“Creating Constitutional Culture: A Mechanism for Establishing a New Free Society and Constitutional Government” by G. Stolyarov II | The Rational Argumentator

Published by G. Stolyarov II at 6:00 am under Economics, Politics Edit This

The Rational Argumentator

A Journal for Western Man

Principal Index *** Contributors *** Yahoo! Group

Creating Constitutional Culture:

A Mechanism for Establishing a New Free Society

and Constitutional Government

G. Stolyarov II

Issue CLXXVII - November 12, 2008

Recommend this page.

This essay is part of a series of papers by Mr. Stolyarov discussing an improved constitutional blueprint for a free society. Such a constitution is now publicly available and is called the Freecharter. This essay discusses Article XII of the Freecharter.

How might a free society, where individual rights are respected and protected, be formed? Rather than considering how existing societies might be made freer, this paper explores a possible way for bringing about an entirely new society subject to a constitution. This mechanism will be outlined in general terms that can work in any geographical area and in the vicinity of any local cultures. Such a way of inaugurating a new constitutional government both respects the cultures and preferences that already surround the new government and at the same time attempts to create a constitutional culture suited to the full protection of individual rights.

Constitutions require more than formal mechanisms in order to be genuinely efficacious. Rather, the constitutional culture of the people living under a constitution is vital to its staying power. Nikolai Wenzel writes that “[i]nformal constraints – a willingness to be bound… – maintain a central importance for constitutionalism. If a critical mass of individuals refuses to be bound, if it rejects constitutionalism generally or the constitution specifically, if it does not accept the deferral of current power for long-run stability, the entire constitutional undertaking will fail. Expediency will trump principle. Power will prevail over rules.” (Wenzel 2007, p. 22)

In cultures throughout the world, a willingness to trump individual rights to achieve some other objectives prevails to a greater or lesser extent. This poses difficulties for establishing anywhere in the world a “perfect” constitution that fully protects all individual rights. Wenzel poses the question, “How do we overcome cultures inherently inimical to rule of law or the cultural defense mechanisms that have evolved to overcome hostile institutional environments?” (13). This is not an easy question to answer, particularly because even a powerful but naïvely optimistic reformer attempting to deal with such hostile institutional environments might find himself getting shot – or worse. Such is the fate of General Esteban Correra in Louis de Bernières’s novel, The War of Don Emmanuel’s Nether Parts, which takes place in a fictional Latin American country. Correra is a “fine, brave man who never hesitated to do the right thing” (243). He attempts to help the Norwegian tycoon Olaf Olsen find out about the mysterious disappearance of his daughter Regina and appeals to the formal procedural mechanisms which were supposed to protect Regina from abduction and torture by the military. As a result, “General Correra was not seen again for a week, when his tortured and bullet-ridden body turned up on the same municipal garbage dump as had the radical lawyer’s” (243).

Real and hypothetical instances such as this validate Wenzel’s argument that “the formal constitution must match the underlying constitutional culture; if the two are slightly mismatched, compromise will follow; if they are radically mismatched, the informal will reject the formal, i.e. not just the specific constitution, but constitutionalism generally” (2). To address this issue, Wenzel recommends that constitutions in most parts of the world settle for something less than full protection of all individual rights. He writes that “[t]he wise constitutional framer will thus choose a second-best constitution that will stick, over an ideal constitution that will fail. The wise constitutional framer will understand and respect constitutional culture” (14). Perhaps this is the most feasible course of action in a majority of circumstances, especially where governments and territorial boundaries are already firmly defined and unlikely to change. In such conditions, a constitutional culture is already in place and largely beyond a reformer’s ability to substantially control.

However, another option is possible where conditions are sufficiently flexible: the creation of a new constitutional culture in line with a pre-existing “imported” constitution that recognizes and protects individual rights. Such a constitution would explicitly enumerate as many genuine individual rights as possible and contain structural mechanisms to secure them. The government it creates would only bind the people who consent to enter into it, in accordance with John Locke’s views on how civil societies are formed.

Locke argues that all legitimate societies and governments are formed with the explicit consent of their original members. He writes that “[t]he only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it.” (Locke 1690, VIII: 95) Where a new society and its government are being formed, the framers have the luxury of directly ensuring that Locke’s criteria are met. Implementing these criteria is not merely a matter of justice, but also one of supreme convenience to the framers, because it will produce a more favorable constitutional culture and thus greater staying power for the constitution.

By establishing a constitution only for those who choose to opt into it, the framers will be able to select their constitutional culture to consist of views and attitudes that are largely favorable to the constitution’s perpetuation. After all, people who dislike the constitution have the option of not subjecting themselves to the government it creates. Therefore, those who do explicitly agree to live under the constitution will be predominantly interested in preserving it and adhering to it.

