Liberty is under constant attack; that's the bad news. The good news is that we must still have some liberty left, or the stakes would not be so high. The enemy is, as usual, ourselves. Despite the recent fall of the Soviet Union, Americans are still programmed with patriotic fervor, believing that the state represents a cross between parents, God, and the Wizard of Oz. It has been the libertarian role to explain patiently that the last of these is correct: the state is a humbug.
It is beyond my ability to explain why Americans believe all this. Let me mention only the Stockholm Syndrome: that inmates come to love their jailers. Our awe and fear of the state is well justified. The state can and does take away our property and our freedom. Criminals may do these things as well, but when the state does it everyone approves, and our defenders vanish. Of the two, then, the state is more to be feared.
According to political dogma, we are the state and its officials are our servants. What, then, should we fear? We are the boss. Every two or four years we cast a vote to choose between two major parties, electing the incumbent 99 percent of the time. Officialdom trembles. Not.
Our country was founded as a grand experiment to overturn the tyranny of kings and aristocracy. The founders probably anticipated a new aristocracy of merit and wealth. They had good historical reasons not to trust pure democracy, which usually led to rule by tyrants. Their concern for wealth had merit; popular rule gives power to envy, and so to the redistribution of property. Unfortunately, this undermines the foundations of the market economy, the most powerful engine of human cooperation yet devised.
The founders' plan was imperfect. A new aristocracy of power and corruption has emerged. The flaunting of power has never been more open: needless wars both external and internal, with the "emergency" measures that always accompany war. Officials, their contractors and their unionized suppliers of labor enjoy bounty beyond the reach of ordinary taxpayers. Ordinary folk adjust themselves to new fetters of restraint and regulation, fearing to recall how much they have lost, and how recently.
Our Declaration of Independence defends the right of the people to throw off the yolk of oppressive government, even by force. Prudence requires us to exhaust all peaceful alternatives so long as they exist. As a party, the LP has naturally been concerned with electoral politics. But another political avenue exists in our current structure: constitutional amendment. At first glance this may seem even more hopeless than our electoral struggle. After all, most people seem to differ with us on one or another issue important to them. Further, constitutional amendments require far more unanimity to enact than mere laws.
A look at past amendments to the Federal constitution shows that most of them share a populist flavor. They give rights to a previously powerless group: notably, slaves and women. The direct election of senators, though it has had mixed consequences, is also of this type. The lesson is that for a proposed amendment to succeed, it must provide new power to an under-powered group. I submit that ordinary citizens are such a group. The Federal constitution, as well as many state constitutions, lacks any provision for referendum, initiative, repeal, or recall. I will mention variations on these that should be considered also.
To reach the high level of acceptability required for passage, a proposed constitutional amendment must be eminently reasonable. Let's briefly list two ways to achieve reasonableness. First, it is reasonable to point out that everyone needs a boss. Bosses determine the limits within which we act. Our representatives have only the constitution and perhaps the Supreme Court. The Supreme Court has only itself and congress. Congress sets its own salaries, perks, rules of procedure, and pretty much ignores all limits to its actions. The Supreme Court occasionally rules some statute unconstitutional, but over time caves in to most unconstitutional demands: after all, congress appropriates the Court's salaries. Voters should have at least as much power to act as the board of directors of a corporation; more, if they want it.
Second, it is reasonable to leave to congress functions that they are best able to perform, such as writing legislation. They should be given sole authority to write the statutes constraining all citizens. We do not need additional sources of laws. The function of the referendum and initiative should be to constrain congress, the president, and other officials in their official duties. They have for too long been constrained only by a piece of paper and nine fallible justices. Repeal and recall hardly need further explanation. A prime reason for recall would be that an official ignored the will of a popular initiative. If we are the government, it is high time we made our presence felt.
Details concerning how new proposals would be put onto the ballot are crucially important, as important as the nature of the proposals that would be permitted and lawful. Even the nature of the voting is relevant. For example, initiatives to put numerical limits on public debt, public bond interest rates, tax rates, expenditure levels and such might use the median vote to give the result. The median value is the one on the boundary of the majority: half the voters want less, half want more. Fun exercise: devise a practical way to implement this in voting machines.
Important matters not sufficiently treated above are how to counter official corruption and constrain the tendency of popular government to confiscate wealth. Here the solution may be even further in the future. A promising approach is to privatize government through opt-out provisions in the law. In this way, government would become part of the marketplace, rather than the other way round. The ideas of Murray Rothbard, David Friedman and Hans-Hermann Hoppe deserve wider study in this connection. Such ideas may provide the best hope of recovering true consent-of-the-governed, in Jefferson's famous words.
Easier goals would include placing limits on statute duration, through sunset provisions. This may be viewed as a mild form of repeal initiative.
Merely promulgating these ideas widely could have a salutary effect on the attitude of officialdom. It could be an interesting effort.
Note: This piece was written in preparation for the April 3, 2007 meeting of the HVLP.
