KOL345 | Kinsella’s Libertarian “Constitution” or: State Constitutions vs. the Libertarian Private Law Code (PorcFest 2021)

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Kinsella on Liberty Podcast, Episode 345.

This was my talk delivered today (June 26, 2021) at PorcFest 2021: “Kinsella’s Libertarian “Constitution,” or: State Constitutions vs. the Libertarian Private Law Code.”

The notes that I roughly followed are below; pix also below. Transcript below.

For a related talk, see KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021)

Youtube

This is the video with better audio added after from my iphone recording, with the help of Jacob Lovell.

Below is the original with passable audio

The description from the PorcFest website (which will probably disappear at some time in the future):

Kinsella’s Libertarian “Constitution”
—————–
When: Sat, 12:00P _(60m)
Speaker: Stephan Kinsella {Website} {Pic}, An American intellectual property attorney and Austro-anarcho-libertarian writer and speaker for 25 years. He has spoken, lectured and published widely on various areas of libertarian legal theory such as rights theory, anarchism, contract theory, intellectual property, and on legal topics such as intellectual property law and international law. His legal works include International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford University Press, 2020) and Louisiana Civil Law Dictionary (Quid Pro Books, 2011); his libertarian writing includes Against Intellectual Property (Mises Institute 2008) and the forthcoming Law in a Libertarian World (Papinian Press, 2021). Forthcoming works include Copy This Book: The Case for Abolishing Intellectual Property (2022), and a systematic, codified statement of libertarian principles as an alternative to constitutions and committee-prepared political platforms.
For Whom: Constitutionalists; secessionists; Federal reformers; decentralists; polycentrists; anarcho-capitalists.
Description: State constitutions, including the US Constitution, are not libertarian. The purpose of the US Constitution was to establish a new, powerful, central state, not to protect individual rights. Efforts to draft “libertarian constitutions” are also often flawed, as when they presuppose and legitimate a state or a territory owned by a single owner (Liberland). Does the idea of a “libertarian constitution” make sense? What kind of codification or statement of libertarian principles is appropriate? {More}
Where: Anth: Anthem Theater, OfficeBld

 

❧

TRANSCRIPT

Kinsella’s Libertarian “Constitution”
or: State Constitutions vs. the Libertarian Private Law Code

Stephan Kinsella

PorcFest 2021, Lancaster NH
June 26, 2021

00:00:01

W: … published by the Mises Institute in 2008 and the forthcoming Law and the Libertarian World.  So Stephan, I’ll let you take it away about state constitutions.

00:00:10

STEPHAN KINSELLA: Okay.  Thanks a lot.  If you can’t hear me, let me know.  I have no mic.  I speak kind of loud and kind of fast even though…

00:00:17

W: If we need to turn it up we can, so let us know.

00:00:19

STEPHAN KINSELLA: All right, so my talk is – I’ll explain the title as we get into this: Kinsella’s Libertarian “Constitution.”  So I prepared a libertarian constitution, and I hope to cover as much of its 18 parts and 45 pages as possible in this next hour.  So part one, section A, subsection 1: definitions.  I’m just joking.  I’m not going to read my constitution.  I haven’t even finished writing it yet.  I read this to my wife and she said, Is this what you geeks think is funny?  I said we’ll see.  I said half the people in the audience might be relieved, but the other half might be, damn, I really wanted to hear a libertarian constitution read to me point by point.

00:01:03

I’m going to talk about the idea of constitutions and libertarianism and whether the whole idea makes sense at all.  So I’ve been a libertarian since about 1982, and I’ve seen so many libertarian – utopian libertarian projects that I can’t even remember them all.  Most of them are scams I think or failures, and I’ve been involved in a few of them, so I’m just going to go through a few.  Some of you guys may be familiar with some of these, but this is just going back to my memory archives from the ‘80s.

00:01:34

So there’s, of course, always the idea to have a cruise ship type of nation like – now it’s called seasteading or Blueseed.  But the earlier version was called Oceania, the Atlantis Project.  And then those same people that started Oceania years later started something called Project Lifeboat, which is an attempt to create a spaceship so we could save the human race from the singularity that Vernor Vinge, a libertarian sci-fi writer, was talking about.  Occasionally, crazy guys homesteading oil rigs that are abandoned and calling it a nation.

00:02:05

There’s, on occasion, private justice and arbitration and common law groups that crop up.  There’s one that cropped up a couple years ago called the Creative Common Law project, and the guy that started it was on Tom Woods’ Show, and I thought it was intriguing.  So we got in touch, and he got me on board as an advisor.  It was called Creative Common Law 1.0: Anarcho-Capitalism.  And then a few months ago I looked up the website to update my resume, and everything had been changed, and now it’s moved to Creative Common Law 2.0: Anarcho-Socialism and Syndicalism.  And the guy told me he changed his mind.  I’m like – I’m always wary of what I call way station libertarians, guys that came into it like ten minutes ago because I like – let it sit for five years and see if you’re still here.

00:02:54

Libertarian law professor, Tom Bell, has created something called Ulex, an open source legal operating system.  He’s trying to get people to collaborate to develop kind of a libertarian-ish common law framework.  LiberLand, which I actually helped draft an early constitution for, which we published an article on called “The Voluntaryist Constitution.”  Galt’s Gulch Chile, which some of you guys may have heard of, which I think it was a scam that ended in a disaster.  I think my friend – well…

00:03:24

Honduras economic zones – they were trying to get some kind of free market enclaves there for awhile.  I was awhile associated with General Governance, which was started by David Johnson who is now a Bitcoin guy.  And the idea was to work with Indian tribes in the US and leverage their special constitutional status to try to extend their free market – or enclaves to – so American citizens could work there without paying federal tax.  And he promised me that this would be – the whole country would be libertarian within nine months, and this was ten years ago.  He abandoned it to do Bitcoin.  We actually met with the Indian tribes north of Houston, and they were interested.

00:04:05

But the Free State Project is another one of course, which is having some success.  There is a constitution written called the Libertarian Constitution on the National Constitution Center.  It’s written by some libertarians like Tim Sandefur and some others.  Roderick Long even made a stab at it even though he’s an anarchist.  It was kind of a Swiss-style model.  He wrote it years ago.

00:04:28

And then there’s others.  Even Dennis Pratt here has written something on the Bill of Rights.  So as I said, I’ve been dragooned into helping with some of these like General Governance, and there’s a Mississippi legislator named Joel Bomgar, a big Christian guy, a nice guy, successful businessman, and a libertarian.  And he wanted me to help him draft a constitution.

