IN DEFENSE OF A
PRINCIPLED APPROACH TO LAW
by
Joel M. Skousen
PREFACE
At first glance one
might well ask, “Why would anyone object to a principled approach to law?
Why the need for a defense?” The
answer lies in two facts: 1) a
logically consistent, non-conflicting set of principles governing law and
government does not now exist, notwithstanding the great leap forward by
the founding fathers of the US Constitution in establishing that liberty rests
by right in the people--not by
special grant of government authority.
Our present legal system, is a combination of common law legal
precedents and free-market traditions intermixed in the 20th century with a
variety of modern social and political ideologies, which are often
contradictory and conflicting. 2) Each
of these two major ideologies, liberty and Socialism, have large constituencies
vying either to be free from government intrusion or to harness government’s
power for personal and group gain. A
consistent set of principles, providing powerful restraints upon the improper
powers of government or the ability of politicians to buy votes with benefits,
would be very unpopular with many groups who now enjoy majority status
in legislative bodies.
Frankly, I don’t expect
Socialists (including those Republicans who aren’t willing to admit that what
they often propose is merely a watered-down version of Socialism) to like the
restrictions of these principles. Once
in power, benefit-corrupted people and politicians never voluntarily relinquish
their majoritarian powers over the redistribution of other people’s money. They aren’t my target audience. My interest is in building a unified
concensus for just law and government among conservatives, libertarians and
honest, non-coercive liberals who are currently factionalized into
hundreds of small and medium-sized organizations--none of which have any real
power to stop the forces arrayed against us. Christian conservatives are at odds with regular conservatives
over not putting God to the forefront of every proposal. Social conservatives are at odds with
libertarians over how much personal liberty to allow when it leads to personal
corruption that has public or indirect private effects on society.
Conservatives of liberty
can’t possibly win the current battle nor even govern properly unless key
issues that divide us are worked out while we can still assemble and debate in
relative peace. If we wait till the
next crisis of war or depression (when our liberties are in a free fall) we
will still be arguing while the left comes forth with their well-worn,
ready-made, benefit-corrupting “solutions.”
The left already controls the legal and governmental agenda we currently
operate under, so even now our conservative sons and daughters, who are
dutifully trying to work “within the system,” are enticed into tinkering and
modifying Socialist systems. Who is
going to teach them how to implement solutions that foster liberty? We need to step
back and regroup as a movement and chart a new course for liberty based
upon consistent principles that are capable of unifying all good people.
In terms of unity, we are at a real disadvantage up against the left. It only takes one thing in common for “liberals” to unite. It only takes one difference of opinion
for conservatives to divide. To
reverse that propensity among conservatives and forge a larger unified whole,
we must step back from the illusions of nice-sounding generalities about “God,
Country, and family values” and tackle the tough issues I will raise here. It will take hard work, argumentation, and
conversion to hammer out our differences.
I don’t pretend it will be easy or pleasant. Changes--even minor ones on core issues--are always difficult to
achieve. All too often few
conservatives or honest liberals demonstrate the patience, tolerance, or
ability to do the tough thinking it takes to argue differences of opinion. Most would rather rely on the well-worn
stock phrases previously mentioned--most of which don’t hold up in the detailed
world of law where the real power of government is manifest. There is a way to accomplish much of what
social conservatives want to do, but it must be done on a basis of consistent
principles that do not violate fundamental rights. That’s what this proposal is all about.
I invite you to join
with me in going through some basic arguments on the major issues relating to
these proposed principles. If you
disagree, address the arguments--don’t just restate generalized
dogma--which doesn’t ever lead to a resolution. Many Christian conservatives don’t like argumentation, which
they find synonymous with contention.
But there are ways to argue without being contentious. One of the best ways to avoid contention is
for both sides to stick to sound thinking, and to be humble enough to
accept correction when thinking patterns are illogical or incomplete.
Let me give a quick
example to illustrate. I often come up
against the authority argument--a flaw in thinking where one relies
exclusively on someone’s reputation or authority to support an issue rather
than address the specific argument in dispute.
Conservatives will often fall back on what they consider the ultimate
authority--what the “founding fathers”
said--as their first line of defense against any principle that may differ from
the original Constitution. The trouble
is, there really never existed a unified voice of the founding fathers. Even Alexander Hamilton, who drafted a majority
of the Federalist Papers defending ratification, only did so because he saw the
Constitution as a stepping stone to greater federal authority later
on. What we call “original intent” is
really a combination of the best ideas from both federalists and
anti-federalists, who had wide and heated differences of opinion during the
Convention of 1787 and afterward.
Taken as a whole, what the founders accomplished was a miracle considering the extreme factions
they had to deal with. But that miracle
of sage compromises did not mean the Constitution was perfect or that it even
came close to creating a solid barrier against government encroachments on
liberty, especially at the state and local level.
The founders who
prevailed at the convention got done what they could during a time of grave
weakness and instability in government--and it was a wonderful beginning. However, there were many gaping holes in
the document that would be used in the ensuing years by statists to continually
expand the power of government. These
are the issues that must be addressed today--not because we do not honor the
Constitution, but because we must shore up and give increased support to the
basic outline of liberty they provided.
I have spoken of the disunity among many of the founding fathers,
especially on principles and issues that were left unresolved--which were
many. That disunity was so great that
it caused many of the victorious Federalists to view each other as enemies
during the next twenty years. Some
died harboring bitter feelings one against another due to their failure to work
out crucial differences early on. Let’s
not make the same mistake. Now is the
time for greater unity. Unfortunately,
unity today will be much more difficult to achieve than in the days of the
founders. Law has developed a
complexity that will never go away--no matter how much we may wish it so. Additional principles are necessary to bring
order and resolution to today’s diverse and wide-ranging conflicts.
The ultimate misuse of
the authority argument is when some decry even the attempt to improve upon what the founders did, as if that would
impugn our reverence for their work.
This kind of thinking simply doesn’t help resolve anything. It is irrelevant to the core issues and
counterproductive as well. As
revolutionary as the Constitution was at limiting government power, it was a
pragmatic document filled with many compromises. We have 200+ years of history behind us to judge the merits of
everything the founders did, from the language they used, to the basic concepts. The core is solid and there is nothing that
I am going to propose that will undermine that. But, if the founders were present today they would be the first
to issue a call for tighter language to clarify their intent. The cold fact remains, someone has to finish
the job the founders started in the quest to preserve liberty. Why not our generation who stands at the
brink--watching our own pragmatic leaders compromise and destroy what remains
of our freedoms?
Many dismiss these
efforts as impractical since existing legal tradition has so much
momentum. That is an issue of strategy,
which cannot be appropriately addressed until we first decide upon the
principles of truth we need to defend.
Frankly, our chances of taking a benefit-corrupted majority of people
back to the restrictions of the Constitution of 1789 are almost nil, and if we
did, the lawyers would have us back to our present dilemma within a few years
because most of the loopholes they used to subvert limited government would
still be there. If we are going to
take the trouble to fight at all, let’s do it for the sake of building up a
remnant of solid thinkers who can truly defend liberty without contradictions
and over-generalizations. Let’s put our
efforts on the solid ground of principles so that, whether we “win” or “lose”
politically, we will have laid a foundation so powerful and inspiring that it
will be impossible to suppress.
INTRODUCTION
The proper purpose of law
and government is to protect fundamental rights, maintain man’s agency
to choose (when not violating others’ rights) and to resolve conflicts between
individuals and groups in a fair and just manner. Unfortunately, the enforcement powers of government have most
often been used to restrict fundamental rights and provide special privileges
and benefits to groups less than the whole.
Legalized government tyranny has taken many forms, including dictators,
oligarchies and even democratic majorities (who use the power to vote and tax
to extract benefits from the most productive classes of society). Such deviant forms of government have been
far more common than the ideal forms precisely because the underlying
premises used to establish governmental authority over others have been
based upon arbitrary, conflicting or insufficiently precise assumptions (“might
makes right,” “Divine right of kings” or even “common law”).
The United States Constitution came the closest to establishing a
limited government based upon individual rights, but failed to define those
rights, leaving the courts and legislatures free to introduce new
privileges and false rights that have given rise to our present
benefit-corrupted citizenry, who prosper on government intervention and
redistribution of wealth. These and
other loopholes in the broad and trusting language of the founders have allowed
the enemies of liberty to bring us to the point where almost every true
fundamental right is severely curtailed, and the restoration of original intent
is nigh unto impossible--whether by the ballot box or an appeal to our representatives.
The purpose of the
proposed Principles of Just Law and Government is to set the groundwork
for a new and more formidable wall of protection for fundamental rights. It incorporates all the best principles of
the US Constitution and declares additional principles as necessary to fill the
gaps in law and philosophy which the original founders wrestled with but were
not able to resolve under the exigencies of their own crisis period. These
proposed principles provide the hope that we might once and for all resolve the
core issues of law and government and provide a stable and comprehensive basis
for unity--at least among those who view themselves as conservatives of
liberty.
THE DEVELOPMENT OF SOUND
PRINCIPLES
This process is begun by
first developing a workable definition
of fundamental rights that allows all men to easily distinguish between
true rights (which allow the maximum of liberty while separating each person’s
just claims) and false rights (which require that others be partially enslaved
to serve another’s needs). Second, we
establish criteria for the
development of principles, based on these fundamental rights. Those criteria must be internally
consistent, non-conflicting, and comprehensive in scope, so
as to provide guidance to lawmakers for difficult questions of law. If laws are to be adjudicable in a fair and
just manner they must be based upon a consistent set of principles that judges
can use as a basis for interpretation.
In the adjudication process, judges can refer back to basic principles
so that conflicts can be resolved on non-arbitrary grounds.
It is not sufficient to
simply make a list of nice sounding virtues and platitudes and call them
“principles.” In general, a proper set
of principles must be capable of providing a logical basis for both the
structure of government and each element of a constitution, statute or
law. Principles are not the law themselves, but are more general
pronouncements of reasoned truths that provide this logically consistent
basis for law and simultaneously restrict or limit the writer of the law
to the appropriate concepts. A
good set of principles also helps people see dangers in bad laws that, at first
glance, might seem reasonable or even beneficial.
