| Foundation for an Ideal State--Part I |
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| Wednesday, 07 May 2008 | |||||
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Written by Joel Skousen In my first essay I discussed why we need a to take a principled approach to law: http://www.ldsfreemen.com/joel-skousen/defense-of-a-principled-approach-to-law.html . In this second essay I will begin the presentation of the founding principles upon which an ideal state can be built. First, permit me to explain why this is an essential exercise for Latter-day Saints. First, I have no illusions about being able to change or stop the powerful forces that keep us in partial bondage through bad law and widespread corruption among lawyers, judges and legislators. But, sometime in the future the United States is going to experience a catastrophic war of destruction and tribulation---perhaps well deserved, due to both increasing wickedness, and a refusal to recognize the telltale signs of secret combinations which infests this land and government. Whether in the coming time of crisis when governments fail to keep order for a period of time, or in the Millennium, someday we will have an opportunity to form a better government that will have many more safeguards against the slow intrusions of democratic tyranny and socialism. If we do not prepare well in advance, and build up a core of strong minded patriots who will understand the flaws of the existing system, establishment educated lawyers and judges will capture the moment and claim the exclusive right to reform government in the standard mold as they have always done before. It is not enough to protest piecemeal each proposal as we do now. The root problems must be addressed with a much different structure of government that strips away the current incentives for ever increasing government power. As for the Millennial possibility, many members harbor the illusion that when Christ comes again, he will dictate every jot and title of a the law and new government. But that is most likely incorrect. It has never been His way to dictate the entire solution. I'm sure He will correct and give general directions, but we must prepare to help hammer out a new system that is inherently non-conflicting and that gives the maximum incentives toward individual resolution of problems rather than recurring to government. Below, I present the list of core principles, plus how to determine fundamental rights. I follow with a discussion of the first principle only. Each succeeding week, I will add an indepth discussion of another principle until the list is complete. Please restrict your comments to the general direction of this work, fundamental rights and the specific principle discussed below. Otherwise, we will be responding to issues before they are presented in an orderly manner. If you want to take issue with any of the listed fundamental rights, make sure you go to the link first in order to read the full justification for this listing of rights. Principles of Proper Government
PRINCIPLE #1: ALL PERSONS SHALL BE SOVEREIGN OVER THEIR OWN AFFAIRS WHICH DO NOT INFRINGE UPON THE RIGHTS OF OTHERS. All persons have the right to be equally free and independent, and to possess equally the full range of fundamental rights, which are those powers to act or be, which all persons can possess simultaneously without exercising compulsion upon another. There are only four truly fundamental rights that pertain to individual or personal sovereignty: These are the rights of
Each of these rights has certain conditions which limit their application in a way that does not trespass against others equally asserting the same rights. There are also many corollary rights which are derived from these basic four. A detailed listing and discussion of these fundamental rights is found here: http://www.joelskousen.com/Philosophy/conservation.htm A condensed listing without comment is as follows: THE FUNDAMENTAL RIGHTS OF MAN 1: RIGHT TO LIFE THE RIGHT TO LIFE, from conception to natural death, except as a consequence for a crime against the rights of others. COROLLARY RIGHTS relating to man's innate life-related ability to think, believe, and reason: A. The right of FREE THOUGHT and JUDGMENT on the individual worth of ideas, people and things. B. To BE FREE to BELIEVE according to each person's conscience, without restriction, except when actions based upon that belief would violate the fundamental rights of others. C. To be FREE to WORSHIP God according to the dictates of conscience. 2: LIBERTY THE FREEDOM TO ACT WITHOUT EXTERNAL OR PRIOR RESTRAINT when those actions are not in direct and harmful conflict with the rights of others. COROLLARY RIGHTS: A. To be solely RESPONSIBLE for one's own health, life, education and safety. B. To engage in any ECONOMIC ACTIVITY desired as long as such activity does not involve compulsion upon others or provide assistance to an enemy of these fundamental rights. 1. To engage in voluntary CONTRACTS, written or verbal, without restriction or regulation except where direct and harmful non-contractual consequences to others occur; 2. To unrestricted SELECTION and PURCHASE (from a willing seller) of all available goods and services desired, 3. To circulate and negotiate any tangible asset or sworn evidence thereof as money or a MEDIUM OF EXCHANGE as long as it is voluntarily accepted by another and fraud and misrepresentation are not present. 