00:04:46

LiberLand – I swam with Wit, the president, in Turkey at Hoppe’s conference a couple years ago, and he went to the bottom to get a rock about 30 feet down.  And I tried to follow and I almost busted my eardrums, and he said, no, you have to push out with your lungs.  I said thanks for telling me now.  Anyway, others I’ve forgotten.  So they all – these guys always talk about perfecting the Constitution or improving the Constitution or writing a better constitution.

00:05:14

But why do we even use the word constitution as libertarians as if it’s a good thing?  So the modern libertarian movement in the US started I’d say in the ‘50s with Ayn Rand principally and then others like Milton Friedman and Leonard Read and Mises and Rothbard.  And because of this American base and Ayn Rand’s reverence for the American system as opposed to the Soviet system she left, there’s always been a reverence among libertarian circles for the Declaration, the War of Independence, the Constitution.

00:05:48

I mean the libertarian party uses the frickin’ liberty bell, the Statue of Liberty, all these American founding generation symbols as if they’re libertarian.  So the idea is that the Constitution almost got it right.  It was almost libertarian.  So if you remember Atlas Shrugged, Ayn Rand’s famous novel, at the end of the novel, she shows the victory of the heroes and the wise Judge Narragansett sitting at a table.  And the light of his lamp fell on the copy of an ancient document.  He had marked and crossed out all the contradictions in it that had been the cause of his destruction.  And he was now adding a new clause: Congress shall make no law abridging the freedom of production and trade.  That will fix it, right?

00:06:29

And in the “The Libertarian Constitution” by Ilya Shapiro and Tim Sandefur, they say in their introduction: This was an easier project for us than the conservatives and progressives who drafted their own constitutions because the current United States Constitution is fundamentally a libertarian or classical liberal document, so much so that at the outset, we joked that all we needed to do was add “and we mean it” at the end of every clause.  It’s kind of funny but not funny.  I mean they really believe this I think.  And some of us, including me, have written articles saying how can we improve the Constitution.

00:07:07

You hear people talk about term limits.  Kick them out after two years like that’s going to fix anything.  But there are various things that we imagine we could do to fix the way the Constitution has gone astray from its so-called libertarian origins like Tom Woods’ idea of reviving the idea of nullification.  States can nullify, the Kentucky and Virginia Resolves.  Marshall de Rosa had an amendment where he proposed – it would allow the states to actually vote to overturn Supreme Court decisions.

00:07:34

I propose and others propose making any legislation passed by Congress have to be subject to a supermajority requirement because legislation is not the right way to make law in the first place.  You could have sunset provisions where every statute expires automatically after a certain number of years.  You could extend the jury trial requirement to all civil cases, not just criminal.  We could enforce jury nullification, the fully informed jury amendment.

[Update: See also my post Structural Safeguards to Limit Legislation.]

00:08:04

Joseph Sobran, one of my favorite writers before he passed, he had proposed an amendment.  Any state may, by activist legislature, secede from the United States.  So the threat of exit or secession can help restrain the state too.  The right to emigrate, repeal the incorporation doctrine, abolish judicial supremacy, and restore concurrent review, which is the idea that all three branches of the federal government are equal and have an equal and independent responsibility to review the constitutionality of any law.  Okay, but there are many problems with this idea of trying to perfect the Constitution and make it libertarian.

00:08:42

So first of all, why do we call it a constitution?  The word constitution – the word constitute means to make up or to create or to compose or form.  So the whole purpose of the Constitution is to set up a framework for a new government and to create it.  It’s not to protect rights like we say.  It’s to create a new government, and this is actually what happened.  The Confederacy in the US was too weak according to the proponents of the new government, and so they drafted a constitution to create a new central government, which we have today, which has become the strongest, most powerful, tyrannical entity in all of human history.

00:09:20

So they succeeded.  Congratulations, but I don’t know why people think that’s libertarian.  I mean the founding generation was not libertarian.  This was a coup.  Women and blacks didn’t have rights.  Native Americans were massacred and robbed.  The War for Independence conscripted slaves and poor whites and executed deserters, benefited mostly white male landowners.  George Washington stole teeth from slaves’ mouths to make his false teeth, and the Constitution set in motion the powerful state that we have today.

00:09:50

So I would say the idea of a libertarian constitution is a contradiction in terms because governments and states are not libertarian.  They’re criminal.  And it’s also futile to expect paper limits in the Constitution to do any good at restraining the state because they’re – the state has a monopoly, and it controls – and the courts are its courts.  And so who interprets the Constitution?  The Supreme Court, which is part of the government.  So you have the government interpreting a document that purports to limit what the government can do, or the state I should say.

00:10:19

00:10:23

Joe Sobran had one of my favorite lines in one of his articles.  He says what we need is an amendment forbidding the circumvention of the Constitution.  It could simply read “The Constitution shall not be circumvented.”  I just got a big laugh from any lawyers who may be reading this.  What I like is libertarian sci-fi novelist, L. Neil Smith, who wrote some great books like The Probability Broach and The Gallatin Divergence, and one of his other alternate history books, Tom Paine Maru.  In that whole book, it’s an alternate history where the Confederacy won, and anarchy is coming to the US, and the Constitution failed.  It was viewed as a coup.  And in that society, the word constitution is an epithet.  So one of the lines is – one of the characters says, “Constitution, Lucille.  It was the first time I had ever sworn in the Confederacy.”

00:11:12

So what do we mean by libertarian constitution?  What are we getting at?  I think what we’re getting at is we need a libertarian society put in place somehow, and that requires law.  So we need libertarian principles respected, and we need libertarian law to be put in force somehow.  So what we really need is we need libertarian thinkers to – we need libertarian people first of all.  We need people to agree with libertarian ideas and principles.

00:11:42

And then we need libertarian thinkers to help develop these ideas, clarify them, write them down, and state our libertarian principles.  And then we need law to develop based upon these principles, and we need the law to be compatible with these principles.  So you have libertarian ideas and principles and ethics and values, and then you have legal systems that are based upon that and that embody that and they’re useful in a day-to-day basis.

00:12:05

Libertarian legal philosopher, Randy Barnett, in his book, The Structure of Liberty, talks about the distinction between what he calls abstract legal principles or natural rights and concrete legal principles or laws or legal precepts.  So one is basically abstract general.  They don’t do much guidance for everyday behavior.  The non-aggression principle itself offers some guidance, like don’t commit aggression, but really the non-aggression principle’s purpose is to guide us in what laws to enforce and what laws are just.