For example, many people
support seat belt laws because “seat
belts save lives.” It’s true, they
do--but that isn’t the only point to consider.
Underlying every specific law is a legal principle or generalization of the law, either right
or wrong. In this case the underlying
and generalized legal principle is not only wrong but extremely dangerous:
that a majority has the power to dictate what is “good for”
others, even when failure to comply does not affect the rights of the majority. This improper legal principle opens up a major
pathway of intrusion that is used to justify other “good for you” proposals
like fluoridation of water supplies and motorcycle helmet laws. Why not Titanium chaps to protect
motorcyclists? Or three glasses of milk a day? These kinds of laws result in what I call an “unlimited extension of lawmaking power”
which should never be allowed in good constitutional law. Once we allow the majority to start
dictating what they think is good for
others, we create a legal form of intrusiveness into the realm of
self-responsibility that is only limited by the willingness of the majority in
power to restrain itself, which is never a safe way to limit government
and protect rights.
CORE FOUNDING PRINCIPLES
Some principles are more
basic than others because they establish the non-conflicting playing field,
which allows men to form a government without violating others’ rights from the
outset. They also provide the basis for
bringing all good persons to a potential meeting of the minds. The fact that all men won’t ultimately
agree doesn’t make the quest for proper principles less valid, as long as the
principles do, in fact, provide a basis for the greatest peaceful interaction
between people in the context of government and law. Some people will resist being bound by principles for a variety
of reasons. Some may not like doing
what is right. Some may simply be
incapable or unwilling to think things through--indeed, developing principles
is a rigorous mental process. [Once the
difficult process of determination and testing of principles is complete, a
basic, shorter version of condensed
principles is appropriate to help facilitate acceptance and
understanding.] Finally, some may
object simply because they want to preserve their privilege to fund their own
pet projects with other people’s taxes, or even violate other’s rights in more
obvious ways. If, however, the
principles preserve everyone’s fundamental rights, are logically
consistent and non-conflicting no one has a good reason not to
agree. That’s the key point, and that
is my goal--to develop something that is logical, right, and practical that
solves the historical conflicts in law and government between competing groups
of good people once and for all.
This non-conflicting,
comprehensive criteria is what distinguishes good principles from bad ones, or
even incomplete ones. Good principles
simply don’t allow anyone to justify creating laws that permit the taking of
life, liberty and property or the forcing of others to serve their needs. That isn’t to say principles, all by
themselves, stop men from using force to enforce evil, but it does remove
any presumption of legitimacy as well as the excuses people use to justify
the modern forms of tyranny--like democratic or Fabian Socialism, which allows
private ownership but controls property by regulation, and control). Ultimately one must forge a cooperative form
of government with enforcement powers in order to stop violations of rights.
Here are what I consider
the core non-conflicting principles,
which will be explained in greater detail later:
1. Each individual,
capable of being self-responsible, can rightfully claim as fundamental rights any action or state of being that all others can
simultaneously claim without forcing others to serve their needs.
2. Individual sovereignty is the underlying authority behind every
legitimate form of cooperative government.
3. Families have a special, temporary form of sovereignty over the health, welfare and education of their
children until those children are capable of being responsible for
themselves.
4. The only proper way to establish a
government among free and sovereign individuals, with police powers of
enforcement, is by initial mutual
agreement of all parties, and the subsequent agreement, on the same terms,
of all those joining the compact at a later date.
5. Nothing done under government authority has
any validity if it violates or limits a
fundamental right, unless such limitations have been specifically agreed
upon by all citizens participating in the governmental process.
Before proceeding into a
discussion of the other principles derived from the foregoing, let me address
three of the most common objections raised by others relative to individual
rights, authority, and efficacy of our existing Constitution. I do so because these objections are so
persistent in some conservative’s minds that they tend to cloud their ability
to be objective as they read the principles, or even to see that what I have
proposed here does not threaten what they value most dearly. Lastly your ability to understand the
careful wording of the principles will be enhanced after working through these
three basic controversies.
ANSWERING THE
OBJECTIONS:
GOD, SOCIAL RIGHTS, AND THE
CONSTITUTION
1. GOD: THE PROBLEM WITH
RECURRING TO GOD AS THE BASIC AUTHORITY
Those of us who believe
in God and acknowledge his ultimate sovereignty in the universe may be tempted
to make God’s sovereignty the basis of authority for earthly government. There are several major problems with this
strategy. First, it violates God’s purpose in creating this earth as a
proving ground for man. Second, despite interpretative claims to
the contrary, we do not have any definitive revelation from God, common to all
believers in God, that establishes either fundamental rights or an outline of
secular government. Even the concept of fundamental rights is missing from the
Bible. Many have tried to extract such
things by strenuous interpretation of scripture, but it’s not clear enough to
allow Christians to agree among themselves, let alone gain the agreement of
non-believers or other religions. Third,
God has never supported the concept of enforcing purely religious punishments
upon non-believers by secular government.
Since God is sovereign,
he has the power to intervene at will in earth’s affairs. His historic reluctance to do so must,
therefore, be taken as evidence that God is holding back to enhance the testing
purposes of this earth, demonstrating as well that He has a greater interest in
preserving man’s agency to believe or disbelieve, than he has in proving his
existence (at least for the present).
If God has declined to enforce a recognition of his own sovereignty on
earth (or at least postpone such enforcement till the judgment day), how can we
claim to be authorized to enforce that recognition upon other non-believers by
making it the basis of authority in a civil government meant to protect the
rights of both believers and non-believers?
God Himself has not only refrained from establishing an earthly secular
government, by revelation, but he has given every indication that He wants to
remain in the background as much as possible so as to maintain a level playing
field. Even the powers of Satan are
both permitted and limited by God so that good and evil can compete for
adherents.
Many Christians
mistakenly look to the Old Testament as
an example that God established an earthly government. He did establish an earthly kingdom, it is
true, but it was clearly a covenant religious society, not a secular
government intended to be implanted upon the rest of the world against
their will. While both secular and
religious laws and punishments were found in the Mosaic Law, such strict laws
and punishments were only binding upon those agreeing to be part of the Lord’s
covenant people. Only those violations
of life, liberty and property were prosecuted outside the boundaries of the
covenant society. From this we can see
that even God had some type of line of demarcation between the proper bounds of
secular and religious government.
Secular government can only prosecute violations of basic fundamental
rights related to protecting life, liberty and property. When groups wish to live by more
restrictive standards that don’t violate a fundamental right when the standard
is transgressed, they can only enforce those higher punishments upon those who
have covenanted to abide by such punishments from the beginning. This standard allows non-believers to be
free to live their own values as long as all refrain from violations of actual
fundamental rights. The doctrine of
fundamental rights provides a clear and easy-to-administer dividing line, in
most cases. I’ll address the
exceptions shortly.
The fact that Jefferson and others referred to God-given rights does not make it a
suitable basis for law in a pluralistic society. It’s a statement of faith and an appropriate expression of
religious opinion, but improper as a source of authority on rights except for a
unified religious government--which didn’t fully exist even during the founding
era of America. Part of the problem is
that we think we must have some ultimate authority to proclaim rights, which
isn’t really true. As long as our
definition is inherently non-conflicting each of us can simply claim proper
rights and defend them without recurring to any other authority--except that
which we may form by mutual consent to protect our rights. This is one of the basic tenets of
cooperative government, that we create our own authority to defend rights. Such authority is legitimate as long as the
governmental compact is approved by all participants voluntarily and that it
does not violate the rights of others who don’t wish to join.
In summary, I do believe
that God has an interest in promoting liberty, but He wants us to do it in a
way that doesn’t force others to accept His existence as a pre-condition of
participation, and that is why I am opposed to using God as the stated basis
for rights--even if it is true. To
believe in God’s sovereignty, or even to openly declare that one believes
rights come from God, does not violate God’s testing purposes, but making the acceptance
of that belief a basis for participation in a pluralistic earthly
government does violate God’s purposes, in my opinion.
Lastly, it is not
necessary to enforce the recognition of God upon non-believers or even upon
the legal system for religion to flourish or for the law to protect the freedom
of belief. All of God’s religious
purposes are preserved merely by making sure government can play no favorites,
either by enforcing restrictions on religious beliefs or by taking people’s tax
money to promote others’ beliefs. What
is necessary is to establish a level playing field where all belief systems are
free to compete with adherents--with none having the power to harness the
authority of government in their behalf.
Currently, the playing
field of competition for moral values is not level. In fact, it never has been. In the early history of America, Christians
used the power of government to establish official churches, finance
ministerial salaries and promote various Christian causes using taxpayer
money. Christians controlled public
education for a time in many states, as well.
Some European nations still have state-sponsored religions which is a
violation of the property rights of those who must pay for the establishment
and teaching of values they oppose.
Non-Christians rightly felt imposed upon because their tax moneys were
being used to support the promulgation of values that were not within the
purview of government’s taxing authority.
Today, we have a new
state religion in America--that of atheism and evolution. While claiming to be scientific and neutral
(in its denial of God), it is anything but neutral--it is still a
value-oriented system of belief that goes beyond the defense of fundamental
rights, and therefore is an inappropriate function of government taxing
authority. While Christians are eager
to retake control of the public school system, they fail to realize that it is always
inappropriate for any majority to control education for all. All forms of education have values (even
science) and those values should always be competing--never monopolized by
majorities lest the minority’s property rights be violated. The only way to accomplish this is complete separation of schools and state. All education must be private, or, if run
by government, 100% funded by user fees so that it competes on a level
playing field with private education.