Establishing a new society is a dangerous and expensive proposition. Therefore, I will hereafter assume that the framers of such a society have somehow come to control substantial financial resources and enough weapons and other security devices to prevent themselves from being quickly overpowered by hostile forces. If these practical conditions do not hold, then trying to form a new society and government is ill-advised.

The first step in establishing a new free society entails finding an area of the world where the de jure government has no de facto control over a certain territory. This area can potentially exist anywhere in the world, but it is likelier to exist in the so-called “third” or “developing” world, where the native constitutional cultures are generally more hostile to the idea of individual rights than the constitutional cultures of more economically advanced and politically stable countries. Once a suitable area has been found, the framers can select a wholly undeveloped or abandoned piece of land and build a heavily fortified stronghold on it. They can do this legitimately without violating the rights of any local inhabitants, because they will have been the first people to mix their labor with objects in the state of nature. According to Locke, “[w]hatsoever … [a man] removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property” (V: 27). Thus, the stronghold and the land it stands on will be the private property of the framers, and its internal dynamics can be arranged as they see fit. Presumably, the framers will have already drafted a constitution and agreed on a division of property rights among individuals within the new stronghold. This stronghold would be the first territory subject to the new constitutional government.

Thereafter, the framers would send well-protected messengers to nearby settlements, explaining their constitution and giving people the ability to opt into it. Those who agree to opt in thereby annex the land they own to the territory under the jurisdiction of the new government and subject disputes regarding the property they own to possible arbitration by the government. People who refuse to opt in suffer no penalties to their existing conditions and rights. They remain politically sovereign on their own property. They are treated as foreigners by the new government and can be allowed to trade and travel within its territory, provided that they remain peaceful and respect the constitution and the laws formed under it for the duration of their stay. Locke notes that in order for any government to be functional, “every man, that hath any possessions, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it” (Locke 1690, VIII: 119). According to Locke, this tacit consent extends to anyone who holds property within the territory under a government’s jurisdiction or travels within that territory. Since every person not subject to the new constitution is free to enter or not enter the new country’s territory, expecting him to adhere to the constitution while visiting the new country is not a violation of his natural rights.

Why would anyone, especially in an environment whose native culture does not recognize individual rights, opt into a constitution that fully respects and protects them? Most people in all cultures seek to improve their material well-being and protect themselves from danger. It is a small intellectual step from wanting this to recognizing, as Ayn Rand did, that “[i]f men are to live together in a peaceful, productive, rational society and deal with one another to mutual benefit, they must accept the basic social principle without which no moral or civilized society is possible: the principle of individual rights” (Rand 1961, p. 126). Individuals who want a way out of the chaos and bloodshed surrounding their lives will be eager for an alternative and will at least be open to persuasion. How many such individuals exist in any geographical area is an empirical question, but the size of the new free society is only important as far as the ability to protect all of its members is concerned. If the government of the new free society can defend all of its consenting members against external aggression, then it does not matter how many people choose to opt in, provided that some do.

This method of forming a new constitutional society and constitutional culture will simultaneously respect existing cultural norms and practices, in accordance with Rand’s maxim that “[a] private individual may do anything except that which is legally forbidden; a government official may do nothing except that which is legally permitted” (Rand 1961, p. 128). Any local institutions, traditions, and mechanisms that the constitution does not explicitly outlaw ex ante will be permitted to continue. This implies, for instance, that entire tribes or clans might, through some internal decision-making mechanism, opt into the new government and remain as semi-autonomous governing bodies under the constitution, much like states and municipalities are under the U. S. Constitution. If a tribe condones any practices antithetical to individual rights, such as forced mutilation, the tribal leaders will presumably know in advance that opting into the constitution will not be possible unless they outlaw the practice beforehand. This mode of constitutional adoption will thus select only the best elements of the local culture for inclusion, while notifying everyone else that they may only join the new society if they change their ways so as to respect individual rights. The new government will not invade, except in self-defense, the territories of foreign entities which do not share the same principles as those embodied in the constitution. This implies that virtually any non-aggressive culture will be respected and permitted to remain either within or outside the constitutional arrangement.

