The Voluntaryist Constitution
This article originally appeared at the Mises Institute on October 24th, 2017.
There have been a number of attempts to create the ideal constitution—one which enshrines liberty, autonomy, and property rights, while ensuring the highest degree of prosperity for those under its jurisdiction. Each attempt to do so, however, has been plagued by a seemingly indominable problem: constitutions create governments. Once the malicious genie of government has sprung forth from its lamp, it seems no constitutional structure or language is capable of subduing it.
Some may assert in response that this is simply an inherent problem with Constitution-making in general, and that an anarchic libertarian society would need no such document to thrive. However, even the veritable father of anarcho-capitalism, Murray Rothbard, disagreed:
Politically, the Tucker anarchists had two principal defects: (1) they failed to advocate defense of private landholdings beyond what the owner used personally; (2) they relied too heavily on juries and failed to see the necessity for a body of constitutional libertarian law which the private courts would have to uphold.
These "right-wing" anarchists did not take the foolish position that crime would disappear in the anarchist society. Yet they did tend to underestimate the crime problem, and as a result never recognized the need for a fixed libertarian constitution. Without such a constitution, the private judicial process might become truly "anarchic" in the popular sense.
The common law judges of a libertarian society require a constitutional basis from which to operate. This makes apparent the need for a foundational legal document upon which the jurisprudence of common law can be built. Legal scholar Randy Barnett made similar claims in his book, The Structure of Liberty. Dr. Barnett claims that only a polycentric constitutional order predicated upon a bedrock constitution can maximize liberty and prosperity while preventing a monopoly on force (government) from emerging.
It is just such a constitution that I have set out to create. It is my hope that the Liberty Constitution (reproduced in full below) could one day be utilized as the foundational constitution for the world’s first truly libertarian society, free of even the possibility of coercion and tyranny perpetrated by the government.
This document is completely agnostic as to what institutional structure of governance will occur under its jurisdiction. Although I am hopeful that this constitution will be utilized in a polycentric common law legal order a la Rothbard and Barnett, I have intentionally left the document open to be useful for any governance structure that may wish to adopt it. Only competition between governance structures can lead to the discovery of the most efficient, judicious, and efficacious governance institutions. To insert a governance structure into this constitution is to limit its usefulness to that one structure. Rather, this constitution is meant to be both the foundation of a free society and the fence around it which guards against even the possibility of the formation of a state. Beyond that, innovators and entrepreneurs are free to build upon it whatever structure they please.
I invite any and all feedback, criticism, and comment on this document. This is considered Liberty Constitution 1.0, and it is only with feedback from minds far greater than mine that we can truly perfect the ideal Liberty Constitution. Please, email me any feedback, edits, or comments you may have!
This Constitution is hereby ordained as the preeminent contract outlining the fundamental legal principles and foundational legal framework of a truly free society. This document is meant to ensure that the right to property, being the most powerful of all encouragements to the multiplication of wealth, shall absolutely not be abridged, and further, that the right to self-ownership, being inherent in the existence of human, shall likewise be respected. This document further aims to ensure the creation of a peaceful and harmonious society predicated on voluntary cooperation such that the tranquility, prosperity, and happiness of all can be ensured. This Constitution is only applicable to those who have explicitly, voluntarily, and of their own free will and accord signed it, as well as their children, guests, and visitors. This is a free society where aggressive coercion is absolutely prohibited unless in reaction to or in reference to a property rights violation, meaning that no individual, group of individuals, and no entity including any state, government, organization, or group of people in general, under any circumstances whatsoever may exercise or invoke any rights other than common property rights specifically stipulated herein.
All terms defined below have the sense and meaning given to them in Article I of this Constitution, including when used in the Preamble.
Article I: Definitions
Def 1. Private property may be any object or electromagnetic wavelength with the following characteristics:
- It is accessible, recognizable, and discernible.
- It persists in the time scale of human action.
- It exists independently of any single perception or consciousness.
- It is possible in practice to measure its physicochemical characteristics using the International System of Units (MKSA) or any other equivalent conceptual system.
Def 2. A previously unowned or abandoned scarce resource is one meeting all the criteria of Def. 1 that is not being actively utilized by an individual or group of individuals for the completion of a particular project, or has not been claimed to be owned, in the time scale of human action, and in compliance with adverse possession common law.
Def 3. A property right is the right to the exclusive use of and complete control over private property.
Def 4. A coercive act is any act involving the use of private property on which a cognizable property right already exists, without the free and voluntary consent of the legitimate owner(s).
Def. 5. Homesteading is the process by which human beings justly acquire property rights in a previously unowned or abandoned scarce resource by staking the first legitimate claim to ownership of said resource.
Article II: Rights
1. Every human being has an inherent, exclusive, inviolable right to self-ownership.
2. No law shall countenance the existence of slavery, conscription, indenture, or any other form of involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted.
3. Human beings possessing the inalienable right to self-ownership likewise have the right to justly acquire property and claim property rights over a previously unowned or abandoned scarce resource through the process of homesteading.
4. Human beings likewise may acquire title to new property through the process of peaceful and voluntary trade, exchange, gift, and contract.
5. Every individual shall have the right to freedom of contract, meaning that a rightsholders’ consent is both necessary and sufficient to transfer alienable title to property.