As we shall see in the
following principles, a system of laws based upon fundamental rights does
not require that God be banished from all public expressions as is becoming
the rule in our ACLU-distorted legal system (which only defends a portion of
individual rights). In a system that
establishes the full range of fundamental rights, both believers and
non-believers have all the freedom they need to declare their beliefs to
willing listeners. In the public arena
only the direct expenditure of taxes would be restricted from being used to
promote non-coercive values or religion.
Leaders can rightfully express their personal and religious feelings as
part of their leadership responsibility.
Religious groups can use public property on the same basis as any other
group of private citizens--paying only appropriate user fees to cover any
administrative costs of government in managing public properties and keeping
order.
2. SOCIETAL RIGHTS: THE SOCIAL
CONSERVATIVE’S ATTACK ON INDIVIDUAL RIGHTS
As the left has
succeeded in carving out a lop-sided and incomplete concept of rights,
defending only the right of personal corruption, but denying other key rights
(like the right the rest of us have to make discriminating choices against that
corruption), certain social conservatives have reacted by attacking the
whole concept of individual rights and replacing it with a sloppy and
poorly thought out doctrine of societal rights--the supposed
“communal right” to have a moral society.
Their basic premise is that since government cannot long exist without a
moral people, society as a whole has the right to enforce a “community
standard” of moral conduct upon all citizens, even if those standards violate
individual liberty. The implicit
assumption here is that religious-based societal standards are superior to
individual rights since “society” has the right to defend itself against
internal corruption. Proponents claim
that the societal rights system of law holds out the promise of being able to
defend moral agency, the family and religious values. I will demonstrate that it does no such thing. Not only do these imprecise and generalized
“societal rights” not provide the legal basis for defense of family
values, but that they provide the very color of law that is currently being
used to destroy religious values today.
The essential flaw in
this whole premise is centered around the question of who is going to decide
what religious or moral standards become “community standards?” Proponents respond that the majority has the right to
decide--confidently assuming that we, the religious community, are the
majority. This is very short-sighted at
best and lethal to religious liberty at worst.
Without the limiting role of a doctrine of individual rights, this
majoritarian power that social conservatives grant to themselves has the
unlimited power to destroy liberty. If any majority has the power to impose
community standards upon others, then surely the day will come when Christians
will lose the majority and be forced to become subject to the values of a new
majority, hostile to religion.
The only safe way to run a government is to make sure that no
majority has the power to enforce moral values on others--except in the
area of violations of fundamental rights. [Note:
fundamental rights, as defined in this proposal, differ from some libertarian
versions of individual rights in that they include a form of family
sovereignty that remedies one of the major deficiencies of an individual
rights doctrine].
Societal rights only
live in the world of idealized and generalized concepts--they simply don’t work
(in terms of consistency and fairness) when you get down to specific legal
challenges. They are awkward to
adjudicate in court because there is no single entity present in court either
as victim or proponent. What is present
is someone claiming the authority to represent all of society, even though they
are, in fact, only representing a portion of society that happens to control
the majority of votes in some governing body.
Minorities and dissenters from the majority position are never
represented--unless they can take power--which is why this system always
leads to class conflict. Sadly, no
one has any rights unless they capture the majority in a “winner-take-all”
democracy.
A lot of conservatives
insist they aren’t using “force” when acting by majority rule, but it is force
just the same when the power of government is used by majorities to take away
life, liberty, or property as part of the disciplinary system. The existing majoritarian control system
builds class conflict and is the source of eternal wrangling among factions and
political parties. To repeat, societal
rights are a form of unlimited democracy, which is what makes them so
dangerous. The same doctrine of law
that allows Christians to implant their moral restrictions upon atheists can
be used by atheists to implant their religion upon Christians--depending on
who controls the majority.
The entire basis of the American system is
that this nation should NOT be a democracy--or even a representative
democracy. The best of our founders
were adamant that they did not want the majority, no matter how well
intentioned, to have power over individual rights. They came upon the radical and correct idea of forming a constitutionally
limited, representative democracy within a federation of sovereign states
(called a republic)--and the limits
they would impose concentrated on not allowing government to violate
fundamental rights, no matter how big the majority that controlled
government. [If only they had been able to define rights, and apply them to the
sovereign states, the constitution would have more fully accomplished the job
they originally intended it to do].
Even though the majority of founders were anti-democracy, they failed to
foresee the variety of novel ways in which majoritarian forms of democratic
rule would later evolve to improperly regulate and control the lives of
others.
In contrast to a
majoritarian system, a carefully defined system of fundamental rights, does not
allow any person to use government to promote its personal values or attack
other values--unless there are specific violations of someone’s rights. Every faction is free to compete peacefully
in the private sector or try to gain the bully
pulpit of public leadership to make their case, but neither can use direct
government funding to do so. In fact,
the entire public school controversy over restrictions on religious values
would quickly evaporate if we did only one thing--take away the public school
monopoly on tax funding and put all schools on the same user fee basis as
private schools. Within a very short
time, everyone with differing values would start forming schools that served
their personal values, and no one’s rights would be violated.
Let’s take one specific example in law to demonstrate the
difficulties the courts would have in dealing with a doctrine of societal
rights. I will use the issue of private
use of discrete pornography. We could
just as well choose prohibition of alcohol, or mandatory seat belt laws. The issues are similar. Fundamental rights proponents argue that as
long as there is no specific violation of rights or imminent threat to life, liberty and property (as in drunk driving)
people must be allowed to take risks or otherwise corrupt themselves. Social conservatives, in contrast, argue
that because there are indirect, long-term effects of personal corruption on
families and even society, government should have the power to prohibit
personal corruption. They cite
increased rape from pornography, increased spousal abuse from alcohol abuse,
and increased burdens to public health care systems and welfare from auto
accidents where seat belts are not used.
Let me dispose of the
“public health care burden” argument first.
To do so, we need to recur to a specific concept in jurisprudence to see
the inherent flaw. Lack of seat belt
usage really is a victimless act, even though it certainly is risky and
unwise. But many things in life involve
risk and controversial judgment.
Allowing government to mandate safety restrictions for persons
knowledgeable of those risks and willing to take them is a very dangerous form
of lawmaking power. Using the excuse
that the public is a somehow a victim
simply because government has decided to treat indigent accident victims without charge is totally fallacious. In the first place, government health care
is an unconstitutional and Socialist government program which improperly takes
money from all to deliver benefits to a few.
But even if we set aside the redistribution violation of property
rights, public-funded health care is a non-binding unilateral contract
and unenforceable as a means of control and regulation. This is the key issue in jurisprudence.
Unilateral agreements are not generally valid in law. It would be as if your neighbor agreed to
voluntarily pay for your health insurance--without your specific consent. The neighbor is certainly free to provide
this gift in a unilateral manner, but he has no right whatever to bind your
actions because of his gift or dictate to you what you can or cannot do
on the grounds that it will increase his self-imposed insurance premiums
or his liability. Government’s
self-imposed offer to treat indigent people of accidents cannot be used to bind
all automobile users unless the government has a specific agreement with each
driver. Neither is it sufficient to say
that everyone is bound because the health care system provisions were
determined by majoritarian government.
As in the case of “two wolves and a sheep” voting on dinner, majoritarian
rule without the initial consent of all the government is always a violation of
the basic law of individual liberty.
That is what this document of principles is all about--to establish a
basis for law and government that allows for the greatest amount of liberty
while still protecting all valid rights from infringement.
Fundamental rights
proponents would agree that there are indirect
effects of personal corruption, but that it sets a dangerous precedent
in law to proscribe personal liberty on the imprecise grounds of indirect
effects. The more sure ground of law
lies in prosecuting people when they actually cross the line to direct effects
and commit a crime. Simply put, not all
pornographers become rapists, so prosecute the rapist. Not all alcohol users become drunk drivers,
so prosecute drunk driving. Not all
alcohol users abuse their family, so prosecute abuse when it occurs. In any system of liberty, some abuse will
go undetected for a while, so a strong
deterrence is necessary to control indirect effects before they become direct violations of rights.
Social conservatives complain that our
current system protecting the individual right of private corruption hasn’t
acted as a sufficient deterrence to crime.
This is true, but the reason is because of a permissive judicial
system, controlled by sociologists who resist strong punishment. Even though strong punishments are possible
under existing law, they are rarely used and criminals know this. Worse, our welfare-state type prison system
has its own brand of evil and corruption that embitters prisoners and provides
no restitution for victims. None of
this can be blamed on the failure of an individual rights doctrine to provide
deterrence. Clearly there needs to be
established increased deterrence by dramatically increasing the severity and
swiftness of punishment once people cross the line and commit a crime. A point
system that effectively keeps track of chronic predation, leading to an
eventual death penalty, on points alone, would also increase deterrence
across the full range of criminal behavior.
To use indirect
effects to justify restrictions on personal liberty, as the social
conservatives suggest, creates this dangerous “unlimited extension of lawmaking power” that all good constitutions
are designed to prohibit. Majority rule
is always an unlimited power to rule, unless it is restricted by a constitution
that specifically limits majoritarian powers in a way that can’t be changed at
will. Such restraints should not be
arbitrary if they are to avoid conflict--and we cannot avoid being arbitrary if
we allow the use of subjective value
judgments, not related to actual violations of rights, to take life,
liberty or property. Our current
constitution itself is not a fool-proof barrier to unlimited majority rule
since any and every portion can be amended by that majority. The fact that amendments require a super
majority wisely increases the level of protection, but hasn’t prevented the
majority from making some serious errors in the past. If the majority becomes corrupted (as it always does) it must be
restrained by law from acting to destroy other’s rights. Not allowing any constitutional amendment
to violate a fundamental right is that essential limitation.
You will notice in the
principles presented below, I have made the case for separate family rights as well as individual rights. This would give families a basis to
prosecute any intrusion of family sovereignty by pornography and seduction from
outside the family unit, without permission.
The basis for prosecution of crimes is thus kept on a sound basis of
parental rights to be free from being acted upon, harmfully, within
their own property.
