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Rewriting Constitutions

By Marco den Ouden

February 3, 2023

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Introduction

The rectangle of light in the acres of a farm was the window of the library of Judge Narragansett. He 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…”

– Atlas Shrugged, pages 1167 – 1168

 

It’s not surprising that Ayn Rand would include an amendment of the US Constitution as part of the closing scenes in her monumental novel about the disintegration of that great republic.

It’s not surprising that Ayn Rand would include an amendment of the US Constitution as part of the closing scenes in her monumental novel about the disintegration of that great republic. The American Constitution, formidable document that it is, is deeply flawed. It was born as an act of compromise among rivalrous factions: Jefferson’s liberal Republicans, and Madison and Hamilton’s conservative Federalists.

Perhaps its most notorious compromise was the tolerance of slavery with its anomalous declaration that, for census purposes, slaves were to count as three-fifths of a person for the purposes of taxation and representation in the House of Representatives. Not that slaves were given the right to vote or be represented, of course. They were like dependent children, counted but not given rights. But they were even less than children who each counted as five-fifths of a person.

A constitution ought to be a set of principles limiting the power of the state.

A constitution ought to be a set of principles limiting the power of the state. Many consider the Bill of Rights to be just that. But the Bill of Rights is not the core of the US Constitution as it should be. It was thrown in after a lot of wrangling as a sop to the anti-Federalists. The Bill of rights is an adjunct, an afterthought.

Although the Constitution was amended a further 23 times after ratification, and while some of the amendments followed the spirit of the original Bill of rights, eliminating slavery, giving women the right to vote, and introducing term limits for the Presidency, others were in clear violation of that spirit. One introduced the income tax and another introduced prohibition.

It took over 200 years for the amendment to prohibit politicians from giving themselves raises to be adopted. What I like to call the “Piggies at the Trough” Amendment.

Libertarians and Objectivists have long been critical of the Constitution and toyed with the idea of amendments, changes, or outright repudiation of the Constitution in the case of anarchists.

I was fortunate enough to live through a period of Canadian history when constitutional change was widely discussed back in the late 1970s. The Canadian Constitution had been an act of the British parliament. And the late Prime Minister Pierre Trudeau and his government undertook to repatriate the Constitution, to sever the last remaining ties of Canada as a subject state of the United Kingdom.

The Vancouver libertarian group I was with set out to hold our own constitutional meetings and actually formulated an alternative constitution. Ads were placed promoting our own private Constitutional Conference.  .

At the first meeting it was decided that we should abandon the collectivist approach for an individualist approach. As I wrote in recapping this novel take:

“It was decided that the Constitution should not be a general document collectively owned by the people, but that it should be a personal document worded in the first person and owned by each individual as his personal property. It should be a statement by the individual of his relationship to his government, a statement declaring that he owns his own life, and as he owns his own life, so he owns the prerogatives that make life possible.”

Further discussions had us decide to avoid using the concept of “rights.” The term was open to abuse by people claiming the right to welfare, the right to a job, the right to decent housing and other so-called rights which had nothing to do with limiting the power of government and everything to do with sucking at the government teat. The final result was the “I” Constitution. It started out thus:

I, a CANADIAN, consider it MINE:

  1. THAT, Government shall NOT interfere with the FREEDOM of thought, speech, radio, television, the PRESS and other transmitters of ideas, knowledge, travel, communication, or occupation of any individual.
  2. THAT, Government shall NOT interfere with the FREEDOM of assembly or any other form of private association between individuals.
  3. THAT, Government shall NOT interfere with the FREEDOM of religion or instruction.
  4. THAT, Government shall NOT interfere with the FREEDOM of production, individual property, and the free trade and exchange between individuals of their privately owned property or objects, and the free exchange and trade between individuals of their services.
  5. THAT, Government shall NOT interfere with the FREEDOM of any individual to defend himself against physical force.

And so on. Ten clauses altogether with the seventh enumerating procedural rights for those accused of violating the law including the right to trial by jury. You can see the full one page document here.

The 19th Century anarchist Lysander Spooner, in his famous tract, No Treason, argued that the US Constitution “has no authority or obligation at all, unless as a contract between man and man.” The Constitution rested on the consent of the governed and, Spooner argued, consent had to be explicit, not implicit. If you didn’t sign it, it is not binding on you. Robert Nozick in his Anarchy, State and Utopia echoes Spooner’s argument stating that “tacit consent isn’t worth the paper it’s not written on.”

 

Book Review: A Brand New Constitution of the United States for the 21st Century and Beyond, by David Elmore, Kindle Direct Publishing (2023)

 

Recently, American libertarian thinker David Elmore has published a short 35-page document on rewriting the Constitution, which makes for interesting reading.

