This is Section 19 of Mr. Stolyarov’s essay, “Investmentocracy: A Challenge to Conventional Democratic Principles and a Framework for a New Free Society.”
Article I of the Freecharter consists of a detailed enumeration of individual rights which are explicitly off-limits to any vote and cannot be legitimately violated by any individual or governmental entity. The listing of these rights at the top of the constitution provides a protection to non-contributors that is external to investmentocracy itself. In the words of Bryan Caplan, “By and large, we don’t even ask voters whether we should allow unpopular speech or religion, and this ‘elitist’ practice has saved us a world of trouble. Why not take more issues off the agenda?”1 This is precisely what the extensive Bill of Rights of the Freecharter is designed to do. It recognizes, as Dean Russell does, “that government leaders elected by the people frequently turn out to be the worst enemies of the people who elect them”2 and that every individual deserves officially recognized and socially respected protections against such leaders. Unlike the United States Constitution, where the Bill of Rights is included as an afterthought, the Freecharter enshrines individual rights in Article I; its very structure recognizes that “[t]he only reason for our having a government is to protect and defend these rights and freedoms that we already have as individuals.”3
Some critics may wish to dismiss bills of rights as mere “parchment barriers,” which must inevitably fall before the onslaught of power-hungry men with guns who seek to infringe on individual liberties. However, James Madison explains why parchment barriers may hold up against substantial pressure:
“It may be thought all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defense; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to control the majority from those acts to which they might be otherwise inclined.”4
Madison’s argument acknowledges that there exist cases in which a bill of rights may be flouted and violated, especially by people of sufficient ruthlessness and determination to acquire coercive power. The primary function of a bill of rights, however, is not to directly affect the minds of these would-be usurpers, but rather to influence the understanding of a preponderance of ordinary people regarding the just limitations of their government’s powers.
We can conceive of bills of rights as having two distinct functions. First, a bill of rights solves an information problem that exists with regard to public awareness of what rights people have and what their justification might be. Dispersed information as a fundamental economic problem has been extensively discussed by F. A. Hayek in “Economics and Knowledge” (1937) and later in The Fatal Conceit. Hayek writes that “Clearly there is here a problem of the division of knowledge, which is quite analogous to, and at least as important as, the problem of the division of labor.”5 This division of knowledge exists not just with regard to conditions surrounding production of and demand for tangible goods. Different people also have different knowledge and understandings of what constitutes individual rights, and it is possible that no person has a complete understanding of the entire scope that these rights encompass. Without a document enumerating these rights, or at least their major categories, extensive coordination on matters of justice may not be achieved, just as without a price system the failure of economic coordination on a large scale is virtually certain. As Patrick Henry points out, “A bill of rights, even if its necessity be doubtful, will exclude the possibility of dispute; and, with great submission, I think the best way is to have no dispute.”6 A bill of rights can be designed to combine insights from the most sophisticated proponents of liberty at the time of its writing. Moreover, it can package these insights in a document accessible to the ordinary literate person, enabling him to be guided by information he could not have originated in acting to bring about a more just and liberty-friendly state of affairs than he could even have independently conceived.
The second function of a bill of rights is to raise the costs of expanding government power. As Madison’s argument hints, the unscrupulous would-be usurper may not be swayed by the merits of a bill of rights. However, he would find himself acting in a society where most people do coordinate their views and enforcement of the just limitations of government by using the bill of rights as a reference and a standard in their decision-making. He who personally disrespects individual rights still faces a higher cost of transgressing against them in a society that has a bill of rights compared to a society that does not. If violations of highly respected principles can be pointed out clearly and concisely to enough people, then these people will act to stop the usurper. Awareness of this likelihood creates a deterrent from undertaking the usurpation in the first place.
If there is no possibility of explicitly pointing out violations with reference to a concrete and accessible document, then this deterrent effect becomes substantially reduced. Most people are not moral philosophers and cannot readily articulate their own original reasons for why a particular expansion of government power is undesirable. Moreover, tradition and implicit cultural understandings tend to be indeterminate and disturbingly fickle – permitting intelligent and rhetorically clever statists to use “tradition” and “culture” as justifications for, rather than restraints on, unprecedented claims of power. The barriers to the success of statist sophistry are greatly raised if the arguments in favor of growing government are met with resounding prohibitions that people can readily access, remember, and defend.
The Affirmations of Article I of the Freecharter explicitly guarantee rights to life (I), to one’s body (II), to property (III), to freedom from confiscation (IV), to free speech (V), to freedom of religion (VI), to free movement (VII), to bear arms (VIII), to privacy (IX), to freedom from search and seizure (X), to freedom from quartering troops (XI), to freedom from taxation (XII), to the full prerogatives of adulthood upon reaching age 16 (XIII), to consensual activities among adults (XIV), to freedom from imprisonment without conviction of a crime (XV), to a fair, speedy, impartial jury trial (XVI), to freedom from torture (XVII), to freedom from self-incrimination (XVIII), to freedom from double jeopardy (XIX), to freedom from paying court fees as a victim or wrongly accused defendant (XX), to freedom from excessive fines (XXI), to freedom from excessive bail (XXII), to freedom of contribution to the government (XXIII), to freedom from involuntary servitude (XXIV), to freedom from conscription and mandatory “public service” (XXV), to freedom from the use of any government services except final arbitration of otherwise irresolvable disputes (XXVI), to freedom to consume substances (XXVII), to freedom from searches at airports, seaports, and other centers of transportation (XXVIII), and to freedom to accept the Freecharter and become a citizen (XXIX).
