Libertarian Proposals For The Constitution (Part One) By Nathan Barton - Price of Liberty
Libertarian Proposals For The Constitution (Part One)
By Nathan A. Barton (TM and © 2006)

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January 23, 2006

Any time we start a new year, we should accept the natural optimism of the season, looking for ideas and ways to make positive contributions, improve our situation, and encourage ourselves. As the days start to get longer, it is natural for humans to be buoyant and excited.
As part of this, it never hurts to dream a little, to explore new ideas, and to set out some suggestions.

For 218 years, now, this grand Empire of ours has been served by the Constitution of 1787 - the world’s oldest and in many ways, over time, the world’s most effective. Conceived in deceit, ratified in fear, butchered by amendments and emasculated by a long string of tyrannous judges and cowardly, money-grubbing Congresses, it is still not a really bad document, even to a libertarian (although as an ararcho-capitalist, there are much better alternatives available). But it is not serving us well, and we know there is no possibility whatsoever of replacing it with something better, whether it be L. Neil Smith’s “Covenant of Unanimous Consent” or Robert A. Heinlein’s “Compact” or something else, such as adaptation of the Texas Constitution 2000 or my own Paha-Sapan “Covenant of Sovereignty”. While amending it FOR THE BETTER would be difficult, such an action would be at least within the realm of reason.

So let us dream of what we would do, and how it would change things for the better. No lover of liberty, I believe, would argue for these first few changes that come to mind:

Repeal the 16th Amendment regarding income taxes and prohibit any federal taxation of privileges, income, or anything related to income. Nothing has done more to fuel the power (and abuse of that power) than giving the FedGov a permanent hand in the wallets of virtually every person in the Union. This is a key feature of several more ambitious amendment proposals which I shall discuss later on. (For a detailed look at the 16th Amendment, visit The Price of Liberty's archives for an article by Bob Greenslade.)

Repeal the 13th Amendment establishing the popular election of Senators. Even for libertarians, this may require a bit more justification than that first one. Some historians and philosophers date the fall of the Republic to this action; before that time, Senators (who are supposed to represent the 50 member states of the Union) were chosen by the Legislature of the respective state, although still in the six-year terms familiar today. They were, therefore, responsible to the legislature as a whole for truly advancing the best interests of the state as a whole, not their political party or the majority or plurality which elects them in a popular vote. They also had more time to devote to their duties, having only to campaign to perhaps 100-400 people instead of millions. The advantages are many: a great reduction in the power of special interests and lobbyists (due to the lack of need for massive campaign chests), better accountability, and even an improved selection process. No doubt some states would continue to opt for direct election (perhaps through a type of “advisory” election process) but even in those states, the psychological impact of representing the state as a whole and being responsible to the state as a whole, not just a plurality of voters, could have far-reaching impact and improve how DC works. Senator Zell Miller of Georgia proposed this repeal as recently as 2004. Of course, to many people, this is seen as “antidemocratic” - and it would be in a unitary democracy, but fortunately this Union is a federal republic.

Now of course, we are past the easy ones, so for the time being, lets move on to new ideas:

First, the Liberty Amendment. This amendment is worded:

Section 1. The Government of the United States shall not engage in any business, professional, commercial, financial or industrial enterprise except as specified in the Constitution.
Section 2. The constitution or laws of any State, or the laws of the United States shall not be subject to the terms of any foreign or domestic agreement which would abrogate this amendment.
Section 3. The activities of the United States Government which violate the intent and purpose of this amendment shall, within a period of three years from the date of the ratification of this amendment, be liquidated and the properties and facilities affected shall be sold.
Section 4. Three years after the ratification of this amendment the sixteenth article of amendments to the Constitution of the United States shall stand repealed and thereafter Congress shall not levy taxes on personal incomes, estates, and/or gifts.

Clearly, this would in part do the same as my first suggestion above, but it goes much farther (and is thus much more difficult to get passed, as its history shows). Nine states have endorsed it, starting with Wyoming in 1961 and Indiana being the last in 1999. Rep. Ron Paul introduced it most recently in Congress in 2003, and he proposed a very similar amendment once more in 2005. Its supporters list forty-five different conundrums facing us which it would solve. It would have a significant impact on the size and scope of the federal government, without question.

It does NOT, however, impose the same restrictions on state governments or on local governments (which, of course, constitutionally, it should not) - so much of the evils could be perpetrated by simply transferring the outlawed activities directly to the states. While that would preserve some of the evils, it would still help considerably.
Overall, the Liberty Amendment has much to commend itself to us.

