At first glance one might well ask, “Why would anyone object to a principled approach to law? Why the need for a defense?” The answer lies in two facts: 1) a logically consistent, non-conflicting set of principles governing law and government does not now exist, notwithstanding the great leap forward by the founding fathers of the US Constitution in establishing that liberty rests by right in the people--not by special grant of government authority. Our present legal system, is a combination of common law legal precedents and free-market traditions intermixed in the 20th century with a variety of modern social and political ideologies, which are often contradictory and conflicting. 2) Each of these two major ideologies, liberty and Socialism, have large constituencies vying either to be free from government intrusion or to harness government’s power for personal and group gain. A consistent set of principles, providing powerful restraints upon the improper powers of government or the ability of politicians to buy votes with benefits, would be very unpopular with many groups who now enjoy majority status in legislative bodies.

Frankly, I don’t expect Socialists (including those Republicans who aren’t willing to admit that what they often propose is merely a watered-down version of Socialism) to like the restrictions of these principles. Once in power, benefit-corrupted people and politicians never voluntarily relinquish their majoritarian powers over the redistribution of other people’s money. They aren’t my target audience. My interest is in building a unified concensus for just law and government among conservatives, libertarians and honest, non-coercive liberals who are currently factionalized into hundreds of small and medium-sized organizations--none of which have any real power to stop the forces arrayed against us. Christian conservatives are at odds with regular conservatives over not putting God to the forefront of every proposal. Social conservatives are at odds with libertarians over how much personal liberty to allow when it leads to personal corruption that has public or indirect private effects on society.

Conservatives of liberty can’t possibly win the current battle nor even govern properly unless key issues that divide us are worked out while we can still assemble and debate in relative peace. If we wait till the next crisis of war or depression (when our liberties are in a free fall) we will still be arguing while the left comes forth with their well-worn, ready-made, benefit-corrupting “solutions.” The left already controls the legal and governmental agenda we currently operate under, so even now our conservative sons and daughters, who are dutifully trying to work “within the system,” are enticed into tinkering and modifying Socialist systems. Who is going to teach them how to implement solutions that foster liberty? We need to step back and regroup as a movement and chart a new course for liberty based upon consistent principles that are capable of unifying all good people.

In terms of unity, we are at a real disadvantage up against the left. It only takes one thing in common for “liberals” to unite. It only takes one difference of opinion for conservatives to divide. To reverse that propensity among conservatives and forge a larger unified whole, we must step back from the illusions of nice-sounding generalities about “God, Country, and family values” and tackle the tough issues I will raise here. It will take hard work, argumentation, and conversion to hammer out our differences. I don’t pretend it will be easy or pleasant. Changes--even minor ones on core issues--are always difficult to achieve. All too often few conservatives or honest liberals demonstrate the patience, tolerance, or ability to do the tough thinking it takes to argue differences of opinion. Most would rather rely on the well-worn stock phrases previously mentioned--most of which don’t hold up in the detailed world of law where the real power of government is manifest. There is a way to accomplish much of what social conservatives want to do, but it must be done on a basis of consistent principles that do not violate fundamental rights. That’s what this proposal is all about.

I invite you to join with me in going through some basic arguments on the major issues relating to these proposed principles. If you disagree, address the arguments--don’t just restate generalized dogma--which doesn’t ever lead to a resolution. Many Christian conservatives don’t like argumentation, which they find synonymous with contention. But there are ways to argue without being contentious. One of the best ways to avoid contention is for both sides to stick to sound thinking, and to be humble enough to accept correction when thinking patterns are illogical or incomplete.

Let me give a quick example to illustrate. I often come up against the authority argument--a flaw in thinking where one relies exclusively on someone’s reputation or authority to support an issue rather than address the specific argument in dispute. Conservatives will often fall back on what they consider the ultimate authority--what the “founding fathers” said--as their first line of defense against any principle that may differ from the original Constitution. The trouble is, there really never existed a unified voice of the founding fathers. Even Alexander Hamilton, who drafted a majority of the Federalist Papers defending ratification, only did so because he saw the Constitution as a stepping stone to greater federal authority later on. What we call “original intent” is really a combination of the best ideas from both federalists and anti-federalists, who had wide and heated differences of opinion during the Convention of 1787 and afterward. Taken as a whole, what the founders accomplished was a miracle considering the extreme factions they had to deal with. But that miracle of sage compromises did not mean the Constitution was perfect or that it even came close to creating a solid barrier against government encroachments on liberty, especially at the state and local level.

The founders who prevailed at the convention got done what they could during a time of grave weakness and instability in government--and it was a wonderful beginning. However, there were many gaping holes in the document that would be used in the ensuing years by statists to continually expand the power of government. These are the issues that must be addressed today--not because we do not honor the Constitution, but because we must shore up and give increased support to the basic outline of liberty they provided. I have spoken of the disunity among many of the founding fathers, especially on principles and issues that were left unresolved--which were many. That disunity was so great that it caused many of the victorious Federalists to view each other as enemies during the next twenty years. Some died harboring bitter feelings one against another due to their failure to work out crucial differences early on. Let’s not make the same mistake. Now is the time for greater unity. Unfortunately, unity today will be much more difficult to achieve than in the days of the founders. Law has developed a complexity that will never go away--no matter how much we may wish it so. Additional principles are necessary to bring order and resolution to today’s diverse and wide-ranging conflicts.

