Sunday, October 02, 2005

A Sunday constitutional

I've been a fan of a constitution for some time, for one very specific reason: an effective constitution is the very best way to tie up a government.

Why is a constitution needed? Because in essence, good government is like a guard dog: it's there to protect us from being done over by others. However, if that dog is badly trained and it gets off the chain, we can be badly savaged -- more so sometimes than we would have been without the dog.

A constitution is our means of chaining up the government, and training it to act only in our protection.

As I’ve said already elsewhere, the task of government is to protect us against physical coercion and its derivative, fraud. Good government is the means by which retaliatory force is brought under objective control. A good constitution, properly written, brings the government itself under objective control.

Such a constitution was the intent of America’s Founding Fathers, but after nearly two-hundred years the success has been only partial. Building on the success of the US Constitution and seeking to close the loopholes exploited since its introduction, New Zealand libertarians have written a Constitution for New Freeland which sums up what we think a constitution should look like, and why.

  • The Crucial thing within any democratic system is that majority rule is limited; that important things are put beyond the vote, specifically the thing our government is sworn to protect: our rights. Such things should be in a Bill of Rights, and those rights clearly enumerated are what the government should be constituted to protect. You can see our proposed Bill of Rights here.

· The job of government is to protect its citizens, not to infringe the liberties of its own citizens except by following due process of law – a ‘Bill of Due Process’ clearly outlines under what circumstances and in what manner those liberties may be breached, and for what specifically limited purpose.

· The US Constitution has suffered from interpretations that have often been at odds with the declared intentions of the Constitution’s authors – the Constitution for New Freeland puts the intentions of its authors on the record in the ‘Notes on the Bills of Rights and Due Process.’

Every good constitution relies on two further important restraints on the growth of Omnipotent Government:

1) significant public understanding and support for the constitution and its protections, without which politicians and advocates of a ‘living constitution’ can pervert the constitutional protections as easily as the simple agreements given in the Treaty of Waitangi have been perverted;

2) government’s powers are separated, so that each of government’s three branches – legislature, judiciary and executive -- has some specified veto power over the others. The imperfect separation of powers in our present NZ constitutional arrangements shows the dangers of being without these essential checks and balances on political power.

The task of constitutional law is to delineate the legal structure of a country’s law; it must therefore be superior to all other laws, and law stepping outside the bounds of what is declared unconstitutional must be able to be struck down – an accessible Constitutional Court makes this possible.

The superiority of a constitution to all other law is both a good thing and a bad thing. What’s good is that once a watertight constitution properly protecting individual rights is in place, it acts to chain up the guard dog and to keep it on its leash for good. What’s bad is that once in place, a poor or anti-freedom constitution is very difficult to get rid of.

As history demonstrates -- and the constitutional conference of 2000 and the current Select Committee review of NZ’s constitutional arrangements foreshadow – a bad constitution poorly written can give the erstwhile guard dog control of the back yard and the house, and rather than protecting us it then has no impediment to doing us over.

Liberty, as Thomas Jefferson suggested, requires eternal vigilance.

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9 Comments:

Anonymous Anonymous said...

I wouldn't say a bad constitution lets an erstwhile guarddog run rampant, so much as a bad constitution lets the citizen majority run rampant and vote to leglislate whatever the hell they like, rights of other citizens (and themselves) be damned. So if there are any rights worth protecting that could conceivably come under attack from either a wayward government or a majority of citizens, they need to be constitutionalized. Democracy without a constitution is like mob rule.

10/02/2005 12:55:00 pm  
Blogger Rick said...

There are more important things in this world than "tieing up government". Your constitution will do that, choke government, but it will choke other things as well- more important things: hearts and minds.

Freedom must be in the hands of the people, not just on paper. If these principles are worth protecting I believe they should be actively fought for on a day-to-day basis, liberty won over and over again- there is no end game.

Others disagree- a written constituion is an ultimate symbol of their disagreement.

It didn't work for the US, it wont work for us either.

Constitutions are like nuclear weapons. If you want to step the fight up to that higher level of political armamentary you invite others to do the same- Greens, Reds, Blacks, Whites and all the other shades too, of which little NZ has plenty enough representation.

Forget about your constitution. Laissez fair politics is the way to be.

10/02/2005 02:22:00 pm  
Blogger Lancashire Lad said...

Rick,

I cannot think of any part of my life that is more important than tying up government. I awoke this morning and the first thing to cross my mind was the final countdown – the special votes. Would (fingers crossed) the Greens be gone? Would we have a Labour led government, blackmailed, influenced, pressured, indeed ruled, by the Green agenda? A scary prospect. Would Labour be able to govern on it’s own? Another scary prospect. Would Brash have the numbers? An equally scary prospect.

How will a constitution choke hearts and minds? Surely a constitution frees the people to open up their hearts and minds. It is government that stifles dreams and innovation. It is government, with it’s socially engineered programs, that commits people to a life of dependency and mediocrity.

“It didn't work for the US, it wont work for us either.”