Second, there is what I call the “First Citizen” Amendments, originally proposed by author Thomas T. Thomas in his 1987 novel “First Citizen”. These are even simpler, but there are three of them, numbered as 28th, 29th, and 30th, in the novel:

Article XXVIII
Section 1. The fourth section of the fourteenth article of amendment to the Constitution of the United States is hereby repealed. The Federal government shall incur no debts nor make any promises of repayment of debts to any person, party or nation.
Section 2. All debts of the Federal government in existence at the time this article may be ratified are hereby repudiated.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years of its submission to the States by the Congress.
Article XXIX
Section 1. Article I, Section 8 and the sixteenth article of amendment to the Constitution of the United States are hereby amended to revoke the power of the Congress to lay and collect taxes (including general income taxes), duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States.
Section 2. The Congress shall levy no general taxes nor disburse the proceeds from any duties, imposts, or excises for purposes other than those in support of the activities from which the duties, imposts, or excises were collected.
Article XXX
Section 1. Article II, Section 1 and the twentieth article of amendment to the the Constitution of the United States are hereby amended to provide expeditiously for the succession of the President, in the event that both the President and the Vice President are simultaneously removed from office, die, resign, or otherwise become unable to discharge the responsibilities of their respective offices. In such case, the Speaker of the House of Representatives shall assume the powers, duties, and prerogatives of the executive branch and retain them until such time as a special election may be called to fill the vacated offices.

The “fourth section of the fourteenth” amendment was one of the post-War of the Rebellion (War Between the States) amendments which "ex post facto" legalized the vast debts of the Lincoln regime fighting the South’s secession; to many people it is a “junk amendment” which could be repealed without significant negative effects except to federal power. Anthony Gregory has an excellent article on this amendment that details the pros and cons of the whole thing .

The twentieth amendment is generally known as the “Lame Duck” Amendment which shortened the time between election and inauguration, and provided for a procedure in which the president-elect and vice-president elect die before inauguration; together with the twenty-fifth amendment (the appointed vice-president amendment passed after Kennedy’s assassination) it governs succession.

In Thomas’s book, he intentionally made the “XXXth Amendment” flawed by not imposing a time limit before the “special election” is called, and this is critical to his novel, which is essentially a retelling of the life of Gaius Julius Caesar as the 21st Century American politician and solider Granville James Corbin. (The book was published by Baen Books but is now out of print. Amazon and e-Bay sometimes have copies.

Thomas explains the effects of the first two amendments in the introduction to his book, from which I quote (note: I do not necessarily agree with all of Thomas’s reasoning). “When the amendments were finally ratified, the Federal Government adopted, in place of taxation and deficit spending, a fee-for-service system. Licenses and fees supported those judicial and regulatory functions without which society would have foundered. [Which are those, at the federal level? I can’t think of many, if any.] The administrators of those functions no longer petitioned for their budgets before some congressional appropriations committee. Instead, they paid costs and salaries out of income, like any business. And they sent a percentage - a profit - upward to General Funds.

“High tariffs and a system of limited monopolies protected the country’s markets [Thomas does not explain how], igniting a wave of price-pull inflation that, for a while, felt like prosperity. Postal and police services were farmed out to the commercial express and security firms which had already appropriated these markets among all but the very poorest users. [Remember there was no World-Wide Web in 1986.]

“The military establishment was broken and turned over to public subscription and private contracting. The former [subscription] supported a core of government-employed strategic planners, diplomatists and operators of the nuclear arsenal. The latter [private contract] supplied weapons, materiel, and a mixed body of volunteer regiments and mercenary troops.

“The rest of the government - the masses of career bureaucrats and clients of the welfare state - were abandoned like the blackened carcass of a beached whale. [I do like his description!] And with time they were absorbed into the general prosperity, as rind and blubber are absorbed by the tide, the salt, and the sand. For a while in 1997 the U.S. government was a debtor, ten years later it had become the richest organization in human history, with liquid resources exceeding those of any emperor, tzar or pope.”

As regards the “XXXth Amendment,” Thomas writes: “[It] was the foundation upon which [the] House Speaker … assumed the power of the executive. And he did not let go for a long time. Twenty years after…, legal scholars would note that “Speaker” was an exact translation of the Latin word dictator.”

Despite the conflicts of the book, there is much to be said for all three of these amendments, even the last (with a deadline for new elections, or at least a clause stating “until the next quadrennial general election.”). It would certainly eliminate the national debt, as nations have almost always repudiated their debts over history, and as no less than Murray Rothbard has advocated. So again, there is much to be said for this series of amendments, even if they were created for a novel.

Sadly, most of the constitutional amendments proposed in the last few years (except for some of Anthony Gregory’s mentioned above) have been very much anti-liberty and actually add to the power of government, or are at best neutral: balanced budget amendments, continuity of government amendments, anti-flag-burning amendments, anti-citizenship amendments, etc. But in the next part of this article, I’ll make a few proposals of my own.


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