The society of the future will be entirely private with health, education , welfare, roads, police etc all in the hands of private companies. Normally, there will be no power to tax by governments. This is the direction in which events are already moving and now its only a matter of time. This society will also be deregulated with no legislative regulations but disputes judged by a much expanded judiciary of part time and unpaid magistrates. With these kind of societies there is no room for democracy as we view it today for we have no desire to have a body to tax or to pass laws ( criminal and civil law is initially established and the judges apply it to different situations developing it as they go). The judges are democratically elected so we have some form of democracy but this system is different in kind rather than just in degree from the system we have today.
The Illegitimacy of Theft
Demands for equality were initially justified because they were demands that the nobles should stop stealing from the peasants through taxation. With democracy the demands for equality went fully the other way becoming unjustified in that now it was "the People" that wanted to steal from other members of society though the same means (taxation). Democracy was thus initially versus aristocracy which was a good cause but it came to be versus the freedom of the general population. Taxation, at the levels we see it a subideal way to do anything and is rarely justified no matter who is doing it
The Threat to Freedom of a Legislature
Once the right of a body of people ( like a Parliament or Congress) to do whatever the people demands is established, then the eclipse of freedom is only a matter of time. It is essential in a truly free state that no such institution exists. In America it was predicted by DeTouqueville that the gradual and inevitable extension of the franchise would lead to mob rule and theft eventually as every extension of the franchise led those without it to want it more p57. As more and more people got the vote there was less and less detached thought and more and more questions of self interest. We are not necessarily saying that the previous system was ideal, but certainly the system that emerged was also non-optimal.
Two contrasting systems
Everyone was voted for in the New England colonies of the seventeenth century ; collectors of taxes, constables to keep the peace, people to execute laws, treasurers, overseers of poor, men for the schools, roads, fire wardens, fence viewers, hog reeves, sealers of weights. Notice that this is an entirely different system from a free enterprise society. In early America the key thing is that everyone is voted for In contrast, a free system provides all these things using private enterprise not democratically elected officials. What we see in some aspects of American history is democracy as a religion- the idea that the people are God and what they say must happen- vox populi, vox Dei. In a free society the key thing is that matters are according to law and particularly that there is not theft. So each of these economic areas are provided privately not democratically voted for and funded by taxes taken from others who may have voted against them. Even at this early stage too we can see the regulatory impulse- that there were fence viewers rather than courts where boundary disputes could be dealt with., in a sign of a (inefficient) political rather than an (efficient ) economic way to deal with problems.
THE FEDERALIST PAPERS
The object of the Federalists 150 years later (1) was the establishment of a government that is representative of the wishes of the people. But our object is to have a government that will maximise the freedom and thus the material well-being of the people. The two are quite different. We do not wish to allow anyone to restrict this in the name of the people, or to allow certain groups to impose their will on the rest of the population. We now know that to allow government to do many of the things that the Federalists thought it should is not conducive to the well-being of the people and that certain governmental incentives exist where the government does that which will get it elected rather than what is in the interests of the people. These two are often not the same. The market on the other hand allows everyone to choose what is in its interests, it is the most democratic system of all, far more so than representative government.
When the American constitution was designed at the end of the 18th century it was something that had never been done before "an experiment to determine if government could be decided by thought rather than by accident and force" (Paper 1) As such it was doubtless a valuable experiment but we need to move on from there. Since that time, while no power can be said to have usurped the other in the US, the whole combined has certainly usurped power from the people in general. All branches are guilty , the Supreme court has overturned the judiciary, the legislature illegally delegated its powers to agencies, the executive engaged in entangling alliances on foreign soil. As it is clearly stated in the Federalist ,its the legislative that is the threat to the others of the two powers and indeed it has gradually increased its power and taxes this century. The presidential veto which was seen as a way of stopping over-legislation has singularly failed to do so. . The degree of over-government that has resulted was clearly not expected by the Federalists indeed they expected Congress to sit for only a quarter of the year for Representatives, and only half for the senate. Therein lie our current problems.