There remains another
issue, however, which cannot be solved so easily --the issue of offensive public behavior or offensive private
behavior that spills over (through sound or sight) to other people’s
property. This behavior is offensive
to people of high moral values but difficult to prove as “harmful” without
using subjective criteria. Examples of
these problems are, public nudity, sexually suggestive billboards, outdoor
theater screens with R-rated movies, and loud music, etc.
A fundamental rights
doctrine permits people to act in self-corrupting ways, as long it stays
private and when no one else’s rights are violated. But now we must deal with the “leakage”
effects of corrupt behavior when they can be seen or heard by others, who don’t
wish to be influenced, and where it’s hard to prove damage or harm. A lot of bad conduct in public is fairly
easy to handle. Noise can be limited by
a scientific standard of loudness.
Smoke or other toxic airborne waste is also subject to fairly objective
scientific standards. Other things like
morally offensive conduct in language, nudity, or suggestive behavior is
difficult to define without being arbitrary, let alone distinguish harm. We can use fundamental rights doctrine as
the basis for proscribing public behaviors that can be shown to be
harmful. But, if we attempt to lower
the barrier of what defines a violation of rights from provable harm to
merely being offended by someone’s conduct, we get into an even bigger
problem. To claim a right not to be
offended may give someone a “right” to control almost everything any other
person does--which would be a violation of our basic non-conflicting definition
of a fundamental right. To include an
excessively broad definition of “offensive views” as a violation of rights
would create a nightmare of legal conflict as people would then begin to claim
the right to control whatever they can see even beyond the borders of their own
property. How does a court adjudicate a
right to a view that can be claimed by more than one person? It can’t be done. One person may love the color pink for a house, and others may
feel offended.
Fundamental rights are
based upon non-conflicting criteria that work best at resolving conflict when
each person can define his own boundaries, interests and property. Conflicts are resolved by the courts by
being able to separate “yours” and “my” rights and property. However, in this public dilemma we are
dealing with people interacting together, without specific legal boundaries
and contractual obligations, without any clear distinction of “yours” and
“mine,” and in the absence of easily definable harm to anyone’s rights. For the gray areas of law relative to
offensive public conduct, we must look to another solutions--and they are less
than perfect under many circumstances
There are two possible
solutions. The first is to use the
current “community standard” of
conduct imposed on all by a majority of voters--but only where the
offense or corruption is public--not private.
It has worked pretty well for two centuries, except as it has intruded
into the realm of personal privacy. The
ever-present danger is that this
doctrine allows an evil majority to take control and strip away all current
community standards against public corruption, and replacing them with
another. In other words, community
standards by majority rule are completely mutable and do not offer permanent
safety.
The second alternative
would be the use of a variety of citizen
compacts to gain the voluntary agreement of citizens, either as a whole or
as members of local jurisdictions. The
first is in place now, and as it deteriorates, people can begin to fall back on
the second method--not unlike choosing to live in certain neighborhoods that
have covenants and restrictions, agreed upon by each person as they join the
neighborhood. These restrictions are
purposefully made difficult to change because of the fact that everyone has to
sign on as they move into the city or neighborhood where these are in
effect. It has been suggested that a
slightly lesser standard than absolute unanimity be used to make changes--to
avoid allowing any one person to act as a lone “holdout.”
This second alternative
can also be used on a larger scale, even in forming a new government, or a new
state. It uses voluntary principles of
inducements (trading public limits on behavior for citizenship or other
privileges) to establish a national or state standard across a broad sovereign
territory. Those that choose to
establish even higher standards would be free to do so, as long as it was done
by mutual consent within a contiguous land area. Each time a new state or city is created it would have the right
to accept the basic national standard or create a new set of covenants that
could be more or less restrictive than the basic national standard. The higher or lower community standards
would be binding only upon those who choose to live in that jurisdiction. People can then choose the degree of
community standard restriction they want in public affairs by the community
they select. Private liberties would
still be protected everywhere, as long as they stayed private. Over time, the covenant community system leads to a more peaceful set of diverse
but internally homogeneous communities.
In contrast, as we are seeing in the present, the majoritarian system
leads to increasing class struggle within each city as competing ideologies
seek to control the majoritarian levers of power.
3. WHY ISN’T THE CONSTITUTION
SUFFICIENT TO PROTECT OUR RIGHTS?
The Constitution was a
wonderful, great leap forward in limiting government power. It provided a mechanism that slowed down the
inexorable march of majoritarian power and corruption for at least 100 years. As a matter of historical fact, however, the
Constitution was under assault to expand the powers of government from the
moment it became the law of the land.
In its present interpreted and amended form the Constitution is much
changed from the original, some things for the better and many changes for the
worse.
As to the question of
how we can use the present Constitution to restore the full range of liberties,
we come face to face with several complex problems. The first is the question of which version of the
Constitution best represents the founders’ intent or preserves liberty? Do we go back to the original version with
no Bill of Rights, or do we accept the second version with the first 12
Amendments--a partial Bill of Civil Rights?
But keep in mind that the second version with the Bill of Rights
possessed the fatal flaw of exempting the states from adhering to those
rights. For the next 100 years the
states were the prime violators of rights, engendering a huge public demand for
expanded federal powers to control state predation. Or do we accept the 1868 version, with the Fourteenth Amendment,
including the “incorporation doctrine”--the strained interpretation by the
courts that brought the states under the requirements of the Bill of
Rights? While this did curtail much
state mischief, it also allowed the courts to add new “rights” paving the way
for government programs mandating the right to an abortion or “public access,”
without discrimination, to private business property. How about the version of law after 1913 giving us the onerous
income tax? You see the problem. There is no single time or version when the
Constitution served as a fully effective shield. The earlier versions had more loopholes, and the later versions
allowed for more false rights and government power.
What is most critical to
our constitutional dilemma is the fact that the founders failed to come up
with an adjudicable definition of fundamental rights. No document can protect for long what it
fails to define. There were no listings
of definitions of anything in the document.
As to rights, the founders were fearful of listing any rights lest they
leave something out (as directly expressed in the 9th Amendment), which is a
consequence of not having a working definition. They relied, instead, on the limited
delegation of power concept imposed upon federal government to act as the
primary wall of protection. However, as
the anti-federalists predicted, and as history has confirmed, this turned out
to be entirely inadequate in light of interpretations by an activist Congress
and Supreme Court.
The first 10 amendments
of the Constitution, termed a “Bill of
Rights,” were added as the first acts of the new Congress, but many of
these were not true fundamental rights, but merely a listing of the common law civil rights that Madison and
others (particularly George Mason) had extracted from British law. While not complete, they did offer specific
protections against common historical abuses at the time, but were far from
comprehensive. Even worse, without a
restraining definition, the courts continue to add other “rights” by
interpretation that, in fact, turn out to be violations of real fundamental
rights.
Consider the tenth amendment which was specifically
written to shore up the founders’ intent to restrict the expansion of federal
powers: “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.” It hasn’t held up for two reasons. First,
it has generally been outright disregarded by Congress and an activist Supreme
Court. Sadly, the founders’ system of
checks and balances did not anticipate the numerous factions and conspiracies
that government power would both facilitate and harbor. These powerful groups have effectively
controlled all three branches of government for many years, thus eliminating
the substance of the separation of powers.
Second, the 10th Amendment
failed to delineate between the residual powers reserved “to the States...or to the people.” Naturally, the states would have grabbed most of those
undefined residual powers and left nothing for the individual had it not been
for the Supreme Court. Regardless, the
line of demarcation between states rights and individual rights cannot be
determined without a working definition of fundamental rights, which the
founders did not attempt. The courts
have carved out some clarification of rights for the individual--but without
any guiding principles, what we have ended up with is a partial list of civil
rights mixed with left-leaning political interpretations and restrictions.
There were other major
holes in the wall of constitutional protection. Besides the major flaws already mentioned other deficiencies are:
· A federal revenue
system--originally dependent wholly on tariffs and duties, and now
upon income taxes, that violates a host of economic and privacy rights. Tariffs violate economic rights by
distorting prices unfairly between external and internal commerce.
· The granting of a virtual monopoly to the federal postal system making it immune
from competition.
· Failing to properly define
and limit fiat money (except for the states) and prohibit fraudulent
banking practices by government--a serious omission leading to the first major
constitutional crisis after ratification.
· Allowing for unlimited
amendments to the constitutions, such that there are no ultimate
protections against a corrupted majority attacking essential liberties by
amendment.
· Failing to provide for any requirements of citizenship except for immigrants. Without a basic knowledge of the principles
of liberty coupled with a sworn commitment to uphold the Constitution,
politicians and public education has
bred an increasingly ignorant and benefit-corrupted electorate that continues
to vote for representatives who do not understand or who are hostile to many
aspects of liberty.
· A judicial system,
which has taken advantage of the general language of the Constitution to erode
property rights, economic rights, the rights to association and disassociation,
to take risks, to be responsible for one’s own safety, and the rights of
families over the matters of health, welfare and education of their children.
One of the greatest
problems we face in taking a strictly constitutional approach to reform is that
the Constitution fails to limit, at the state and local level, the
government’s power to mandate the taking of everyone’s private property to fund
welfare schemes and public education. Public education has turned out to be the
Trojan Horse that has slowly corrupted, culturally and politically, the
majority of citizens. Armed with
doctrines of social democracy, modern citizens regularly use the power of the
vote to improperly harness the property of others for their own pet
purposes. Conservatives who think they
can “take back” government fail to realize that there is a huge constituency for
this kind of bad law, doling out special privileges in education, racial
preferences, and environmental takings--things which can no longer be
overturned by the electoral process since they have the majority. There is no substitute for constitutional
restriction against majoritarian tyranny--and those restrictions can only be
born out of universal principles--not social values that should remain in the
realm of free debate.
DISCUSSION OF THE PRINCIPLES
Explanatory note: The
principles are presented in italics and my commentary in regular type in
brackets.
Principle #1: SOVEREIGNTY OF INDIVIDUALS.