6. All interactions and exchanges between individuals are to be voluntary, consensual, and peaceful, therefore no individual or group of individuals shall abridge the right of any person to purchase, gift, use, control, exchange, lease, sell, transfer, bequeath, dispose of, or in any manner enjoy their property without interference until and unless the exercise of their control infringes the property right of others.
7. The only legally permissible utilization of coercion is reactive coercion in direct and proportional response to an initiation of aggressive force against a peaceful individual’s property rights as specifically defined herein.
8. All parties of this Constitution have an absolute right to self-defense in concurrent and proportional response to a coercive act, manifest or imminent.
9. The only legally enforceable rights are property rights.
Article III: Contracts
1. Individuals or groups of individuals may voluntarily transfer title to any property between and amongst any other legitimate property owner.
2. Contracts are to be enforceable through the use of any arbitration agency concurrently approved by both parties of the contract prior to contract formation and in accordance with all provisions of this Constitution.
3. Only legitimate property as defined in this Constitution and in accordance with all provisions of this Constitution may be the subject of a title transfer.
4. The right to freely and voluntarily contract is absolute and inviolable.
Article IV: Justice
1. Any person's infringement of any rights stipulated herein is subject to lawful prosecution by the victim of this infringement or his agent(s) in accordance with all relevant due process and contractual commitments, and is actionable in accordance with generally recognized common law principles of the proportionality of punishment, strict liability, and restitution.
2. Jury trials are to be utilized in all criminal proceedings or any legal proceedings wherein an arbiter and arbitration method were not specifically stipulated contractually by all relevant parties beforehand.
3. No person shall be convicted, sentenced, or imprisoned without due process of law, including the right to trial and habeas corpus, and there shall be no detention without trial, nor shall any person either before or after trial be held incommunicado.
4. The burden of proof shall lie on the prosecutor of the action. The burden of proof in contract or tort actions shall be a preponderance of the evidence; in criminal action, guilt beyond a reasonable doubt. At every stage of criminal process, an accused shall be informed of the charges against him or her.
5. No person shall be tried more than once for the same crime.
6. No individual, collective, or firm shall be able to compel either jury service, discovery, or witness testimony during the proceedings of a criminal trial.
7. Coercive detention shall not be exercised arbitrarily but only upon probable cause that the detainee (a) has committed or (b) is committing a criminal offence, or that he or she has been made, or is soon to be made, a subject of a court order regarding (c) a medical isolation on the account of a highly contagious and deadly disease, (d) an in-house care of a Minor, or (e) an institutionalization in a mental health facility.
8. A person who has been arrested, detained, imprisoned, tried, or sentenced either illegally or in error shall receive full restitution.
9. Restitutive compensation may be obtained coercively if necessary.
10. The prosecution, arbitration, and enforcement of any and all disputes may be performed by any arbitration or protection agency formed and operating voluntarily under the purview of this Constitution.
11. Any arbitration resolution binding parties to this Constitution that may be reasonably construed to be in contravention of any provision of this Constitution is null and void.
12. This Constitution ratifies and adopts the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as adopted by a United Nations diplomatic conference on 10 June 1958 and entered into force on 7 June 1959.
13. Any and all Foreign Arbitral Awards recognized by the aforementioned Convention shall be binding in the jurisdiction of the parties of this Constitution and any enforcement agency operating in the jurisdiction of the parties of this Constitution shall have the authority to enforce such Awards upon request from the winning party.
14. Signatories of this Constitution agree to abide by and comply with international law regarding commerce with narcotics or arms outside of the jurisdiction of the signatories of this Constitution.
Article V: Prohibitions
The following laws, private covenants or practices are impermissible and unconstitutional for any entity to enforce on the property of another without prior, express, voluntary consent:
1. Any coercive, non-voluntary transfer of money from any individual or group of individuals to any other individual or group of individuals except in the case of criminal restitution, as in compulsory taxation.
2. Any coercive, non-voluntary transfer of any private property from an individual or group of individuals to any governing entity, as in asset forfeiture and eminent domain.
3. Any coercive, non-voluntary limitation, stipulation, regulation, or restriction on the ownership, transfer, or usage in any way of any private property whatsoever, except in cases regarding circumstances beyond the territory of the signatories of this Constitution or in cases involving the retrieval of restitution after a legal proceeding in compliance with this Constitution.
4. Laws, rules, regulations, and pronunciations coercively penalizing in any way any victimless or consensual actions whatsoever.
5. Laws, rules, regulations, and pronunciations coercively compelling any individual to act in any way whatsoever against his or her express will, except at the behest of a voluntarily signed contract.
6. Any form of restriction, hindrance, or otherwise forceful intervention against any movement of individuals or group of individuals across the boundaries of someone else’s private property.
7. Laws respecting or establishing a right to property in contravention of those definitions of rights to property established herein.
8. Criminal statutes that do not specify an exact mens rea requirement for prosecution and enforcement.
9. Laws, rules, regulations, and pronunciations respecting or concerning the establishment of a central bank.
10. Any attempt to establish a monopoly on coercion and force within the boundaries of the signatories of this Constitution, or any economic monopoly created or maintained by coercion.