4. To PUBLISH any written, photographic, or electronic material, as long as others are not involuntarily exposed to such material on their own or contractual property. 5. TO STATE ANY OPINION about another person or product without providing proof or evidence as long as such statements are labeled clearly as opinion. C. To ASSOCIATE with other persons without coercion as long as that association is desired by all parties, does not constitute a direct and harmful threat to another's rights, and where such association is not in violation of the desires of the property owner. 1. Individuals may PEACEFULLY ASSEMBLE in groups without criminal or treasonous intent as long as private property rights and free movement on public property are not infringed or impeded. D. To DISASSOCIATE with other persons without public reason or justification on your own or contractual property. 3: OWNERSHIP THE RIGHT TO OWN, DISPOSE OF, AND CONTROL ALL PROPERTY AND ASSETS which are earned by the honest fulfillment of voluntary contracts, received as a gift, inherited, or earned in proportion to the application of one's labor to unowned property. COROLLARY RIGHTS relating to or restricted to ownership and property rights: A. TO BE FREE FROM BEING ACTED UPON or involuntarily influenced in a harmful manner, when on one's own or contractual property and not directly and harmfully affecting the rights of others. B. To exclude all persons not desired from one's own property. C. To make any WRITTEN OR VERBAL EXPRESSION, on property within one's ownership or control, whether for personal or commercial intent. D. To act in PRIVACY, within one's own or contractual property, free from search, seizure, regulation and internal surveillance except when acting to infringe upon another's rights. 4: SELF-DEFENSE TO DEFEND one's person, rights, and property against any overt and imminent threat, and to use the minimum, appropriate force required, of the alternatives immediately available at hand, to eliminate such threat, when no immediate recourse is available to assistance or constitutional adjudication. 5: FAMILY RIGHTS Families possess total SOVEREIGNTY OVER FAMILY AFFAIRS that do not infringe upon other's rights and that do not constitute an imminent threat to the life of the children therein. Children have the right to demand of their parents, minimum CARE, AND PROTECTION until reaching an ability, or desire to be self-sufficient--as long as the child is not acting in rebellion with the requirements of his parents which do not constitute physical cruelty, or gross negligence. Parents have the right to ultimate RESPONSIBILITY and AUTHORITY for the health, education, and welfare of their dependent children without interference or prior restraint from government, except when proven guilty of gross physical cruelty, or gross negligence, as defined by constitutional law, and where the child does not object to such interference by government. FUNDAMENTAL RIGHTS ARE NOT SUBJECT TO POLITICAL CONFIRMATION: Because these rights are fundamental, meaning that they are inviolable, and superior to all forms of human government, they are also NOT SUBJECT TO POLITICAL CONFIRMATION. This is a radically new concept to those schooled to believe that the highest form of justice comes by democratic means. It becomes clear, under the concept of "inviolable rights" that fundamental rights should never be subject to ratification, even in a constitution, though they should be recognized and referred to by it. To do so would subordinate one's fundamental rights to the will of a majority--those who will vote for such fundamental rights, or worse yet, to deny them legal status by voting against them. The latter case is very likely due to the fact that the fundamental rights prohibit popular government welfare schemes by holding the right to private property, among others, inviolate. Most of the constitutional founders did not favor democracy, knowing that raw, unlimited democracy could be totalitarian in nature. Their views were vividly confirmed as the world watched the tyrannical excesses of the democratic French revolution a few years later. The clear historical propensity of democratic majorities to vote themselves benefits from other people's pockets was the prime reason why they selected a representative form of democracy (the Republic) and put strict limits upon the exercise of majority rule powers. As Jefferson put it, there was a necessity to "bind government down with the chains of the Constitution." The requirement that elected representatives wield legislative powers rather than direct vote by all the people (democracy) is the essential element that constitutes a Republic. It is a tacit recognition that a fair amount of education and sophistication is necessary to sift through the sometimes difficult and subtle issues involved in making laws. But because of the potential for personal corruption in leaders, as well as other foibles of man (intellectual arrogance, excessive deference to people etc.) it is never enough to trust even a majority of representatives to safeguard fundamental liberties. The genius of the original American system was to actually limit the majoritarian powers of the people's representatives. This way, even a bad or corrupt majority could