00:12:42

So you can – as Rasmussen and Den Uyl – Douglas Rasmussen and Douglas Den Uyl talk about in their books, we really need to look at rights as what are meta-norms, not direct norms.  They don’t guide individual behavior.  They guide what laws are just and what you’re justified in enforcing.  Okay, so we have to keep in mind the distinction between libertarian principles, our core beliefs, and practical laws based upon those.

00:13:11

Now, some libertarians do mix up the word constitution and law code.  Like Rothbard, for example, says we need to have a fully developed libertarian law code.  And libertarian jurists and legal theorists will arise to hammer out the system of libertarian law in detail because you need that.  So the idea there is almost a rationalist or constructivist one that you have these libertarian philosopher kings who sit down and use a priori reasoning to deduce how we should live, what our principles are, the ten commandments of libertarianism, and then the whole legal code.

00:13:47

I think that’s a little bit off base because there are limits to what I call armchair theorizing.  And this is sort of recognized in the way law has actually developed in the west and in the world.  The two great legal systems of the world are the Roman law and the common law, and the modern instantiations of those is the common law in the US and in the British Empire or the British Commonwealth, which is based on the common law but is heavily overwritten with statute law now, legislation.  So it’s sort of a mixture of statute law and the original common law principles.

00:14:25

And in Europe in the continental law, the civil law there is based upon a codification of the Roman law principles with added legislation.  So the modern systems are both perversions of the original decentralized systems of the Roman law and the common law.  But in those systems, the way law developed was two parties with an actual real dispute would come to the judge and say we have a dispute.  We want to settle it in a peaceful way.  So we’re going to present to you the facts of the case and let you decide who’s the winner based upon principles that have been previously established and everyone widely agrees upon.

00:15:01

So the whole purpose of a decision in a tribunal, in an arbitral tribunal, in a court hearing is for a justice finder—the jury, the judge, whoever it is—to hear the evidence, and to try to do the right thing, to try to come up with a fair result based upon established principles that are accepted and based upon the evidence as far as you can tell.

00:15:22

So this is not legislation because the judge can’t just come to work one day and say I think we should have a minimum wage.  I’m just going to announce that.  There’s no parties in front of him.  It’s not a dispute.  He has to wait for a dispute to come to him and hear evidence.  So when he hears evidence, that means he can ask questions so there’s always a context.

00:15:39

These libertarian hypotheticals like two guys are on a boat, and there’s only room for one, one guy is going to die.  Who gets to live, or is it okay to murder the other guy?  I mean these questions are – like Jan Helfeld at a debate one time, that annoying minarchist, Randian gadfly.  I’m not going to curse, but he’s like, Mr. Kinsella, if you’re in a desert and you have to steal someone’s water bottle, would you steal the water bottle?  And I’m like, what the fuck does it matter what I would do?  I mean – but the point is that that hypothetical has no context because how did we get there?  Did I put him there?  Did we have an agreement ahead of time?  But in a real case you can ask these questions and determine.

00:16:21

But these libertarians come up with these abstract questions with no context, and it’s really hard to answer them, which is why I think there’s a limit to how much we libertarian theorists can deduce.  Like what would the statute of limitations be?  What would the age of consent be?  When would abortion be considered murder?  All these kinds of questions have to arise as a result of negotiation, compromise, custom, tradition, a recognition of the limits of what the law can do.  So we’re more on firm ground with our abstract libertarian principles like the non-aggression principle and what that means.

00:16:57

But we have to realize that we can’t sit down and come up with a code that’s all-encompassing and hyper detailed from our armchairs.  We have to wait and see what people come up with, and a lot of times you’ll have private, contractual regimes.  You’ll have Mormonland.  You’ll have Las Vegas Hedonism Land.  You’ll have different areas with different rules within those areas, and partly that’s because of contracts among people, which is like a type of private law among people based upon fundamental principles of property rights and contract law, which are not up to negotiation.

00:17:30

But within that framework, you can come up with whatever you want.  And then between enclaves or between societies, they have treaties or contracts between each other, and that’s international law.  So over time, principles develop.  They reinforce each other.  The law develops.

00:17:45

Hans-Hermann Hoppe talks about his covenant communities where he says a libertarian world could and likely would be one with a great variety of locally separated communities engaging in distinctly different and far-reaching discrimination.  Or as my friend Jeff Tucker wrote in an article talking about it called “Idiot Patrol,” for example, nudists discriminating against bathing suits, private rules.

00:18:13

And Rothbard wrote: In a country or world of totally private property, including streets and private contractual neighborhoods consisting of property owners, these owners can make any sort of neighborhood contracts they wish.  In practice then, the country would be a gorgeous mosaic, ranging from rowdy, Greenwich Village-type contractual neighborhoods, to socially conservative, homogenous WASP neighborhoods.

00:18:35

Even David Friedman who’s here who talks about this, about the internal rules of different enclaves would be different.  And I imagine, given some of his comments, he would think that intellectual property law might be enforced in some of those, which I just have my note as ahem.  If you’re going to be an anarchist philosopher, get IP straight.  No offense, Michael Huemer and Jan Lester.

00:19:05

00:19:08

So libertarian philosophers can help systematize and identify general abstract libertarian principles, but we have to be wary of the limits of armchair theorizing and rationalism and constructivism.  We can’t deduce all the legal rules that would flow from basic principles, and the law hasn’t developed organically to meet real needs.

00:19:27

Okay, so that’s where we’re heading.  That’s where we want to head.  So we need to have a libertarian society.  We need thinkers to help develop these rules and right them down, and then we need concrete laws to develop based upon a legal system that helps solve problems.  Now, in the past, you’ve had these codes.  So what happens is you have codes.  Scholars and even lawgivers write down codes of what moral principles are or what basic principles are or even what the developed law is.  So one of the most ancient is the Code of Hammurabi from 1750 or so B.C.

00:20:02

But really the modern codifications of private law that developed in an organic, decentralized system, which is the Roman law and the common law in England would be the Roman Corpus Juris Civilis around 529 A.D. which was instituted by Emperor Justinian, so this is famous.  It helped preserve the Roman law when it was rediscovered hundreds of years later, so this includes the Institutes of Justinian and the Digest or Pandects of Roman Law.

00:20:31

And then later on in England, you had Coke, his Institutes of the Lawes of England in the 1600s, and then later, Blackstone was famous, his Commentaries.  So that’s sort of like a scholar summarizing all the case law that’s developed so that the average – so that the judge or the average person or the other scholar can read and say, okay, here’s where the law is heading.