The ultimate misuse of the authority argument is when some decry even the attempt to improve upon what the founders did, as if that would impugn our reverence for their work. This kind of thinking simply doesn’t help resolve anything. It is irrelevant to the core issues and counterproductive as well. As revolutionary as the Constitution was at limiting government power, it was a pragmatic document filled with many compromises. We have 200+ years of history behind us to judge the merits of everything the founders did, from the language they used, to the basic concepts. The core is solid and there is nothing that I am going to propose that will undermine that. But, if the founders were present today they would be the first to issue a call for tighter language to clarify their intent. The cold fact remains, someone has to finish the job the founders started in the quest to preserve liberty. Why not our generation who stands at the brink--watching our own pragmatic leaders compromise and destroy what remains of our freedoms?

Many dismiss these efforts as impractical since existing legal tradition has so much momentum. That is an issue of strategy, which cannot be appropriately addressed until we first decide upon the principles of truth we need to defend. Frankly, our chances of taking a benefit-corrupted majority of people back to the restrictions of the Constitution of 1789 are almost nil, and if we did, the lawyers would have us back to our present dilemma within a few years because most of the loopholes they used to subvert limited government would still be there. If we are going to take the trouble to fight at all, let’s do it for the sake of building up a remnant of solid thinkers who can truly defend liberty without contradictions and over-generalizations. Let’s put our efforts on the solid ground of principles so that, whether we “win” or “lose” politically, we will have laid a foundation so powerful and inspiring that it will be impossible to suppress.

INTRODUCTION

The proper purpose of law and government is to protect fundamental rights, maintain man’s agency to choose (when not violating others’ rights) and to resolve conflicts between individuals and groups in a fair and just manner. Unfortunately, the enforcement powers of government have most often been used to restrict fundamental rights and provide special privileges and benefits to groups less than the whole. Legalized government tyranny has taken many forms, including dictators, oligarchies and even democratic majorities (who use the power to vote and tax to extract benefits from the most productive classes of society). Such deviant forms of government have been far more common than the ideal forms precisely because the underlying premises used to establish governmental authority over others have been based upon arbitrary, conflicting or insufficiently precise assumptions (“might makes right,” “Divine right of kings” or even “common law”).

The United States Constitution came the closest to establishing a limited government based upon individual rights, but failed to define those rights, leaving the courts and legislatures free to introduce new privileges and false rights that have given rise to our present benefit-corrupted citizenry, who prosper on government intervention and redistribution of wealth. These and other loopholes in the broad and trusting language of the founders have allowed the enemies of liberty to bring us to the point where almost every true fundamental right is severely curtailed, and the restoration of original intent is nigh unto impossible--whether by the ballot box or an appeal to our representatives.

The purpose of the proposed Principles of Just Law and Government is to set the groundwork for a new and more formidable wall of protection for fundamental rights. It incorporates all the best principles of the US Constitution and declares additional principles as necessary to fill the gaps in law and philosophy which the original founders wrestled with but were not able to resolve under the exigencies of their own crisis period. These proposed principles provide the hope that we might once and for all resolve the core issues of law and government and provide a stable and comprehensive basis for unity--at least among those who view themselves as conservatives of liberty.

THE DEVELOPMENT OF SOUND PRINCIPLES

This process is begun by first developing a workable definition of fundamental rights that allows all men to easily distinguish between true rights (which allow the maximum of liberty while separating each person’s just claims) and false rights (which require that others be partially enslaved to serve another’s needs). Second, we establish criteria for the development of principles, based on these fundamental rights. Those criteria must be internally consistent, non-conflicting, and comprehensive in scope, so as to provide guidance to lawmakers for difficult questions of law. If laws are to be adjudicable in a fair and just manner they must be based upon a consistent set of principles that judges can use as a basis for interpretation. In the adjudication process, judges can refer back to basic principles so that conflicts can be resolved on non-arbitrary grounds.

It is not sufficient to simply make a list of nice sounding virtues and platitudes and call them “principles.” In general, a proper set of principles must be capable of providing a logical basis for both the structure of government and each element of a constitution, statute or law. Principles are not the law themselves, but are more general pronouncements of reasoned truths that provide this logically consistent basis for law and simultaneously restrict or limit the writer of the law to the appropriate concepts. A good set of principles also helps people see dangers in bad laws that, at first glance, might seem reasonable or even beneficial.

For example, many people support seat belt laws because “seat belts save lives.” It’s true, they do--but that isn’t the only point to consider. Underlying every specific law is a legal principle or generalization of the law, either right or wrong. In this case the underlying and generalized legal principle is not only wrong but extremely dangerous: that a majority has the power to dictate what is “good for” others, even when failure to comply does not affect the rights of the majority. This improper legal principle opens up a major pathway of intrusion that is used to justify other “good for you” proposals like fluoridation of water supplies and motorcycle helmet laws. Why not Titanium chaps to protect motorcyclists? Or three glasses of milk a day? These kinds of laws result in what I call an “unlimited extension of lawmaking power” which should never be allowed in good constitutional law. Once we allow the majority to start dictating what they think is good for others, we create a legal form of intrusiveness into the realm of self-responsibility that is only limited by the willingness of the majority in power to restrain itself, which is never a safe way to limit government and protect rights.

