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Free Thoughts, Ep. 223: Choose Your Own Government (with Tom W. Bell) - Duration: 1:01:41.
Aaron: So I'd like to welcome all of you to the Cato Institute for a special live episode
of libertarianism.org's Free Thoughts podcast. I'm Aaron Powell, I'm director of Cato's libertarianism.org
project.
Trevor: And I'm Trevor Burrus. I'm a research fellow at the Cato Institute Center for Constitutional
Studies. This is the first time we've done it here live streaming. We've done a couple
live episodes before and Free Thought was started about [00:00:30] fourth October of
2013, when Aaron and I decided that we needed to have a podcast that got more in depth into
libertarian issues and actually ask the difficult questions that people want to ask libertarians.
So rather than putting someone like Michael Cannon who's the director of health policy
at Cato into the chair and saying tell us about section 209 G of some law that's coming
out, we wanted to ask Michael what about people dying in the streets [00:01:00] because that's
the kinda questions that people want to ask libertarians and to get in depth to the ideas.
So we're excited you're here today to see a live taping of a Free Thoughts podcast.
Aaron: And we're pleased to have Tom Bell as our guest today. He is a professor at Chapman
University's Fowler School of Law and he's here to discuss his new book 'Your Next Government?
From the Nation State to Stateless Nations'. Welcome Tom.
Tom: Thank you. Thank you for having me.
Aaron: So this is [00:01:30] a book about the evolving nature of government, about how
governments need to evolve and to compete to better serve us. But that raises a question
and it's one that doesn't actually get asked a lot when we're talking about policy, when
we're talking about government systems, about how these things should be set up, how they
should operate and that's ... What's the purpose of these things in the first place? Like when
we say they should better serve us, they should do a better job, what [00:02:00] is that job?
Tom: The job of governments?
Aaron: Yes.
Tom: Well let me first say, thank you all for coming and to hear about my new book,
Your Next Government and I think friends of liberty would find it especially interesting
because it describes this revolution currently sweeping through the world of government from
the bottom up and inside up all over the world, and it shocked me when I did the research
for the book. I didn't know about this until I went and gathered the facts. And as far
as special jurisdictions go, their job is to help governments do their job. Now what
governments are [00:02:30] for, you'll get different accounts, but I would say generally
to refer to the constitution, it's to promote the general welfare, secure the blessings
of liberty. That's the declaration of independence. I read them together, they taught me this
at Cato where I used to work documents and special jurisdictions help governments do
that by setting aside small areas where you can try out special rules.
When I was Cato, I discovered well that's the way we did business. We were always aiming
at reform sort of an inch deep nationwide, which is worthwhile [00:03:00] but when you
do that it gets everybody in the country kind of alarmed, and the beauty of special jurisdictions
is it allows you to go narrow and deep. So in a little area, you change the rules a lot.
If that doesn't work, it allows the government to try somewhere else. So it allows governments
to give us more options in choosing the form of government we want. That's good for us,
in the long run it's good for government. It makes them more adaptable, they can serve
we the consumers of government services better.
Trevor: Do you make a distinction between government and governance? Some people do,
I don't [00:03:30] know if you do.
Tom: I don't have a hard and fast rule, but I do prefer to talk about governance because
really what we should be thinking of is the governing services industry. You think about
the postal service, right? They deliver mail. Well so does FedEx, UPS. They deliver things
too. We should look at government the same way. There's the federal government, state
and local governments, they provide governing services, but you can get the same services
in a private community frequently. Not everything, you're not gonna get an ICBM from your HOA,
[00:04:00] but as far as like securing your property, allowing you to move freely in public
areas, all the good things that we like from our local governments, you can get that from
an HOA.
Aaron: At the start of the book you make a point that we think about the question of
what makes a particular nation rich. A lot of point to natural resources, we point to
maybe innovation or technology but you think that that's wrong. That it's in [00:04:30]
fact the rule of law.
Tom: I would have said what you're saying Aaron. Again, before I did the research for
the book, if you were to ask me ... You could ask yourself now. What's the major source
of wealth in the world? I think most of us probably think initially ... kinda silly but
we go, I don't know, diamonds and gold. Not ... Probably not real estate, maybe corporations
... The shares in corporations, maybe. Nah, it was the World Bank. The World Bank that
convinced me otherwise 'cause they did a big study, a whole book about the sources of wealth,
very curious. [00:05:00] I put together a chart in the book. The book has several charts
which I can't share with everybody here now, buy the book. But the World Bank gives this
information in their book and they never put it on one page, if scholars will note, I had
to site two sources to put it together. Here's the short of it, the biggest source of wealth
in the world according to the World Bank is the rule of law. 44% of the wealth in the
world, the single largest source of wealth in the world is the rule of law. And even
I who worked in the law didn't understand [00:05:30] that at first. So here's a thought
experiment to illustrate why that is very plausible.
You might've heard about the neutron bomb back in the days, Reagan administration. The
idea is if the soviets invaded eastern Europe, we would explode these neutron bombs above
them and it would kill the people with radiation, but they're clean bombs, relatively speaking.
It would leave the buildings and the roads and everything else. I mean it's still killing
people but it's better than leaving a burning radio active wasteland. Well imagine we could
create a law bomb and you explode this over [00:06:00] a city, it doesn't kill anybody,
it doesn't destroy any property but all the laws are erased. So imagine you did this over
New York City. New York City, a big source of wealth. Some terrorist explodes a law bomb
and people wake up the next morning. What would that be like? It would be very bad.
Most of the wealth in New York would be gone just like that. Oh, yes there'd be buildings
and cars and diamonds, that's not the real source of wealth in New York City. People
would wake up and they'd go, "What am I gonna do today? I don't have a binding contract
[00:06:30] to go to the office. Maybe I'll stay home. Although wait, I got all this stuff
here and I don't have any protection of my property rights. I better get out of here.
Oh wait, I better stay here and lock the door." I mean it would be a mess. It would be utter
chaos. People would flee New York City and if the effects of this law bomb continued,
it would be a vacant wasteland. We can't live without law. I have to stress this for my
libertarian friends, actually humans love rules. We are rule following animals. What
libertarians [00:07:00] should stress ... And I think most of them are good at this especially
Cato, is not let's not have any rules but rather let's choose our rules, and that's
really what this is all about. Making government a service industry so we have more freedom
of choice so government can get better.
Trevor: Does this book represent ... 'Cause you've worked at Cato, you worked in the policy
world and you've done things to try and make government better. But are you kind of giving
up in terms of working through government, say do a better job [00:07:30] and trying
to get out of the system and I guess the secondary question that is, if that's so why aren't
governments getting better?
Tom: Oh, I think governments are getting better actually. I'm kind of ... I have a ... a congenital
optimist maybe. So you can discount this and say, "Tom's just a happy guy who lives in
southern California, gets a lot of sunlight." Whatever. But I really do think governments
indeed ... If I wanna push the point, the world generally is getting better, but I've
not given up traditional approaches. In fact, I'm going to the Hill after this meeting to
talk to some legislators I guess who are interested in some reforms. [00:08:00] That's not really
what I do though. We need a diversity of approaches to reforming government. Keep sending in your
money to Cato, I just sent them my yearly donation end of December and it's important
to try to get reform an inch deep and a mile wide. Sometimes it works, sometimes it does.
I helped get rid of the ICC back in '96, it happens. But that's not where I think my services
are best applied. I think that we also need people like me trying to create these small
areas with deep reforms [00:08:30] and I think governments are very receptive to this. Again
it shocked me. I started researching this book. There's over
200 foreign trade zones in the United States, where the federal government has said, "Hey,
in these little areas, no customs and duties." And it's not like people said to the federal
government, "We have to have this." They did this in the ... it was after the Smoot-Hawley
act 'cause they realized, "Oh no, we just choked ourself off from international commerce.",
said the federal government more or less. "We better actually institute some liberalization
in small areas." It's the same [00:09:00] thing with other ... Think about ... I've
been working in Honduras and French Polynesia, these are all places where the governments
have said, "We want to bring in foreign investment. We wanna offer our population, better forms
of government. We don't wanna reform ... We can't reform the whole government, let's try
a small area at once." So, yeah we need governments, governments are actually very receptive of
this. In fact, I'll say to my libertarian friends you should look at this area of reform.