00:20:51

Here’s how it’s developed.  And then they could suggest changes like, oh, we made a mistake here.  Maybe the next judge who takes this up should change this law.  And then you had the codification efforts in Europe in the late 1600s with the Code Napoléon of France and the Spanish civil codes, which – in my home state of – I’m going to take this hat off.

00:21:15

My home state is Louisiana, and it’s the only state in the US which is a civil law state.  All the other 49 are common law states.  So we have a civil code-based system.  But these codes, while they’re problematic for the libertarian because they’re legislation, so you have these scholars draft a code, which is a summary of the developed principles that developed in the decentralized, more-or-less libertarian private law way.

00:21:43

And then the legislature makes it a law.  So that’s the problem.  That’s the part we have a problem with.  It should just be a private codification, but the fact that the legislature made it law doesn’t take away from it except it entrenches legislative – legal positivism and legislative supremacy.  But those codes are beautiful if you read them.  They’re not like statutes that you read.

00:22:03

The US Constitution itself is one of the few true codes in the American system, although I view it as statist and legal positivist because it’s the law announced by a committee of white men.  But it’s still pretty beautifully written and abstract in general because it borrowed from a lot of the principles of justice that developed in England in the previous centuries from the Magna Carta, things like that.  So one of the best ones in the US is the American Law Institutes Restatements of the Law.  Those are beautiful, elegant, systematic, treatise-like compilations of American case law.

00:22:41

And then you had encyclopedias like Corpus Juris Secundum, which is named after the original Roman Justinian Corpus Juris Civilis and the American Jurisprudence Second.  These are encyclopedias.  So there are private works that can arise that would happen in an anarchist or free-market society where you have everyone widely agrees upon certain principles.  The thinkers write them down and help spread them and refine them.  Laws develop based upon those.

00:23:09

And over time, an organic body of law develops in a common law or decentralized system, and also based upon contracts within societies and contracts between societies, which are treaties, international law.  All this develops, and then you have commentators who come up and they say – because the average person might say, well, what is the law in this area?  So they might pull up a private book written by a renowned legal law professor who says, okay, I’ve summarized all the commercial law in Libertopia.  And then judges would consult that as authoritative, and they might take a recommendation to revise the law here and there, so that’s how it would work.  So that’s the job I want in a free society.  I want to stop doing patent law and become an arbitrator or a Supreme Court judge or whatever the Supreme Court would be there.

00:24:00

M: Satoshi willing.

00:24:01

STEPHAN KINSELLA: Satoshi willing.  That’s right.  So my title is a little bit tongue and cheek: Kinsella’s Libertarian Constitution.  The reason I put it that way, first of all, scare quotes are around constitution because my real title was going to be State Constitutions vs. the Libertarian Private Law Code.  So I’m criticizing the idea of constitutions per se and explaining that what we would really have in a free society is private libertarian law codes that would emerge.

00:24:29

And I put my name up there, not to self-aggrandize, but because I’m so sick of working on fucking committees with all these other people and having to compromise.  I mean look.  I’m going to put out – so I am working on this, so I do plan to have an online outlined version of all the principles that I think summarize and distill what’s the essence of libertarian principles.  And if others disagree, they can write their own.  Or if a judge or someone wants to draw on it, they can do that.

00:24:58

And I’m going to have footnotes and hyperlinks to the commentary on these things and 1.0, 2.0, updated over time.  That’s one of my goals.  It will be hierarchical, carefully defined definitions.  So I will just give you a teaser about how it will start just the very beginning.  I’ll have some definitions of course.

00:25:15

But the essence of – so what is the essence of libertarian principles?  So this is my sort of way that I like to summarize it and present it, which I’ve come to after beating my head against the wall explaining intellectual property and what’s wrong with it to people for the last 25 years.  It’s forced me to go back and clarify my understanding of what the essence of libertarianism is.

00:25:38

I used to say it’s the non-aggression principle.  But that’s always an awkward thing because, first of all, as I said earlier, the non-aggression principle is a norm that is really not directed towards individual behavior, but it’s directed towards what the law should be.  The way you can realize that is to think libertarians are often careful to say not everything that’s immoral should be illegal.

00:26:03

But the converse of that is not everything that should be illegal is moral – or is immoral.  So, for example, if I am cruel to my grandmother who’s been a wonderful grandmother all my life and I make her sob and go to her deathbed thinking her grandson hates her, it’s immoral.  Go ahead.  You got a question?

00:26:27

M: No, no, no.  That is very immoral.

00:26:29

STEPHAN KINSELLA: It’s immoral, but it shouldn’t be illegal.

00:26:31

M: Okay.  So you did that.

00:26:33

STEPHAN KINSELLA: I hope to get to heaven to apologize to her some day.  But on the other hand, imagine you’re stuck in the woods and you have a baby and there’s a storm out and your baby is going to die, and there’s an empty cabin and you can break in and get a can of soup and save your baby.  That is technically illegal because it’s trespass, but is it necessarily immoral?  I’d say that libertarian philosophy doesn’t say whether that’s immoral.

00:26:58

Libertarian philosophy only goes to the justice of enforcing a law.  So it doesn’t say – you could be an asshole if you stand on your rights, if you’re one of these people who sues people all the time.  Or if you have a house and the neighbor kid’s Frisbee goes onto your front lawn and you refuse to let them get it because you’re an asshole.  You have a right to stand on your rights, but you’re an asshole.  So it could be immoral to enforce your rights, and it can be arguably moral to violate rights as long as you’re willing to pay the penalty.

00:27:28

So the whole point is that personal morality is not what is guided by the libertarian principles.  That’s a personal ethical issue.  And so the non-aggression principle is really not a useful guide to conduct for that reason.  But it’s also awkward to say, well, we libertarians are against aggression, which includes trespass and which includes assault and which includes threats.  Well, the word aggression really means – the model is someone punching someone with their fist or the weapon.  That’s what aggression means, physical fighting between human bodies.

00:28:02

So we extend that to say if you walk across someone’s lawn without their permission, that’s aggression.  Is it really?  Is it really aggression, or is it analogous to aggression?  If I threaten someone, am I committing aggression?  If I say I’m going to kill you, am I committing aggression?  I’m not physically hitting you.  So – and fraud, we say fraud.  So if I deceive you about the quality of the apple I’m giving you and you give me an orange in exchange, I’m committing aggression.