CORE FOUNDING PRINCIPLES

Some principles are more basic than others because they establish the non-conflicting playing field, which allows men to form a government without violating others’ rights from the outset. They also provide the basis for bringing all good persons to a potential meeting of the minds. The fact that all men won’t ultimately agree doesn’t make the quest for proper principles less valid, as long as the principles do, in fact, provide a basis for the greatest peaceful interaction between people in the context of government and law. Some people will resist being bound by principles for a variety of reasons. Some may not like doing what is right. Some may simply be incapable or unwilling to think things through--indeed, developing principles is a rigorous mental process. [Once the difficult process of determination and testing of principles is complete, a basic, shorter version of condensed principles is appropriate to help facilitate acceptance and understanding.] Finally, some may object simply because they want to preserve their privilege to fund their own pet projects with other people’s taxes, or even violate other’s rights in more obvious ways. If, however, the principles preserve everyone’s fundamental rights, are logically consistent and non-conflicting no one has a good reason not to agree. That’s the key point, and that is my goal--to develop something that is logical, right, and practical that solves the historical conflicts in law and government between competing groups of good people once and for all.

This non-conflicting, comprehensive criteria is what distinguishes good principles from bad ones, or even incomplete ones. Good principles simply don’t allow anyone to justify creating laws that permit the taking of life, liberty and property or the forcing of others to serve their needs. That isn’t to say principles, all by themselves, stop men from using force to enforce evil, but it does remove any presumption of legitimacy as well as the excuses people use to justify the modern forms of tyranny--like democratic or Fabian Socialism, which allows private ownership but controls property by regulation, and control). Ultimately one must forge a cooperative form of government with enforcement powers in order to stop violations of rights.

Here are what I consider the core non-conflicting principles, which will be explained in greater detail later:

1. Each individual, capable of being self-responsible, can rightfully claim as fundamental rights any action or state of being that all others can simultaneously claim without forcing others to serve their needs.

2. Individual sovereignty is the underlying authority behind every legitimate form of cooperative government.

3. Families have a special, temporary form of sovereignty over the health, welfare and education of their children until those children are capable of being responsible for themselves.

4. The only proper way to establish a government among free and sovereign individuals, with police powers of enforcement, is by initial mutual agreement of all parties, and the subsequent agreement, on the same terms, of all those joining the compact at a later date.

5. Nothing done under government authority has any validity if it violates or limits a fundamental right, unless such limitations have been specifically agreed upon by all citizens participating in the governmental process.

Before proceeding into a discussion of the other principles derived from the foregoing, let me address three of the most common objections raised by others relative to individual rights, authority, and efficacy of our existing Constitution. I do so because these objections are so persistent in some conservative’s minds that they tend to cloud their ability to be objective as they read the principles, or even to see that what I have proposed here does not threaten what they value most dearly. Lastly your ability to understand the careful wording of the principles will be enhanced after working through these three basic controversies.

ANSWERING SOME OBJECTIONS:

GOD, SOCIAL RIGHTS, AND THE CONSTITUTION

1. GOD: THE PROBLEM WITH RECURRING TO GOD AS THE BASIC AUTHORITY

Those of us who believe in God and acknowledge his ultimate sovereignty in the universe may be tempted to make God’s sovereignty the basis of authority for earthly government. There are several major problems with this strategy. First, it violates God’s purpose in creating this earth as a proving ground for man. Second, despite interpretative claims to the contrary, we do not have any definitive revelation from God, common to all believers in God, that establishes either fundamental rights or an outline of secular government. Even the concept of fundamental rights is missing from the Bible. Many have tried to extract such things by strenuous interpretation of scripture, but it’s not clear enough to allow Christians to agree among themselves, let alone gain the agreement of non-believers or other religions. Third, God has never supported the concept of enforcing purely religious punishments upon non-believers by secular government.

Since God is sovereign, he has the power to intervene at will in earth’s affairs. His historic reluctance to do so must, therefore, be taken as evidence that God is holding back to enhance the testing purposes of this earth, demonstrating as well that He has a greater interest in preserving man’s agency to believe or disbelieve, than he has in proving his existence (at least for the present). If God has declined to enforce a recognition of his own sovereignty on earth (or at least postpone such enforcement till the judgment day), how can we claim to be authorized to enforce that recognition upon other non-believers by making it the basis of authority in a civil government meant to protect the rights of both believers and non-believers? God Himself has not only refrained from establishing an earthly secular government, by revelation, but he has given every indication that He wants to remain in the background as much as possible so as to maintain a level playing field. Even the powers of Satan are both permitted and limited by God so that good and evil can compete for adherents.