Sure keep trying that inch deep, mile wide stuff, it might work but check out this new
strategy. It might get you places that the old [00:09:30] strategy won't.
Aaron: So one of the things I found really interesting about this book was you start
with examples of this in action, with special economic zones and these other real world,
we're doing these things, here's competing governments or smaller governments with different
rules. But then you take a step back and you show how these examples and the value that
these efforts have is based on a really interesting [00:10:00] and I think powerful theoretical
framework for understanding what they're doing. It's not that we're doing something willy-nilly,
but there's some meaning and ideas behind that. And so I wanted to ask a bit about that
and I wanted to start with the idea of ... Tell us a bit about mono-centric versus polycentric
law and how that plays into the examples given in the book?
Tom: Sure. So these are the kinds of things academics talk about. The question is sort
of what's the big theory behind [00:10:30] this. This is not the kinda thing law makers
think about much and I think we should all be relieved about that. Well we academics
and those of us here, we can think about this. Mono-centric law, it's just a term used in
the book, I didn't make it up, but the idea is we have one source of government. This
is traditional defense of ... It goes back to Hobbes of the nation state, is we have
to have one authority to iron out conflicts between people, otherwise everyone will be
at [loggerheads 0:10:54], they'll settle their disputes with feuds. So it's nice to have
a single sovereign over everyone [00:11:00] who specifies the law and says we're gonna
use a metric system and we're gonna have property rights and you're gonna bring all your complaints
to our courts. That's one approach to government and an extreme, just one sovereign and then
at the other extreme, polycentric law, is basically many competing sources of authority,
often overlapping. All of which together combine in any individual's life to govern their behavior,
and I would argue we live ... We tend to think that we live in a mono-centric government.
It's very simple, that's the [00:11:30] way the media presents the law to us, federal
government ... They talk about the President running the country. It's absurd, but it's
simple. That's the way we often think about government,
but if you really look at the way you live your life, especially in America, there's
many sources of law that govern your behavior. Of course, you have local state governments
also regulating your behavior but that's not the end of it. If you really take the law
broadly as I do, you think about it as really ... it's the process of governing human behavior
through rules, and that includes [00:12:00] things like churches. Do churches govern behavior?
Are they a source of law? I would say yes in a very real way. They can control what
you eat at lunch today in a few hours. That's basically governing your behavior. So we have
a ... Or you're in the Cato and they say there's a sign here, 'Don't bring food into this auditorium.'
Kind of like a local law for Cato. So there are many rules from many sources
that every day really govern our behavior, and the idea with polycentric law is let's
notice that. Let's celebrate that, find good things in it if there are, there's some bad
things to it. [00:12:30] Sometimes too many rules, they conflict, it creates chaos. We
need to find a happy medium. So the idea is, let's look at these extremes, mono-centric
and polycentric law and in the book I advocated for a third category of what I call auto-centric
law. I think really at the end of the day, that's what we should want. Not ... You shouldn't
say, "Well we gotta have one king or we should have lots and lots of different rulers." I
honestly don't know. The reason there's a question mark at the end of title is I'm not
certain, 'Your Next Government?'. I don't know. It's for you to choose. That's what
[00:13:00] I see happening, we're getting more and more choice in government. It's a
beautiful wonderful thing, it's gonna make us all better off. But it also means we can't
be certain what kinda government we'll end up with.
Trevor: Is that the case though, that the kinda governing institutions like Cato or
churches require that mono-centric like umbrella thing above it? 'Cause you could ... I mean
I think most people would think that real polycentric law would be like ... what sounds
kinda like anarchy would be like Mad Max. You'd have the village with the bus that is
the gate and you have the village with the driver copter and all that stuff and [00:13:30]
those are governed by different things. But there's no overarching thing that would actually
rationalize disputes between them and that's why we need the mono-centric model.
Tom: Again, that is kinda the story we're often told in maybe elementary, high school,
even college, probably graduate school actually, it's a little sad. But that's just not the
way it works. I'll give you an example from the open ocean. So like there's no governing
authority ... regulates the high seas, and they are actually very rule bound areas. For
example if you're sailing a flagship and there's a ship in distress [00:14:00] and it sends
out a call for help, under international law you gotta go render aid. There's no sovereign
standing in the background tapping its baton on its palms saying, "You better do this."
So why do ships render aid to each other when they're on the open seas. They're bound by
international law and international companies that provide shipping insurance and those
international companies have said, "Hey, you want insurance from us, you're gonna have
to follow these rules." "Oh, yeah. Who's gonna force it, the UN?" "No. We will. You [00:14:30]
wanna sale with insurance? These are our rules." Now it's true, I mean if you look at their
insurance clause, there's probably a choice of law and a choice of foreign provision so
that if there's a conflict, maybe they end up in New York City and they apply maybe the
rules of the ICID. But you could do that in private arbitration, you could do it in Venezuela
... Look, not Venezuela actually. Sorry I was just ... I've been thinking about Venezuela
lately. Let's choose a working country ... Germany ... you could ... So, yeah it's sort of arbitrary
and not [00:15:00] necessary. There's a lot of governance that happens without governments.
That's the one reason I prefer governance.
Aaron: Then how does the notion of consent fit into this, because consent plays a large
role in your book in ... To certain extent your book is just ... is almost like a call
for more consent in governance. How does this notion of having like one sovereign or lots
of sovereigns relate to consent and why is consent so important when we're thinking about
[00:15:30] government in the first place?
Tom: You're a daring man Aaron to ask me about consent, because I have a background in philosophy
and I risk running on a bit. I try to keep it short in the book. I'll just say I think
consent is very important. In fact, I think after having debated this with many libertarians,
you can make a pretty strong case that consent is and should be at the core of libertarian
theory and more generally, the theory of government ... generally. Because it's sort of to me
an ultimate moral value. It's what you will agree [00:16:00] to freely, what you will
consent to. So that is kind of a load star, a touchstone for governments ... governance
and I think we should ... Yeah, we should emphasize consent and we should try to make
governments more consent rich. One thing I take pains to emphasize in the book is that
too many people think of consent as an on/ off switch. They think of it as a binary relation,
you either consent, you say yes, or you don't consent, you say no.
When you work in the law for years as I have, you realize [00:16:30] there's lots of gradations
of consent. For example, this is an actual case, doctors come across a man lying unconscious
in the street. He fell off a street car in Cotnam versus Wisdom, they render aid. They
go ... He doesn't survive, but they go to the estate afterwards and they say, "You should
pay us 'cause we rendered aid." Was there a contract? No, the guy was unconscious. Did
they get paid? Yes, they did because there's this intermediary form of consent. The guy
did not wake up and say, "Render aid.", but we say impliedly or hypothetically he did
or would have consented. Probably [00:17:00] they would say he would have consented. The
point I want to make is as I describe in the book, there's a nice graphic for it, consent
comes in different shades. So to some of my cranky libertarian friends I say you gotta
loosen up a little. Too many of them say, "I never signed the constitution so it's not
binding at all." Look I'm sympathetic to that line of argument, but I just don't think it's
realistic and it locks you in this position where you have nothing to say about improving
government. "I didn't sign on the line, not consensual. Not for me."
Governments come in different flavors [00:17:30] with different degrees of consent and the
goal is to kinda climb this ladder of consent. Recognize the imperfections of our government,
I'm the first guy to do that, but don't give up on it. We can make government better if
we keep trying to make it more consensual and special jurisdictions can do help us do
that, because when you move to a special jurisdiction you're choosing to move there. When you're
just born in the United States as I was, I didn't really choose these laws, [00:18:00]
it just kinda ... I stepped into them. So consent is a matter of degree and more freedom
and choice among governing systems can help us increase the amount of consent in our lives
and that is a really good thing.
Aaron: Is there a relationship then between the size of government, maybe in terms of
its scope and powers but also in terms of geography and consent? Because you said so
... We have more consent if there's a special economic zone and we can choose to move into
it but for [00:18:30] a nation as large geographically as the United States ... I mean you mentioned
[inaudible 00:18:36] criticisms of the like love it or leave it notion of consent. That
it's awfully hard to move out of the United States, you're giving up your career, you're
giving up your family, you're giving up the culture that you know. So does there come
a point where basically governments become too big for meaningful consent to really function
within them?