Background
To understand the US constitution it is necessary to understand the background. The ten years before the constitution under the Articles of Confederation had been an era where the central organ was restricted but the power of state legislatures was great. This was no ideal period from our perspective. Indeed it was tyranny by the state governments rather than by the central. This no better and no worse than tyranny from the center. The key was not to retain power with the states or draw it to the center but to take away the power to start with, from either institution.
Under the articles the central organ had no power , intentionally not, to regulate trade and raise taxes , but the problems was that the states DID have that power The states were in debt from the war, and many farmers also were in debt to bankers, shopkeepers, etc. so they passed cheap money acts, suspending ordinary means for collecting debts and similar measures to avoid their obligations. 90% of court actions in Vermont at this time were blocked by the legislature. This was the object of Shay's rebellion of debtors in Massachusetts (referred to in the Federalist) which tried to stop the county courts from sitting This was the nature of the pressure from the ordinary people now that 70-90% were enfranchised and property qualifications for office much reduced. The legislatures were used as a means of theft, one of the central historic activities of that institution!
Due to distrust of executive power it had been difficult to fund the war of independence. The executive was likened to the enemy which at the time was Britain.. Governors in the states were sometimes non existent, sometimes chosen by the legislature. In the states judicial appointments, terms and salaries were also determined by the legislature. The legislature had all the power in other words. There was some legitimacy to the arguments that justified this state of affairs . The suspicion against the executive was often based on the Old Testament assaults on kingship, such as that of Samuel in 1rst Samuel chapter 8.. Ashfield, Massachusetts voted at one point for "no goviner but the goviner of the universe" !
Our own position agrees with this sentiment but does not therefore concede the same power to a legislative body. The resistance to an executive power should be the resistance to all power other than the courts except in time of war.
The Constitution, on the other hand, expressed to main changed, Firstly it was a victory of center over periphery which is really a non issue as far as we are concerned . The second was a victory of checks and balances over legislative supremacy . Yet there was not enough attack on legislative supremacy and not enough checks on the whole system growing in power since under the constitution the whole government was to grow to have a share of national income undreamed of by the founders.. Yet these two main changes aren't the important issues . The key thing is that centre and periphery should both be restricted to judges only, in times of peace and that we permit no legislature. The battle between central government and states is a side issue its the powers of any government that should concern us. A new ( presidential) executive ( in his vetoing rather than military role) was not needed to restrain the states , the removal of the legislatures would have worked better !
Hamilton (to check the legislative supremacy) ultimately asked for an executive and senate for life, the former with absolute veto, he also wanted state governors being appointed from the center ( little wonder he said at the same time that the British constitution was the best in the world).
The Anti-Federalists were to some degree advocates of direct democracy. The idea was that all the people assembled Roussaeuesqe and gave themselves laws . Against this we see the Federalist's desire for "cool and even tempered men" to filter these decisions. Power was going from the many to the few with the constitution .But the solution is for neither peoples' legislature nor senate-for-life to have the power, and to ensure this through penalties for judges that try and usurp illegitimate power.
Should decisions be made by mobs who know nothing , care nothing and have not thought about the subject or by representatives who care asks the Federalist . In most cases the question is why are they making decisions at all rather than leaving it to families and individuals themselves.!
DEMOCRACY
It is a fundamentally flawed concept that giving the representatives of the people power over the people is in the best interests of the people. It is now clear that greater amounts of welfare accrue to countries that have less decisions made by the people as represented (the public sector) and more by the people individually acting (the private sector). In other words democracy as a decision making process should be replaced by the market as a decision making process. The former applies laws and taxes which decrease the well being of the people. With the latter each person decides how to spend his own money without deduction. This is simply a more efficient way for all people to get what they want out of life.
At the time as the Federalist Papers, however we see a growth in the worship of the democratic ideal , assuming the people , for some strange reason, always knew best what the rest of the people wanted. Paper 3 -5 speak about "The people ( if like the Americans, intelligent and well informed )" Even at this stage we can see the democratic impulse - and in Paper 22 : "the fabric of the American empire ought to rest on the solid basis of the consent of the people. The stream of national power ought to flow immediately from the pure original fountain of all legitimate authority" (Hamilton) Much later in Democracy in America ,De Toqueville notices the same thing : "The people are flattered and considered intelligent" p266+ , New England was " A democracy more perfect than antiquity had dreamed possible"p35. Democracy had become the new religion for some.