A. Governments can only derive their just
powers from the sovereign powers of their individual members. [There
are two basic forms of authority to initiate government: 1) force (man or God)
or 2) voluntary mutual cooperation.
Since God has not intervened to mandate a secular government and we
reject the imposition of force by man as a proper basis of initial authority,
we are left with mutual cooperation as the basis for government. Inherent in the concept of voluntary
cooperation is the fact that all the forming parties come to the table on an
equal basis--each person sovereign in his claims of liberty insofar as those
claims do not force others to serve his needs].
B. All persons are rightfully sovereign over
those affairs, which do not infringe upon the rights of others. [This
is the basic criteria for a non-conflicting cooperation. Notice that I do not use the words “harm
other people,” or “conflict with other people.” There are examples where people’s exercise of their freedom can
do economic “harm to” or “conflict with” people without violating any
rights. For example, painting your
house a wild color can potentially lower the value of your neighbor’s house,
but since your neighbor has no right to any predetermined value on his home, no
rights have been violated. Economic
values are determined in the eye of the beholder and by negotiation with
potential buyers, so the seller does not have a right to enforce a fixed value
on others. If we were to use the words
“harm” or “conflict” in limiting sovereignty, there would exist many unsolvable
legal challenges to sovereignty. By
tying sovereignty to a distinct definition of rights (Principle #3), more
protection is afforded against arbitrary claims of offense].
C. All persons reaching an age and ability to
take care of themselves and be responsible for their actions can claim status
as sovereign individuals. [This provides the basic criteria for
determining who can exercise sovereignty.
Its wording is general, which is sufficient to guide lawmaking, but not
so specific as to cause problems. For
example, if I had chosen an age and ability to be “completely self-sufficient”
one might be able to attack anyone’s claim to be a sovereign individual. Who can be totally self-sufficient
indefinitely? Responsibility for
actions is an essential part, however.
Sovereign entities must never be able to use sovereignty to evade
compensating others for damages that occur as a result of their use of
liberty. This criteria will also serve
as a basic guide to lawmakers who may wish to define a specific minimum age or
responsibility level when children can claim independent status from their
families and join the ranks of sovereign individuals].
Principle #2: SOVEREIGNTY OF THE FAMILY.
A. Families,
composed of a man and a woman and their natural or legally adopted children,
act as a special sovereign unit over the health, welfare and education of their
children until such children reach the age or capability of exercising
individual sovereignty and self-responsibility. [It is precisely due to the existence of
children, who cannot yet exercise individual sovereignty, that we must carve
out a special form of sovereignty for the family. If we do not give families sovereign status, there is no basis in
individual rights theory to stop the state from asserting a preeminent
caretaker status in the guise of protecting children--as it does in our current
legal system. Even though the
definition of the family is becoming fuzzy with artificial insemination of children,
I feel we must rely on the basic biological fact that no child can be
engendered without the male and female components, which are traceable in
origin to the parents for purposes of sharing responsibility. This definition is not intended to say that
families only exist when both parents are present, but that only a man and a
woman having a child trigger the creation of a family unit. All other artificial forms of the family are
creations of the state, and liable to the state. The family unit, including the subsequent responsibilities of
parents, still exists and is binding upon both even if parents separate or
never live together in the first place.
Marriage that doesn’t involve children does not need this separate
form of sovereignty since both parties to a marriage are protected by the
individual right of contract. Unfaithfulness to the marriage covenant
under this doctrine would be prosecuted as a breach of contract].
B. Families, therefore, possess the ultimate
authority over the health, welfare and education of their children unless the
actions of the parents constitute an actual or imminent threat to the life of
the child. [This principle
confronts the major question of who has the ultimate authority over children,
the parents or the state--and if parents, what are the limits of that
sovereignty? I believe it is always
dangerous to give the state the ultimate authority over children, short of a
life-threatening situation--especially in areas of normal health and education. Despite the growing problem of abuse or the
potential problem of neglect, if we are going to allow leeway in the law, we
need to defer to the family. Recent
patterns of state intervention in families are showing an increasing hostility
toward parental freedom to choose in areas of physical discipline, rejection of
establishment medical procedures (including psycho-therapeutic drugs), and
religious indoctrination.
The state
even claims, under the guise of the “state
interest” doctrine, that it can control the education of children, which is
extremely dangerous to parental rights.
As one tough-minded home schooling parent told a judge, “I don’t care if
the state claims an “interest” in my children’s education, I have the ultimate
interest and authority!” The growing
hostility of the courts to this simple doctrine is disturbing and needs
reinforcement in a founding principle of law.
I am proposing raising the barrier of state intervention into the family
to actual or imminent threat to the life of the child. It is a high barrier, and it will permit some
mild abuse. If there is any doubt or
suspicion, judges almost always defer to state authorities. Parents are often forced to meet arbitrary
requirements as a condition of regaining custody--often including consent to
questionable psychological counseling and drug therapy for their children. The courts should never be involved
prescribing treatment--only prosecuting actual violations for serious abuse or
life-threatening neglect. Because there
is a growing hostility of establishment authorities to family rights and strict
religious upbringing, the burden of proof for abuse or neglect should always
remain upon the state. There is an
addition safety valve against abuse as well.
Children have the clear right to leave an abusive home at any time, and
seek voluntary foster care, before the level of abuse approaches
life-threatening consequences. This is
an important option in problems of sexual abuse].
C. Once new
life is conceived, in a consensual relationship, a family unit is formed, and
both parents must accept responsibility for the care and upbringing of the
child until it reaches the age and ability of exercising individual
sovereignty. [This principle
establishes a new and formidable barrier against abortion and neglect. It bases the requirement for parental
responsibility on the principles of liability for consequences of
consensual acts. Individual
right-to-life arguments are valid even for a fetus, in my opinion, but they get
mired down in the question of whether or not the fetus is an individual capable
of claiming rights. In the liability
argument all that has to be shown is that the consensual act engendered a new
living entity and that the persons responsible must bear the consequences of
their actions. Just as a person who
impacts another person’s property with his car is not free to walk away from
the responsibility, so a man and a woman, engaging in a consensual act that
creates new life, are not free to walk away from that responsibility or
otherwise destroy that life, unless the life of the mother is truly
endangered. This argument avoids the
issue of when the life is “viable.”
Initiating a new life marks the beginning of the resultant
liability.
Under this doctrine, rape does not trigger any
liability on the part of the victim--only upon the perpetrator. In the case of the mother and child where
neither party is at fault, we do have a conflict of rights. The solution to abort a child would not
necessarily have the sanction of law, however.
The case should be judged on a different standard of law--one that
addresses the relative burden of harm
to each party when there is a conflict of rights and no one is at fault. Note that the impact of the fetus upon the
innocent mother is only temporary and not generally harmful, whereas the impact
of an abortion on the innocent fetus is permanent and fatal].
Principle #3: RECOGNITION OF FUNDAMENTAL RIGHTS.
A. Fundamental
rights are those rights that all persons
can claim simultaneously without forcing others to serve them. [The definition does not require a fixed
listing of rights, but rather provides a two-prong test which can be applied to
any action that someone claims as a right.
The first criteria is simultaneity
of action. Even though this rarely
happens in life, it establishes a theoretical and mental framework to more
easily determine if conflict will result from competing claims. The second criteria fulfills the core
element of non-conflicting rights--no one being able to claim a right that
requires some form of involuntary servitude, whether personal, financial
or use of someone’s assets. I have
purposely chosen involuntary servitude as the standard rather than “harm” or
“conflict.” It is more precise and easy
to determine, as mentioned earlier, and does not create false rights based upon
the sometimes ethereal concept of “harm.”
Physical harm is not too difficult to define but aesthetic, spiritual or
psychological harm are hard to prove and requires considerable judgment.
The most common false rights claimed by democratic
socialists are the rights to a job,
an education or health care. But each of
these clearly violates the definition.
All people cannot simultaneously claim any of these without forcing
others to provide the facilities, the salaries and the working materials.
In contrast, the most commonly derived true rights
from this definition are life, liberty
and property. Each of these
traditional rights qualifies under the definition, as long as certain non-conflicting
conditions are added. The universal
qualifier is: “as long as the rights of others are not violated.” The right to life therefore is not
absolute. If a person is engaged in
attacking another without justifiable self-defense, the aggressor’s life would
be rightfully in jeopardy. The right to
life does not mean that society is obliged to keep you alive--that would
violate the second criteria. It only
assures that no one can rightfully take it from you, as long as you are not
acting so as to violate any other person’s rights.
Personal
liberty of action is a universal right until one begins to infringe on
another’s right. All persons can claim
property and hold physical assets as long as these things were acquired by
voluntary contractual relationships or the application of unique labor and
improvements to unowned land (not first claimed by others).
As far as categorizing
rights, a good logician could probably extract all necessary rights from
one--the right to Life, but the mental gymnastics would be somewhat tedious and
difficult for the common person to follow.
We must also avoid the temptation to add so many categories that it
becomes complicated. I will list two
more categories to the basic three already mentioned, which I consider
essential to thwart common violations by government--excessive intrusion into
family affairs and the denial of private arms for self-defense.
Having a right to family sovereignty over the affairs of children is essential to
avoid trying to carve out a complete doctrine of individual rights for
children, having no ability to be independent nor responsible for self. The right of self-defense is essential to the existence of all other
rights. No claim to a right is
meaningful without enforcement power--first and foremost by the person
possessing the right. No person should
have to rely totally upon others, including government, for defense of his
rights. A suggested definition of this
right should include the right to possess private arms in the defense of self,
family and others; and the right to use the appropriate force necessary to
eliminate the threat.
Corollaries
to the right to life would be the right to be free from physical attack by
others (when not engaged in criminal behavior) or even freedom from harmful
pollutants emanating from another’s property (if shown to be harmful).
Corollary rights under personal liberty would be the
right of contract with willing parties, the right to take risks, and the
freedom to engage in any economic endeavor as long as others’ rights are not
violated.