Tom: That's a good question. [00:19:00] I would say there is a correlation but it's
a loose one. If I had a blackboard, I would stand up and start charting this out. But
I think there's a trade off between size of government and how much government does. For
example, I think most people could agree to a world government if it only did one thing
and it prevented evil people from hurting innocent people and maybe we narrow that in
a little bit more. You could say something like no shooting of children. How's that?
If that's all the government did, we'd feel [00:19:30] okay about it. Whereas, if it's
a very small local government, suppose you live in a commune. They tell you what to wear,
what to eat, when to pray. Not for me, could be for you. That's okay. It could be oppressive
to me but you chose that, you moved to that commune, that's fine. So it seems to me each
type of government could be equally valid but generally the larger governments, because
governments tend to metastasize and grow too big, they tend towards doing too much. But
it's not a problem with bigness [00:20:00] per se. It's a problem with bigness combined
with how much they try to do.
Trevor: We did this though with the American experiment. I mean we could say that before
that we had very non-consensual governments and ... Since that we've had many non-consensual
governments but what we did in America, we wrote a constitution and then sent it out
to the people to be debated by popular ratifying conventions, some of which had larger rules
of suffrage than even voting at the time and that was [00:20:30] about as good as you could
ask for in a realistic procedure to get consent. So why would we use the American model as
sort of a model of consent in that fashion?
Tom: I'm a big fan of the American model and I think as you said ... You said it so well
Trevor. That was state of the art in its day, I mean more than we realize. It's just amazing,
shocking. You go back and you realize what the founders had as their precedents and there
was a little bit. They looked at the Swiss model of government, they actually looked
at how the Iroquois and the Indian nations [00:21:00] governed themselves, they looked
at how the covenanters, these religious groups would get together and agree to their particular
religious communities rules. But really, our founders did some radical stuff. Yay. But
we can do better now and to my libertarian friends who have this kind of hero worship
of the founders, I get it. But I feel like they're kinda stuck in that
era. You should take the spirit of the founders, really to me they said, "Let's do as much
as we can to make this government as consensual as possible." And wow, they did a great job
but we could do better. [00:21:30] We could learn from their precedent and we now have
technologies that they didn't have. I don't know what they would do today, but I think
if they were here they would be very proud, probably also appalled at what we've done
with their experiment. But they I think would say, "Let's keep pushing forward. Let's make
an even more consensual form of government." I think that's possible and it would be a
good thing.
Aaron: When you're talking about this spectrum of consent, you gave the example of you're
injured on the side of the road, you're unconscious and [00:22:00] aid is rendered to you and
so you didn't in any explicit way consent to it because you couldn't, but in that case
we gave ... say call like hypothetical consent. Like had you been able to, you would have
and so we can assume you did. How does that ... When we're talking about consensual levels
of government ... So you've rejected the kind of hardcore libertarian view of, "I didn't
consent to this, therefore no." It seems like hypothetical consent does a lot of work when
we're [00:22:30] justifying governments. But what role does explicit non-consent then play,
because governments don't say ... So in the case of the rendered aid, had you been able
to say, "No, I absolutely don't want you to help me out." The people would have to respect
that, but if I say to the federal government, "No, I absolutely don't want you to give me
social security or no, I absolutely don't want you to lock my neighbors up for smoking
marijuana." They still do it and so it's hard to then hook that on to something like hypothetical
[00:23:00] consent because I've been pretty clear.
Tom: Right, right. Wow, there's a lot to say there. I will say in the book, I also talk
about negative consent. The spectrum of consent goes to the positive, hypothetical consent's
very weak. We say, "Well you would've agreed to this." "But I didn't." "But you would have."
But it ... And it gets stronger to express consent, I agree to that. Negatively, you
can say too, "You would never have agreed to that, would you?" And you might say, "Well,
I did." And you have ... You can have non-consent expressed. So all this [00:23:30] is on the
spectrum and I would with regard to the conflict between hypothetical consent, "You should
like this government. You would've agreed to it." And expressed non-consent, "I don't
like it." I think the expressed non-consent generally should win out. I'm gonna say generally
here because I'm a lawyer. I live caveats. If someone say, "You know the rule I don't
like with your government is I don't get to steal stuff and hurt people." I don't agree
to that. You'd say, "Well you better scram 'cause we don't want your type around us civilized
people." So there's limits to this [00:24:00] but I
would say what we should try to do since you're right around that ... Most of the time people
use hypothetical consent to justify the jurisdiction of the United States. They just say, "Well
you would've agreed." Or maybe implied consent, love it or leave it. I think there should
be room for people to say, "I wanna opt out of that social security thing. Not for me,
I expressly don't consent." And our government would be more justified, this would make our
government better philosophically not just practically. But we would feel prouder and
better about our government. People could say, " [00:24:30] That's not for me. I wanna
opt out." And we should do that as much as possible. I don't how far we can take this.
I think social security, certainly that wouldn't be that hard to have people opt out, in many
other areas people should be allowed to opt out. So let's keep pushing that so people
can express non-consent and have that really be effective. If we did that, it would make
the remaining government more justified. We'd be more comfortable in saying, "Yeah, social
security is a good idea because the people that are in it are here by choice. [00:25:00]
They didn't opt out." That's not what we have now. I wish we did.
Trevor: You make an interesting claim when you discuss the constitution, which seems
to apply to pretty much every government on the planet. That you can treat those constitutions
like "A legal document that most resembles a standard form agreement offered by a large
powerful unnatural person, to it's many relatively powerless individual subjects." Now having
been to law school and Aaron also went to law school, this sort of contractual difference
of a force and size of the parties, [00:25:30] which creates a problem in many contractual
situations. It seems though when you're talking about things like HOAs, which you bring up
as a possibility of a form of government. So when you bring up Highlands Ranch, Colorado
which is right next to where I grew in Parker, Colorado which is a ... Highlands Ranch was
just a massive growing blob of tract housing and you kinda cite that as a private community.
But I can guarantee that if you went up against the Highlands Ranch HOA, they would beat you
into a pulp like most HOAs would.
Tom: That's not literal. [00:26:00] You don't mean that literally.
Trevor: So to say ... Not literally beat you into a pulp.
Tom: All right. Not literally.
Trevor: You would not have pink flamingos on your yard, you would not be able to paint
your house the color you want.
Tom: Right.
Trevor: Isn't the way to interpret a HOA contract very similar to what you say here? A very
large group against an individual and we have this huge negotiating power ... differential,
so we should invalidate those contracts too?
Tom: You're asking a contracts-
Trevor: Yeah.
Tom: Again you too, Trevor, he likes to take risks. He's asking a contracts professor about
adhesive agreements. I'd say it's a question of degree. It is [00:26:30] true, the HOA
has more bargaining power I guess than a homeowner. Although apparently there's a nice neighborhood
right door to Highland, Colorado ... You're gonna like it-
Yeah. You can just stay one mile away. So how much power do they have? But once you
agree to those rules as I understand it, I've lived in HOAs, they're pretty strict about
it, you don't have the same choice though with regard to the federal government. You
can't move one mile away and say, "No labor code for me thanks. I'm just gonna move over
to Maryland where you don't have it." This just doesn't work that way. So it's a question
of degree but [00:27:00] you're certainly and I'm glad you told our listeners in our
audience about my approach to constitution. Basically I think we should look at it in
a way, very much akin to the way courts already look at standard form agreements. If you sign
a rental car agreement for something and there's some fine print in there or you have a dispute
with them, courts look at it very skeptically. They have as much skepticism it seems with
... That's right, their employer the federal government. Federal courts don't seem to be
quite as skeptical about ... [00:27:30] And by the way I bring that up because ... Here's
the thing, let's go back to the rental car agreement.
So this is a question of degree. Some of these standard form of agreements are more oppressive
than others, it depends on a number of circumstances. Any court will tell you this.But I just gotta
point this one thing out because it kinda makes me grind my teeth. Suppose you signed
this rental car agreement with Hertz say, not to pick on Hertz but just Hertz Rent a
Car. And they had a clause there that said, "If you have any disputes with us, it's gonna
go to private arbitration." Okay, that's pretty standard. "Oh, and the case will be decided
by the CEO, CFO and COO of Hertz." No government [00:28:00] court would uphold that provision.