The trend then was to take power away from a king ( desirable) and give it to a body of other people (nieve). It was noted in Federalist Paper 48 that many people can be as tyrannical as one , Venice being the cited example. This principle could have been pressed further than it was.
More recently Alan Bloom in The Closing of the American Mind had shown some other negative effects of democracy. What Bloom essentially shows is that democracy in America has undermined ,religion and the conception of absolute truth and hence undermines effective education. If there is no such thing as truth then what is the point in learning exactly . Democracy undermines this because it makes everyone's truth equal. Radically and powerfully the idea of meaninglessness has hence been woven into the modern mind. To have an effective and long lasting country we must not permit democracy in this sense or idealise equality to this degree. In other words we should not have a legislature able to raise taxes and pass laws at the will of the people but rather taxes should be illegal and instead of a legislature we should deal with all matters at the court level. Thus we establish an absolute in the law and restrict the undesirable relativism of democracy to the process for electing judges.
Moreover it is clear that democracy, especially in America, is beholden to special interest groups. Those who get the benefits of democracy are those with the largest lobbies and that is only occasionally is the same as the common good. And once a dollar is passed out it is very rarely taken back There are very real costs to the populace of this kind of system. The egalitarianism of the market
In the free society, as to a lesser extent today, people vote when they spend their money. If people want education to be a certain way they spend their money in this manner and this effectively , en masse, signals to the providers the kind of education that they must provide. This is a far more effective form of democracy than any system where people vote every 4 years ! In the free market you vote several times a day and people will pay great attention to how you cast your vote. In Britain shopping chain Sainsbury has an advert at the time of writing which says "Vote for the products you want us to sell". Democracy is best expressed in normal consumer behaviour.
Leicester Thurow picks up the distinction in the Future of Capitalism but argues that it is anti egalitarian in favour of the rich . This is misguided for several reasons. First the lower earning groups always have more weight simply because there are more of them (even if they spend less per person) and secondly because market can segment (unlike elected governments) , they can supply the rich with what they want and the poor with what they want. Its not win-loose like politics , in the market everyone gains. Furthermore ,low income groups don't necessarily gain from democracy. Democracy redistributes to the best organised with the loudest voice from those that are less organised , including most of the poor.
Distribution of powers in a FREE Constitution
There is lots in subsequent papers in the Federalist about the distribution of powers but we would consider the most important thing would be to reduce power than to distribute it. Most particularly we wish to prohibit government from trade which has been its main business over the last century(2). The US constitution sees agricultural supervision as the responsibility of government and wants to regulate trade, both of which we now know are counter productive.A truly free constitution would barr government explicitly from the following: intervening in business (except to enforce contracts), of running any form of hospital, school, business, road, port, from increasing the money supply, it would be forbidden( for example) "to borrow money on the credit of the US [except perhaps for war], to regulate commerce, to establish a uniform law on naturalisation or bankruptcy, to coin money, to fix the standards of weights and measures, to establish post offices and post roads" except by the normal process of law in the courts.
Explicitly the constitution would bar any activity to be done by the state that it would be possible for the private sector to do . If it was possible but businesses had decided not to do so for some reason then there would be no argument, it would be forbidden to government.
Since the main means of restricting government power is to make legislatures illegal so that new laws can only be made through case law. What checks and balances then , should we put on the judiciary?
Checks and Balances on the Judiciary
There are many insights in the Federalist Papers that we can make use of : (1) Paper 29 argues that its easier for tyranny to arise in smaller unit than large since the small can organise resistance. In this regard, we should explicitly give the lower magistrate the power to command armies for administering justice on higher judges espousing tyranny/ statism in certain clearly defined circumstances.
(2) The main constraint on judges I would argue would be to make them sueable for any time they depart from the law. Particularly in view is not prescribing the right penalty- thus making the law less predictable, or putting forth ridiculous verdicts like allowing criminals to sue for damages incurred when breaking into house (as has happened in modern times), or being too soft or too hard because of a persons circumstances or background.