Many Christians mistakenly look to the Old Testament as an example that God established an earthly government. He did establish an earthly kingdom, it is true, but it was clearly a covenant religious society, not a secular government intended to be implanted upon the rest of the world against their will. While both secular and religious laws and punishments were found in the Mosaic Law, such strict laws and punishments were only binding upon those agreeing to be part of the Lord’s covenant people. Only those violations of life, liberty and property were prosecuted outside the boundaries of the covenant society. From this we can see that even God had some type of line of demarcation between the proper bounds of secular and religious government. Secular government can only prosecute violations of basic fundamental rights related to protecting life, liberty and property. When groups wish to live by more restrictive standards that don’t violate a fundamental right when the standard is transgressed, they can only enforce those higher punishments upon those who have covenanted to abide by such punishments from the beginning. This standard allows non-believers to be free to live their own values as long as all refrain from violations of actual fundamental rights. The doctrine of fundamental rights provides a clear and easy-to-administer dividing line, in most cases. I’ll address the exceptions shortly.

The fact that Jefferson and others referred to God-given rights does not make it a suitable basis for law in a pluralistic society. It’s a statement of faith and an appropriate expression of religious opinion, but improper as a source of authority on rights except for a unified religious government--which didn’t fully exist even during the founding era of America. Part of the problem is that we think we must have some ultimate authority to proclaim rights, which isn’t really true. As long as our definition is inherently non-conflicting each of us can simply claim proper rights and defend them without recurring to any other authority--except that which we may form by mutual consent to protect our rights. This is one of the basic tenets of cooperative government, that we create our own authority to defend rights. Such authority is legitimate as long as the governmental compact is approved by all participants voluntarily and that it does not violate the rights of others who don’t wish to join.

In summary, I do believe that God has an interest in promoting liberty, but He wants us to do it in a way that doesn’t force others to accept His existence as a pre-condition of participation, and that is why I am opposed to using God as the stated basis for rights--even if it is true. To believe in God’s sovereignty, or even to openly declare that one believes rights come from God, does not violate God’s testing purposes, but making the acceptance of that belief a basis for participation in a pluralistic earthly government does violate God’s purposes, in my opinion.

Lastly, it is not necessary to enforce the recognition of God upon non-believers or even upon the legal system for religion to flourish or for the law to protect the freedom of belief. All of God’s religious purposes are preserved merely by making sure government can play no favorites, either by enforcing restrictions on religious beliefs or by taking people’s tax money to promote others’ beliefs. What is necessary is to establish a level playing field where all belief systems are free to compete with adherents--with none having the power to harness the authority of government in their behalf.

Currently, the playing field of competition for moral values is not level. In fact, it never has been. In the early history of America, Christians used the power of government to establish official churches, finance ministerial salaries and promote various Christian causes using taxpayer money. Christians controlled public education for a time in many states, as well. Some European nations still have state-sponsored religions which is a violation of the property rights of those who must pay for the establishment and teaching of values they oppose. Non-Christians rightly felt imposed upon because their tax moneys were being used to support the promulgation of values that were not within the purview of government’s taxing authority.

Today, we have a new state religion in America--that of atheism and evolution. While claiming to be scientific and neutral (in its denial of God), it is anything but neutral--it is still a value-oriented system of belief that goes beyond the defense of fundamental rights, and therefore is an inappropriate function of government taxing authority. While Christians are eager to retake control of the public school system, they fail to realize that it is always inappropriate for any majority to control education for all. All forms of education have values (even science) and those values should always be competing--never monopolized by majorities lest the minority’s property rights be violated. The only way to accomplish this is complete separation of schools and state. All education must be private, or, if run by government, 100% funded by user fees so that it competes on a level playing field with private education.

As we shall see in the following principles, a system of laws based upon fundamental rights does not require that God be banished from all public expressions as is becoming the rule in our ACLU-distorted legal system (which only defends a portion of individual rights). In a system that establishes the full range of fundamental rights, both believers and non-believers have all the freedom they need to declare their beliefs to willing listeners. In the public arena only the direct expenditure of taxes would be restricted from being used to promote non-coercive values or religion. Leaders can rightfully express their personal and religious feelings as part of their leadership responsibility. Religious groups can use public property on the same basis as any other group of private citizens--paying only appropriate user fees to cover any administrative costs of government in managing public properties and keeping order.

2. SOCIETAL RIGHTS: THE SOCIAL CONSERVATIVE’S ATTACK ON INDIVIDUAL RIGHTS

As the left has succeeded in carving out a lop-sided and incomplete concept of rights, defending only the right of personal corruption, but denying other key rights (like the right the rest of us have to make discriminating choices against that corruption), certain social conservatives have reacted by attacking the whole concept of individual rights and replacing it with a sloppy and poorly thought out doctrine of societal rights--the supposed “communal right” to have a moral society. Their basic premise is that since government cannot long exist without a moral people, society as a whole has the right to enforce a “community standard” of moral conduct upon all citizens, even if those standards violate individual liberty. The implicit assumption here is that religious-based societal standards are superior to individual rights since “society” has the right to defend itself against internal corruption. Proponents claim that the societal rights system of law holds out the promise of being able to defend moral agency, the family and religious values. I will demonstrate that it does no such thing. Not only do these imprecise and generalized “societal rights” not provide the legal basis for defense of family values, but that they provide the very color of law that is currently being used to destroy religious values today.