Any government court would say, "That is facially unfair. There is no way you have to go to
that arbitration." Case closed, bang. "Next case, first amendment case. You're suing the
government? Oh yeah, I'll hear that." This is the same judge. When she looks at
her W-2 it says U.S. Federal Government and she's now going to hear the case against the
federal government. I know what you're thinking. You're thinking probably the same thing Hobbes
thought. We have to have an independent party to resolve [00:28:30] these disputes, someone
who's objective. Agreed, but it doesn't have to be the government. So here's my proposal
made in the book, I call these 'Citizen Courts'. Anytime you, me, anybody has a case against
the federal government or state government, any government, it should go to arbitration,
private arbitration. It shouldn't be in government courts. No government court would let the
private sector do that but they got a special rule themselves and if you're wondering how
you this, it's actually pretty simple. Suppose I have a fight with Aaron, he chooses [00:29:00]
an arbitrator, I choose an arbitrator, those two arbitrators choose a third arbitrator.
That panel of three judges is pretty objective, it's balanced. I don't know why we don't do
this for cases against governments. I'd like to think it's 'cause no one suggested it before,
problem solved. All right. So I hope you guys will hop on that. I'm an
academic but some of you make things happen. Please fix that problem because that's one
reason the American experiment has kinda gone in the ditch. Courts have driven it there
over many [00:29:30] years because time and again you've got government employees deciding
cases against the government and what do they do time and again? Talk to some people here
in the building who do con law, they'll tell you. The trend is bad and it's not getting
better, and it won't get better as long as you have that non disinterested judging.
Trevor: The judicial power of the United States shall extend to cases and controversies arising
under the constitution of the United States and its treaties and statutes, so that's why
we do it.
Tom: Oh, that says the courts can decide the cases. There's nothing in there, I looked
at that, that says only those courts can decide those cases, and indeed federal [00:30:00]
courts often use arbitration. It's quite common in some civil disputes. In fact, many government
systems say, "Please go take your ... go try to mediate." "Oh, you didn't mediate? All
right. Go arbitrate." They keep pushing off much litigation. Oh, but if it's a first amendment
case, it comes straight to the government court. I don't see why that's necessary. It's
not in the constitution, it's not good policy. It needs to be changed.
Aaron: So before we turn from theory to practice, I hope you can indulge me with one last theory
question. Namely [00:30:30] you ... So you've advanced this what you call your 'Contractarian
Theory of Constitutional Law' and constitutional interpretation is an important thing at Cato.
We talk about it a lot, it's a big thing among libertarians. And so to get at what that Contractarian
Theory looks like, I was hoping could you maybe tell us a bit about how it's different
from two of the other big schools that you discuss in the book with originalism and living
constitution.
Tom: Oh, thank you Aaron. This is an issue in which I'm almost [00:31:00] all alone.
Most libertarians in constitutional theory are originalists. They think the way we should
interpret the constitution when the language isn't plain and it isn't always, is to go
back and try to figure out what the people who ratified the constitution thought it meant
at that time. That is originalism, very popular among libertarians. It's a mistake my friends,
I'm here to set you straight. Let's set out the other school of thought. Libertarians
have done this because they've only seen ... [00:31:30] it's either originalism or this other thing,
the living constitution. Now agreed, living constitutionalism is a total train wreck,
because what does that say? It says, "What does the constitution mean? Let's hand that
over to some experts who wear robes on the Supreme Court." We're gonna let these nine
justices kind of look at their own institutional navel, their own precedents and we're gonna
trust them to figure out this language, and somehow their going to be in touch with what
the people in the streets need and want and should have and we're gonna [00:32:00] trust
these justices to interpret the constitution. That's living constitutionalism that gets
you things like Gonzales versus Raich, which said the federal government has the power
to regulate you growing and smoking your own dope in the privacy of your own home, that's
interstate commerce. That is not consistent with the plain language of the constitution
but there was Wickard, a Supreme Court precedent that led the court to say, "Well we have our
precedent. We're the experts. We're gonna be bound by that." So living constitutionalism,
not so [00:32:30] good for liberty, great for statism. Originalism, now what's my complaint
there? I will admit originalism is probably better than living constitutionalism on many
issues because the founders were much libertarian than the Supreme Court justices. However,
it gets you in some very awkward positions. Justice Scalia, may he rest in peace, when
he was still living he was a foremost originalist. He admitted in public ... There's a clause,
the cruel unusual punishment clause. Fourth amendment, that no cruel unusual punishment
shall be inflicted under [00:33:00] the federal governments in the Bill of Rights. And someone
asked Scalia, "Hey Scalia, you're an originalist. What does that mean?" "Well it means what
the founders thought it meant." So back then they thought it was okay to lash
people. That was a routine criminal punishment. You put them on a post and you whip them.
Is that cruel and unusual? So Scalia had to come out ... Honest man, bless his heart.
He saw where his theory went, he said, "Yes, that would be constitutional under my theory."
We're not sure what cruel and unusual means, so we're gonna go back to see what the founders
thought. They also thought branding [00:33:30] was okay. You could brand people. Now maybe
some of you think that's okay today. I think most people in America today would say, "That
is sick. There's no way we're gonna do that." Originalism, Scalia said, "Yeah, that's constitutional.
It's stupid.", he was quick to add. "I'm not advocating that as a matter of public policy,
but it's in the constitution." So that's a problem with originalism, the founders didn't
agree with us on many things. Contractarianism is the third better way if
you're a friend of freedom and it says, "Let's read the constitution as we would as close
as we can to a standard form agreement [00:34:00] offered by an all powerful, immortal institution."
The most powerful institution arguably history has ever known and it's gonna be you and me
as individuals against the federal government. That is not a fair fight. We know how we would
read that contract offer by Hertz Rent a Car, a court would read it very skeptically. We
should do that with regard to the constitution and when we come across a phrase like cruel
and unusual, we don't go to the Supreme Court. They're [00:34:30] well educated, they're
very rich and these days they're held up like stars. They live in a different world from
you and me. I don't trust someone who lives in Georgetown to tell me what cruel and unusual
means. I don't think that's gonna jibe with what common people think and we don't go back
to the founders. Great men in their day, long past, we gotta do things our way. We should
ask what cruel and unusual means to people who have to live under that rule, and it's
better than originalism in this way too. If you wanna figure out what the founders
[00:35:00] thought, you gotta do historical research and guess what? Historians don't
agree. I'm sure there's probably a historian there saying, "Well they didn't brand much.
It really wasn't that common." Are really gonna have to have that fight? Let's not do
that. We can do it very simply under contractarianism. You can do a poll. You say, hey all these
people have to live under the constitution. What do they think it means? Here's the test
I like to play actually. Imagine you're an immigrant moving to the United States. You're
not really totally immersed in this culture but you can read good english and you pick
the constitution and read [00:35:30] it and you see cruel and unusual. You should be able
to say, "I know what that means." You shouldn't have to go read a bunch of Supreme Court opinions.
You shouldn't have to do a bunch of historical research. You should be able to trust your
gut. We should cut every ... We should give you the benefit of the doubt, cut the slack
in your direction. So that is the third approach to constitutional law. Again, haven't heard
people advocate it for a lot. It's in the book, so libertarians get onboard. You're
gonna hack off a lot of my friends in the legal academy, but they'll learn. Originalists
use old school. This is a [00:36:00] new better way. We should adopt it.
Trevor: Originalist is definitionally old school. As an originalist, I feel that I have
to defend it but I'm actually gonna move the conversation to more of the actual-
Tom: Right.
Trevor: I just wanna say I'm not ... If anyone's mad that I'm like letting all that live, we're
gonna move to the special economic zones in Honduras and other things-
Tom: Be a gracious host. He's still an originalist. He'll learn.
Trevor: So let's talk about things that are happening. So we've talked about problems
with government, about reading government agreements that [00:36:30] exist, about what
happens in the government, about the lack of choice and consent. What sort of things
are occurring ... You mentioned fair trade ... free trade zones-
Tom: Uh-huh (affirmative). Free trade ... Foreign trade zones.
Trevor: Foreign trade zones. So first of all, where is one? I mean would I just find myself
in Salina, Kansas and just be like wow-
Tom: Yeah.
Trevor: It's a foreign trade zone.
Tom: All right. So this is another ... those things I didn't know about until I started
researching the book. The United States has a number of what we could call special jurisdictions.
