This is an essential exercise for Latter-Day Saints to know how a government of liberty should be structured in order to safeguard freedom and individual rights against the judicial and legislative attacks that have eroded our inspired Constitution. This essay contains Principles 3 and 4.
This is a continuation of the listing and illucidation of the founding principles for an ideal government. This is an essential exercise for Latter-Day Saints to know how a government of liberty should be structured in order to safeguard freedom and individual rights against the judicial and legislative attacks that have eroded our inspired Constitution. This essay contains Principles 3 and 4. If you haven’t read Part II on defining fundamental rights, do so now here: Foundation for an Ideal State–Part II
PRINCIPLE #3:
FUNDAMENTAL RIGHTS ARE SUPERIOR TO ALL EARTHLY LAW AND SHOULD BE SECURED BY A CITIZENSHIP COVENANT DOCUMENT (to be covered in Principle #5) THAT IS ACCEPTED BY UNANIMOUS CONSENT AND NEVER MADE SUBJECT TO MAJORITY RULE –EVEN IN A CONSTITUTIONAL DOCUMENT
THE SUPERIORITY OF FUNDAMENTAL RIGHTS OVER EARTHLY LAW:
By the fundamental character and essential nature of freedom, the inviolable, fundamental rights of man shall never be made subject to political confirmation. They exist regardless of the nature and institution of governments on earth, and cannot therefore be denied, rightfully, even by a majority of persons using democratic powers. While they may be listed for reference and voluntary approval in a constitution, they are not, by nature, subject to the ratification or amendment process.
This is a very important concept: that we must not allow people to vote on our fundamental rights. If they vote on them, they can vote them away. Certain things in life cannot be determined by majority rule—no matter how big that majority is. That’s one of the reasons why we don’t believe in raw democracy. So, how do we get them established?
First, we start with a core of people (such as this fine forum) and agree among ourselves how to define fundamental rights properly, and how they should be listed. We expand the discussion and the number of people involved, both seeking for more adherents and testing to see if our ideas stand up to scrutiny. After a certain point when all concepts and lists have been revised and are stable, and have shown the ability to withstand rigorous challenge, we integrate them into a citizen compact upon which we base a new government. We also develop a comprehensive constitution based upon the principles of the American founders, but in tight legal language. The Constitution forms the restrictions on lawmaking power in this new society. We don’t have to convince everyone to join in to start operating as a covenant group (but having continuous land with some autonomy helps), but everyone who joins must be unanimous with those that are already part of the system. That’s what is meant by “initial unanimous consent,” —not that everyone around must agree, which is impossible. After initial unanimous consent (which is a living process, since each new citizens signs onto the original document), the government thus formed operates on normal majoritarian principles.
In otherwords, we never force anyone to join, but allow the natural order and prosperity that comes from a non-conflicting legal structure to attract followers. It’s kind of a competing government scenario. Granted, it won’t work in the current system, given our current government’s hostility to competition and reform, but it may work (if enough prepare and become committed to its higher principles) in a future crisis where governments fail and chaos reigns. It will certainly work in the millenium. Above all, it’s a great exercise in critical thinking. This discussion is continued in more detail under Principles 4 and 5.
PRINCIPLE #4:
GOVERNMENT SHOULD ONLY BE FORMED BY INITIAL UNANIMOUS CONSENT OF THOSE TO BE GOVERNED BY SUCH, FOR THE SOLE PURPOSE OF PROVIDING MUTUAL DEFENSE FOR THE FUNDAMENTAL RIGHTS OF ALL CITIZENS.
THE COMMON CONSENT DOCTRINE AND SUCCESSION
Within the society of citizens, laws enacted by majority rule are limited to those issues which directly and harmfully affect members of the majority, thus maintaining the free will of individuals and other minorities from democratic tyranny. Laws passed outside these and other constitutional bounds are null and void, and without effect.
In the act of forming a government, men do not cede their right to withdraw from the pact unless specifically stated in the citizen contract (which I would not recommend). Wisdom would dictate that freemen must never relinquish the right to revolution, which is: that men are free to reject any governmental association, at any time, if not afforded these essential fundamental rights, or in the absence of initial voluntary consent. This last phrase acknowledges the right of those who live under a non-contractual government to leave such government since majority rule-making was imposed upon them. I know of no true contractual government established by true common consent in existence today.
The foregoing doctrine points out two historical deficiencies in our constitutional Republic: First, the absence of full common consent in the beginning of the Republic, and second, the absence of a written citizen contract which each new citizen would be required to sign in order to be on an equal and unanimous footing with existing citizens.
The original founders of the American constitution were doctrinally committed to the concept of initial unanimous consent–what they called “common consent.” The doctrine of the citizen compact goes back to Anglo-Saxon days, and was manifested at varying times, including the time when the original Pilgrims formed their Mayflower Compact. In essence, common consent meant that no man could be compelled to submit to the rule of the majority unless he voluntarily consented. Refusing to consent meant that he was still a “freeman” acting alone and free insofar as he did not tread on others’ rights.
