A New Constitution for a New Country
A New Constitution for a New Country, by M. Oliver, Reno: Fine Arts Press, 1968, 128 pp., $3.00 (pb).
How can we implement libertarian principles throughout society in our lifetimes? Acknowledging the difficulties of trying to change as large and complex a society as the United States, one approach calls for the creation of an entirely new country somewhere else in the world. The leading proponent of this approach is the author of the present book, Mike Oliver (see "Designing a Free Country: An Interview with Mike Oliver, REASON, Dec. 1972). Since the book's publication in 1968, Oliver's New Country Project (recently expanded into the Phoenix Foundation) has combed the world seeking places where freedom might take root anew. In the process it has staked a legal claim to the Minerva Reefs, roused the ire of the King of Tonga, and inspired a home-rule movement on the Bahamas island of Abaco (see "Abaco: Birth of a New Country?" REASON, Oct. 1974). In writing a libertarian constitution, Oliver's principal problem was to devise a way to make government noncoercive. "If life, liberty, and property could be protected without government at all," he writes (p. 117), "this Constitution would be needless. But forcing a person to support government would be an act of collectivism; and…furnishing government services free of charge would also constitute an act of collectivism. Thus, a person may not support government if he so wishes; but if such be his choice, the consequences thereof are his to bear." This passage spells out his constitution's basic premise of voluntary participation in the financing of, and receipt of services from, a limited government.
A New Constitution for a New Country presents us with a constitution much more detailed than that of the United States. But it is so for a reason: the Constitution of the United States is incomplete in many respects, and thus gives statists an opportunity under the guise of legality to initiate many pieces of legislation which were contrary to the spirit, if not the letter, of the original Constitution Moreover, some of its crucial terms (e.g. "interstate commerce" and "the general welfare") are extremely vague, and we all know what a proliferation of government powers has resulted from such vagueness. Accordingly, Oliver's constitution spells out many details which other constitutions have left unspecified.
The State, for Oliver as for Rand, may exist only to protect the rights of individuals. The State can provide this protection in three domains:
1. A system of courts, to arbitrate disputes. The courts are to be sustained by fees from those who choose to participate in the system. Since no one should be expected to work for nothing, a person cannot be expected to have free use of the court system: if he elects to use it, he must pay for its use. He is free to ignore it, but if he is guilty of a crime (the violation of someone's rights) he may properly be apprehended. A non-participant in the court system may be taken to court for the commission of a crime, but he may not initiate a court case as plaintiff, for "non-participants cannot expect someone else to pay for the services they need" (p. 116).
2. Police protection. Each individual is free to decline payment for such protection, in which case he will not receive it. But again he may be apprehended if he attempts to violate the rights of others.
3. National defense. In addition to the two houses of Congress (as in the U.S.), there is to be a "Ready-alert Board" to keep constant tab on the state of the nation's defense against possible outside aggressors. The structure of this board is spelled out in some detail. No one will be forced to enlist in the armed services; and neither will anyone be forced to pay for military expenditures. Oliver argues that most people who see a danger to their country will be willing to pay for its support, inasmuch as people do not wish to lose their lives or the fruits of their labor. Why then are non-participants also protected, unlike the case of police and courts? Simply because, in the case of military action from outside the country, there is no feasible way to protect paying participants but not non-participants against outside aggression; so all must be protected. This of course raises the old problem of free-loaders; but Oliver believes this problem to be less important than the preservation of the right of anyone to support his government or not to, as he chooses.
The most vital section of the Constitution is its analog to the Bill of Rights of the U.S. Constitution, specifying what the government may not do. A few of the most important items will be mentioned here:
Currency. The government shall have no part in the creation or distribution of money—this is to be entirely a free-market operation. Paper money may be distributed, subject only to the confidence in its backing by the users thereof. "The burden of proof concerning sufficient backing for money issues shall rest with the issuer" (p. 75). Money that does not have the confidence of the receiver will be rejected by him in trade. It is not necessary, however, for gold and silver to be the sole backing for paper money: paper money issued by a mutual fund may be found acceptable, provided that mutual fund notes may at any time be exchanged into the Fund's stock certificates (p. 114). The sole involvement of government in the situation is the prevention and/or punishment of fraud (e.g. reneging on a promise to pay in gold or stock certificates). The consequences of this policy in making currency-expansion and inflation impossible will not be lost on libertarians.
Taxes. "No level or branch of government shall have the power to levy taxes or compel any person or entity to supply funds for government activities of any sort, except that a losing party in a court case may have to pay for the court-connected fees" (p. 76). How then are government expenses to be met? "By the voluntary payment of premiums by participants wanting the services of government."
Personal rights. "Government shall not interfere with freedom of speech, media, and communications, peaceful assembly, and freedom of belief" (p. 89). Nor may it pass any laws concerning marriage, divorce, separation, or annulment. There may be no "victimless crime" laws against persons, unless the victim is 15 years old or younger. Nor may government pass laws regulating or interfering with the relationship between employers and employees. It may neither compel nor prohibit integration or segregation for any reason. Government may not seize or impound personal property unless it is stolen or illegally held. And so on for protection of accused persons against being held without cause, subjected to unusual punishments, or being prevented from subpoenaing witnesses on their own behalf.
"Public utilities." Government is not to be permitted to engage in any business enterprise or to own any real estate. "Neither shall government own or operate any roads, nor other means of public transportation, or utility systems, post offices, or communication systems, except for National Military Forces or County Guard Forces. Materials, land, and other property needed for government use in the conduct of official business, shall be supplied by contracts with private persons on a competitive basis" (p. 93).