There's over 200 active ones [00:37:00] and they're called foreign trade zones. These
are very common at all major ports and also in very obscure places. Every state, including
land lock ones and Puerto Rico has a foreign trade zone, because you can put them at airports
too. What does a foreign trade zone do? Basically goods coming in to a foreign trade zone are
not yet in the United States for purposes of customs and duties. These foreign trade
zones are actually behind chain linked fences, locked doors. They're kind of watched over
by customs to make sure stuff doesn't go [00:37:30] in and out without approval, but basically
... I'll take an example of what is ... There's probably one in D.C. but I live in southern
California. There's two of them in the LA area, the Port of San Pedro and the Port of
Los Angeles. You bring in a big shipment of bicycles from
China on a big ship and those even though they are offloaded at the Port of San Pedro,
are not in the United States for customs and duties. You don't have to pay any customs
and duties. So you might put them on smaller ships and send them down to Peru and send
[00:38:00] another ship over to Canada and you don't have to pay anything. You're able
to bring those bikes into the country and maybe process them, add brakes and things
and ship them out again. That's great for purposes of trade. There's over 200 of these
in the United States and that's just ... example. There's other types of zones in other countries
but that one's close to home. So these zones are everywhere, you just don't see them. They're
not talked about much and that's what the book's about.
Aaron: What's the benefit to the United States [00:38:30] government for setting those up
or allowing those?
Tom: Well I think you could argue on that and some scholars have that it's ... On that
actually not good. But the argument made for foreign trade zones is ... And again this
was in the wake of the ... the acts at the beginning of the 1900's that clamped down
on foreign trade is to allow foreign trade more freely. Basically it encourages trade,
about 600 billion in exports goes through these FTZs [00:39:00] every year. About 6%
of all exports in the United States go through FTZs and the argument is, "Oh look, we created
this exemption for customs and duties and there's all this ..." Surprise, surprise lower
price. "All this economic activity." And the longshoreman who works at the Port of San
Pedro goes to back to Corona where he lives and he takes his paycheck and he spends it
and the whole economy is made better. That is the argument. Now the economists among
you and policy wonks will see some holes in the argument but that is a facially good argument
for foreign trade zones and they're very popular. No one really [00:39:30] is criticizing them,
nobody even talks about them.
Trevor: Now what in Honduras? You've done work in Honduras and there was one iteration
of something even a little bit more "extreme" than a foreign trade zone to free up law and
enterprise and just making better zones for humans in Honduras, which is not a terribly
efficient country right now.
Tom: No, they have their problems. I'm glad you bring that up, Trevor. There's a whole
chapter in the book called 'Stories [00:40:00] of the Sort Ordinarily Recounted Over Drinks',
because a cool thing about this area of law is it's gotten me from behind my computer
and out of my office and into the field. So I've been to Honduras, I've been to French
Polynesia, I've worked with countries and parties all over the world interested in starting
these zones and it's a lot of fun, exciting and interesting. Honduras has written into
law a provision for special jurisdictions that is among the most advanced ... It's probably
the most advanced in the world. They're just now starting to implement it. They were very
close [00:40:30] to implementing it when they had the recent troubles in their most recent
election, which is right now being resolved in the streets with riots. It's Honduras,
it's a complicated place. But their [ZA 00:40:41] program on paper allows private parties to
come into their country, subject to oversight and never escaping the requirements of the
human rights protections Honduras on paper, allows its citizens in the Honduran constitution
continues to apply in these zones. However, [00:41:00] these private parties
in the zones can have their own civil law system, their own educational system, social
security system. Basically they can do their own government except for things like national
defense, decide to fly the Honduran flag. The Honduran criminal code will continue to
apply in these zones but it will be enforced locally with oversight. There can be a penitentiary
system privately run and operated in these zones with oversight. The Hondurans are not
gonna let you create a slave camp [00:41:30] but they're gonna trust these foreigners with
oversight to run these zones. Basically the governments will be built from the bottom
up almost to the very top. They haven't implemented it yet, but when and if that happens, that's
gonna allow a lot of experiments in government and it will hopefully reveal to the Hondurans
in the world better ways of doing it.
Trevor: Why wouldn't Honduras let you create a slave camp? Because I mean a lot of governments
do let people create essentially slave camps. So why [00:42:00] are you so confident in
a government that is currently in riots as you said, is going to be really good at making
sure that no one creates a slave camp?
Tom: Well I've been to Honduras, I've met a lot of Hondurans and talked with them, and
I'll just say it's not in their culture. I mean I just don't see them creating slave
camps. Now they can do a lot of bad things for sure. I'm not calling them angels but
every different culture has its own kind of downsides, the way it can go wrong. They could
do terrible things but the reason ... Take in particular ... First of all, I just don't
think culturally that's gonna happen there but they can do things wrong and the reason
it won't happen [00:42:30] is for a number of reasons. One is the whole world is watching.
Two, the Hondurans say on paper and I believe them, they say, "You're gonna have to obey
the Honduran constitution." And they also say, "You're gonna have to have a special
court of human rights and if people in your they're called, in these private communities
are ... they allege violations of human rights. You're not gonna go to a Honduran court, you're
not gonna go to a local private court, you're gonna go to an international court for human
rights. So they've ... And there's other mechanisms
in place. This is a very well thought through system by ... I [00:43:00] will credit Octavio
Sánchez. He's a Honduran, he grew up there. He's got some ... He's just a brilliant man
and I've met him and he won't take credit. But I'm gonna give him credit for these really
innovative reforms. There's also ... I'll give you another ... There's a body called
CAMP, the ... That's from the Spanish acronym, but it's the Committee for Adoption of Best
Practices. It's a body of 21 mostly foreigners appointed by the President of Honduras to
actually act like a Board of Trustees for these communities. So there's many layers
of oversight and double checking. Does it [00:43:30] mean it'll work? I don't know.
They haven't done it yet. It's an experiment we're trying. They in good faith have tried
to set up a system where rights will be respected and people can live in peace and generate
prosperity and I think it's worth a try. I won't pretend they have it all figured out
but they're way ahead of everybody else.
Aaron: So then let me ask I guess a variant of my prior question. These ... So what you're
describing in Honduras, there are similar things in other parts of the world, where
government has carved out spaces and said you can [00:44:00] use different economic
rules here, different fiscal rules here. What's the incentive for government to do this or
allow this in the first place? Because say if this Honduras experiment works really well,
if the enthusiasm that you have for these kinds of things ends up being warranted, then
isn't that just going to show the people of Honduras that their government wasn't really
that great? Like they're just gonna wanna turn the whole country into one of these [00:44:30]
things, which seems like that's a loss for the government. So why would government-
Trevor: Or in the government you mean. Yeah.
Aaron: For the people in the government. Right. So why would governments and especially governments
that don't run terribly well to begin with want to allow these kinds of things?
Tom: Good question. Well let's use a couple of examples. Foreign trade zones, why did
the United States decide ... Initially they said, "We love customs and duties. We get
money from that." Why would the federal government back off of that? Because they see other gains.
They see that, "Oh, well we'll actually come [00:45:00] out ahead in tax revenues maybe
because we'll tax the income of that longshoreman when he goes back home in Corona." Maybe they
sat down and ran the numbers, that's possible. In Honduras, there their problem is getting
foreign investment and Honduras ... You gotta be realistic. You work in the Honduran government
and I imagine they had conversations a bit like this, "Boy, I wish we had more foreign
investment." "Me too." "Why aren't we getting it?" "Have you looked at our murder rate lately?"
"Yeah, it's pretty bad and nobody trusts our government. Why is that?" [00:45:30] I tell
you everybody I talked to in Honduras, everyone. From the guy in the street to the government
official said ... This is what they told me ... everybody, "You can't trust the courts.
They'll throw the case to whoever pays them the most money. That's why people won't invest
here." This is happening in the government office.
They're having the conversation of, "Well how do we get that foreign investment?" "We're
gonna have to let them do something different." It's not like governments are eager to give
up power but it's really ... if you set it up right, a way that the governments themselves
see they can come out ahead. We'll have more tax [00:46:00] revenue, ultimately at the
end of the day we'll have more power by setting aside these small areas where we actually
ease up a little bit. Now you might ... And you should ask well what happens if that's
a big success and it takes over. Some people in governments say, "That's actually what
I wanna have happen. I've been trying to reform this government from the inside forever."
