble more stuff down are willing to actually defend your property with guns?
How many of you who want to scribble more stuff down are willing to actually defend your property with guns?
Well, considering how very seldom that abuses of eminent domain lead to a dead government employee, I’d have to say none.
Yes, the US Constitution has failed to stop all forms of coercion and government intrusion. I cannot disagree with any of your examples.
I would argue, however, that it has slowed down the rate of usurpation and, in some instances, has been able to preserve liberty. The example I have heard (and fell for) is that the equivalent of a 2nd Amendment in the UK would have prevented the loss of firearm rights. I would be very interested in your opinion.
Great blog, by the way — one of my faves!
For whatever it’s worth, the “town meeting” in New Hampshire you mention is a dying breed. Many towns now use the crypticaly-named SB2 (Senate Bill 2) method of running town democracy. The town first has a deliberative session (long, confusing, poorly attended) on proposals from the sitting elected selectmen, then vote on it in a general election (better attended, but still not very – 30% in a good year) where most voters just rubber stamp the opinions of the mysterious “budget advisory committie.”
And the town meeting style, still practiced in some towns, has more than its share of problems, like hijinks such as the hardliners recalling a vote at midnight already voted upon by most voters in the early evening. These “concerned citizens” can be just as slimy and manipulative as sitting politicians.
Also, the low pay of our representitives, which is probaly a good thing (and necessairy considering how many of them we have — we’re third after India and the US) affects the composition of our elected bodies. We say that you have to be one of the four R’s to run: Rich, Retired, Retarded, or a Real estate agent (as property tax is the main source of state income).
The problem with most political systems is non-involvment by citizens. When citizens are not willing to make the effort to exercise their rights, then corruption and minority rule will flourish, whether the corrupt leaders are long-term over comphensated career politicians, or unpaid hardliners who sit in the back of town hall meetings untill all hours of the morning.
One problem with theory is that it has a nasty habit of getting run over by reality. (As many people here have already noted.)
As for one of Paul’s original complaints (the issuance of paper money by Congress, not redeemable in gold or silver), the problem is that by now there isn’t any possible way to back dollars by gold. Assuming that there’s roughly a trillion dollars in circulation (several hundred billion here, and several hundred billion overseas), backing all that by gold at the traditional rate of $20 a troy ounce would require about 50 billion ounces of gold. That works out to about 4 billion pounds, or 4 million TONS (metric or English) of gold. I don’t think there’s that much gold on the planet, let alone what’s been mined.
So, the choice bankers face is: 1) to chain the dollar to gold, guaranteeing a slow deflation as the value of the economy increases in the face of a fixed number of dollars (not a good thing if the deflation is too steep– look at the 6% annual deflation in the U.S. in the early 1930s and the contemporaneous, um, “economic difficulties”); or 2) free the dollar from a link to gold (or any other store of value), print a number of dollars commensurate with the value of the economy, and hope that their (the bankers’) successors are wise enough not to run the printing presses too fast (as happened here in the U.S. in the late 1970s).
I don’t like broad constructionism of the Constitution any more than the next guy, but Congress is allowed to coin money. You may not like the fact that it’s paper money, but I don’t see how we have much choice.
Hale Adams
Pikesville, Maryland, USA
Okay. I can’t do math in my head very well any more….
“That works out to about 4 billion pounds, or 4 million TONS (metric or English) of gold. ”
Make that 2 million tons.
But my point still stands. The gold standard is dead, and there’s no good way to replace it.
Well one could take the number of Federal Reserve Board “Dollars” and devide the government gold stock by this number and then say “The Dollar bill is worth such and such amount of gold”.
However, the vast majority of “Dollars” are pure credit bubble (not notes).
Of course this credit bubble will sort itself out in time – but that will not be nice.