Elmore starts with a Foreword which is not part of his Constitution, but an explanation of one particular concept—“right.” He notes that humanity has never been absolutely free and the reason for this is because the concept of rights was not fully understood until Ayn Rand elaborated on them in the 1960s. She wrote:

A “right” is a moral principle defining and sanctioning a man’s freedom of action in a social context. There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. (Man’s Rights, The Virtue of Selfishness, 93)

In John Galt’s speech, she elaborates further:

Rights are conditions of existence required by man’s nature for his proper survival. If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work. If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational. Any group, any gang, any nation that attempts to negate man’s rights, is wrong, which means: is evil, which means: is anti-life. (Atlas Shrugged, 1061)

Elmore doesn’t quote Rand directly. But he acknowledges her as the source of his concept of rights.

Elmore doesn’t quote Rand directly. But he acknowledges her as the source of his concept of rights. But Elmore makes one striking change to the concept of rights. He reduces it to the singular—“right.” Throughout the Constitution itself, it is never pluralized.

After a brief Preamble explaining the purpose of the Constitution he gets to the main document which has just two articles. The original had seven articles, the first three focusing on the separation of powers, the following three on the concept of federalism and the last on the procedures for ratification by the original thirteen states.

Elmore’s Article One is on the identification and definition of the human “RIGHT.” I won’t elaborate except to say it is basically a reworded statement of Ayn Rand’s ideas on rights. It concludes: “This Constitution legally recognizes and protects the moral principle of RIGHT.”

Article Two gets to the nitty gritty of “The Structure, Operations and Limitations of Government in the United States,” a government based on “the moral principle of RIGHT.” He incorporates the first three articles of the original into one sentence, “The US government is tripartite, with duties divided among three branches: Executive, Legislative, Judicial” which precedes Section One of Article Two. The first three sections elaborates on the duties of these three branches. Elmore describes the makeup of each branch along with how they are elected, term limits, salaries, and so on. Notably all have the same duty, “protecting the RIGHT of all individual citizens.” The President’s oath of office reflects this imperative:

“I understand that the RIGHT of individuals is paramount in society and is the only proper reason for government’s existence. As President, I undertake the solemn responsibility to protect the RIGHT of all individuals within the US and of all US citizens abroad.” (13 – 14)

I won’t go into detail on the rest except to note a few things that struck me as standing out from the main thrust of the document. One is that all salaries of government officials are calculated in terms of the price of gold. The Treasury is designated as part of the Executive Branch.

Section Three on the Legislative Branch notes that “The Senate has no authority over banking, commerce, business, finance or money matters in the US, outside of its approval of the leader of The US Treasury.” In Section Seven it stipulates that no government agency, including the Treasury, may “coin money, or create currency, or issue bonds, or borrow money, nor have any affiliation with or authority over private financial institutions.” The implication being that all money will be privately created, though he does not specifically say this.

This brings me to the second thing that struck me. The Legislative Branch is unicameral, consisting of just the Senate. There is no House of Representatives. The election of senators has been modified to more closely align with representation by population than the current two senators per state system.

The Senate has a lot of power as far as organization of government goes, but the oath of each senator parallels that of the President, “to protect the RIGHT of all individuals within the US and of all US citizens abroad, and to never propose or pass any legislation that would violate the RIGHT.”

Now we get to Section Four—Funding of the US Government. This has long been a bone of contention between minarchists and anarchists. While Ayn Rand always maintained that government in a free society would be voluntarily financed, the anarchists have claimed this is impossible. A government must impose taxes to survive. While Elmore is clearly a minarchist, or he wouldn’t have written this constitution in the first place, he has come up with an interesting solution to financing his government.

First, he stipulates that the government must protect the right of all, citizen and non-citizen alike. Financing can come from voluntary donations, or from the purchase of citizenship. Only citizens have the right to vote and to be protected by the government outside of US territory. Presumably only citizens can obtain passports and travel abroad in any case. To be a citizen you must “Give minimum calendar-year donations to the USG (US Government) equivalent to the average price of one ounce of gold as reported on US stock exchanges at 5 p.m. Eastern Time on January 1 of that calendar year.”

Citizenship is no longer a right but a product to be purchased from the government. The price of gold at this writing is $1,929.75 an ounce. What about the poor? “Third parties may make donations in the name of an individual to help that individual attain the minimum calendar-year donations.”

While interesting, Elmore’s funding formula is seriously flawed in my view. Since his government must protect the right of all, citizen and non-citizen alike, and since the only benefits of citizenship are the right to vote and to be protected outside US territorial limits, there would be no real incentive to maintain citizenship unless one wanted to travel abroad and needed a passport. Many, maybe even most, people could very well be content with being non-citizens and get a free ride.

Section Seven, mentioned above with regard to the coining of money, is possibly the most important part of the document for it specifies “Limitations of All Governments in US.” It specifies that government cannot control or regulate anything with the “possible exception of products such as nuclear weapons, whose mere presence in private hands may constitute a coercive threat to nearby property owners in the case of accidental or purposeful detonation, whose usage cannot be safely confined to the owner’s property.”

Even the roads? You bet! “They cannot control or have any interest in land, roads, water, electronic waves or outer space outside of that on which their own operations require for the protection of the RIGHT of individuals.”

There are two parts in this section that will be contentious, even among Objectivists and libertarians.