Seizure of wealth. Nor may government engage in any sort of wealth-redistribution: e.g. insurance, pensions, retirement services, compensation, charity and welfare programs, price supports, subsidies, wage supports, or loans to foreign governments.
Foreign relations. Government may not enter into any treaties or international agreements, "except during wartime when negotiating for the end of hostilities, or for other affairs directly concerned with the war" (p. 73). Nor may government maintain embassies or consulates in any foreign country, nor accept the same from any foreign country. So much for strictures on foreign relations!
Much more than the above is set forth in Oliver's constitution, but what has been described will be enough to show that Oliver is a believer in a strictly limited government along Randian lines, with the same principal functions (protection against force and fraud) and the same departments of state activity (police, armed forces, courts). This may not please anarchists, but it is the very model of a Randian limited government.
For many libertarians, anarchists and limited governmentalists alike, the principal question to be put to any view of the State is the right of secession. (See Herbert Spencer, Social Statics, the famous chapter "The Right to Ignore the State.") It may be that the citizen of a Randian state would have nothing to complain of, and that he would be strictly left alone if he violated no one's rights, but suppose he thought nevertheless that he had something to complain of, or for any reason whatever didn't like it, could he get out from under it? He could, of course, according to the terms of Oliver's constitution, emigrate at any time. But even if he remained within the geographical limits of the country, he could "ignore" the state—there are, after all, no taxes to pay, and he is protected against harassment and victimless crimes by the terms of the constitution—and it would be up to him whether he desired to pay for any governmental services. So the answer is plain: yes, he could "secede from" the state if he chose. The only thing he could not do without retaliation is the violation of the rights of others. But this should raise no libertarian eyebrows: even the most dedicated anarchist also holds that this could not be tolerated.
Where, then, is Oliver's constitution at odds with anarchism? First, in that any political entities (county, state, nation) exist at all; and second, in that (in Oliver's system) the police, armed forces, and courts are strictly functions of the government. There are no competing private courts or police as in the anarchist system (or non-system). The constitution contains provisions to ensure that courts be fair and armies not traitorous. There are no prohibitions against private police (e.g. campus guards and Pinkerton-type agencies), but that if they do exist they must not disobey the law of the land—for example, if they start to torture suspects to gain quick confessions, they are themselves punishable by that same law of the land. Similarly, there are no prohibitions against private arbitration agencies. But if a party to arbitration fails to go along with the findings of such an agency, the other party (if a participant) may bring the case to the nation's courts for final disposition of the matter.
The State, after all, does not have a monopoly of physical force; what it claims is a monopoly on the right to determine who shall be permitted to use force and under what circumstances. This right of the State Oliver preserves, and on this point he is clearly at odds with anarchists. This may be because he believes that private courts would always protect their clients against outsiders whatever the merits of the case; or because competing armed forces or police could easily result in a state of civil war; or perhaps because one private police or army that had through efficient service to its clients absorbed 90 percent of the trade would be in a position to dictate whatever terms it chose to everyone else, since smaller defense agencies could not adequately defend themselves against the methods or practices of the large one. At any rate, Oliver does not mention this alternative; he simply states that the proper function of government is the protection of its citizens against force and fraud, and that the organizations affording this protection—police, armed forces, and courts—are to be arms of the government.
Who shall be permitted to inhabit the New Country? The answer to this question depends on whether the country is already inhabited. (1) If it is not (the state of affairs on which Oliver's constitution appears to be built), then those who, in John Locke's phrase, "mix their labor with the land" by settling it and making it fit for more extended habitation shall have the right to say who may immigrate to it. Since all real estate is privately owned, it would be up to each property-owner, not the government, whether or not he wanted a certain foreigner on his property or wanted to sell part of it to him. (2) If the island or territory is already inhabited, then it will be up to the present inhabitants to decide whom they want on their lands, not up to the foreigners who may wish to come. In the case of the Abaco project, for example, the land already owned by the native Abaconians, once Abaco's secession from the Bahamas was successfully achieved, would remain owned by them unless they chose to sell it; but the 50 percent of the island which was (under Britain) the "Crown Lands"—now claimed as state property by the Pindling government in Nassau—will become a privately owned corporation in which every Abaconian is a stockholder, and the stockholders will vote on which persons and business enterprises they wish to have in their country. These provisions and many more were incorporated into the Abaco Constitution and adopted at the first Abaco assembly meeting when I was there in February 1974.
Finally, why have a New Country project at all? In the moving and eloquent Introduction to the book, Oliver explains why he has been led to think in such terms: not because he dislikes the United States, to which he came as an escapee from Soviet-occupied Lithuania—he is passionately devoted to the United States as it was conceived by the Founding Fathers; but rather because the ominous trends in the United States today are converting it increasingly into the model of a totalitarian nation. "The next economic collapse will be used as yet another means to reduce private enterprise to shambles," Oliver writes (p. 19). "Advice to abandon one's country must not be lightly given. But when those who are industrious and most heavily taxed must also take the blame for evils committed by those who caused it, wisdom counsels one not to stand still." Here, as elsewhere in this memorable Introduction, is the impassioned plea of an earnest and dedicated libertarian.
John Hospers is professor of philosophy at the University of Southern California. Author of many books, including Libertarianism, he served as 1972 presidential candidate of the Libertarian Party. He is a contributing editor of REASON and a member of the board of the Phoenix Foundation.
This article originally appeared in print under the headline "A New Constitution for a New Country".