00:28:27

So I think we’ve tended to generalize the word aggression to mean anything that can be made illegal in a just way, but it’s a stretch.  So the way I think about it is the non-aggression principle is more like the concept of metonymy.  Metonymy is like using a figure of speech like drinking, you say hitting the bottle.  The word bottle represents the alcohol you’re drinking.  You’re not really hitting the bottle.  It’s metonymy.

00:28:53

So when we say we’re against aggression, we’re using the word aggression as a – like when we say Washington today, Washington, D.C. said this.  We’re using the city Washington to represent the entire federal government.  So when we say aggression, I think what we mean is the constellation of actions that violate basic libertarian principles, the core one of which is aggression.

00:29:17

The reason it’s the core one is because aggression is just another – saying non-aggression – the non-aggression principle is just another way of saying everyone is the owner of their body.  So self-ownership or body ownership is what is expressed in the non-aggression principle.  But when we – and the ownership of the body is the core fundamental right because all other rights flow from that because you can’t own anything unless you’re a human actor with a body.

00:29:43

And you have to be able to own your body to own other things because, if you don’t own your body, then you’re a non-body-owning thing owning something else.  It makes no sense.  There has to be a starting point, sort of like the regression theorem in money or the big bang, something like that.  We can regress it all the way back to the beginning.  Or the natural law argument for God— there has to be a first cause.  But anyway, so the point is this.  I think the actual way to express libertarian principles is not the non-aggression principle.  It’s just a shorthand.  Think of it as a shorthand.

00:30:16

Here’s what I think libertarian principles are, and this would be the beginning of my code, and then detailed articles would elaborate on this and show applications.  So it’s this.  Whenever there’s a dispute among two or more actors, human people and the dispute is always a dispute over a scarce resource, what I call a conflictable resource, something that there could be conflict over, what Mises calls scarce means, scarce means of action.

00:30:42

Whenever there’s a dispute in the real world between two or more people over a resource, then an owner is assigned according to these libertarian principles.  This is what libertarianism is.  If you think about it, every legal system, and I think actually Dennis Pratt earlier had a similar comment about who owns a woman’s body for sex.  The rapist, he agrees there’s ownership rights.  He just thinks he owns her body.  Libertarians would say she owns her body.  So it’s – libertarians often say that we believe in private property rights and no one else does.

00:31:17

First of all, I think the word private property is a confusing misnomer because the essence of property is public.  It’s public because it has publicly visible borders.  So the word private is a little bit confusing.  But the point is every legal system in the world from North Korea to Soviet Russia to theocracies to monarchies to democracies to libertarian polities, they all have a property rights system, which means in that legal system, there’s an answer to the question who owns this thing.  There’s always an answer.  It’s just usually the answer is the state or the society.  Only the libertarian has the answer: the rightful natural owner owns it.  That’s why we’re different than everyone else.

00:31:57

Now, in the west, in the private law system in the west, the common law, the Roman law, the answer is generally that.  It’s just not fully consistent.  So the private law systems of property, contract law, fraud, they’re roughly libertarian.  But there’s deviations because of statute law and because of the state’s special immunity, and they get special treatment, things like that.

00:32:19

So what distinguishes libertarianism is what our property allocation rules are, and what are they?  So I would say this.  Whenever there’s a dispute over a resource, number one, we have a question.  What kind of resource is it?  Is it the human body, or is it something else?  If it’s the human body, then the answer to the question, who is the owner of that body, is the person himself is the owner, or at least he’s the prima facie owner, the default owner, the presumed owner.

00:32:49

You can lose your rights to your body if you commit aggression, but the default answer is everyone is presumed to own their body.  That’s the core, first libertarian principle, which is another way of saying the non-aggression principle.  You don’t have the right to commit aggression against someone else’s body because they own it.  They have the right to be the one to decide who can use that body.

00:33:09

Okay, now, in the case of other types of scarce resources, things over which there could be conflict, conflictable resources, these are external resources in the world that are not human bodies but that we employ as scarce means of action.  They’re tools: land, cows, wood, food.  In the case of these things, there could still be conflict over them because their nature as a rivalrous, scarce, conflictable resource is such that only one person can use these things at a time.  Therefore, there can be conflict, and therefore, civilized people prefer to have a society where peace, prosperity, and cooperation are possible.

00:33:45

We want a rule that says who gets to use it so we can all respect that.  That’s why property rights are public in the sense that boundaries are public.  The connection between the owner and the thing is visible to others, so you can know not to trespass.  The rule is this.  We determine who owns this resource by looking at three principles.  Number one, who got it first?  That’s original appropriation or homesteading because the first owner has to have a better claim than everyone else as a prima facie matter because if you didn’t have that, we would never be able to survive because we would never be able to use anything.

00:34:19

We wouldn’t be able to go out to the world and use resources because they’re unowned.  No one’s using it, and I wouldn’t be able to be the first user.  So the first user has to be able to use it for the human race to survive.  So the first person has to be able to use it, and if we believe in property rights, that means you hold something until someone else gets it legitimately.  That means you can’t have it stolen from you and have the thief be the owner, so that means that once you are the first one to use it, you have the right to do that because no one can complain.

00:34:47

No one can complain because they’re not the owner.  If they can complain, they’re the owner, but they’re not the owner because you’re the first one to use it.  So once you’re the owner, you’re the earlier user compared to everyone else.  So original appropriation or first user—that’s the first principle.  So determine who owns a thing by asking who had it first.

00:35:03

The second question is was it transferred by contract from a previous owner to a new owner?  So you might have homesteaded this thing first, so you’re the owner.  But I have a better claim than you because you sold it to me by contract.  So now, with respect to the rest of the world, I have a better claim than the rest of the world because I have a chain of title going back to someone who has it earlier than everyone else.  And I have a better claim than the original homesteader because he gave it to me by contract.

00:35:29

So we have homesteading, contract.  And then one third category is what Roderick Long calls rectification.  That is, if you commit a wrong against someone, basically an act of aggression, a tort, then you trespass against them.  You use their property without their consent.  Then you own them some kind of damages.  So by committing an act of trespass against someone, I transfer some of my resources to them in payment to them for the damages that I’ve done.  So it’s like a contract too.

00:36:00

So basically those three principles alone are sufficient to develop the entire body of law plus the self-ownership principle.  You ask who had it first.  Was there a contract?  Did someone commit a tort or a wrong that would transfer the property?  So that would be the beginning.  That’s a teaser.  So the rest of my code will go into other things like fraud, threats, intellectual property, different applications.  So that’s where I am, and I guess I’ll stop here, and if anyone has any questions, I’d be happy to discuss any of this further.  Yeah, go ahead.