One is a ban on laws concerning intellectual property. Elmore includes a whole section, Section Eight, on IP. Ayn Rand was a strong advocate for intellectual property, but many libertarians have argued against it, most notably Stephan Kinsella. Even the 19th century economist and advocate of free trade, Frederic Bastiat, argued that the only advantage an innovator in technology should enjoy is the head start he has before a competitor can copy him. Bastiat elaborates on this using the case of Gutenberg as an example. Gutenberg’s advantage lasted only so long as it took others to copy him. (Chapter 4, To Equalize the Conditions of Production in Economic Sophisms)

The only intellectual properties Elmore allows for are unique artistic creations such as the Mona Lisa, symphonies, and narrative art:

Intellectual discoveries (ID) and the products made from ID are not unique re-creations of reality and, therefore, hold no IP standing, because such standing would violate the right of other humans to make the same discoveries and create identical products ex nihilo. (30)

This limits IP to “creative expression”—complex composition in the form of music, artwork, writing, moviemaking, sculptures and artistic design—all incapable of duplication ex nihilo. (31)

He goes on to state “Neither the US Government nor inferior state and local governments may have any interest in monitoring, cataloging or verifying IP claims, or create laws pertaining to IP, which remains a private affair.” (32)

This strikes me as somewhat fuzzy. He seems to recognize IP with respect to creative expression, but what does this mean with respect to copying? Would a skilled forger who paints a superior copy of the Mona Lisa be guilty of violating copyright? Would a file sharing product like Napster (which was eventually suppressed by the State) be allowed or not? And since the government cannot legislate in this respect, how would it be handled privately?

The other controversial item is trial by jury. In Section Two the document states “Jury trials are forbidden in the US.” (15) Elmore elaborates in Section Seven. “They are subject to manipulation during voir dire, as well as uninformed bias and ignorance of the RIGHT on the part of individual citizens who would be jurors.” (29)

During the Canadian constitutional discussions of the late 70s noted above, prominent Vancouver libertarian (and my lawyer as well as co-officiant at my wedding), Walter Boytinck, engaged in lengthy correspondence with then Justice Minister and future Prime Minister Jean Chretien urging that trial by jury be enshrined as a right in the new constitution. Chretien came around and agreed with Boytinck and thanked him for his suggestions. The right to trial by jury is included in Clause 11 of the Canadian Charter of Rights and Freedoms.

At the time, Boytinck was fighting both the mandatory census and the income tax and argued for the right to be tried by a jury of his peers. At the same time, I wrote an essay supporting the right to trial by jury citing Lysander Spooner’s Essay on the Trial by Jury (1852). “The trial by jury,” Spooner writes, “is a ‘trial by the country’, that is, by the people—as distinguished from a trial by the government.”

Spooner goes on to argue that “the object of this trial ‘by the country’, or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or ‘the country’, judge of and determine their own liberties against the government; instead of the government’s judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the government, if they are not allowed to determine what those liberties are?”

The jury may not only judge the facts of the case but the justice and validity of the law. This, in fact, is the primary purpose of the Fully Informed Jury Association.

While Elmore makes a case for a government that cannot constitutionally make laws violating the right of the individual, nevertheless, government is a human institution and not infallible. Despite the protections he builds into his constitution, the trial by jury is an extra layer of protection, a final bulwark against tyranny. (I called my essay Trial by Jury: Bulwark against Tyranny). I believe Elmore is wrong in disparaging trial by jury.

Because of the contentious issues of abortion, intellectual property, and trial by jury, I have doubts that even two-thirds of the explicitly libertarian/Objectivist community would agree to it, let alone the unlikelihood of convincing two-thirds of the entire United States electorate.

One other contentious issue noted in passim in Article One on the RIGHT of individuals is abortion. “In a free society, to say, ‘I have a RIGHT to speak my mind or own a gun or get an abortion,’ is staking a claim to an absolute prerogative in each of those realms of action.” (6) Elmore blithely assumes that everyone will be on board with this. But even within the libertarian community, there is a split between pro-lifers and pro-choicers. While Elmore does not elaborate his pro-choice stand, it may be safe to assume he is following Rand’s view of when life begins.

Elmore’s is an interesting, albeit utopian endeavor. The final section is on implementation. It states: “This new Constitution of the United States of America may be considered promulgated upon the vote of a minimum of two-thirds majority of all US citizens who vote in an open referendum on the enactment of the new Constitution—superseding the previous Constitution of the United States of America.”

Because of the contentious issues of abortion, intellectual property, and trial by jury, I have doubts that even two-thirds of the explicitly libertarian/Objectivist community would agree to it, let alone the unlikelihood of convincing two-thirds of the entire United States electorate.

The book serves its purpose and is a welcome addition to the growing literature on liberty.

But as an intellectual exercise, it does focus the liberty-minded on the question of what an ideal form of government ought to be, and could encourage vigorous discussions on the contentious issues. To that end, the book serves its purpose and is a welcome addition to the growing literature on liberty.

 

 

 

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