(3) Furthermore as an additional check it should be necessary on the aquital of a judge (tried by a court two layers up) it should be then possible to sue that higher judge for acquitting a judge that violated the law. This would reduce the possibility of judges protecting their own but yet avoids double jeopardy as the lower judge would not be able to be tried again for the same offense. Penalties would range between payments paid by the judges ( helpfully making eternal vigilance a lucrative profession !) to death for intentionally attempting to overthrow the legal order i.e. treason.
The law of a free society as described elsewhere is clear and simple, it must be applied properly.
(4) There is no permanent executive power for his central role :war is not a permanent event and his other function, as a check on over-legislation by the legislature is not necessary as that particular check is applied as a permanent discontinuance of the legislature. No legislature means we don't need a senate to balance its hasty decisions or an executive veto which has the same purpose..All long lived republics have had a senate for this reason: Rome, Carthage, Sparta being the only examples of long lived republics!. These powers insulate the government from ill-conceived expressions of popular will. However having no legislature does this even better.
(5) The fact of an armed populace is its itself a strong check on tyranny: "Besides the advantage of being armed which the Americans possess over the people of almost every other nation" Paper 45 Like the American constitution we should have a constitutional right to bear arms
' (6) Denying the judiciary the power of the purse except in time of war.
Paper 58 and 63 The power of the purse in Britain eventually gave Parliamentary institutions all the power, thus Madison concluded it was enough to give it to the House of Representatives to protect its functions In Sparta too the annually elected representatives overthrew the power of the senate for life. The Tribune as representatives of the people in Rome won almost every contest with the senate for life. Polybeus reports that in Carthage by the time of the second Punic war, the senate had lost almost all its power. The popular body in our constitution is the elected judiciary. Their popular nature helps to secure their power, their legal liabilities secures their fidelity to the law but to prevent tyranny it is important they have not powers to tax apart from in times of war, they have no other conceivable need to tax (3)
(7) Paper 50 Periodic reviews are perhaps in order to determine if the constitution has been violated. For example one hundredth part of the (vast expanded) (4) judiciary at any one time or even less could be employed investigating the acts of others. The people in general of course would also be able to sue judges for breaches of the law , this being rewarded with any fines imposed.
(8) The judiciary being so extensive in numbers and the nature of the system reducing the work required , by reducing crime, there is no need for the judiciary to be paid so possibility of threats to liberty from the varying of their remuneration don't exist, they would have independent incomes. The judiciary would be so large a body it would be impossible to continually bribe them all.
Note : There is some a danger in this of making judges like the Roman taxcollectors (5) little to be gained and much to loose. However prestige of being a judge counts for a lot, and judges have nothing to loose if they stick to the law and pass difficult cases upwards.
Legal Commissions
Its possible that from time to time that the law beyond the basics constitutionally established should be codified to insure its greater predictability. If this should take place by a vote of 2/3rds of the judges or possibly the higher ones only. Then care would have to be established that new law was not being made and proposors of laws that violated the constitutional prohibition of government in business would be punishable. It would be prudent to constitutionally require that codifications had to come from the implications of real cases this would then prevent much regulation creeping in by the back door.
Abuse of powers
The major concern in the division of powers in the Federalist is the legislature or the executive, little example seem to be advanced of judicial abuse of power . How could it in our system? In changing the law: anyone could sue the judge who did so. In declaring war, the judiciary could only do so if we were attacked. However there is more chance in our system of abuse in this areas than in the federal since the judges need to have power to appoint a military leader in times of national crisis and to dismiss him and hence have control of his legitimacy. They also for military purposes only, would be allowed to raise taxes and contract debts for this purpose but would be personally liable if such were spent on any other purposes.
The two roles of governments
"First difficulty is for the government to control the governed, the second to control itself." One application of checks and balances is that various private police forces would police each other because it would be profitable to do so and more and more so if abuses increased. This is a self regulating mechanism described more fully in another chapter.(4)
Terms of office and voting arrangements
The best voting system for judges in our system seems to be for life.? Its almost unthinkable to have a fixed term and then not allow them to run for office again. This would mean that after 8 terms you would run out of heads of households (at 13% of population judges )(4) and more importantly the quality of judges would fall long before that. If judges are periodically elected on short terms then they have to think about their popularity rather than the law,. However, its a good thing to allow more judges in at various times so more of the country comes to know and be committed to , the Law. This would happen as judges died or resigned to concentrate on other work, or if they move to different areas of the country.