00:36:36

M: So when you think about the broader legal tradition, are you seeing libertarianism as a preferential departure from the western tradition, or a perfection of that striving towards individual rights and liberty?

00:36:57

STEPHAN KINSELLA: The way I look at it – actually, Jeff Deist and I have been talking about this.  We have a slight disagreement on this.  He’s – Jeff Deist – Murray Rothbard had written in Ethics of Liberty, criticizing defamation law and explaining why it’s not libertarian, which I completely agree with, by the way, which was why Rothbard was confused about copyright because his critique of defamation law also would apply to trademark law and to copyright law, but he got confused.  And his own title-transfer theory of contract is also incompatible with what he said about copyright, so he just lost track there.

00:37:32

But Jeff Deist argues that, in the modern age with social media, things have changed from the way they were in Rothbard’s day.  He couldn’t have imagined what’s happening now where you can be deplatformed by someone just lying, like oh, he’s a neo-Nazi.  So he gets deplatformed.  His wife leaves him.  She takes the dogs.  He loses his job.  His house gets foreclosed on.  So a lot of damage can be done to you by what’s essentially defamation.

00:38:08

So he’s saying maybe the common law courts should be able to decide whether to extend the old doctrine of defamation to the modern age.  I don’t have quite so much of a view where you just punt to the – like whatever the courts decide is fine.  What I think is that – and I also don’t agree with – a lot of libertarians think we should take the common law or the Roman law, some decentralized system, take it as presumptively libertarian and then maybe go in and correct it, sort of like Ayn Rand wanted to do with the Constitution.  I don’t think it’s that libertarian.  I think it’s mostly libertarian.

00:38:47

So I think we should take it as a template to start from, but don’t presume anything there is libertarian.  We have to compare it.  Always compare the concrete legal rules that have developed in the positive law, and that includes common law and Roman law.  Compare it back to our basic libertarian principles.  I think that the libertarian principles that I’ve enunciated are more or less implicit in the assumptions of the judges of the Roman and common law.

00:39:13

They assumed homesteading.  They assumed contract, but they weren’t fully consistent about it, and they made lots of exceptions.  So I think we can – we don’t need to start from scratch.  I think what we would do is we would have people like me come up with like my basic statement of libertarian principles, which is not law.  It’s just the principles.  And the more convergence we have on that, we all kind of agree more or less upon the aggression principle and the way we say that.

00:39:42

And as we have a more libertarian society, disputes will arise, and they will be decided by arbitration or whatever.  And hopefully these judges would refer first back to the libertarian principles.  They would borrow from solutions in the common law to the extent they made sense.  This is what the US courts do now.  The US courts do now, like in the Supreme Court, they will look at what French courts or Spanish courts have done in cases, but they’re not bound by it.  They just use it as we have a tricky dilemma here, interpreting this constitutional thing.  So they’re not bound by it.  So I don’t know if that answers the question.  That’s more or less how I think it ought to and would and could work.  Yeah.

00:40:22

M: I have three challenges to a common law, let’s say, evolution of law I’m hoping you can answer.  One is most cases get settled out of court, so there’s no public record of what decisions were made.  The second is that it seems like with a common law system, you kind of have to wait until something goes wrong before you can set the standards for it, especially with emerging technologies like gain-of-function research, something like that.

00:40:50

The third is that civil law, at least today, and I don’t know if that would be much different in a libertarian society, is unaffordable, and it’s essentially inaccessible to a lot of people.  I made a civil law argument in a town.  My town was legislating on short-term rentals, and I made a civil law argument.  And the town manager told me that this argument was a lead balloon because she said the town shouldn’t expect people to – let’s say if they have a nuisance complaint with their neighbor, the town shouldn’t expect them to have to take them to a civil law.  She saw it as a town’s duty essentially to put a law in place that the town itself could enforce to save the residents the cost and expense and stress and uncertainty of going through a civil law procedure.

00:41:35

STEPHAN KINSELLA: Well, okay.  Let me – I’ll ask you a question in a second, but let me clarify something.  So when I say civil law, it’s a little bit confusing because you’re using civil law in the positive – in the common law in America.  Civil law means non-criminal law.

00:41:52

M: Right.  That’s what I mean.

00:41:54

STEPHAN KINSELLA: When I say civil law, I’m talking about the tradition in Europe, which was opposed to the common law.  So the civil law means the codification efforts of the civil codes, which codify the Roman law principles.  So when I say civil law, I’m talking about the civilian tradition.  I’m really using it just to refer to Roman law.  So when I was talking about civil law earlier, I meant the two great traditions are the Roman law and the common law, and those are both decentralized principles.

00:42:18

M: I think I meant common law.  These things…

00:42:20

STEPHAN KINSELLA: So you mean the…

00:42:20

M: As I understand it, common law is that you have causes, and then there are decisions that [indiscernible_00:42:24] people and standards kind of set based on decisions that are made in various cases.

00:42:28

STEPHAN KINSELLA: That’s common law, but what you’re talking about is the non-criminal, the private law side of the common law system we have now, although we don’t really have common law in the US anymore.  We have a mixture of common law and statute law.  We have tons of statutes that override the common law.  So the domain of the common law has been shrinking for centuries a lot as more and more statutes get written and overrided.  So you have to look at statutes as well as the common law.

00:42:50

But first of all, I would say that the fact that the government’s implementation of their private law system is expensive and inefficient is no more a criticism of a libertarian system than the post office is a criticism of the idea of having mail or roads.  Private roads are fine.  There’s nothing wrong with private roads.  There’s something wrong with the government running roads.  They’re going to fuck it up.  As for the advisor – so you talked about you have to wait for a decision.  Well, I mean what would be your alternative?

00:43:27

First of all, in the Roman law, there was something interesting.  So in the common law, you did have to – the judge – you had to wait for people to have a dispute.  Two actual people had to go to a judge.  In the Roman law, there was a procedure where – because these guys – I don’t know if they were bored or they didn’t have a lot of cases.  Actually, the International Court of Justice in the UN has done this for a few decades too because they don’t have a lot of courses, so they’ll just get together and they’ll say, let’s come up with a hypothetical and let’s say what the answer would be, which is sort of what Rothbard and libertarians do.