Bollocks Rick! Have you read the Libz constitution? It may not yet be perfect but by crikey, it’s a bloody good starting point. In fact, it may even be perfect. The only problem I see is that it actually DOES tie up government and they aint going to go with that, are they? Remember the referendum? We voted for less MPs – didn’t happen did it? Why? Because it was up to MPs to decide. Ask any politician why they entered parliament, or any prospective candidate why they are standing and the answer is always – “to change things”. And don’t we all suffer, all the time? Their idea of change is to mould us all to their way of thinking – whether we like it or not. Tie up these bastards with a constitution and they may just stay home and leave us all alone. We can learn from the US attempt by their founders to tie up the hands (and feet and mouths) of their government and do it properly next time around. NZ leads the way in so many things – be great to see us put in place a constitution that actually worked. And we COULD.

In one sense Rick, you may be right. I cannot see a constitution being implemented in NZ in my lifetime. The reason? There are too many people with too much to lose by having a constitution. That is, special interest groups that have a call on your money and mine (and I include government within these groups). A constitution would disempower them, they would be left with a voice that nobody wanted to listen to and a bank account that would, in short shrift, look like mine (empty, in case you were left wondering).

Laissez fair politics? It’s what we have now – and it’s a shambles. It’s a disgrace, and it serves no good purpose to any right thinking man or woman, only to those who have a vested interest in the status quo.

PC’s analogy is spot-on. You buy or acquire a guard dog to protect both yourself and your property and the dog is left untamed; it gets out of control and takes over you life instead of protecting it. Instead of feeling safe, you get done over by the dog. You cannot tie down a dog with a constitution (because a dog cannot read or understand a constitution). You have two options with a dog – re-train or shoot the damned thing. Government is slightly different to the dog (because some of it’s members can read) – but of course shooting is the best option.

Maybe what’s needed is a revolution. Libz say, “a revolution inside people’s heads”. I’m not so sure any more, just a “bloody” revolution would suit me – and may the best side win. Keep your powder dry!

10/02/2005 10:14:00 pm  
Blogger Rick said...

Have we met lad?

I cannot think of any part of my life that is more important than tying up government

My commiserations to you.

How will a constitution choke hearts and minds?

The short answer (apart from the ones already given) is the survivalist concept of 'risk shift'. People don't watch their own backs if they think someone or something already has their back covered. And when it comes to liberty nobody else can do it for you.

Laissez fair politics? It’s what we have now – and it’s a shambles.

Is the system failing us or are we failing the system? Hearts and minds...

Have you read the Libz constitution? It may not yet be perfect but by crikey, it’s a bloody good starting point. In fact, it may even be perfect.

It's not. Never liked it= even wrote my own one (awefully good) but now I've changed my view.

Bollocks Rick? Are you suggesting the US Constitution has fulfilled its function??

PC’s analogy is spot-on.

It's not a dog, it's something far more violently worse. Leashes and chains are an illusion, they fool you into thinking you're safe, plus they only make it mad.

Maybe what’s needed is a revolution. Libz say, “a revolution inside people’s heads”. I’m not so sure any more, just a “bloody” revolution would suit me – and may the best side win.


As you grow older you'll reflect differently about the 'bloody' thing.

I do think there will be a revolution. But my main concern in all of this is whose revolution will it be?

10/02/2005 11:28:00 pm  
Blogger Lancashire Lad said...

No Rick, we haven’t met. Maybe one day.

"I cannot think of any part of my life that is more important than tying up government."

I wondered if you would comment on that. I re-read it after I’d posted my message and thought, how sad. No I’m not a saddo, but changing the way we are governed is pretty high on my list of things to do. That last sentence pretty well sums it up –“the way we are governed”. Read: bossed around. Surely we should be governing ourselves, with a government appointed to ensure I don’t bother you and you don’t bother me. What has gone wrong?

And yes Rick, the price of liberty is eternal vigilance – even with a constitution. America has been a fine example of what can be achieved and also of what can go wrong. The answer, once a constitution is formalized, is education of the people it is put in place to protect. (Actually, the answer is education before a constitution is put in place). Yes, I know! How the hell do we do that you (perhaps) ask when the majority of Nzers do not even understand a concept as simple as MMP? Do Nzers really want freedom? It would not appear so after voting back for a third term the most bossy-boot government in decades, perhaps ever, in this land of the long white cloud.

“Is the system failing us or are we failing the system? Hearts and minds...”

Not sure Rick. But … it seems to me we have a system of government, for government; not of people, for the people. Government rides rough-shod over us and no-one seems to bother. How do you change hearts and minds when the majority of voters are the recipients of one bribe or another … and they love it? Maybe the answer is to stop the plunder of our pockets by government, thus depriving them of the means to buy off one section of society at the expense of another. Of course to do that would be a major shift in thinking – un-brain-washing you could say!

I believe the US constitution did fulfill its function for quite some time and America prospered on the back of it. What went wrong was the eternal vigilance bit. Remember, those who seek power are power-seekers. Having their power lust limited by a constitution is not going to sit too well. The US constitution, over time, has been bastardized beyond recognition by the very people put there to safeguard it – it put too much limit on their own self interest – power for the sake of power. We can learn from that – if we can change hearts and minds. That is the task we face, changing the way people think about government and about themselves. Until we can do that, I agree with you, a written constitution is a pointless dream.