The essential flaw in this whole premise is centered around the question of who is going to decide what religious or moral standards become “community standards?” Proponents respond that the majority has the right to decide--confidently assuming that we, the religious community, are the majority. This is very short-sighted at best and lethal to religious liberty at worst. Without the limiting role of a doctrine of individual rights, this majoritarian power that social conservatives grant to themselves has the unlimited power to destroy liberty. If any majority has the power to impose community standards upon others, then surely the day will come when Christians will lose the majority and be forced to become subject to the values of a new majority, hostile to religion. The only safe way to run a government is to make sure that no majority has the power to enforce moral values on others--except in the area of violations of fundamental rights. [Note: fundamental rights, as defined in this proposal, differ from some libertarian versions of individual rights in that they include a form of family sovereignty that remedies one of the major deficiencies of an individual rights doctrine].

Societal rights only live in the world of idealized and generalized concepts--they simply don’t work (in terms of consistency and fairness) when you get down to specific legal challenges. They are awkward to adjudicate in court because there is no single entity present in court either as victim or proponent. What is present is someone claiming the authority to represent all of society, even though they are, in fact, only representing a portion of society that happens to control the majority of votes in some governing body. Minorities and dissenters from the majority position are never represented--unless they can take power--which is why this system always leads to class conflict. Sadly, no one has any rights unless they capture the majority in a “winner-take-all” democracy.

A lot of conservatives insist they aren’t using “force” when acting by majority rule, but it is force just the same when the power of government is used by majorities to take away life, liberty, or property as part of the disciplinary system. The existing majoritarian control system builds class conflict and is the source of eternal wrangling among factions and political parties. To repeat, societal rights are a form of unlimited democracy, which is what makes them so dangerous. The same doctrine of law that allows Christians to implant their moral restrictions upon atheists can be used by atheists to implant their religion upon Christians--depending on who controls the majority.

The entire basis of the American system is that this nation should NOT be a democracy--or even a representative democracy. The best of our founders were adamant that they did not want the majority, no matter how well intentioned, to have power over individual rights. They came upon the radical and correct idea of forming a constitutionally limited, representative democracy within a federation of sovereign states (called a republic)--and the limits they would impose concentrated on not allowing government to violate fundamental rights, no matter how big the majority that controlled government. [If only they had been able to define rights, and apply them to the sovereign states, the constitution would have more fully accomplished the job they originally intended it to do]. Even though the majority of founders were anti-democracy, they failed to foresee the variety of novel ways in which majoritarian forms of democratic rule would later evolve to improperly regulate and control the lives of others.

In contrast to a majoritarian system, a carefully defined system of fundamental rights, does not allow any person to use government to promote its personal values or attack other values--unless there are specific violations of someone’s rights. Every faction is free to compete peacefully in the private sector or try to gain the bully pulpit of public leadership to make their case, but neither can use direct government funding to do so. In fact, the entire public school controversy over restrictions on religious values would quickly evaporate if we did only one thing--take away the public school monopoly on tax funding and put all schools on the same user fee basis as private schools. Within a very short time, everyone with differing values would start forming schools that served their personal values, and no one’s rights would be violated.

Let’s take one specific example in law to demonstrate the difficulties the courts would have in dealing with a doctrine of societal rights. I will use the issue of private use of discrete pornography. We could just as well choose prohibition of alcohol, or mandatory seat belt laws. The issues are similar. Fundamental rights proponents argue that as long as there is no specific violation of rights or imminent threat to life, liberty and property (as in drunk driving) people must be allowed to take risks or otherwise corrupt themselves. Social conservatives, in contrast, argue that because there are indirect, long-term effects of personal corruption on families and even society, government should have the power to prohibit personal corruption. They cite increased rape from pornography, increased spousal abuse from alcohol abuse, and increased burdens to public health care systems and welfare from auto accidents where seat belts are not used.

Let me dispose of the “public health care burden” argument first. To do so, we need to recur to a specific concept in jurisprudence to see the inherent flaw. Lack of seat belt usage really is a victimless act, even though it certainly is risky and unwise. But many things in life involve risk and controversial judgment. Allowing government to mandate safety restrictions for persons knowledgeable of those risks and willing to take them is a very dangerous form of lawmaking power. Using the excuse that the public is a somehow a victim simply because government has decided to treat indigent accident victims without charge is totally fallacious. In the first place, government health care is an unconstitutional and Socialist government program which improperly takes money from all to deliver benefits to a few. But even if we set aside the redistribution violation of property rights, public-funded health care is a non-binding unilateral contract and unenforceable as a means of control and regulation. This is the key issue in jurisprudence.