00:44:00

The Roman law jurists did that.  They’re called the jurisconsults.  They were legal philosophers, and they would sometimes – they would just come up with a hypothetical.  They would add as much detail as they could to make it realistic.  They’d say, let’s suppose a merchant is going through town and the wheel breaks off his chariot and he runs into someone’s pottery stand.  What would the result be there?  And they actually give an answer, which is like case law based upon a hypothetical. ¹

00:44:23

So I see no reason why, in a private law society, if there’s a demand for people for legal certainty and there’s an issue that hasn’t been hammered out yet in the developed law, two people that want – they would want to go to someone.  They might just hire an arbitrator to decide, and I see no reason why the arbitrator couldn’t publish his decision, and that would add to it.  And you say a lot of things are settled out of court.  Partly that’s because when the law is developed and settled and everyone knows what the likely outcome is, that’s when they settle because they don’t want to bother to go to court.  So usually when there’s a settlement out of court, it’s because the law is already settled.

00:44:59

When the law is not settled, what’s when they go to court and new precedent is made that develops the law.  But I guess I would ask you what’s your alternative to – if we believe in libertarianism and we’re opposed to the state – maybe you’re not.  Maybe you believe we need to have a government and we need to have legislatures that can help us out by announcing rules ahead of time.  I mean the libertarian idea is that we only believe in simple rules.  Richard Epstein wrote a book, Simple Rules for a Complex World.

00:45:25

We actually believe that – I mean why does the positive law say that retroactive legislation is wrong, like when they make something a crime after the fact?  That’s because they’re making things crimes that shouldn’t be crimes.  So at least you should give people fair notice that – because they have no way of knowing that they shouldn’t do it because it wasn’t naturally wrong.  Well, we libertarians only believe in making things wrong that are naturally wrong.

00:45:49

I mean the old expression is you really know what’s wrong because it’s engraved on your heart.  There’s a natural law.  You don’t need to have a tribunal say from on after, we’re just going to say arbitrarily that murder – we’re going to say murder is wrong in this society.  Okay, now I know.  I won’t commit murder.  No.  The idea of libertarianism is that, if you commit murder, you deserve punishment even if you didn’t know.  You should have known, and even if there wasn’t a statute passed saying murder is wrong because you committed an act of aggression.

00:46:19

Now you can’t complain about active aggression being used against you.  It’s all natural.  So I don’t think there’s really much injustice in applying libertarian principles to people that weren’t announced ahead of time because they are announced ahead of time because they’re just implicit in basic principles of morality that everyone really knows are right.

00:46:41

W: Just to let everyone know, we have four minutes.

00:46:44

STEPHAN KINSELLA: Yeah, go ahead.

00:46:45

M: I have a question.  You mentioned restitution or damages as a way of legitimately getting property.  Can you say a little bit about the libertarian concept of damages?  I’m kind of familiar with the current law and how that works.  So let’s take, for example, the case where the Frisbee goes in your backyard and you’re not even home and they crawl over the fence and get it and leave.  And you see it on your doorbell camera or whatever.  Theoretically, I might say you’ve encountered no damages, so you don’t really have a cause of action or do you?  That’s…

00:47:23

STEPHAN KINSELLA: I mean there’s – opinions vary.  I can just give you mine.  I mean David Friedman would say one thing.  Randy Barnett would say another thing.  This is one reason why we have to be wary of armchair theorizing because that hypothetical you gave, if it was a real case I could ask you questions like, well, what’s the custom in the neighborhood?  Because you could argue that it’s not trespass at all because let’s say you walk up to your neighbor’s house or you knock on their door to borrow a cup of sugar.

00:47:49

Is that trespass?  No, because the understanding in that neighborhood is that people are free to use their neighbor’s property for innocuous small uses like that unless – so if that’s the default presumption, then basically by having your door open to the public and not putting a posted or warning sign up and changing that rule by an announcement, you are consenting.

00:48:08

It’s like a girl on a date.  The guy has kissed her ten times, and he kisses her an 11^th time without asking her explicit permission.  She didn’t object.  She didn’t change the default presumption, so it’s actually not aggression.  You know what I mean?  So in that case, you could say that if it’s common for people to do that, then the kid assumed he had the permission of the owner, and because he didn’t communicate properly and change it, it wasn’t that – but let’s say it was trespass.

00:48:33

M: What about on the other side?  Is there any scenario where you have to show you’ve encountered economic harm or some other harm?

00:48:42

STEPHAN KINSELLA: So I think what would happen in – if you want justice, you have to count on the support of your community because – unless you want to self-help every time.  If you pull your gun out and you blast the kid, people are going to regard you as a murderer, and you’re going to be outcast or punished or killed by the parents of the kid.  So if you want help getting justice done, you have to be reasonable because, at a certain point, people are going to wipe their hands of you.

00:49:07

They might not deny that you have a right to charge someone with trespass for stepping on your lawn, but they’re not going to become jurors to help you out.  The insurance company that you hire to give you insurance might raise your rates because you’re a troublemaker.  I could see de minimis requirements like people say, listen if there’s literally no damage, go away.  This is not what the legal system is for.  It’s for serious issues that we – because the whole purpose of the legal system is to avoid disputes and avoid conflict.  If it’s such a minor thing, there’s really no conflict to avoid.  It’s already done.  You didn’t suffer any damage.

00:49:47

So I think that there would be proportionality built in, and if you continually use the system and abuse it, you’re going to start paying a price.  Maybe the arbitral commission is going to charge you a higher fee, and all your neighbors are going to say I’m not going to even testify and give evidence because you’re making my life miserable.  Mind your own fucking business.  Be a good neighbor.  Things like that will have an interplay, have a role.  Gene, go ahead.

00:50:18

GENE: Thanks for your fascinating presentation.  I guess you said that – I guess I have two questions.  That porridge story, which…

00:50:27

STEPHAN KINSELLA: The what story?  Sorry.

00:50:29

GENE: The porridge – the baby is starving in the forest, and the porridge is [indiscernible_00:50:35].

00:50:36

STEPHAN KINSELLA: Yeah, okay.

00:50:36

GENE: [indiscernible_00:50:37] for the baby.  Do you feel is that a problem or – I mean I would have thought if you own the cabin, you would have said, hey, look.  I’m happy the baby was fed even though the cabin was broken into.  Just pay for the broken lock.

00:50:52

STEPHAN KINSELLA: That’s my view.

00:50:54

GENE: That’s your view.

00:50:54

STEPHAN KINSELLA: My view is that libertarians often say, when they think about it carefully, that morality – I’m sorry.  That rights are a subset of morality, which is another way of saying that not everything that’s immoral should be illegal.  But I actually think rights are not a subset of morality.  They’re an overlapping set.  I think most things that are rights violations are immoral but not all necessarily.  So there’s a narrow thing of rights violations that – so I think if you’re in the woods and you have to break someone’s window to save your baby who’s starving, it’s not immoral.  In fact, it would probably be immoral not to do it.  But it is a trespass.