There's lots of good people in government, wanna make it better and they can't. It's
just hard to change government, an inch deep, a mile wide. But when you have an experiment
that works ... We'll use the Chinese example, Shenzhen.
They're [00:46:30] literally dying by the millions, tens of millions under Mao. People
are eating grass, they're eating each other. Communism doesn't work. They look over the
fence at Hong Kong they go, "They have among the highest per capita incomes in the world
and they're just as Chines as us." Same language, same people, same climate. That is China with
what? Better rules. So in Shenzhen right across the river, they implemented this zone and
it worked and then it spread throughout the country. Now maybe someone in ... who is a
Mao-ist in China would regret that. [00:47:00] But I bet if you talk to people in government
in China today they would say, "That was an awesome thing that happened. We actually now
have more power. We have tax revenues, we can buy a big military." They can do all kinds
of stuff and the Chinese people came out ahead. They were lifted out of abject poverty, from
famine to become basically a lower middle class country and they're on the way up and
I think we can credit special jurisdictions for that.
I'd like to see that happen in America. That's a place where we could learn from the Chinese.
If we could have special jurisdictions like the Chinese had them, ones that were big,
had populations, [00:47:30] special rules. We could learn from that and people in governments
should welcome that because it'll bring them revenue, and we should welcome it because
it'll bring us freedom.
Trevor: You also discussed seasteading in your book, which is not even just using the
land that already exists but making floating islands. Now I've seen Waterworld so I have
an idea of what it's like when people live-
Tom: You don't. No, you don't. Waterworld is not the-
Trevor: On ... And I've seen Pirates of the Caribbean too, which is similar.
Tom: Pirates of the-
Trevor: Why wouldn't that be what [00:48:00] seasteading is? I mean so first of all, pirates
are a problem in the world's oceans and ... I mean are we really gonna build islands and
live on them? First of all, does anyone wanna live on an island that's like a waterbed all
the time? I don't even like waterbeds, so maybe that's the biggest problem. But tell
us a little about seasteading and whether or not people will actually live there.
Tom: Oh man, Trevor. Okay. Pirates and Waterworld and a waterbed. Well, what do I wanna say
about that? I wish I had ... I wish the seasteaders had problems with pirates. Right now, we're
just trying to get one [00:48:30] or two platforms floating in a lagoon in French Polynesia and
we don't need to worry about pirates there and you also ... I'm not gonna need to worry
about the waterbed effect. We got our engineers working on these platforms. They're big, they're
like the size of a football fields and it's gonna be in a lagoon. A nice lagoon, I've
actually gone scuba diving there. It's got coral and everything. It's really nice. Yeah,
so I wouldn't worry about that. Seasteading, I'd say right now we're taking baby steps
towards the ultimate goal, which is being on the open oceans, flying our own flags [00:49:00]
and being really free. That's not gonna happen tomorrow. Maybe then, there'll be pirates
but look, I mean what's gonna happen if you're on the open ocean and this is your home. You're
gonna have some pretty big caliber machine guns if you're worried about pirates.
Aaron: Waterworld.
Trevor: Yeah.
Tom: They didn't do it very effectively in Waterworld, did they? I'm guessing from what
I saw at Universal Studios, they had like a Waterworld show there, it looked very violent
and explosive, and that's about as credible frankly as Waterworld as a source. Anyhow,
I don't worry much about that but if you worry about [00:49:30] that I'll say let's revisit
this in 15 years. If you're worried about pirates and Waterworld, we're so far from
that. Please let's just try to have a few floating platforms in a lagoon in French Polynesia
and a special jurisdiction and see if we can get the ... some of the technology ironed
out and a little bit of the governance in baby steps. We'll get to that bigger ... the
bigger issues that come with more freedom later. I hope we do, but right now it's nothing
to worry about.
Aaron: So the examples that we've discussed so far of [00:50:00] smaller governments or
competing governments or start up governments, have all been geographical in nature. We're
gonna build an island or we're gonna carve out a port or some special zone, but is there
space to realize the vision that you articulate in this book in non-geographical ways? Like
I'm thinking 'cause technology enable us to maybe have competing governments or overlapping
governments or pick and choose our governments [00:50:30] without having to be tied to a
particular geographical area.
Tom: Oh, yes. Definitely. I think we can look at blockchain technology, bitcoin, ethereum,
other cryptocurrencies as an example of people non-geographically of opting out of government
monetary systems. That's a very concrete example. There's other examples. People are trying
to make real ... for example using blockchain technology to keep track of title to property.
That hasn't been implemented as full yet as cryptocurrencies [00:51:00] but it's definitely
foreseeable. So I'll just say yes, I don't talk much about that in the book. I've got
my hands full with geographic jurisdictions but I think there's a lot of room for growth
and freedom in non-geographic special jurisdictions too.
Trevor: You discussed called 'Ulex' in the book, which I think you've drawn a very interesting
parallel which in ... open source coding and open source law. And you compare the U.S.
code, which is about as impenetrable as maybe Apple's [00:51:30] unattainable backend coding
for IOS or something, but the U.S. Code, the Administrative Law Code, all those things,
that's proprietary law and what we need is open source law. What do you mean by that
more specifically?
Tom: I guess the best way to explain this is use an analogy with computer science and
its history, really quickly. So because coding is coding, right? Computer programmers write
rules and it tells computers what to do and legislators write rules and it directs what
people do. I know people aren't digital chips but it's an analogy. [00:52:00] If you look
at the history of computing, they used to write an operating system uniquely for every
mainframe they built because every computer was the first one of its type. So they would
write an OS for it and they build another new computer and they write a new OS. These
are very simple machines and then at Bell Labs in 1970, they came out with a very clever
idea, "Why don't we write an operating system that you can use across computers?" And governments
are just now getting there. Governments are mostly back in the battle days of computing.
We've got the United States, we write here an OS for the United [00:52:30] States. Well
here, we're in Canada and we write an OS for Canada and every nation state has its own
OS. Most of them. Places like Dubai, Hong Kong kind of import them, software from somewhere
else. In Dubai, they said the common law of England and Wales will dictate our financial
transactions in the Dubai International Financial Center. And that's why you've seen all those
skyscrapers go in the middle east there. So what Ulex does is it takes that evolution
one more step. Computers went from that, from operating [00:53:00] systems that operate
across computers to open source software. You got proprietary software, Microsoft Windows,
Apple's OS but open source software kinda lays open the code and says, "Here it is."
Anybody can read it, anyone can use it and download it, manipulate it and that's what
I've tried to do with Ulex. Collect a bunch of legal rules, lay them out ... I'll give
you an example, you wanna have contract law in your special jurisdiction, you can use
the Restatement (Second) of Contracts. This is put [00:53:30] out by the American Law
Institute, a private body not a government body and it basically sums up the common law
of contracts in this really neat little package. And I just took that off the shelf and plugged
it into my legal code for contracts. When I needed torts, I used the Restatement of
Torts. When I needed corporate law, I used the Model Commercial Business Association
Act, which is the majority rule in the United States. So basically Ulex tries to do for
governments what open source software like Linux, [00:54:00] which by the way is the
most popular OS in the world because it's on your android phones, Linux has done for
computers and smartphones.
Aaron: Do you think that we should eventually take that analogy even further, because it's
not just that open source software projects are, "Here's the source code. You can look
at it and do with what you want." But that the community can then contribute back into
the source code. So do you think that we should have legal systems where there's mechanisms
for people to change them? Should we turn our constitution [00:54:30] into a Wiki?
Tom: Absolutely. Absolutely. We should have something ... If you know about GitHub, people
play around with software on GitHub and it allows you to have a piece of software and
then people do little branching things and we'll, "You know I don't like this part I'm
gonna change it." And then people do variations on that and it's all documented very carefully
so you always know what version you're using, and yeah, I would like to see that. So the
idea is ... I've already got up to version 1.1 of Ulex, so the modifications have already
started happening, and I'd love to put it out there let maybe seasteaders say, "Well
we're gonna run Ulex here, but we need a little bit of maritime [00:55:00] laws." So we're
gonna do version 1.2 for seasteads and someone over here will say, "Well we wanna set up
in a civil law country of Ulex and we need to have special provisions 'cause we're used
to the civil law versus the common law." We're gonna do version 1.4, and they can do that
on their own. And I'd love that and they could adapt it just like Linux has adapted for different
platforms. Yes, that's exactly how it should go.