It might be wise to ensure constitutionally that to serve at higher levels ,judges would need to have served at lower levels for say two years at each stage. In other words those not having done so would not be eligible to stand for election at higher levels . In a country of 100 mil households (like the US) you would have 10 mil rulers of tens , 2 mil rulers of 50s, 1,000,000 rulers of 100s, 100,000 rulers of 1000s, 10,000 rulers of 10,000s , 1000rulers of 100,000, 100 rulers of millions, 10 ruler s of 10 millions, and 1 ruler of 100 million. (for the British figures, divide by 5) . Altogether 9 levels taking a minimum of 18 years to attain to the top rank. ( Clearly this would have to be relaxed for the first few years or there would be no higher judges for the first few years !)
Amendments
It is not generally desirably for amendments to be made to the constitution. If any were to be made they would need a 75% vote of all judges and would be subject to the same process of suing the judges if they acted against the broad principles of the Law.
Divisions
We have already touched on the desirability of having a certain number of judges who monitored the other judges in addition to the general populace. Its probably best for those involved this way to be selected randomly. Election by judges would certainly lead to the election of "safe" people who wouldn't cause any trouble.
The usual divisions made useful by the division of labour would exist- courts dealing with family matters, theft, financial fraud, children, admiralty especially at the higher (most difficult) level. . It is most useful for judges when elected to apply to be part of a general pool of judges in a particular area and higher judges would accept or reject that on the basis of need for judges in that town in that particular specialty. Some judges might take on the administration of this as part of their work. Perfect matching will seldom be possible and judges might hear cases in other specialties from time to time. Furthermore, especially at the lower levels, there would be much general work where a specialist knowledge is not required.
A particularly useful division would be known as the "externalities" division. externalities as discussed elsewhere (6) are mainly the absence of property rights. The job of this group of judges would be to extend property rights into new areas and thus solve the externality simply by declaring the judiciary will enforce from that point on certain forms of property rights. For example when radio was discovered they would have examined the new medium and declared that they (i.e. the judiciary as a whole ) would enforce the property rights of those first to use the new medium.
If is conceivable that at one point that the externality division would find something that taxation was justified for, although only if there was no other conceivable way to deal with the problem and 75% of the judiciary voted to allow it. If the circumstance was new then time would have to elapse to prove the private sector did nothing to solve it. In fact, it would also have to be even theoretically impossible for the private sector to do anything. It would have to be conclusively proved that the people wanted it enough to justify it, by plebiscite holding by a 2/3rd s majority as well as a 2/3rds majority of the judges. Even then anything held as a reason for taxation would lapse every three years if it wasn't re-established that there wasn't any other way to deal with it privately.
Numbers
The larger the number in an assembly the more it will be directed by a few, because the larger will be the number with less information or ability , willing to be swayed. (as with orators in ancient times) In other words : too many makes for a mob- passion rather than reason.
Yet hundreds are needed in an assembly to prevent combining together for improper purposes (Paper 55) This issue clearly isn't such as issue for non-legislative constitutions but for assemblies of judges for specific purposes i.e. externality votes or perhaps also for war, about 500 people should makes the decision to rule out the possibility of a few being bribed or being a conspiracy of some kind and on the other hand to prevent too many from being swayed by emotion and oratory.
The "raised up" executive
The executive, meaning the control of the military would be a man picked by the top of the judiciary in times of crisis. Energy in the executive is essential for defending the country against invaders. (7)( Paper 70 ) Democratic Rome often had to take refuge in a dictator . Energy requires unity of command, duration of term of office , adequate provision for support, and competent powers
Once chosen he would be safe in his salary and in his position until the war was ended. His package should constitutionally require a higher incentive for victory and higher still for quick victory so that he would have no incentive to extend the war.
It would be possibly for the top judiciary to dismiss him and pick someone else if he was not doing well. The judicial power to relieve an executive leader would balance his control of the soldiery since most would be under an elected judge anyway.