Unilateral agreements are not generally valid in law. It would be as if your neighbor agreed to voluntarily pay for your health insurance--without your specific consent. The neighbor is certainly free to provide this gift in a unilateral manner, but he has no right whatever to bind your actions because of his gift or dictate to you what you can or cannot do on the grounds that it will increase his self-imposed insurance premiums or his liability. Government’s self-imposed offer to treat indigent people of accidents cannot be used to bind all automobile users unless the government has a specific agreement with each driver. Neither is it sufficient to say that everyone is bound because the health care system provisions were determined by majoritarian government. As in the case of “two wolves and a sheep” voting on dinner, majoritarian rule without the initial consent of all the government is always a violation of the basic law of individual liberty. That is what this document of principles is all about--to establish a basis for law and government that allows for the greatest amount of liberty while still protecting all valid rights from infringement.

Fundamental rights proponents would agree that there are indirect effects of personal corruption, but that it sets a dangerous precedent in law to proscribe personal liberty on the imprecise grounds of indirect effects. The more sure ground of law lies in prosecuting people when they actually cross the line to direct effects and commit a crime. Simply put, not all pornographers become rapists, so prosecute the rapist. Not all alcohol users become drunk drivers, so prosecute drunk driving. Not all alcohol users abuse their family, so prosecute abuse when it occurs. In any system of liberty, some abuse will go undetected for a while, so a strong deterrence is necessary to control indirect effects before they become direct violations of rights.

Social conservatives complain that our current system protecting the individual right of private corruption hasn’t acted as a sufficient deterrence to crime. This is true, but the reason is because of a permissive judicial system, controlled by sociologists who resist strong punishment. Even though strong punishments are possible under existing law, they are rarely used and criminals know this. Worse, our welfare-state type prison system has its own brand of evil and corruption that embitters prisoners and provides no restitution for victims. None of this can be blamed on the failure of an individual rights doctrine to provide deterrence. Clearly there needs to be established increased deterrence by dramatically increasing the severity and swiftness of punishment once people cross the line and commit a crime. A point system that effectively keeps track of chronic predation, leading to an eventual death penalty, on points alone, would also increase deterrence across the full range of criminal behavior.

To use indirect effects to justify restrictions on personal liberty, as the social conservatives suggest, creates this dangerous “unlimited extension of lawmaking power” that all good constitutions are designed to prohibit. Majority rule is always an unlimited power to rule, unless it is restricted by a constitution that specifically limits majoritarian powers in a way that can’t be changed at will. Such restraints should not be arbitrary if they are to avoid conflict--and we cannot avoid being arbitrary if we allow the use of subjective value judgments, not related to actual violations of rights, to take life, liberty or property. Our current constitution itself is not a fool-proof barrier to unlimited majority rule since any and every portion can be amended by that majority. The fact that amendments require a super majority wisely increases the level of protection, but hasn’t prevented the majority from making some serious errors in the past. If the majority becomes corrupted (as it always does) it must be restrained by law from acting to destroy other’s rights. Not allowing any constitutional amendment to violate a fundamental right is that essential limitation.

You will notice in the principles presented below, I have made the case for separate family rights as well as individual rights. This would give families a basis to prosecute any intrusion of family sovereignty by pornography and seduction from outside the family unit, without permission. The basis for prosecution of crimes is thus kept on a sound basis of parental rights to be free from being acted upon, harmfully, within their own property.

There remains another issue, however, which cannot be solved so easily --the issue of offensive public behavior or offensive private behavior that spills over (through sound or sight) to other people’s property. This behavior is offensive to people of high moral values but difficult to prove as “harmful” without using subjective criteria. Examples of these problems are, public nudity, sexually suggestive billboards, outdoor theater screens with R-rated movies, and loud music, etc.

A fundamental rights doctrine permits people to act in self-corrupting ways, as long it stays private and when no one else’s rights are violated. But now we must deal with the “leakage” effects of corrupt behavior when they can be seen or heard by others, who don’t wish to be influenced, and where it’s hard to prove damage or harm. A lot of bad conduct in public is fairly easy to handle. Noise can be limited by a scientific standard of loudness. Smoke or other toxic airborne waste is also subject to fairly objective scientific standards. Other things like morally offensive conduct in language, nudity, or suggestive behavior is difficult to define without being arbitrary, let alone distinguish harm. We can use fundamental rights doctrine as the basis for proscribing public behaviors that can be shown to be harmful. But, if we attempt to lower the barrier of what defines a violation of rights from provable harm to merely being offended by someone’s conduct, we get into an even bigger problem. To claim a right not to be offended may give someone a “right” to control almost everything any other person does--which would be a violation of our basic non-conflicting definition of a fundamental right. To include an excessively broad definition of “offensive views” as a violation of rights would create a nightmare of legal conflict as people would then begin to claim the right to control whatever they can see even beyond the borders of their own property. How does a court adjudicate a right to a view that can be claimed by more than one person? It can’t be done. One person may love the color pink for a house, and others may feel offended.