Affirmation XXX of the Freecharter is a more expansive version of the Ninth Amendment of the United States Constitution. It reads:
“The enumeration in this constitution of certain rights shall not be construed to deny or disparage others retained by individuals. No individual may be denied the ability to assert his or her possession of rights not enumerated in this constitution and to present this assertion of rights before a court of law, which that court shall be obligated to consider in accordance with reason and the objective facts of reality. A court’s action in striking down a statute based on this affirmation of rights is not a usurpation of the role of the legislature.” (Stolyarov 2008)
The purpose of this extended version of the Ninth Amendment is to prevent Affirmation XXX from sharing some of the neglect with which its American counterpart has been treated. James Woehlke writes, that during the first 175 years of American history, “[b]ecause interpretation of the Ninth Amendment proved very difficult, it was largely ignored. Courts were generally concerned that using the Ninth Amendment to strike down statutes would be tantamount to usurpation of legislature’s role.”7 For this reason, Affirmation XXX explicitly states that invoking non-enumerated rights is not usurpation of the legislative function, but rather an obligation of the courts whenever such rights are found to be in accord with reason and reality. Moreover, since the 1965 of Griswold v. Connecticut, the Ninth Amendment “has been cited in over a thousand cases,”8 as opposed to nine prior to 1965 – which offers hopeful news for the future usefulness of a stronger version of this amendment in protecting individual rights under the Freecharter.
Affirmation XXXI of the Freecharter is the counterpart of the United States Constitution’s Tenth Amendment, reserving powers not delegated to the central government to subordinate governmental entities and individuals. Finally, Affirmation XXXII states that this bill of rights may never be legitimately repealed or amended, thereby recognizing the permanence and inalienability of individual rights.
Under investmentocracy, the rights stipulated in Article I are not subject to any kind of vote; they are perpetual and irrevocable. They apply to contributors and to non-contributors alike. If any person or group should attempt to infringe on these rights, the constitutional violation involved will be blatant, visible, and offensive to those who continue to respect the Freecharter.
Likewise irrevocable are the Restrictive Clauses of Article II of the Freecharter. Although some of these clauses do not immediately concern individual rights, their ultimate object is to hamper the government’s ability to develop the de facto ability to violate these rights. All governmental entities subject to the Freecharter are prohibited by the Restrictive Clauses from issuing ex post facto laws (II), issuing laws that cannot be obeyed (III), suspending habeas corpus (IV), punishing criticism (V), issuing bills of attainder (VI), deficit spending (VII), borrowing money (VIII), issuing money (IX), subsidizing financial institutions (X), subsidizing individuals and businesses (XI), granting monopolies or quasi-monopolies (XII), restricting imports (XIII), regulating wages, prices, interest rates, debts, gifts, or inheritances (XIV), regulating workplace safety conditions (XV), regulating consumer products (XVI), mandating interactions with labor unions (XVII), providing foreign aid (XVIII), providing unemployment assistance (XIX), unilaterally altering contracts with government employees (XX), prohibiting gambling (XXI), taxing or regulating the Internet (XXII), punishing or extraditing foreign violators of unjust laws (XXIII), waging non-defensive war (XXIV), inflicting force against innocent people (XXV), regulating commerce except to remove trade barriers (XXVI), mandating educational and business practices (XXVII), requiring affirmative action programs (XXVIII), using religious tests for government employees (XXIX), broadly defining treason (XXX), unlawfully drawing money from the High Treasury (XXXI), allowing officials to accept foreign gifts and titles without the consent of the legislature (XXXII), punishing relatives of treasonous individuals (XXXIII), restricting political advertising (XXXIV), funding political campaigns (XXXV), conducting inspections without warrant at airports, seaports, and other centers of transportation (XXXVI), passing multi-subject bills (XXXVII), and spending “off the budget” (XXXVIII). Moreover, in Restrictive Clause XXXIX, the Freecharter adopts Roderick Long’s suggestion that the sum total of all laws passed by the central government be restricted to one million words.9
The purpose of the Restrictive Clauses is to prevent governments at any level from creating the conditions under which violations of individual rights can thrive or passing laws that have a high likelihood of contributing to the violations of such rights. It is not enough to simply enumerate rights; rather, a sound constitution will also prohibit government from undertaking activities that entail even a potential for rights being abused. The Restrictive Clauses forbid governments from applying the aforementioned laws to anyone – including non-contributors, which offers non-contributors further explicit guarantees of protection. Restrictive Clause I prohibits Article II of the Freecharter from being amended or repealed, which assures that no amount of voting by contributors can legitimately deprive the non-contributors of these protections.
Read more of Mr. Stolyarov’s essay, “Investmentocracy: A Challenge to Conventional Democratic Principles and a Framework for a New Free Society.” A list of works cited is available at the page linked to in the preceding sentence.
1. Caplan 2006, “The Myth of the Rational Voter”
2. Russell 1952, p. 27, “The Bill of Rights”
3. Russell 1952, p. 28, “The Bill of Rights”
4. Madison 1789, “Speech to House of Representatives Proposing Bill of Rights”
5. Hayek 1937, “Economics and Knowledge”
6. Henry 1789, Speech to the Virginia Ratification Convention
7. Woehlke 1992, “Book Review: The Rights Retained by the People: The History and Meaning of the Ninth Amendment edited by Randy E. Barnett.”
8. Woehlke 1992, “Book Review: The Rights Retained by the People: The History and Meaning of the Ninth Amendment edited by Randy E. Barnett.”
9. Long 1994, Provision 1.2.13, “Imagineering Freedom: A Constitution of Liberty.”