Under this common consent doctrine, the founders of the Constitution in 1787 knew that it would be improper to force any of the colonies to submit to the Constitution, even if a majority had ratified it. But unanimous consent did NOT mean that no state could implement the Constitution unless all agreed, it simply meant that it was only binding upon those that ratified it. In fact, the majority of colonies began to act under the Constitution’s provisions before all had ratified it. The non-ratifying colonies were simply treated as separate sovereign nations. Eventually, the other Colonies saw that the advantages of joining outweighed the dangers they perceived in the document, and they joined in the union.
Unfortunately, while the founders correctly refrained from compelling other states to join the union, the states themselves failed to obtain the unanimous consent of their citizens. Once again, this doctrine did not require that they delayed acceptance of the Constitution until every citizen was in agreement, but it did require that those who did not agree were not bound by its provisions until they gave their consent. In essence the states voted by majority rule to force a minority to accept the majority’s jurisdiction over certain aspects of their fundamental rights.
The danger of this is not so apparent until one envisions what kinds of laws the majority can implant upon a non-consenting minority. Suppose that the majority at that time were non land-owning peasants, and had voted to install a state and national constitution giving them the power to confiscate all lands over 500 acres “for the public good.” The fact that all large land-owners would refuse to consent points out the virtue in requiring initial common consent from all.
If a state wants to attract the best people, the constitution must guarantee justice and fairness to the highest degree. The more arbitrary and capricious a constitution is, the less potential for universal support.
In reality there were certain aspects of the new Constitution that were dangerous, such as the lack of protection of the full range of fundamental rights, and the “necessary and proper” clause under which the Supreme Courts would allow massive intrusions of Congressional authority upon individual and state’s rights. The Constitution possessed the seeds of monetary debasement in giving Congress the power to “regulate the value” of currency, and clearly avoided any language which would declare slavery a violation of human rights.
All of these objections were real and proper. Many people believe that majoritarian ratification was justified because of the rapid attainment of unity that it brought, but it was this very question of whether majority power could impose its will upon non-consenting states that brought us to the brink of destruction in the Civil War. As to the ultimate principles of government, the Confederacy was correct on one basic fundamental right: secession from the Union. They were wrong on one of the objects of that right–the defense of slavery.
Secession was an important doctrine for maintaining the essence of common consent. If we begin from the proposition that fundamental freedoms cannot be taken away by majority rule–they can only be ceded by individual voluntary consent, then we derive the fundamental premise that a majority cannot implant any system of government upon other freemen without their initial consent. This then implies that those who consent to majority will still possess the right to leave the group at any time, if the compact is broken and if the majority begins to encroach upon freedoms specifically not ceded or limited in the original agreement.
If the Supreme Court declares certain acts constitutional which a state believes is a violation of the original compact, it can simply disregard it under the doctrine that unconstitutional infringements on state or individual sovereignty (involving fundamental or contract rights) are null and void, and unenforceable. If the highest court rules the law constitutional and government decides to enforce the law with police powers, the state has to choose between compliance or secession, involving the loss of certain benefits as members of the union–primarily a matter of facilitated trade and joint protection powers. On all non-criminal matters, severance of relations with a state would be the only consequence of law–no jail terms for state officers would be proper or permissible.
Secession does not have to mean war, only that each body’s ultimate sovereignty be respected. The northern states clearly violated the sovereignty of the southern states in forcing them back into the union. Such use of force clearly sets a precedent that no matter how tyrannical the Federal government becomes, no state or individual can leave. The peaceful right to secession should be stated in the constitution, and it should protect the fundamental rights of citizens both ways. In other words, no state could secede by majority rule, unless it continued to allow individuals who wished to remain part of the union to do so, without territorial integrity. This is a great difficulty, but not insurmountable.
No matter how pragmatic we all view the historical benefits of the union, the precedent of forced repatriation is no less onerous than the use of power in the Soviet Union to keep its conquered peoples within its dominance.
GOVERNMENT BY INITIAL COMMON CONSENT, IN DEFENSE OF FUNDAMENTAL RIGHTS:
As an extension of individual liberty, all men have the right to form a governmental association with others in the pursuit of a more effective defense of their fundamental rights. Furthermore, they may establish independence from all other governments in the pursuit of these fundamental rights.
This can only be rightfully accomplished through a covenant association, where ALL the governed consent to abide by the rule of law as enacted by elected leaders and officials, under pre-determined constitutional limitations on majority rule.
Within the covenant framework (which would include a Bill of Fundamental Rights, a Constitution, and a citizen signatory contract outlining duties and penalties for failure to comply), there are certain limited areas of authority delegated to the government for future determination. A citizen joining the national compact, or any special sub-unit thereof, agrees to abide by the laws enacted by elected representatives, and interpreted by the appropriate courts, insofar as such laws do not violate the initial compact defending fundamental rights.
Since it is improper to force someone to join a governmental association against his will, the enactment of laws and the enforcement thereof, by a government of majority rule, can only have effect upon those specifically consenting to such majority rule.