“As you grow older you'll reflect differently about the 'bloody' thing.”

“Bloody” as in revolution was an expletive rather than the streets flowing with red stuff. And if I grow much older I’ll qualify for an entry in the Guinness Book of Records. As for the revolution itself – maybe it will merely involve like-minded people moving to a place of their own, leaving behind the unthinking idiots to get on with it. A “Galt’s Gulch” type revolution.

10/03/2005 11:45:00 am  
Blogger PC said...

"No Rick, we haven’t met. Maybe one day."

I have to warn you Lad, that meeting Rick is not an unalloyed pleasure.

10/03/2005 12:32:00 pm  
Anonymous Sam Vilain said...

This constitution seems to be all about restraining government and nothing about defining its duties or purpose.

It oversteps the Magna Carta in ways that are not so good; for instance, demanding that private property cannot be appropriated by mandate from the populous is the sort of clause a property developer or architect loves, but is by definition against the public good. I don't understand it, as compulsary purchase has a long history in the Empire. Has it really been that bad?

I don't think that "pursuit of private property" is an inalienable right. Why is this an inalienable right?

I'm not quite sure how any government is supposed to collect revenue to perform its functions without taxes, either - what is with Article VII? Does it restrict taxes to corporate taxes only? If so, I heartily agree. But it later states not to restrict the monetary unit, which would make such taxation difficult if not impossible.

In Article VIII, I think it only makes sense to allow free trade when the governments on the other end are not undercutting you with slave labour. This article should be qualified with a note to the effect of "unless the commerce is deemed to be in countries missing appropriate protections of rights, liberty or properties, in which case the extent of the adjustment should be to compensate for this difference". So, if every country adopts a constitution like this, it's all free. Countries still allowing slavery, human rights abuse, etc get a tariff. Otherwise you're basically implicitly agreeing to deprival of other's rights, which I don't think is the intention of this.

Also, I know after reading your RMA article how you're going to hate this suggestion, but these rights simply have to acknowledge the rights of generations to come in some way (preferably avoiding the touchy-feely terms used in the RMA), as well as recognising the rights of other forms of life (but not rocks eh!). After all, we are the "parasites" not contributing back to the food chain! :)

10/04/2005 01:41:00 pm  
Blogger Eric Olthwaite said...

"I'm not quite sure how any government is supposed to collect revenue to perform its functions without taxes, either"

The supermarket down the road manages to collect revenue just fine without using coercion. All it does is provide things people want. The principle is (or should be) the same with government.

Why would you want to use coercion anyway, unless you realise that the government's functions are performed do abysmally that no-one would willingly part with their hard earned money for them.

"but these rights simply have to acknowledge the rights of generations to come in some way (preferably avoiding the touchy-feely terms used in the RMA), as well as recognising the rights of other forms of life"

What are rights Sam, and how does something get them?

In Article VIII, I think it only makes sense to allow free trade when the governments on the other end are not undercutting you with slave labour. This article should be qualified with a note to the effect of "unless the commerce is deemed to be in countries missing appropriate protections of rights, liberty or properties, in which case the extent of the adjustment should be to compensate for this difference". So, if every country adopts a constitution like this, it's all free. Countries still allowing slavery, human rights abuse, etc get a tariff. Otherwise you're basically implicitly agreeing to deprival of other's rights, which I don't think is the intention of this.

Well that's just fantastic Sam, you're going to have a word like "appropriate" in a constitution. And just how is not trading with them supposed to help the people in "bad" countries? Instead of giving them some outlet for trade and thus some chance at prosperity you're going to cut them off from trade altogether, and what happens then...?

10/04/2005 02:32:00 pm  
Anonymous Sus said...

Sam Vilain asks about the definition/purpose of govt and how it would be funded if there was no taxation.

In a libertarian society Sam, where my freedom ends where your nose begins and govts do not have more rights than individuals, the role of govt is drastically reduced to protecting the population internally and externally via police and defence forces, and running the justice system.

How is it funded? By *voluntary* as opposed to forced taxation.

Is it viable? Yes. With nearly twice as much money in my pocket (as a result of zero taxation) I can afford much better services than the state currently offers and/or insists I pay for anyway regardless of personal use or preference, due to basic competition.

Part of that money would be my share to the police, defence and justice depts in return for good protection/service.

As an example on a large scale, just think of what insurance co's currently pay out because of our high levels of burglary in part due to inadequate policing. You think they wouldn't be happy to pay their 'share' knowing exactly where the money was going, ie directly to policing resources - as opposed to the current method of state re-distribution where a whole bunch of money is up for grabs in return for votes?

It's classic 'user-pays', which is the personally responsible approach to life - as opposed to the 'users-being-paid-for' beloved by socialists.

It works. Think about it.

10/04/2005 03:43:00 pm  

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