00:51:31

GENE: But is the fact of the matter, the person might say just repair the window…

00:51:35

STEPHAN KINSELLA: Correct.  As a practical matter – well, a normal decent person probably would just forgive you.  But they might – but then if you’re the parent, you might say let me pay to fix your window and give you season tickets to the Astros.

00:51:48

GENE: Exactly, [indiscernible_00:51:50] hung up on his window.  I can quote economist [indiscernible_00:51:55].  He writes about the stain on history.  There’s no clean capitalism [indiscernible_00:52:05] that land was given freely by princes and queens unjustly to people.  And so there’s so much property acquisition that was done unjustly.

00:52:16

STEPHAN KINSELLA: Correctly.

00:52:17

GENE: We never could unravel that, and then – so his consequentialist argument is only that if you let the free market operate [indiscernible_00:52:25] and then that will sort itself out.

00:52:29

STEPHAN KINSELLA: Yeah.  And that’s not what I’m saying, and Coase says something similar to that.  Like whatever – even if you have the wrong assignment of rules, over time, they’ll be allocated to where they have more sufficient uses.  That’s what – I think Coase argues that too.

00:52:42

What I would say – I have an article on this about this idea.  So what I said about you go to homesteading as the test to own a property, some people think that means that all property is tainted then because you can’t go back to Adam.  There’s always conquest.  But I have some subsidiary stuff like it’s all relative title.  So if I am the – if I have a better title, what happens in the law is it’s two people that contest a piece of land.  They trace their title back to what’s called a common ancestor of title, so some guy 200 years ago.  They both agree he owned it then, so even if he got it by conquest or his ancestors got it by conquest, these two guys are tracing it back to this guy.

00:53:26

So then the question is from that point in time, who has it better?  And the point is, unless someone can come earlier than that and prove it, whoever wins that case has a better claim than anyone else in the whole world, which is what real property is.  So the homesteading idea doesn’t mean you have to go back to Adam or to some pristine state of nature.  You just have to go back far enough where you have a better claim than anyone else.  But still, in theory, if you could be the – show the first one to own it, that would be the ultimate decision about who is the rightful owner of the property.

00:54:00

GENE: Okay.  I mean you’re saying trace it back to the person who got it by conquest, and that person got it unjustly.  So it doesn’t [indiscernible_00:54:07].

00:54:10

STEPHAN KINSELLA: So if they – so let’s say some guy told you to go steal it from someone else and but then he sold it to one guy, but he also tried to sell it later in his will on accident to some guy, and they both claim title.  Standard laws of property and contract and wills can tell you which guy wins as between those two, as to who got it from the bad guy.

00:54:32

Now, if – say it was stolen from some slaves or some black people, if hey can come and show that it was stolen from me, I think they should win.  They actually should win.  It’s just that, over time, the older things happened in the past.  The harder it is to find evidence and prove it.  The witnesses are all dead.  But if someone could prove it, they would get it.  But if we assume it’s been lost to antiquity, we have to start at a certain point.

00:54:59

W: We should probably wrap up.

00:54:59

STEPHAN KINSELLA: I think we have to wrap up.  I’m available afterward.

00:55:02

 

❧

SPEECH NOTES

Kinsella’s Libertarian “Constitution”
or: State Constitutions vs. the Libertarian Private Law Code

Notes

Stephan Kinsella

PorcFest 2021, Lancaster NH
June 26, 2021

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

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

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

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

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

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

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

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

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

Why do we even use the word “Constitution”?

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

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

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

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

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

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

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

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

• Yet libertarians still worship the US Constitution and the ideas and sentiments of the Founding generation. As noted, some of them think it’s nearly libertarian and just needs a bit of tweaking to be “perfect.”
• But it was a centralizing coup. It was not libertarian at all.
• Women and blacks didn’t have rights, Native Americans were massacred and robbed, the War for Independence conscripted slaves and poor whites and executed deserters and benefitted mostly white male landowners, George Washington took teeth out of slaves’ mouths to make his false teeth, and the Constitution set in motion a new, powerful central state that has become the most powerful and dangerous entity in world history.

A libertarian constitution is a contradiction in terms.

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

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

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

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

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

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

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

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

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

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

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

So we cannot predict what rules will be voluntarily adopted.

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

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

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

So:

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

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

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

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

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

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

 

Basic Principles:

• In order to achieve peace, prosperity and cooperation, and to avoid disputes, in a world of scarce (rivalrous) resources, property rights are assigned to all scarce, rivalrous resources where conflict is possible
• The owner of a contested resources is determined thusly:
  • In the case of the human body, each person is prima facie the owner of his body (“self”-ownership).
  • In the case of previously-unowned, external resources, the owner is determined in accordance with three principles:
    • Original appropriation: the first user of a resource has a better claim than latecomers
    • Contractual transfer: Ownership may be acquired by consensual title transfer from a previous owner
    • Rectification: transfer as a result of a tort or offense—use of another person’s owned resources without consent (trespass) gives rise to a claim by the victim on resources owned by the aggressor, for purposes of restitution.
    • Meaning: The initial user of a resource presumptively has a better claim to the resource than anyone else; unless he has transferred it to a second owner by contract or as a result of rectification for an offense.
  • Hoppe:
• “In conjunction with the privatization of all assets according to the principles outlined, the government should adopt a private property constitution and declare it to be the immutable basic law for the entire country. This constitution should be extremely brief and lay down the following principles in terms as unambiguous as possible: Every person, apart from being the sole owner of his physical body, has the right to employ his private property in any way he sees fit so long as in so doing he does not uninvitedly change the physical integrity of another person’s body or property. All interpersonal exchanges and all exchanges of property titles between private owners are to be voluntary (contractual). These rights of a person are absolute. Any person’s infringement on them is subject to lawful prosecution by the victim of this infringement or his agent, and is actionable in accordance with the principles of the proportionality of punishment and of strict liability.[19]
• “As implied by this constitution, then, all existing wage and price controls, all property regulations and licensing requirements, and all import and export restrictions should be immediately abolished and complete freedom of contract, occupation, trade and migration introduced. Subsequently, the government, now propertyless, should declare its own continued existence unconstitutional—insofar as it depends on noncontractual property acquisitions, that is, taxation—and abdicate.[20]” Excerpt From: Hans-Hermann Hoppe. “Democracy: The God That Failed.” Apple Books.
• Implications and applications
• TBD…

1. See Roman Law and Hypothetical Cases. [↩]