Fundamental rights are based upon non-conflicting criteria that work best at resolving conflict when each person can define his own boundaries, interests and property. Conflicts are resolved by the courts by being able to separate “yours” and “my” rights and property. However, in this public dilemma we are dealing with people interacting together, without specific legal boundaries and contractual obligations, without any clear distinction of “yours” and “mine,” and in the absence of easily definable harm to anyone’s rights. For the gray areas of law relative to offensive public conduct, we must look to another solutions--and they are less than perfect under many circumstances

There are two possible solutions. The first is to use the current “community standard” of conduct imposed on all by a majority of voters--but only where the offense or corruption is public--not private. It has worked pretty well for two centuries, except as it has intruded into the realm of personal privacy. The ever-present danger is that this doctrine allows an evil majority to take control and strip away all current community standards against public corruption, and replacing them with another. In other words, community standards by majority rule are completely mutable and do not offer permanent safety.

The second alternative would be the use of a variety of citizen compacts to gain the voluntary agreement of citizens, either as a whole or as members of local jurisdictions. The first is in place now, and as it deteriorates, people can begin to fall back on the second method--not unlike choosing to live in certain neighborhoods that have covenants and restrictions, agreed upon by each person as they join the neighborhood. These restrictions are purposefully made difficult to change because of the fact that everyone has to sign on as they move into the city or neighborhood where these are in effect. It has been suggested that a slightly lesser standard than absolute unanimity be used to make changes--to avoid allowing any one person to act as a lone “holdout.”

This second alternative can also be used on a larger scale, even in forming a new government, or a new state. It uses voluntary principles of inducements (trading public limits on behavior for citizenship or other privileges) to establish a national or state standard across a broad sovereign territory. Those that choose to establish even higher standards would be free to do so, as long as it was done by mutual consent within a contiguous land area. Each time a new state or city is created it would have the right to accept the basic national standard or create a new set of covenants that could be more or less restrictive than the basic national standard. The higher or lower community standards would be binding only upon those who choose to live in that jurisdiction. People can then choose the degree of community standard restriction they want in public affairs by the community they select. Private liberties would still be protected everywhere, as long as they stayed private. Over time, the covenant community system leads to a more peaceful set of diverse but internally homogeneous communities. In contrast, as we are seeing in the present, the majoritarian system leads to increasing class struggle within each city as competing ideologies seek to control the majoritarian levers of power.

3. WHY ISN’T THE CONSTITUTION SUFFICIENT TO PROTECT OUR RIGHTS?

The Constitution was a wonderful, great leap forward in limiting government power. It provided a mechanism that slowed down the inexorable march of majoritarian power and corruption for at least 100 years. As a matter of historical fact, however, the Constitution was under assault to expand the powers of government from the moment it became the law of the land. In its present interpreted and amended form the Constitution is much changed from the original, some things for the better and many changes for the worse.

As to the question of how we can use the present Constitution to restore the full range of liberties, we come face to face with several complex problems. The first is the question of which version of the Constitution best represents the founders’ intent or preserves liberty? Do we go back to the original version with no Bill of Rights, or do we accept the second version with the first 12 Amendments--a partial Bill of Civil Rights? But keep in mind that the second version with the Bill of Rights possessed the fatal flaw of exempting the states from adhering to those rights. For the next 100 years the states were the prime violators of rights, engendering a huge public demand for expanded federal powers to control state predation. Or do we accept the 1868 version, with the Fourteenth Amendment, including the “incorporation doctrine”--the strained interpretation by the courts that brought the states under the requirements of the Bill of Rights? While this did curtail much state mischief, it also allowed the courts to add new “rights” paving the way for government programs mandating the right to an abortion or “public access,” without discrimination, to private business property. How about the version of law after 1913 giving us the onerous income tax? You see the problem. There is no single time or version when the Constitution served as a fully effective shield. The earlier versions had more loopholes, and the later versions allowed for more false rights and government power.

What is most critical to our constitutional dilemma is the fact that the founders failed to come up with an adjudicable definition of fundamental rights. No document can protect for long what it fails to define. There were no listings of definitions of anything in the document. As to rights, the founders were fearful of listing any rights lest they leave something out (as directly expressed in the 9th Amendment), which is a consequence of not having a working definition. They relied, instead, on the limited delegation of power concept imposed upon federal government to act as the primary wall of protection. However, as the anti-federalists predicted, and as history has confirmed, this turned out to be entirely inadequate in light of interpretations by an activist Congress and Supreme Court.

The first 10 amendments of the Constitution, termed a “Bill of Rights,” were added as the first acts of the new Congress, but many of these were not true fundamental rights, but merely a listing of the common law civil rights that Madison and others (particularly George Mason) had extracted from British law. While not complete, they did offer specific protections against common historical abuses at the time, but were far from comprehensive. Even worse, without a restraining definition, the courts continue to add other “rights” by interpretation that, in fact, turn out to be violations of real fundamental rights.

Consider the tenth amendment which was specifically written to shore up the founders’ intent to restrict the expansion of federal powers: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” It hasn’t held up for two reasons. First, it has generally been outright disregarded by Congress and an activist Supreme Court. Sadly, the founders’ system of checks and balances did not anticipate the numerous factions and conspiracies that government power would both facilitate and harbor. These powerful groups have effectively controlled all three branches of government for many years, thus eliminating the substance of the separation of powers. Second, the 10th Amendment failed to delineate between the residual powers reserved “to the States...or to the people.” Naturally, the states would have grabbed most of those undefined residual powers and left nothing for the individual had it not been for the Supreme Court. Regardless, the line of demarcation between states rights and individual rights cannot be determined without a working definition of fundamental rights, which the founders did not attempt. The courts have carved out some clarification of rights for the individual--but without any guiding principles, what we have ended up with is a partial list of civil rights mixed with left-leaning political interpretations and restrictions.