Corollary rights of private property are interesting
because certain rights that are normally considered absolute (like freedom of
speech) are actually not absolute except when linked to private or contractual
property rights. Property rights would
also include the right to freedom of association or disassociation on your own
property, freedom of expression, privacy (including freedom from search and
surveillance when not violating any person’s rights), and freedom from physical
or regulatory takings of property by government. Notice that there is no
unrestricted freedom of expression on other people’s property or even on public
property. Personal actions on public
property are governed by fundamental rights or, in cases of indeterminate
rights, by rules and norms of the local citizen compact or “community
standards” as determined by mutual consent of the governed.
B. Fundamental rights are superior to all other
earthly law and should never be made subject to majority rule. No law or claim of state sovereignty to
enforce a law is valid if the law constitutes a violation of any fundamental
right. [If a right is truly
fundamental, then no other person or government can rightfully violate it, even
by law. A constitution alone would be
insufficient to protect those rights if that constitution is capable of being
amended by majority rule. Rights must
never be subjected to a vote. They
must be declared and agreed upon by mutual
consent].
C. Fundamental
rights are best secured by a citizen
compact where all parties agree to recognize and defend those rights. [Since
it is improper to subject fundamental rights to a vote, the only way to secure
those rights is by forming a unanimous covenant of all participants,
akin to the Mayflower Compact. In this case, I use the term “citizen compact” since it would be the
basic signature document that all citizens would have to agree to upon when
forming a government. In terms of
practical implementation, it doesn’t mean that a government can’t be formed
until every possible person agrees, but rather, that we form a government with
the largest possible circle of agreement we can achieve at a given time and
place, and treat other non-participants as free foreigners, inviting them to
join when they want the benefits of the protections that the new government
offers. Any new society that truly
protects the broadest range of fundamental rights will eventually win out over
competing societies that violate rights.
This will be described more fully in Principle #10.
A variety of citizen compacts, all emanating from one
basic national pact can also resolve the major differences in religious
background in a pluralist society.
Most conservatives recognize that this nation was founded as a Christian
nation. This is true, for the most
part, even though there were many non-religious people who were part of the
American Revolution. Today, imposing
the concept of a Christian nation upon non-believers would be highly resisted
and improper. Religion has lost
significantly more ground in recent years, and every group who perceives itself
as the “silent majority” is struggling to control the majoritarian system that
gives almost total power to whoever controls the electoral process. If a national government is formed with a
basic compact that only sets out basic, bare-minimum “community standards” for
public behavior, and each religious section of society is allowed to establish more
restrictive religious covenants, by mutual agreement in contiguous
territory, then a variety of differences in society can be accommodated without
each one trying to oppress the other.]
Principle #4: GOVERNMENT AS AN EXTENSION
OF INDIVIDUAL SOVEREIGNTY.
A. The
formation of a government with enforcement powers is an extension of two
specific fundamental rights--the right to contract with willing parties and the
right to act in self-defense of fundamental rights. [This concept is
derived from the assumption that the only legitimate form of government (in the
absence of a clear, divine mandate to all people on earth) is a cooperative
government formed by free men possessing equal fundamental rights. A cooperative form of government cannot
possess any right that its individual members do not possess].
B. In forming and authorizing a government to
enhance the right of self-defense, the individual does not cede nor limit any
fundamental rights except as specifically agreed upon. [This
statement counters one of the prevailing doctrines of those opposed to the
“right to bear arms”--that there is a presumed “social compact” entered into by each person who is born a
citizen. Proponents say the implied
contract dictates that, “each citizen relinquishes his right of self-defense to
government, for the sake of order.”
This sounds nice, but it is bad doctrine. Presumed social compacts are whatever the government says they
are. Only specific agreements
entered into by all citizens can rightfully limit the exercise of
fundamental rights. Otherwise, who is
to decide what rights are “presumed” to be limited in a social compact?]
C. Thus, a government that is granted
enforcement powers and is governed by majority rule should only be formed by initial unanimous consent of
those to be governed by such. [This point was previously explained.]
D. A proper government is
controlled by a constitution that
limits majoritarian powers and establishes a sovereign nation composed of sovereign states that jointly and
severally protects our rights through a
republican form of government.
[A Republican form of government is
a government ruled by elected representatives of the people, within a
federation of several sovereign states, whose majoritarian powers are strictly
limited by a constitution to the defense of fundamental rights. This principle expresses the American
concept that lawmaking power should be limited by a constitution and that power
should be diffused among sovereign territories (states) under a federal
government that, in turn, takes its place as a sovereign nation among the
nations of the world. This system
provides a federation of cooperating sovereign entities. Each sovereign state has the right to
establish a unique citizen compact for its members, with community standards of
public conduct that may differ from state to state. Even though the principles herein espoused eliminate most of the
conflicts within law, there is still a role for the concept of competing governments, that
attract adherents according to the specific judgments and standards developed
under the overall umbrella of fundamental rights, guaranteed nationally. When there are multiple competing sovereign
states, like multiple private schools, citizens can choose the state and local
community that best represents their taste in community standards and
efficiency in governmental administration.]
Principle #5: LIMITATIONS ON GOVERNMENT POWERS.
A. A government’s only proper role of enforcement power is to defend the fundamental rights of the persons joining together to form, authorize
and support such government. [This statement forces all law to seek
its basis in fundamental rights and effectively prohibits government from
drifting off into areas of regulating and protecting people from themselves and
from other harmful decisions that don’t involve violations of fundamental
rights. It also declares that
non-participants don’t qualify to have their rights protected, except by their
own fundamental right of self-defense.
This is one of the inducements to join in a cooperative government and
help pay for its legitimate expenses.]
B. All levels of government
must be strictly limited in their
respective legislative and enforcement powers to those powers specifically
granted to them by the citizens of each jurisdiction which do not violate the
fundamental rights of individuals. [In other words, there must exist
no unlimited powers of lawmaking in any portion of the Republic. All levels of government must trace their
just powers to a grant by all of the citizens of each jurisdiction, and that
grant of power is always limited by the doctrine of fundamental rights.]
C. Governments
may also act as a cooperative enterprise
in behalf of any portion of its citizens, as long as such services are provided
exclusively on a user-fee or voluntary donation basis. [Under
this doctrine, governments may provide cooperative schools, hospitals, or
engage in business ventures as long as no public funds are used to fund them in
any way. Government, when not acting
in its enforcement role, is no different than any other business co-op--as long
as it is funded with user fees and private donations. In this manner government isn’t unfairly competing with the
private sector.]
Principle
#6:
GOVERNMENT SEPARATION OF POWERS.
A. Within the
proper limitations of government powers, an effective government will be
structured so that representation will reflect both territoriality and
population. [This point reflects the wisdom of the founders in the “great compromise” dividing
representation between territoriality for the Senate and population for the
House of Representatives.]
B. In
addition, to avoid concentrations of power, at each level of government, there
should be a separation of executive
powers, legislative powers, judicial powers, and those oversight
powers retained by the citizens. [This principle acknowledges
another of the founders’ great principles--the separation of power at the federal level--but also suggests that
such a separation be implemented at the state level as well. It also directly addresses oversight powers
of the citizens themselves so as to be able to override potential collusion
within the 3 branches of government, which is particularly threatening at this
time.]
C. Each
separate jurisdiction of government, including citizens, should have
investigative and enforcement powers to ensure access to truth, expose
corruption, and enforce compliance within their proper and respective realms of
authority. [One of the weaknesses of the Constitution’s separation
of power is the lack of enforcement and investigative powers on the part of the
Judiciary. Even the Congress has no
enforcement powers except that of impeachment.
The bar has been raised so high on impeachment that Congress has little
power to enforce its investigative authority.
In one particular case, President F. D. Roosevelt
took direct advantage of the judiciary’s weakness by refusing to abide by one
of its rulings. It set the world on
notice that the court had no power to enforce any of its rulings, or do basic
fact-finding on issues of compliance.
As for citizen oversight, citizens have been given (by Congress) a minor
power to investigate government through the Freedom of Information Act (FOIA), but are powerless to break
through the government’s improper use of secrecy to hide all illegal acts from
discovery through ultimate control of the FOIA procedure. The courts almost always refuse to assist
the citizens in penetrating this control.]
Principle
#7: JUDGMENT AND PUNISHMENT FOR
CRIMES.
A. In criminal proceedings, equal justice through due process of constitutional law
should be provided all citizens and residents.
Due process should always include the right of the accused to have ready
access, in person, to a representative of his choice to prepare a defense, the
right to a speedy and public hearing on the cause for detention, and timely
trial not to exceed a certain time limit from the time of detention. [This principle sustains the two
bedrock principles of traditional law--equal justice and due process for every
accused person. The language establishing the rights of the accused are
important to ensure that each prisoner’s condition is capable of being known
outside the justice system, and that a speedy and public trial is mandated. The time limits for a speedy hearing and
trial are essential to avoid the grave injustice of wrongful imprisonment or
refusal by the government to “yield up the prisoner” (Habeas Corpus).]
B. The accused
should be considered as innocent as
the current level of credible evidence permits. [Even though
everyone thinks we presently act under the dictum of “innocent until proven guilty” this is not completely true. Judgments about bail, tendency to flight,
and danger to society, always involve
some determination of the credibility of the evidence, and the seriousness of
the crime at the initial hearing. This
replacement language states the conditional principle of innocence more
plainly.]
C. Access to the courts to defend one’s
fundamental rights, in criminal cases, should never be denied due to inability
to pay, although the assessment of reasonable user fees and fines are
appropriate once guilt and blame are established. Access to the courts for
civil proceedings may be limited to those who sustain and support the legal
system. It is
inappropriate for the Courts, in either criminal or civil matters, to grant
court-approved representatives the exclusive power to represent persons
before the court. [While access should not be denied due to
inability to pay, neither does this principle mandate unlimited taxpayer
support for court-appointed attorneys, which have less than a stellar record
for fair representation. There are
other partial solutions, such as in D below, where the judge himself is
responsible to make sure the rights of both parties are secured. Other solutions would include a loan fund
for the indigent accused that would be paid back by the user in prison-work
fare programs, so as not to present a burden to taxpayers. The support
qualification mentioned in civil proceedings is important so that
non-participants cannot claim the same level of access to the system as citizen
taxpayers. A fair user fee would be the
appropriate remedy.]