In times of war it would be necessary to pick someone who is of excellent character , and has the ability and experience to be an effective general. The case related for one man to hold this power is argued well in the Federalist. Unity can (but shouldn't ) be taken away by appointing two generals (as caused many problems in Rome) or by compelling him to consult a council. Men often oppose a thing because they haven't been consulted but far more if they are consulted and then an opposite course of action taken. (Paper70) One person also makes it easier to attach blame if things go wrong.
The duration should be temporary as the executives role should be temporary , disappearing after the war, the judiciary would have the authority to recall the executive and send the soldiers home. The possibility of re-election by the judges , is a good incentive for the general to do well and avoids precluding the best military leader with unnecessary checks i.e. making him unable to stand again The latter rule might lead to attempts at usurpation or at least creates a greater risk.( Paper 72) He may simply be the most suitable person to be the general. It might be wise, however ,to allow for a fixed term for the general so that he doesn't start to feel permanent. For example the judiciary might need to meet to reappoint him every year.
Note that the very fact in the continuance of wars which makes this office necessary, also provides plenty of training grounds for national soldiery. It would be useful for our troops to fight abroad as mercenaries so that when a war occurred we would have some soldiery with training.
Insurrection
Dealing with insurrection on the other hand should not require the raising of a trained army and executive immediately. By their nature they are ordinary people and if the judiciary authorizes a local militia to deal with it then this should usually be enough. Funding it is on the restitution basis. Any person starting an insurrection or participating would be liable to pay for all costs incurred in putting it down. What happens then is that the top judiciary in the area declares spoils just and the militia is raised up to erase the insurrection and take payment for it.
Foreign treaties
The last division of the judiciary is that dedicated to the matter of foreign affairs. Clearly diplomacy can be a way of preventing wars (especially so in the early nineteenth century). As Paper 75 points out the power to make treaties is best not left to a man whose only been in office a few years- even if he is good at making war. It is necessary then for a division to deal with other countries with respect to such things as land rights, maritime jurisdictions, agreements about citizens treatment in other countries, passports ( i.e. ensuring our citizens had passage in other countries, there is no need for any restrictions in ours).
Upward integration
Since the state is just a selection of courts its quite possible that different like-minded nations could easily fuse together and one group could deal with the foreign policy for all. Its even possible that one executive could be raised up to deal with war for all. This has the advantage of dissuading attackers but it means some nations might get entangled in wars that weren't really their business. On the other hand if the alliance became so big that none would attack it then we really have significant incentives for peace in the world since in our constitution its impossible to attack unless attacked.
Administrative matters
It must be possible for judges to choose an independent body from time to time to look at boundaries and electoral procedures, places for voting etc. As the election of judges isn't a frequent event its not as crucial as in a democracy but the usual prudent number of judges selected randomly could look at this from time to time .
In more serious or complicated matters it may be prudent for a plurality of judges to judge the case but this is not necessary or desirable for simple matter as its important that liability for bad law can be apportioned clearly
There are many other rights that should be included in a constitution of a free people which include no imprisonment without trial, no trials for actions which weren't crimes at the time they were committed, no giving of titles of nobility, no being tried twice for the same action, no torture and freedom of speech, of assembly and the press ( properly defined). Thus the usual freedoms enjoyed in the more civilised countries of the world would be assured.
Conclusion
There is no doubt when Hamilton, Madison and Jay sat down to write their various papers that they added much to the general knowledge and well- being of the human race. But there is also no doubt that the statism of the twentieth century and all that it has cost us, has revealed clear deficiencies of their scheme. Growing privatisation will create a demand for a constitutional system to make these gains permanent and make it impossible to lapse again into the errors of our predecessors. It is a system that is purely judicial with no legislative authority and an executive that is only in existence in times of war that best meets the needs of a genuinely free country.
(1) De Toqueville's Democracy in America
(2) The Federalist papers , Madison , Hamilton , Jay (Penguin) full notes at http://www.almac.co.uk/personal/renaux/federalist.html (3) See acts of the UK legislature at http://www.almac.co.uk/personal/renaux/actsoflegis.html (3) For how the market can perform all the other functions currently carried out by government see http://www.almac.co.uk/personal/renaux/ (4) See as 3 above under judicial and police privatisation (5) Roman taxcollectors after diocletian were forced to pay any deficit in the amount of taxation that they were not able to collect from the people. (6) As web pages above under externalities.