There were other major holes in the wall of constitutional protection. Besides the major flaws already mentioned other deficiencies are:

• A federal revenue system--originally dependent wholly on tariffs and duties, and now upon income taxes, that violates a host of economic and privacy rights. Tariffs violate economic rights by distorting prices unfairly between external and internal commerce.
• The granting of a virtual monopoly to the federal postal system making it immune from competition.
• Failing to properly define and limit fiat money (except for the states) and prohibit fraudulent banking practices by government--a serious omission leading to the first major constitutional crisis after ratification.
• Allowing for unlimited amendments to the constitutions, such that there are no ultimate protections against a corrupted majority attacking essential liberties by amendment.
• Failing to provide for any requirements of citizenship except for immigrants. Without a basic knowledge of the principles of liberty coupled with a sworn commitment to uphold the Constitution, politicians and public education has bred an increasingly ignorant and benefit-corrupted electorate that continues to vote for representatives who do not understand or who are hostile to many aspects of liberty.
• A judicial system, which has taken advantage of the general language of the Constitution to erode property rights, economic rights, the rights to association and disassociation, to take risks, to be responsible for one’s own safety, and the rights of families over the matters of health, welfare and education of their children.

One of the greatest problems we face in taking a strictly constitutional approach to reform is that the Constitution fails to limit, at the state and local level, the government’s power to mandate the taking of everyone’s private property to fund welfare schemes and public education. Public education has turned out to be the Trojan Horse that has slowly corrupted, culturally and politically, the majority of citizens. Armed with doctrines of social democracy, modern citizens regularly use the power of the vote to improperly harness the property of others for their own pet purposes. Conservatives who think they can “take back” government fail to realize that there is a huge constituency for this kind of bad law, doling out special privileges in education, racial preferences, and environmental takings--things which can no longer be overturned by the electoral process since they have the majority. There is no substitute for constitutional restriction against majoritarian tyranny--and those restrictions can only be born out of universal principles--not social values that should remain in the realm of free debate.

This is the first in a series of discussions. Comments welcome.

- - -

Joel Skousen is a political scientist, by training, specializing in the philosophy of law and Constitutional theory, and is also a designer of high security residences and retreats. Joel is the author of four books and publishes a weekly newsletter World Affairs Brief.

Comments (3)

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Jeremy Ashton said:

Joel, Excellent article describing many of the threats to our liberties and rights in our Constitutional system. One item I'd like to see discussed is specifics around the recourse the states should have when the national government steps past its limited powers. I believe Jefferson and Madison explored this issue well in 1798 with the Virginia and Kentucky resolutions. The other issue is what powers/authority should the national government be given to reign in states who are violating rights. I look forward to future articles from you on this subject.

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March 31, 2008
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Evan Baker said:

Bravo Joel as always. I LOVE it. I was turned on to the idea of principles from the wonderful talk by Elder Benson, "The Proper Role of Government". What He had to say just resonated with my soul and was very easy to understand, (for me). I am currently reading the book, "Prophets, Principles and National Survival" WOW what a powerful resource for what you are talking about here. I am thrilled to the core at the direction you are taking here. Just with the help of these two resources, It has become very clear to me on a daily basis from just reading the daily newspaper of the unconstitutional acts of our government. My wife has started to complain at my constant statement, "That .... is unconstitutional!!!!!". As I have learned true principles, even someone as mentally challenged as I am can see the freedoms we are losing, (it seems on a daily basis)A quote I loved so much I memorized it, from Prof. Alexander Tyler back in 1770, is to long to give here, but a couple of lines. "A democracy cannot exist as a permanent form of government. It can only exist until the voters discover they can vote themselves money from the public treasury. From that moment on the majority always votes for the candidates promising the most money from the public treasury, with the result that a democracy always collapses over loose fiscal policy followed by a dictatorship........."

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April 03, 2008
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Bryan Kingsford said:

I found it to be an excellent article and a great list of core principles. I look forward to testing them with specific scenarios. In principle #3, I'd change "Families" to Parents. In a family, the parents are the ones with extended authority over their less than "self-responsible" children. I'm not convinced it's practical to tighten up the principles so much that they are non-conflicting. Many things in life are a balance between conflicting objectives. One example of this is the construction of roads and other transportation infrastructure. Regardless, it's a worthy project and I look forward to further collaboration. I'm less than satisfied with the solutions presented for dealing with offensive public behavior. I'd rather use the courts and a jury of peers to determine guilt than a bunch of specific laws. I don't believe it's practical nor desirable to enumate all possible ways to violate someone's rights. If it were possible, it's not practical to expect residents and visitors to memorize the list.

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April 03, 2008
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