D. Punishment for infractions of law
should be uniformly applied to all offenses of similar threat to fundamental
rights. Punishments should be fair, proportional to the offense, provide
deterrence, provide restitution to victims by the perpetrators, and remove
permanently from society chronic offenders who refuse to control their predation
upon others. [The principle of uniformity, qualified by the
“violation of rights” test, differs from the current “danger to society” test,
which often is used more today to heavily penalize anyone who presents a challenge
to the government or court system itself (tax protesters,
constitutionalists, government whistleblowers), instead of focusing on criminal
threats to the public. The list of
criteria herein for proper punishment is meant to establish fairness and increase
the deterrent effect of the judicial system.
The principle of removing chronic offenders of any category permanently
from society can mean life imprisonment, the death penalty or even
banishment. Providing an ultimate
penalty for recidivism, even among petty criminals will have a powerful
deterrent effect as well. To
facilitate victim restitution and reduce the burden on taxpayers, a vigorous prison work system should be
instituted.]
E. All
prosecution of criminal acts should be tried before a judge and citizen jury, trained in the applicable law, where the
judge is responsible to ensure that rights of all parties are protected and the
jury has the power to judge the facts of the case, the applicability of the law
to the particular case, and the appropriate punishment. Access to a jury trial should be an absolute
right for all criminal cases and an absolute option for civil cases, where the
parties to the case are willing to accept their share of the appropriate user
fees. [It is my belief that
both judges and juries should be trained in the applicable law, so that those
who make the final judgments on guilt are less likely to be influenced by bad
arguments on sophisticated issues outside their area of expertise. The history
of jury manipulation and excessive control by judges through restrictive
jury instructions leads me to the conclusion that juries must possess the
ultimate authority to judge both the application of the law to the situation
and the facts of the case.]
Principle
#8: PROPER
FUNDING OF GOVERNMENT
A. Government
should be financed by general taxes only for universal services that
are directly related to the defense of fundamental rights of all and that
render no specific benefit to an individual or group constituting less than the
whole. [This one principle would do more to stop the power of
government to redistribute wealth than any other. It would also provide a major obstacle to political corruption
since no politician would be able to promise direct benefits to any individual
or group. This principle was the basis
for the original “general welfare” clause of the Constitution--which had
nothing to do with welfare benefits and everything to do with restricting
government to those things which related to the defense of everyone’s rights.]
B. User fees must be employed to cover all
costs, and only those costs, for any direct government services or benefits to
individuals, groups, and such user fees should be applied to those same
services, which produce the fee. [The principle of user fees allows
government to offer cooperative and selective services to less than the whole,
as needed, without violating the property rights of the general taxpayer. Restricting user fees to actual government
costs effectively prohibits legislatures from tacking on new and unrelated
taxes and calling them “user fees.”]
C. A mix of general tax revenues and user fees
is appropriate to support a single government service which provides both a
general protection of rights and a specific legal or other service to an
individual or group. [This is most appropriate for civil trials in
the judicial sector, as well as where there are mixed-use benefits to public
commercial enterprises like seaports, airports, and use of the
“commons”--oceans, airwaves, and space, etc.]
D. The type of taxation employed should be
directly levied upon the persons or properties protected by government
services. [The two primary entities protected by the military and
police powers of government are people and property (which includes land,
buildings, factories, and farms). A
truly fair tax system will directly tax those entities in proportion to how
much they benefit from government defense and administrative services. Any other form of taxation, no matter how
convenient to tax is a violation of someone’s rights.]
E. Taxation
should never be allowed on commerce, income, inheritance or gifts. Neither should taxes be hidden within an
economic price, interfere with or distort economic processes, or force any
person to pay a higher proportion of taxes when no higher protection is
required from government services. [The greatest way to keep
government expansion in check is by keeping the cost of government up front and
painful to the taxpayer. The
prohibition against today’s common forms of taxation effectively forces government
to tax openly and directly the people and property directly protected.]
F. There must
be no taxation without representation
and no form of taxation voted upon with majoritarian powers should be valid
unless applied to all citizens and residents. [The intent of this
principle is to stop the human tendency to “tax the other guy” by seeking to
add other types of taxes on products that have no majority constituency in the
legislature to protest.”
G. No state should be allowed to incur a budget deficit and no deficit should
be allowed at the national level except in time of declared war. All government liabilities and expenditures
should be included in the budget. [Government should only be allowed to spend what the citizens are
willing to pay for each year. A nation
must have the power to save itself in wartime, even if it means extensive
borrowing, but that deficit should be limited to the principles of debt in
H. Today’s governments distort and hide
their real financial condition with a variety of accounting tricks. Everything should be up front and
transparent.]
H. Total
indebtedness should not exceed a certain percentage of total annual tax
revenue of any government entity (perhaps, 10%) and every separate debt issue
should be retired within 10 years so that those who vote for it pay for its
retirement. No tax burden should be
shifted to the next generation through debt or unfunded entitlement programs. [Debt is a form of future taxation and is an
insidious form of government funding because it makes the expenditure seem less
painless than it is. A tight time and
quantity limitation on debt is important to avoid the threat of exceeding a
nation’s solvency, or violating the prohibition against transferring a debt to
the next generation without their consent.]
Principle #9: LIMITS ON POLICE POWER.
A. Military and police power of government should only be used to
prosecute and punish actual violations of fundamental rights of its citizens,
or imminent threats to those rights, whether foreign or domestic. [This language restates the basic
principle that all police actions must be tied directly to the defense of
someone’s rights or the rights of the nation as a whole. Military intervention prior to enemy action
is appropriate under the very limited circumstances of “imminent threat”--a
strict legal term meaning that a lethal threat poses a real and present
danger.]
B. Citizens should be secure in their privacy from government search, intrusion, surveillance, and
seizure except when credible evidence exists of a crime against fundamental
rights or an imminent threat to liberty.
[This presents the basis for constitutional language that
would require that a warrant be issued by a judge before a search or seizure
could take place. It should also be
required that police must have the warrant available for inspection, naming a
specific person or place to be searched and detailing the evidence justifying
the warrant. Too often, the
Constitution’s strict language on warrants is totally disregarded. Surveillance is also routinely conducted
without any warrant. Thus, government
agents must be held strictly liable for the violation of these limitations on
police intrusion.]
C. Government power to enforce secrecy should not be applied to the specific
knowledge any person may have concerning crimes committed by government
officials. [This principle directly addresses the major reason why
government illegal activities continue unabated despite numerous attempts to
discover them--laws and penalties for violating a government’s “national
security” mandate are entirely one-sided, aimed at suppressing the testimony of
any agent who threatens to blow the whistle on illegal activities. Despite lip service to whistle blowing laws,
agents have little effective recourse to overturn or object to secrecy orders
covering government illegal activities when the courts often refuse to side
with government critics.]
D. Officers of government should not have immunity from acts committed by themselves or by others under
their knowing supervision that violate the fundamental rights of others. [Immunity,
coupled with excessive powers over secrecy, allows powerful forces for evil to
grow up under the mantel of government enforcement. The excuse that police or military are “only following orders” has lead to history’s greatest human
holocausts. Military command and
control is important but it must never be used to create a cadre of abject
“yes-men,” as was the case in Germany, Russia, and now America. There is no substitute for ample training of
every government agent, including military personnel, to know when their
actions constitute a violation of fundamental rights. Only the threat of personal liability will make sure each is
motivated to learn the law and keep it high on his list of priorities.]
E. In Foreign affairs, any
assistance in behalf of liberty given to other nations or peoples, where a
significant threat to this nation’s rights cannot be demonstrated,
should be encouraged and allowed by government, but carried out by voluntary
measures. [This principle prohibits tax-payer assisted military
involvement in foreign wars where no direct threat to our nation’s liberties
can be demonstrated. It also
establishes the right of volunteers to help with private arms and
manpower. Presently the US uses the Neutrality Act to prohibit all private
assistance to freedom movements.]
F. No citizens or residents of this nation should be allowed to use the
shield of government protection of fundamental rights herein to undermine the efforts of other foreign
persons seeking to establish similar fundamental rights. [This point
does allow government to prohibit US citizens from using this nation as a base
of operations to foment or assist revolutions against liberty.]
Principle
#10: CITIZENSHIP BY COVENANT AND
QUALIFICATION
A. Citizenship
should be by covenant and qualification rather than by birth
alone, whereby the fundamental rights of citizens, voluntary limitations on
those rights, and the duties and responsibilities of both citizens and
government are clearly specified. [The concept of citizenship by
qualification solves the greatest and most persistent internal threat to
liberty--an ignorant populace with the power to vote themselves benefits
without any understanding of the law or the principles necessary to maintain
liberty. The two most prevalent causes
of citizen ignorance are a controlled media and a controlled system of public
education. By requiring all potential
voting citizens to pass a test on law and government, each person has an
inducement to get whatever education is required to pass the test.
Without such a test, conservatives have to compete
with Socialists for control of education
in order to ensure a knowledgeable voting public. But with a test of understanding, citizenship itself serves to
induce all people to seek out the necessary information on liberty in order to
qualify. I believe strongly that
linking knowledge of liberty to citizenship is a more viable solution than trying
to control people’s education, which in and of itself, is a violation of
liberty. Besides, the battle to control
education has not been successful and shows little hope for improvement, given
the high percentage of the public (including conservatives) that has become
addicted to the tax monopoly funding of public education. This welfare benefit allows their children
to receive education funding for lavish buildings and programs far in excess of
the taxes they personally pay.