Trevor: So we look ... You want government to be updated, you want rules to get better.
You want it to be evolutionary, you wanna open source law, [00:55:30] you want people
to be able to try new things out, have right of exit. And I think a lot of skeptics would
look at this and say, "Who's gonna be doing this?" They're gonna be corporations and powerful
organizations are gonna be setting up special economic zones in Honduras or what you call
united space special economic zones, possibly throughout the United States. Sort of a version
of the Honduran one throughout the United States and a lot of people would say, "What's
gonna happen there is basically company towns of 1885." We're gonna have ... That's polycentric
[00:56:00] law. We're gonna have ... We're gonna go in and you're gonna be ruled by company
town or the company rules, only shop at the company store and it'll be oppressive because
the people will not be adequately represented, because they don't know they have adequate
options in the way ... to exit and all those problems still exist. So what would you say
to this idea that you're advocating what would be a more oppressive system?
Tom: I'd say it's a valid concern. I'm not one of these libertarians that say, "Well,
it's private. It'll be fine." No. I had examples in the book. I discussed Fordlandia, it was
a project by the Ford [00:56:30] Motor Company to create this huge development in the Amazon
Rainforest, a huge private city, utter disaster. Just 'cause probably people run in ... They're
people. They're the same as public servants, they can get things wrong. So valid concern,
what should we do about it? First notice it and then read the book. The whole third section
is about practice and I've worried about this myself and so I advocate a number of mechanisms
to avoid those problems. For example, citizen courts. We gotta set these organizations [00:57:00]
up so even if a corporation is running the town, when you have a fight against the corporation,
you don't got to their courts. You have an independent adjudicative body, freedom of
exit. You need to have ... Again, I'll say these are situations ... The governments have
invited these projects. I'm not saying get rid of governments, I'm saying work with governments.
So as in Honduras, they're gonna be looking over the fence at your saying, "What's going
on here?" If there's a human rights violation, you're gonna go to this other court.
We're gonna have this CAMP [00:57:30] acting as a board of trustees to oversee what you
do. You can't have your own criminal code, you can't throw people in jail because they
have the wrong religious. That's not in the Honduran criminal code. It's not a quick answer
because it's a hard complex problem but I think people of good will who are informed
can foresee these problems and safeguard against them. And because there'll be lots of experiments
going on, if one of them blows up like Fordlandia we go, "Whoa, let's not do that again. Let's
look at the successes and replicate those."
Aaron: So we talked a lot of theory [00:58:00] today. We've talked a lot about examples of
some of this theory in practice but maybe to close, could you tell us looking forward
the next 10 or 20 years, what most excites you in this area? Are there other particular
projects that you think will turn out really awesome or lead the way? Are there particular
changes in what governments are doing? Like what just fires you up about the notion of
[00:58:30] our next government?
Tom: Ooh, wow. I could go on and on about that. I will say keep your eyes open for the
Institute for Competitive Governance. Institute for Competitive Governance. It's a new organization
I've started up with some fellow travelers, which aims from an academic point of view
to studies, phenomena, encourage white papers, maybe we can work with Cato to do somethings.
So that's exciting to me as an academic. This is a whole new growth area. Like I said when
I first started researching this it was new to me, it was very exciting. I want other
academics, people who disagree with me. Please [00:59:00] to get into this and reveal things
to me and debate. I think that would be great. More concretely what do I foresee happening,
I hope the Honduran will happen. Right now we're in a tough spot in Honduras. There's
a lot of turmoil there. It's not unknown to Honduras, which is why they want these zones.
People in Honduras can see the way the rest of the world is run and they are in anguish
about the way their government is run and they wanna do it better.
They want a chance to do it better. So hopefully that will kick in and places like Honduras
will be like China. The people in Honduras are really suffering under their government
now, [00:59:30] like the people in China once did. If we can do for Honduras and other countries
who follow their example, what happened in China, wow that would be great. That's very
exciting. Seasteading, very exciting. There's a number of reasons I like seasteading. It's
kinda cool, kinda sci-fi, I like the ocean. People love it. They get so wrapped up in
these images of floating cities and I would like for their dreams to be realized. I think
sometimes they're widely unrealistic but I'm sure you could say that about a lot of my
works, so that's fine. I'm also interested in [01:00:00] some interesting financing models
that fellow travelers ... I can't say a lot about this yet 'cause we haven't gone public
but fellow travelers and I have been working on allowing for the use of ... I guess say
ICO type funding mechanisms for private governance projects.
So to give an example, the idea would be something like suppose you find Puerto Rico, that's
a place I've been looking at recently and you say, "Oh, they really need some help."
If they had something like a special economic zone in Puerto Rico, it could really help
them [01:00:30] out a lot. It's gonna take money to do that, maybe we could raise that
money publicly through an ICO process and if we had a big pool of money. Guess what?
Things happen when you have money that don't happen when you don't. If you could go to
the governments of Puerto Rico and the federal government and say, "Look at all these people
who have money they're willing to put into a special jurisdiction of Puerto Rico. You're
interested now, that would make things happen." That wasn't available to us in the past. These
new models of raising funds can let us tap a lot of people all over the [01:01:00] world
who would like this for both financial and ideological reasons to happen and money makes
things happen. So I wanna see that happen too.
Aaron: Free Thoughts is produced by Tess Terrible. If you enjoyed today's show, please rate and
review us on iTunes and if you'd like to learn more about libertarianism, find us on the
web at www.libertarianism.org.
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The Anti-Federalist Papers | Brutus 3 - Duration: 15:10.
To the Citizens of the State of New-York.
In the investigation of the constitution, under your consideration, great care should
be taken, that you do not form your opinions respecting it, from unimportant provisions,
or fallacious appearances.
On a careful examination, you will find, that many of its parts, of little moment, are well
formed; in these it has a specious resemblance of a free government—but this is not sufficient
to justify the adoption of it— the gilded pill, is often found to contain the most deadly
poison.
You are not however to expect, a perfect form of government, any more than to meet with
perfection in man: your views therefore, ought to be directed to the main pillars upon which
a free government is to rest; if these are well placed, on a foundation that will support
the superstructure, you should be satisfied, although the building may want a number of
ornaments, which, if your particular tastes were gratified, you would have added to it:
on the other hand. if the foundation is insecurely laid. and the main supports are wanting, or
not properly fixed, however the fabric may be decorated and adorned, you ought to reject
it.
Under these impressions, it has been my object to turn your attention to the principal defects
in this system.
I have attempted to shew, that a consolidation of this extensive continent, under one government,
for internal, as well as external purposes, which is evidently the tendency of this constitution,
cannot succeed, without a sacrifice of your liberties; and therefore that the attempt
is not only preposterous, but extremely dangerous; and I have shewn, independent of this, that
the plan is radically defective in a fundamental principle, which ought to be found in every
free government; to wit, a declaration of rights.
I shall now proceed to take a nearer view of this system, to examine its parts more
minutely, and shew that the powers are not properly deposited, for the security of public
liberty.
The first important object that presents itself in the organization of this government, is
the legislature. This is to be composed of two branches; the first to be called the general
assembly, and is to be chosen by the people of the respective states, in proportion to
the number of their inhabitants, and is to consist of sixty five members, with powers
in the legislature to encrease the number, not to exceed one for every thirty thousand
inhabitants. The second branch is to be called the senate, and is to consist of twenty-six
members, two of which are to be chosen by the legislatures of each of the states.
In the former of these there is an appearance of justice, in the appointment of its members—but
if the clause, which provides for this branch, be stripped of its ambiguity, it will be found
that there is really no equality of representation, even in this house.
The words are "representatives and direct taxes, shall be apportioned among the several
states, which may be included in this union, according to their respective numbers, which
shall be determined by adding to the whole number of free persons, including those bound
to service for a term of years, and excluding Indians not taxed, three fifths of all other
persons."— What a strange and unnecessary accumulation of words are here used to conceal
from the public eye. what might have been expressed in the following concise manner.
Representatives are to be proportioned among the states respectively, according to the
number of freemen and slaves inhabiting them, counting five slaves for three free men.