not make an unjust law--such laws were either prohibited outright by the constitution or put off-limits by the "enumerated powers" clause (that the government only possess specific enumerated powers, and nothing more. If strictly construed, it leaves no room for government to assume new powers. If it isn't specifically listed, they can't do it, no matter how popular. But sometimes bad law (especially of the social spending variety) become so popular that the representatives are pressed upon to amend the constitution to add such powers to the enumerated list. This is why it is clearly not a sufficient safeguard to place one's fundamental rights under the ratification and amendment process of a constitution. Most Americans labor under the mistaken assumption that our Constitution safeguards all fundamental rights in the Bill of Rights. But this is not true. The founders were very fearful of making a list, concerned that something might be left out. So they left all "residual rights" to either the States or the individuals--a dangerous piece of general wording. Naturally the states took all the remaining powers since no single individual has the power to demand and defend his residual rights, not being as powerful as an organized institution. At the same time, through poor education, we have almost universally lost all recognition of fundamental rights. No formal criteria or definition is found in the Constitution. Perhaps, even worse, people have also become accustomed to view existing law or interpretations of law as if they are the absolute "law of the land," rather than look to the Constitution--or beyond--to the ultimate principles of law, in order to judge the validity of any law. There is a further sense of futility when one sees official injustice fortified and ratified by the very courts whose original function was to be a safeguard against such oppression. In a judicial sense, another purpose in recognizing the supremacy of fundamental rights over statutory law, even exceeding constitutional interpretation, is to reduce the propensity of government officials to rely upon former legal precedents to justify the continued suppression of such rights. This declaration of rights puts all government officials on notice that all laws which violate fundamental rights are simply null and void, and that the burden is upon government to prove that such laws are in accord with fundamental rights. Most importantly, public officials should be aware that they are PERSONALLY LIABLE for any infringement of another's rights, and that men may ultimately and rightfully defend their fundamental rights with appropriate force, when no practical or fair legal recourse is possible. FUNDAMENTAL RIGHTS: You will note that I have not used the traditional words "inalienable rights." The reason is simple. The founders used the word (incorrectly, I believe) to mean that government could not rightfully violate those rights. But the word "inalienable" means that which the person himself cannot give away or alienate from himself a right. This was a holdover from the reformation doctrine that man could not alienate any gift from God. This, however, is simply not true, as applied to fundamental rights, and violates the principle of free agency. A person CAN give up any of these rights, as long as it is done under the terms of voluntarily contract. One may enter into a contract, for example, to put himself into a non-free condition. This does not constitute slavery when it is done voluntarily, although the results may appear similar. We do it, to a degree, every time we sign a mortgage where we place our income and our property in jeopardy for a specific time. Or, as in a prepaid contract for performance, (where one accepts a large sum of money advance of performance), one would be obligating himself to serve the other party till the contractual obligation is complete. This is a type of temporary bondage we enter into voluntarily because we receive mutual benefits. These other benefits compensate for our temporary lack of freedom. In other words, we choose to temporarily trade some of our freedom of action in order to gain other benefits. Whether such exchanges for "rights" for benefits are done wisely is another question, but the freedom to do so is clear. The key to understanding what constitutes a true fundamental right is to focus on false rights. FALSE RIGHTS: There are many false rights being promulgated in today's society, mostly due to the politician's attempt to entice voters to view benefits as if they were rights. Three of the most popular are the so-called "right" to a job, "right" to medical care or the "right" to an education. Let us apply these claims to the definition of a true fundamental right and see if they qualify. Remember that the main criteria that determines whether or not an action or state of being is protected as a right is whether or not all men can simultaneously possess the "right" in question without compelling anyone to perform a service in their behalf. In the case of education, we cannot all receive an education without compelling someone to teach, provide the facilities, the curriculum and the books. Thus education, through others' efforts, must be a benefit based upon contractual mutual obligations, and not a right--no matter how essential it is deemed by the users thereof. On the other