The new government would presumably not immediately receive the formal recognition of the de jure sovereign government or of international bodies such as the United Nations. However, the new government, if it was able to form within another’s territory, could do so precisely because the other government had no de facto power over this territory to begin with. Thus, from the standpoint of the “official” internationally recognized government, the new government’s formation is not likely to be seen as a deterioration of conditions. The “official” government will be as unable to control the territory in question now as it was previously, and thus it will be unable to put up any resistance besides ineffectual protestations that it was likely engaging in already. International recognition for the new government can be secured over time by adhering to Thomas Jefferson’s recommendation of “peace, commerce, and honest friendship with all nations, entangling alliances with none” (Jefferson 1801). Many years of this behavior might persuade other governments and international bodies that the new country is not a security threat to anyone and may be a useful stabilizing presence in an otherwise turbulent region.

Further research into this mechanism of forming a constitutional government might investigate the conditions under which people are allowed to opt in or out. Must an individual opt in for life or for fixed time periods, with subjection to the constitution renewable upon each period’s expiration? Or should the term for opting in be subject to each individual’s discretion, permitting secession from the government on an individual basis? What are the implications of the possibility of personal secession on individuals’ incentives to obey the laws when the secession can occur at any time or at fixed time periods? Will strong incentives to secede even exist, given that the constitutional government in question would likely protect individual rights to a much greater extent than the alternatives to it in its geographical vicinity? Locke (1690) allows for secession of the individual person at any time, but not of landed property within the territory subject to a government. Under what conditions might a person be permitted to withdraw both himself and all of his property from the jurisdiction of a government without being in a de facto state of nature with respect to that government at all times? Papers to investigate for insights regarding these questions include “Secession and the Limits of Taxation: Toward a Theory of Internal Exit” (1987) by James Buchanan and Roger Faith and “The Political Economy of Secession” (2002) by Paul Collier and Anke Hoeffler.

Another area of research would need to investigate the kinds of relations that might prevail between the new government and surrounding communities. In The Ethics of Liberty, Murray Rothbard notes that “the world has always lived in an ‘international anarchy,’ with no one government, or compulsory monopoly of decision-making, between various countries. And yet, international relations between private citizens of different countries have generally functioned quite smoothly” (Rothbard 1982, Sec. 23). Will the relationship between the citizens of the new constitutional government and their neighbors outside it be akin to the “international anarchy” Rothbard describes, or will it be more akin to a Hobbesian state of universal war? How can the new government behave so as to increase the likelihood of the former rather than the latter? Research into this question would need to investigate the conditions under which either international anarchy or universal war will emerge. Exploring these issues would facilitate a more comprehensive understanding of how new free societies can be created to last and to prosper.

Find out more about the Freecharter.

Works Cited

Bernières, Louis de. (1990). The War of Don Emmanuel’s Nether Parts. New York: Vintage International Publisher. ISBN: 0375700137.

Buchanan, James M. and Roger L. Faith. (1987). “Secession and the Limits of Taxation: Toward a Theory of Internal Exit.” American Economic Review. Available at http://www.jstor.org/pss/1810228. Accessed 12 Oct. 2008.

Collier, Paul and Anke Hoeffler. (2002). “The Political Economy of Secession.” Available at http://users.ox.ac.uk/~ball0144/self-det.pdf. Accessed 12 Oct. 2008.

Jefferson, Thomas. (1801). “First Inaugural Address.” Available at http://www.bartleby.com/124/pres16.html. Accessed 12 Oct. 2008.

Locke, John. (1690). Second Treatise on Civil Government. Constitution.org. Available at http://www.constitution.org/jl/2ndtreat.htm. Accessed 22 September 2008.

Rand, Ayn. (1964). The Virtue of Selfishness. New York: Signet Publisher. ISBN: 0451163931.

Rothbard, Murray N. (1982). The Ethics of Liberty. Mises.org. Available at http://mises.org/rothbard/ethics/twentythree.asp. Accessed 12 Oct. 2008.

Wenzel, Nikolai. (2007). “A Waltz of Régimes in The Land Of Tangos: Lessons from Argentina on Constitutional Culture and Constitutional Maintenance.”

___________

G. Stolyarov II is a science fiction novelist, independent philosophical essayist, poet, amateur mathematician, composer, contributor to Enter Stage Right, Le Quebecois Libre, Rebirth of Reason, and the Ludwig von Mises Institute, Senior Writer for The Liberal Institute, former weekly columnist for GrasstopsUSA.com, and Editor-in-Chief of The Rational Argumentator, a magazine championing the principles of reason, rights, and progress. Mr. Stolyarov also publishes his articles on Helium.com and Associated Content to assist the spread of rational ideas. His newest science fiction novel is Eden against the Colossus. His latest non-fiction treatise is A Rational Cosmology. His most recent play is Implied Consent. You can also view his YouTube Videos. Mr. Stolyarov can be contacted at gennadystolyarovii@yahoo.com.