How would one possibly form a government under unanimous conditions? Unanimous does not mean “all at once.” It means that whoever joins in the movement signs on voluntarily with full understanding and not through coercion by the majority. That is how the US Constitution began–only those states that agreed where part of it to begin with. Others joined later as they realized they would be greatly disadvantaged by not be a part of the whole. What I am saying is that individuals themselves must sign on–not just state governments–because states are controlled by majorities, and the minorities would not have been represented at all since the very inception of government.
But unlike former times, when there was a lot of unclaimed land on the earth, it is now impossible to start a new form of government without dealing with an existing government–and there are virtually no existing governments that are going to let anyone be free from their power to start a new one without the force of arms. So, there are only two possibilities short of revolution. First, men who want real liberty must wait for the occasional window of opportunity when the horrors of war or some other form of destruction destroys or brings an existing government to a crisis, and then try to control the majority influence in forming the new one. Or second, they must work, while under the umbrella of an existing government to gather enough people willing to sign on to a covenant government (while having no actual power) till they become a significant enough force to gain permission to start an enclave of freedom within the nation.
The first is essentially what happened in America–the loose federation of states was floundering in financial crisis right after a war of independence, that forced the need for a convention to remedy the government structural problems. But I think this highly unlikely today for two reasons.
1. The American revolution was unique in history, being a revolution of the higher, educated class of people. A much larger percentage of the educated, landed class that has ever existed before or since were well schooled in the English traditions of law and liberty. Very few of the leaders we have in power today have that same allegiance to liberty. A Constitutional convention today would be controlled by those who believe in raw democracy and many forms of socialism.
2. The colonists were coming from a weak, confederated form of government, which by its very nature, considered each state sovereign and independent from the others. So it was much more tolerant of the idea of each being a covenant society. Today we have an ever more powerful centralized government that has already demonstrated in the Civil War their intolerance for sovereign enclaves.
The second possibility is the only choice short of revolution. Convincing a majority to join in regaining freedom would seem at first glance an easy task, but it is not for this reason: the majority of people in every nation are on the other side–they either want and receive government benefits or they have become convinced that there is no harm in this. The historical tendency of human nature demonstrates that those who are corrupted by benefits will never give them up voluntarily unless they become enlightened by higher religious values–and they never come to those without war, death and destruction, and often not even then! Those that ignorantly sympathize with socialist benefits are almost as hard to change because the victims and dangers of socialist wealth transfer programs are hidden. In addition, almost all citizens of all nations are cut off from critical information by government controlled education and socialist control of the information media. I realize this is discouraging.
With all that said, I believe the only course of action is to set upon a course of establishing on paper a specific ideal form of government, and then set about the converting people to it, and refining the system, ideologically as we progress and interact with the best and brightest of those who desperately want a return to liberty. If we are successful in converting a significant body of citizens who can wield enough electoral power (would have to be at least 25% of the nation and more preferably a full 33%, as well as an absolute majority in at least one state) then there would exist either a possibility of pressuring a larger party to enter into a coalition for governance that would allow for a freedom enclave within the existing structure. Or, if a crisis of government arose, the liberty movement would be sufficient poised to negotiate an enclave status from a new form of government. Now, I realize this is a very difficult task given the level of benefit corruption today. This group and their sympathizers constitute a large majority, which is growing yearly. On the other end of the spectrum, the increased tension within the American nations is increasing the liberty side of the spectrum as well. But it is very undereducated due to the dominance of public education. A larger and larger portion of the youth are lost to socialism each year due to bad education. Those who consciously view themselves as conservatives of liberty are probably less than 10% of the nation and are heavily factionalized. So, there is much work to be done.
This enclave must involve a specific territory at least as large as one entire state (the state where that covenant body could control the majority in the legislative body), and where complete tax exemption from all levels of social and welfare taxes is granted to those who join the enclave. State citizens who are not part of the covenant would still pay welfare taxes and would continue to receive welfare benefits. There would, however be a tremendous incentive for every small business owner to join the enclave, since they would be free from all the onerous employee regulations and taxes that weigh so heavily upon entrepreneurs.
The essential ingredient to providing for the viability of a truly free, competitive society is not only receiving some minimal agreement on the right to a establish self-sufficient, self-directing governing enclave within the national federation, but also the right to expand it by voluntary consent of those adjoining the area. As the results of dynamic liberty become demonstrable and new people are converted and move into the enclave, the socialist model will begin to lose what productive class it has, and will have less and less wealth to confiscate and transfer to others. Hopefully the liberty enclave can then convince the suffering masses in the majoritarian, democratic-socialist sector to vote away their benefits and expand the covenant of liberty to themselves. Now, I am not naive enough the think this could happen without a severe crisis. Neither am I unaware that this large, corrupt majority would try every legislative maneuver to attach the wealth of the enclave to further service their benefits.
The proper way to expand liberty in an enclave system is by individual conversion one by one. You have to sell each person on the benefits of mutual defense of fundamental rights. Only those who join and become citizens would have the full range of protection of rights, and exemption from the burgeoning federal tax load. Next up in Principle #5: the specifics of a suggested citizen compact and how it would work.
Comments welcome.
