Tuesday, 31 May 2005

Cue Card Libertarianism -- Constitution

As James Madison said, “If men were angels no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. This in a nutshell is the essential argument against anarchy, and for a constitutional republic. Men are not angels, and government needs to be controlled

Government in essence is like a guard dog: it is 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 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, 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 TFR thinks a constitution should look like, and why:

· The job of government is to protect our rights – a ‘Bill of Rights’ clearly outlines the rights to be protected.

· The job of government is not to infringe the liberties of its own citizens without 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 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.

This is part of a continuing series explaining the concepts and terms used by libertarians, originally published in The Free Radical in 1993. The 'Introduction' to the series is here. Tomorrow, 'Bill of Rights.'


Berend de Boer said...

Given the 'living' constitution debate, how does the libertarian constitution counter that?

Peter Cresswell said...

Two main ways I think Berend, one legal and one 'extra-legal.'

The first is the 'Notes' section. We observed that many of the 'perversions' of the constitution under the post-modern guise of a 'living consitution' were effected by a change in the definition of words. The 'Notes on the Bills of Rights and Due Process' seek to clarify the important concepts. as the preamble to the NOtes says, "These Notes are not mere suggestions which a future court may ignore at its whim, but elaborations on the aforementioned Articles; no court shall ignore the rights, liberties, inclusions and exclusions enumerated in these Notes, regardless of the passage of time."

The second means is not in the Constitution itself, but in the continuing activism for a constitution as a chain on government. Public understanding and support for the constitution as a bulwark of freedom is crucial in maintaining the constitution as a bulwark of freedom, and in resisting changes to it that would remove or alter provisions that make it so.

To this extent we agree with Edmund Burke's observations on the French Revolution that popular respect for the 'traditions' and 'prejudices' that maintain liberty is itself crucial in maintaining liberty.

In short, without continuing popular support for the protections enshrined and rights preserved, no constitution will be effective, no matter how well-written or how well thought out. Sad but true.

"Liberty, as Thomas Jefferson suggested, requires eternal vigilance."

Berend de Boer said...

Praise for Burke, pigs can fly after all!

I suppose he didn't make into the list of 12 books, but perhaps when you grow up :-))

UglyTruth said...

A written constitution should be agreeable with the unwritten constitution of England, as NZ common law derives from English common law.

Origo rei inspici debet. The origin of a thing ought to be inquired into. 1 Co. 99.

A written constitution should include the terms and conditions of its own modification or annulment.

In omni re nascitur res qua ipsam rem exterminat. In everything, the thing is born which destroys the thing itself. 2 Co. Inst. 15.