The citizenship
test needs to be extensive and complete so that all citizens understand the
full range of what constitutes bad law and illegal actions. But it need not be tricky, complex or
difficult. The questions can even be
known in advance so that people can openly prepare for the test. The test’s purpose is not to stop good
people from becoming citizens, but to ensure no one becomes a citizen with the
power to vote without having the requisite understanding of how to maintain
liberty.
There are other essential things that can be done in
the context of a citizenship compact that are equally useful in establishing a
government that maintains fundamental rights and moral values without doing so
through the dangers of majority rule.
For example, the citizenship compact is the appropriate place for all
citizens to sign on to the recognition to fundamental rights, to take
a pledge not to violate those rights, and agree to some voluntary
limitations of those rights, for example, taking part in jury duty, a
citizen militia or a limited military wartime draft; accepting some very
limited eminent domain takings of property for public purposes (with
compensation); and agreeing to basic “community standards” of decency in
public. Each of these functions I have
listed are problem areas when implemented by the force of law without the
consent of those whose lives and property are used involuntarily or taken by
government.]
B. It is,
therefore, proper to establish other classifications of residence for the
protection and training of those not yet qualified for citizenship. [The
purpose of this form of citizenship by qualification is to offer citizens a
higher level of protection and privilege in society in exchange for a higher
level of knowledge and commitment to preserve liberty. Since this form of citizenship is not
imposed upon unwilling participants, it must be structured to offer inducements
for others to join so that the circle of supporters is ever-increasing. Citizenship privileges offer one of the
major inducements for people to join and qualify. It is therefore appropriate to have lesser categories of resident or visitor for those who have not yet qualified or who do not wish to
do so.
Residents and visitors would not have a free ride,
however. They would pay different types
of taxes and user fees than most citizens if they wanted to have access to any
public services or public property. In
like manner, not having joined the covenant as a citizen, they most likely
would not have access to any public property governed by the new government
unless they at least agreed to the “community standards” on public behavior and
paid appropriate user fees. There must,
of necessity, be some disadvantages to remaining in a resident status so
that people have the incentive to move up to citizenship, but the differences
must not be so onerous as to make being a “resident” a non-viable choice. I think there is even room to allow
residents to have some limiting voting rights on local issues (especially taxes)
that directly affect them, as well.
One of the most important differences between citizen
and non-citizen might be a restriction from owning titled property, a privilege
only extended to citizens. Residents
and visitors could own the full range of normal goods but would have to rent
housing, cars, businesses or certain investments that are defended by legal
title. This is not an onerous
difference since all responsible people can easily become citizens should they
want to own titled property. What the
restriction does do is induce all industrious people to qualify for citizenship
and to link increased privilege with increased responsibility for maintaining
liberty.
This is
simply an overview of the basic concept.
The details of implementation would require much careful thought and discussion. Non-participants with the new government
always have the full range of private fundamental rights that all men possess
that pre-date any new government, including property rights, but they would not
be able to have those property rights defended by the new government unless
they agreed to come into the compact as a citizen. Those who chose to stay completely outside the system would be
considered foreigners and have to rely on their own fundamental right of
self-defense.
This form of citizenship also helps solve one of the
major problems in a world of open markets and free trade, where an unequal balance of payments results between
different trading countries. Currently
foreign holders of dollars evade purchasing American products and choose
instead to buy up portions of America itself: government debt, land, capital and business enterprises. Since all of these are titled property,
under this new proposal they would be restricted to citizens only. Foreign buyers would not be able to buy up
the capital assets of America unless they became citizens. In this way, either they become committed to
our version of liberty through the citizenship qualification process, or they
apply their excess dollars to American products. In both cases, liberty wins.]
C. Children of
citizens fall under the protection of their parents’ citizenship until reaching
an age or ability to become self-responsible, or they become disqualified by
criminal or rebellious behavior. [Children of citizens (or
residents, for that matter) automatically come under the respective category of
protection that their parents possess.
Thus, children are fully protected under the umbrella of their parents’
citizenship, but aren’t considered citizens themselves until they qualify. Once reaching the minimum age to apply for
citizenship, they would become “residents” until they otherwise qualify for
personal citizenship status.]
Principle
#11: CITIZEN
ACTIONS FOR SELF-DEFENSE.
A. All
citizens should be free to own and possess the means of effective personal
protection and to use appropriate force to protect life and property from harm
when police forces are not immediately available or willing to help.
[This language is extremely effective in recognizing a broad degree of power
for the individual in the exercise of his right of self-defense. It does not specifically limit the types of
arms a person may possess, though a citizen may agree to do so in the citizen
compact. It allows the use of force to
defend both life and property, and is not contingent upon permission from
police.]
B. Citizens acting in self-defense of
fundamental rights should use only the force necessary to eliminate the
perceived threat. [This presents the basic principle of how much
force is appropriate. It focuses on the
issue of the threat, as seen through the eyes of the one threatened. Naturally, specific kinds of force would be
more clearly defined in constitutional and statutory law.]
C. A privately armed citizenry also serves as a
proper counter-force and deterrence to government tyranny. [This
principle recognizes the legitimate role that an armed citizenry has in
deterring government tyranny. This is
essential since the threat of government tyranny is very real today, but
carefully hidden.]
Principle
#12: FREELY COMPETING,
NON-COERCIVE VALUES.
A. All
non-coercive values should be free to compete for adherents in both private and
public domains, with government serving only in its role of maintaining public
order. [This principle establishes that government is not to promote
or detract from the private or public competition of ideas, but is only to
ensure public order and to ensure that neither side has use of the public purse
nor enforcement powers to promote its position as stated in B.
B. Government
should never use general revenues or its lawmaking power to establish or
promote any system of belief except that which directly protects fundamental
rights or which is agreed upon by all participants in a citizen compact
covering “community standards” of public conduct. [This principle adds the concept that governments can
only go beyond fundamental rights to enforce some limited community standards
of public conduct (not private) as long as all citizens who form the government
have agreed to those standards. In this case fairness would dictate that only a
reasonable set of community standards is going to be capable of engendering
wide support. That is why excluding
private conduct is an important element of gaining wide acceptance among people
who are not totally moral by God’s standards, but recognize the wisdom of
keeping such conduct to themselves and not flaunting it in public. One must be careful to implement a citizen
compact while there still exists a majority of people at least sensitive to
these moral issues, otherwise the best that a compact can do is govern a
break-away sector of good people who declare their freedom from the corrupt
majority.]
C. Officials
should not be restricted, however, from making statements of personal belief,
including religious references to a
duty to God or a belief in a Supreme Being, or praying publicly to God, as long
as such pronouncements are stated as their own personal beliefs or feelings,
represent part of his or her leadership role to constituents, and do not
require mandatory acceptance by others.
[This principle establishes that even though officers of
government are paid employees, they may express their personal convictions
about politics, philosophy and religion etc., as long as those expressions are
part of their leadership responsibility, are not at odds with their official
capacity requiring fairness and justice, and are stated as their own personal
opinions or feelings. Leaders are paid
to lead, and not simply parrot mechanistic rules. If a leader oversteps the bounds of propriety in this area, there
are other checks and balances, including the election process or legislative
censure that can serve to counterbalance excesses.]
D. Private
citizens should not be prohibited from using public property on a temporary
basis, without cost to the government, for religious or other celebrations of
belief as long as such activities are voluntary and coordinated with other
normal public needs. [Religions are no different than any other
association of belief. All such
associations (that do not threaten fundamental rights, or the community
standards established by voluntary compact on public comportment), ought to
have free access to public property, even to promulgate their beliefs--as long
as any costs to the taxpayer for administration or maintaining public order is
reimbursed.]
E. Officials should not, in an official
capacity, publicly disparage the beliefs of others, unless those beliefs
violate fundamental rights. [Again, the criteria for official
criticism of a belief system must be strictly limited acts or intentions that
violate or present an imminent threat to fundamental rights--not mere dislike
or disagreement for the belief system that is otherwise voluntary. Naturally, criticism can be leveled at
beliefs or actions of the group that may violate the agreed upon standards of
public comportment as well--especially since even those members agreed to those
standards.]
SUMMARY
The key elements of this
system of principles, that distinguish it from our present system, are these:
· It provides a workable legal definition for
fundamental rights that effectively stops the creation of false rights that
always accompany Socialist demands.
· It limits the powers of enforcement to the
defense of fundamental rights so that law enforcement officers and citizens can
better know the proper bounds of police action.
· It provides a basis for forming a government or covenant
societies within that government based upon initial unanimous consent so
that no person’s rights are violated at the onset.
· It provides a mechanism to keep the voting public
bound to the principles of liberty, without having to control the education
system or the distribution of information.
· It provides a system that allows for a variety of covenant
compacts to govern matters of “community standards” for public behavior,
avoiding the dangers of putting such powers in the hands of majority rule.
· It provides for a system of government funding
that absolutely prohibits the use of general tax revenues to support the
redistribution of wealth, property, or belief systems (other than the defense
of fundamental rights).
All of the above are so
significant in their potential for restoring and preserving liberty that they
deserve the attention of all good men and women. There is room in this system for widest possible expressions of
belief and action for both religious and non-religious people and groups. This system also allows for a variety of
different covenant societies so that strict uniformity is not mandated
throughout the nation.
No system completely eliminates the myriad of
conflict possible between human beings, but this system establishes a stable
foundation that eliminates the most serious disagreements on basic issues for
all those who endorse liberty instead of government redistribution or
control. The principles will not end
conflict with those who want to harness government for their own power, but
they do at least give us reasonable and fair grounds upon which to challenge
their moral pretensions. Only raising
up a strong majority of people dedicated to stop the improper use of government
power will solve this battle, ultimately.
While my readers may have differences of opinions on specific
implementation, I would hope that we can come to an agreement on basic
principles. I appeal to each of you to
help in the quest to perfect these principles in the spirit of non-conflict,
rather than tear them down. We have the
finest historical legacy of liberty anywhere in the world. Let us build upon it for the restoration of
the full range of our liberties.
Joel M. Skousen April 6, 2001