"In a free state." says the celebrated Montesquieu, "every man. who is supposed
to be a free agent, ought to be concerned in his own government. therefore the legislature
should reside in the whole body of the people, or their representatives." But it has never
been alledged that those who are not free agents, can, upon any rational principle,
have any thing to do in government, either by themselves or others. If they have no share
in government. why is the number of members in the assembly, to be increased on their
account? Is it because in some of the states, a considerable part of the property of the
inhabitants consists in a number of their fellow men, who are held in bondage, in defiance
of every idea of benevolence, justice, and religion, and contrary to all the principles
of liberty, which have been publickly avowed in the late glorious revolution? If this be
a just ground for representation, the horses in some of the states, and the oxen in others,
ought to be represented—for a great share of property in some of them. consists in these
animals; and they have as much controul over their owna ctions, as these poor unhappy creatures,
who are intended to be described in the above recited clause, by the words, "all other
persons." By this mode of apportionment, the representatives of the different parts
of the union, will be extremely unequal: in some of the southern states, the slaves are
nearly equal in number to the free men; and for all these slaves, they will be entitled
to a proportionate share in the legislature—this will give them an unreasonable weight in the
government, which can derive no additional strength, protection, nor defence from the
slaves, but the contrary. Why then should they be represented? What adds to the evil
is, that these states are to be permitted to continue the inhuman traffic of importing
slaves, until the year 1808—and for every cargo of these unhappy people, which unfeeling.
unprincipled, barbarous, and avaricious wretches, may tear from their country, friends and tender
connections, and bring into those states, they are to be rewarded by having an increase
of members in the general assembly.
There appears at the first view a manifest inconsistency, in the apportionment of representatives
in the senate, upon the plan of a consolidated government. On every principle of equity,
and propriety, representation in a government should be in exact proportion to the numbers,
or the aids afforded by the persons represented. How unreasonable, and unjust then is it, that
Delaware should have a representation in the senate, equal to Massachusetts, or Virginia?
The latter of which contains ten times her numbers, and is to contribute to the aid of
the general government in that proportion? This article of the constitution will appear
the more objectionable, if it is considered, that the powers vested in this branch of the
legislature are very extensive, and greatly surpass those lodged in the assembly, not
only for general purposes, but, in many instances, for the internal police of the states. The
other branch of the legislature, in which, if in either, a f[a]int spark of democracy
is to be found, should have been properly organized and established—but upon examination
you will find, that this branch does not possess the qualities of a just representation, and
that there is no kind of security, imperfect as it is, for its remaining in the hands of
the people.
It has been observed, that the happiness of society is the end of government— that every
free government is founded in compact: and that, because it is impracticable for the
whole community to assemble, or when assembled, to deliberate with wisdom, and decide with
dispatch, the mode of legislating by representation was devised.
The very term, representative, implies, that the person or body chosen for this purpose,
should resemble those who appoint them—a representation of the people of America, if
it be a true one, must be like the people. It ought to be so constituted, that a person,
who is a stranger to the country, might be able to form a just idea of their character,
by knowing that of their representatives. They are the sign—the people are the thing
signified. It is absurd to speak of one thing being the representative of another, upon
any other principle. The ground and reason of representation, in a free government, implies
the same thing. Society instituted government to promote the happiness of the whole, and
this is the great end always in view in the delegation of powers. It must then have been
intended, that those who are placed instead of the people, should possess their sentiments
and feelings, and be governed by their interests, or, in other words, should bear the strongest
resemblance of those in whose room they are substituted. It is obvious, that for an assembly
to be a true likeness of the people of any country, they must be considerably numerous.—One
man. or a few men, cannot possibly represent the feelings, opinions, and characters of
a great multitude. In this respect, the new constitution is radically defective.—The
house of assembly, which is intended as a representation of the people of America, will
not, nor cannot, in the nature of things, be a proper one—sixty-five men cannot be
found in the United States, who hold the sentiments, possess the feelings, or are acqainted with
the wants and interests of this vast country. This extensive continent is made up of a number
of different classes of people; and to have a proper representation of them, each class
ought to have an opportunity of choosing their best informed men for the purpose; but this
cannot possibly be the case in so small a number. The state of New-York, on the present
apportionment, will send six members to the assembly: I will venture to affirm, that number
cannot be found in the state, who will bear a just resemblance to the several classes
of people who compose it. In this assembly, the farmer, merchant, mecanick. and other
various orders of people, ought to be represented according to their respective weight and numbers;
and the representatives ought to be intimately acquainted with the wants, understand the
interests of the several orders in the society, and feel a proper sense and becoming zeal
to promote their prosperity. I cannot conceive that any six men in this state can be found
properly qualified in these respects to discharge such important duties: but supposing it possible
to find them, is there the least degree of probability that the choice of the people
will fall upon such men? According to the common course of human affairs, the natural
aristocracy of the country will be elected. Wealth always creates influence, and this
is generally much increased by large family connections: this class in society will for
ever have a great number of dependents; besides, they will always favour each other—it is
their interest to combine—they will therefore constantly unite their efforts to procure
men of their own rank to be elected—they will concenter all their force in every part
of the state into one point, and by acting together, will most generally carry their
election. It is probable, that but few of the merchants, and those the most opulent
and ambitious, will have a representation from their body—few of them are characters
sufficiently conspicuous to attract the notice of the electors of the state in so limited
a representation. The great body of the yeomen of the country cannot expect any of their
order in this assembly— the station will be too elevated for them to aspire to—the
distance between the people and their representatives, will be so very great, that there is no probability
that a farmer, however respectable, will be chosen—the mechanicks of every branch, must
expect to be excluded from a seat in this Body— It will and must be esteemed a station
too high and exalted to be filled by any but the first men in the state, in point of fortune;
so that in reality there will be no part of the people represented, but the rich, even
in that branch of the legislature, which is called the democratic.—The well born, and
highest orders in life, as they term themselves, will be ignorant of the sentiments of the
midling class of citizens, strangers to their ability, wants, and difficulties, and void
of sympathy, and fellow feeling. This branch of the legislature will not only be an imperfect
representation, but there will be no security in so small a body, against bribery, and corruption—It
will consist at first, of sixty-five, and can never exceed one for every thirty thousand
inhabitants; a majority of these, that is, thirty-three, are a quorum, and a majority
of which, or seventeen, may pass any law—so that twenty-five men, will have the power
to give away all the property of the citizens of these states—what security therefore
can there be for the people, where their liberties and property are at the disposal of so few
men? It will literally be a government in the hands of the few to oppress and plunder
the many. You may conclude with a great degree of certainty, that it, like all others of
a similar nature, will be managed by influence and corruption, and that the period is not
far distant, when this will be the case, if it should be adopted; for even now there are
some among us, whose characters stand high in the public estimation, and who have had
a principal agency in framing this constitution, who do not scruple to say, that this is the
only practicable mode of governing a people, who think with that degree of freedom which
the Americans do—this government will have in their gift a vast number of offices of
great honor and emolument. The members of the legislature are not excluded from appointments;
and twenty-five of them, as the case may be, being secured, any measure may be carried.
The rulers of this country must be composed of very different materials from those of
any other, of which history gives us any account, if the majority of the legislature are not,
before many years, entirely at the devotion of the executive – and these states will
soon be under the absolute domination of one, or a few, with the fallacious appearance of
being governed by men of their own election.
The more I reflect on this subject, the more firmly am I persuaded, that the representation
is merely nominal—a mere burlesque; and that no security is provided against corruption
and undue influence. No free people on earth, who have elected persons to legislate for
them, ever reposed that confidence in so small a number. The British house of commons consists
of five hundred and fifty-eight members; the number of inhabitants in Great-Britain, is
computed at eight millions—this gives one member for a little more than fourteen thousand,
which exceeds double the proportion this country can ever have: and yet we require a larger
representation in proportion to our numbers, than Great-Britain, because this country is
much more extensive, and differs more in its productions, interests, manners, and habits.
The democratic branch of the legislatures of the several states in the union consists,
I believe at present, of near two thousand; and this number was not thought too large
for the security of liberty by the framers of our state constitutions: some of the states
may have erred in this respect, but the difference between two thousand, and sixty-five, is so
very great, that it will bear no comparison.
Other objections offer themselves against this part of the constitution— I shall reserve
them for a future paper, when I shall shew, defective as this representation is, no security
is provided, that even this shadow of the right, will remain with
the people.
-------------------------------------------
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