hand, self-education would be a right as long as no one was compelled to assist you involuntarily. As to the "right" to a job, we may ask, in like manner, if all people can claim a right to a job without compelling someone to provide that job and the money for a salary? Obviously not. In reality, a job is the exclusive property of the employer who owns the money and the facilities. The labor portion of the job is the exclusive property of the laborer. The negotiations as to the rate of exchange for the owner's money and the laborer's efforts must be left to the arena of free contract. Neither has a "right" to attach the others' property or effort--each can only voluntarily exchange what he owns for what he perceives the other offers in return. Medical care can never be a fundamental right, either, as it would clearly force doctors, nurses and hospital owners to become slaves to those who demand the benefit. You may think they are not slaves because they are being highly paid. But if you, the patients, are not paying, then someone else is, and that person (even if a group of taxpayers) are partially enslaved for the beneficiary's sake. Someone is always partially enslaved whenever the direct beneficiary of any service doesn't have to pay, and someone else or some group is not voluntarily paying the bill. Finally, Let's now take a brief look at the first principle of sovereignty which will allow us to discuss individual, family, and national rights. THREE AREAS OF RELATIVE SOVEREIGNTY: INDIVIDUAL, FAMILY, NATION Sovereignty refers to the possession of ultimate authority within a certain framework of law. When one is sovereign in a certain area, there is no higher authority (at least on earth). He or she has the right to make all judgment and carry them out. In the context of liberty within a nation, we will be referring primarily to individual and family sovereignty relative to governments and other individuals or groups. Associations, including governmental associations, are merely extensions of the sovereignty of the individuals composing such associations. The individual is sovereign (meaning the possession of ultimate earthly authority) over all his personal affairs which are not in direct and harmful conflict with the fundamental rights of others. The family has certain sovereign powers distinct from the individual by virtue of the presence of dependent children who, having been brought into the family as a consequence of parental procreation, must be accorded special protection and training by those parents who engendered the child. While parents have given up a portion of their individual sovereignty by engendering a new child, they must also be accorded a special form of sovereignty with ultimate earthly authority over those children, short of acting in a way which presents an imminent and pernicious threat to the life of the child. The reason for this "balance" of authority and responsibility will be detailed later in the section on family sovereignty. Lastly, individuals may group together and form associations by initial unanimous consent which also may act in sovereign matters relative to other persons or groups. A government is simply a large form of such an association of individuals, as will be explained later. The government association is never sovereign relative to its individual members (who constitute the creators and controllers of their government association), but is sovereign relative to other separate nations, or groups. 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.
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Joel, You have conflicting notions of rights/government. You state (and I agree) that we have a right of self-defense. Does not this right of self-defense cover the entire spectrum from extreme pacifism to hiring a private (defensive only) army? Now of course this right must be self-funded, correct? If I believe in extreme pacifism, then you have no moral authority to A) force me to defend myself or B) force me to defend others (including you). Likewise if I want a private army then I have no moral authority to force you (or others) to pay for my defensive army. Given that we have no moral authority to force others to defend ourselves directly (or to pay for our defense), from whence do we have the authority to form a government and force everyone within its bounds pay for a common defense? Where do you get the authority to force me to pay for government funded police, military, etc.? Who gets to decide how big of a government funded military is appropriate? Who gets to decide how many police or judges per thousand is the correct number? Why should a poor farmer family pay an equal share of the socialized (socialist?) cost of a common defense? Shouldn't those with the most to lose pay the most? The only fair way of solving this problem (determining who pays how much for defense) is to eliminate "public" defense - eliminate government (the monopoly of force within a given boundary) and let each individual family determine how much defense they each need. Perhaps a valley of poor, but highly integrated farmers might decide to hire one sheriff. Perhaps a famous person will hire 3 bodyguards. We don't (and CAN'T) know what is appropriate for each family and attempting to do so is, IMO, prideful. |
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