Topic: Liberty
Second Authority: A Proposal for Restraining Government What to do when a government -- the First Authority -- exceeds its constitutional bounds or infringes natural human rights.by Hamilton
(libertarian)
Tuesday, November 25, 2008
Suppose, as many people do, that government infringes our Natural Rights when it prevents us from bearing defensive arms or when it taxes our personal property. We are justified in resisting any violation of our rights, but at what point has our government violated us, and how can we resist?
Legislators can pass unjust laws, which judges can uphold. Governments can convene and order that laws and judgments be applied. But this is nothing more than theater until one person takes action against another on the authority of these governments. No infringement occurs until an Executor takes action to unjustly deprive a man of his liberty or property. (This Executor could be a police officer, sheriff's deputy, marshal, soldier, or any other federal agent with state authorization to take from another person.)
The Executor who seizes a man's property, obstructs his way, or imprisons him can be the only real violator of that man's Natural Rights. The Executor might appeal to the authority of the government that employs him, but that does not absolve him of guilt should he execute an unjust act. After all, government is effectively an entity for laundering personal accountability. A judge can claim that he was only applying the law. A legislature can claim that it is merely enacting the will of the people. The people who pay to support the government could claim that they did so under duress. Hence who, if not the particular Executor, is responsible for a violation of rights committed at the end of this chain of authority?
Granted we can't just condemn the Executor out of hand: There are legitimate laws, and they must be enforced. Common Law does not allow a single man to be legislator, prosecutor, and judge. Nor are there many judges with the means to execute their own judgments. So we must agree that there will be legitimate judgments, and that Executors acting on those judgments do not violate Natural Rights. Indeed, they are essential to securing our rights.
The problem is that even the most capable Executor cannot be held accountable for the entire chain of government. He cannot scrutinize the law and its application in every case he is called to execute. A deputy sent to seize a man for unlawfully brandishing arms cannot determine whether brandishing can be legitimately proscribed in certain conditions, and whether those conditions were met by one particular individual in one particular case. Hence, the deputy can absolve himself of guilt if he has reasonable grounds for trusting in the legitimacy of the government that gave him the warrant he is sent to execute.
Therefore, it is at the point of execution that we must intervene to preserve Natural Rights: We must produce a credible authority to call into question the legitimacy of a warrant for execution. Only after being confronted with a second warrant invalidating the first can an Executor be held accountable for choosing to disregard the second and take action on the authority of the first.
The Second Authority
Let us call this imaginary institution --capable of calling into question the warrants of a government -- a "Second Authority." From whence can a Second Authority draw its legitimacy? Only from the same place as the first: The People, acting in accordance with Natural Rights and Common Law.
Our existing government may assert that it has sole claim on the allegiance of The People after all, we each have an equal right to participate in the First Authority. This is a fallacious claim: Participation in a government does not equal allegiance, nor does democracy necessarily confer legitimacy. Individuals may participate in a government under duress, or merely in an attempt to minimize the infringement of their rights. And the fact that a large body even a majority chooses to infringe someone's Natural Rights does notjustify that infringement.
For example, The People could constitute a government designed to each year take 50% of the property of the most wealthy 1% and distribute it equally to everyone in the country. That government could garner the allegiance and support of 99% of The People. But this popular support does not make the government legitimate: Its activity violates the Natural Rights of the wealthy 1% to be secure in their property. Now, when the Executors of this government go out in the spring to tax the 1%, they will cite the authority of the government. With what authority can the 1% resist these Executors? Unless they create a Second Authority to present warrants, grounded in Natural Rights and Common Law, they can't very well invalidate the government with personal appeals. After all, most individuals protest when the Executors show up to carry out the law, legitimate or not.
Suppose the 1% actually create a Second Authority: They constitute an organization designed to review the warrants of other governments and, following basic principles of Common Law, invalidate those that violate Natural Rights. They sign their names to a Second Authority charter and voluntarily pay from their own wealth to support its operation. Thus, this Second Authority could spring to life, rooted in the same principles and endowedwith the same legitimacy as the First.
Chances are that initially this Second Authority would not be widely respected. It may have to be prepared to back up its authority with physical force. However, it does enjoy certain economies over the First Authority whose abuses brought it to life: Since the Second Authority's only activities are defensive it nullifies warrants and then only needs to prevent Executors from acting against its nullification it would not be far-fetched for it to contract with private companies to provide paramilitary defense: I.e., to deter Executors from acting illegally, and to recover stolen property and break people out of prison who are victims of unjust Execution. With a sufficient force it wouldn't take too many confrontations before government agents would choose to stand aside, just like local police now choose to submit to sheriffs, state police, and federal agents in turn -- especially since any member of those First Authority agencies could also be allied with the Second Authority.
Such a paramilitary protection organization is not unprecedented. Our own governmenttolerates private security guards, and evenharbors private contractors who go into other countries to protect and recover peopleunder both government and private contracts. There are certainly many Americans who would pay over a large portion of their assets each year for protection against the illegitimate activities of the IRS, or against any government agents who would fine or jail them for responsibly carrying defensive arms. Our current government has made such an arrangement not only attractive but quite easy: With marginal tax rates upwards of 40%, and supposing that few if any of the personal federal taxes are legitimate, it would not take a large number of individuals to fund a Second Authority capable of establishing itself with force. For something like a one-time fee of 10% of assets for perpetual protection, or an annual assessment of 2% for ongoing protection, the Second Authority could establish a military to rival the National Guard, yet such fees are trivial compared to the taxes an individual would save.
Objections
I am not advocating anarchy: Our existing government would still be able to assess corporate sales taxes to protect commerce, fuel taxes to support transportation infrastructure, import taxes to support national defense, and excise taxes sufficient to carry out all of the other government activities enumerated in our Constitution.
I am not advocating subversion ofthe United States Constitution. Nothing here subverts the principles upon which our nation was founded. Many good Americans have sworn to support and uphold the Constitution, and since our Natural Rights are embodied and defended in thatdocument they can in good conscience support and defend a Second Authority dedicated to the protection of those principles.
Note also that many other political ideologies are entirely incompatible with this: Communism, Fascism, or Totalitarianism could attain nostatus as Second Authorities in this country because our patriots have sworn their lives to defend us against such ideologies. Thus, this is a recipe for neither anarchy nor subversion of the principles of our republic. A Second Authority's only role would be to staunch the perversion of our constitutional principles by a government (First Authority) with unbridled tendencies towards overreach.
Second Authorities only emerge when the First Authority oversteps its bounds. Otherwise there is no motive for their existence. We do not need to worry about competing Second Authorities because a Second Authority can only legitimately exist to check the power of a First Authority. It is conceivable that every man with an ax to grind will attempt to create his own Second Authority. However, like the First Authority, a Second only acquires real authority through the allegiance of large numbers of The People, andfealty to the principles of the First. For example,even with large popular support a Communist movement in America cannot gain traction as a Second Authority for two reasons:One, Communists do not respect the same Natural Rights as does the United States Constitution. Also, Communist principles (the taking of individual property for communal benefit) cannot be applied by aSecond Authority because it can only invalidate the actions of a First. Likewise, an Anarchist Authority could not gain traction because its principles clash with our Constitution: If it tried to invalidate warrants that are clearly essential to securing the liberty and property of individuals, it would quickly lose credibility and be ignored. If it tried to enforce its warrants it would be squashed by American Patriots -- violently, if necessary.
In practice, when a Second Authority of the type described here ruled that a government entity has overstepped its bounds, I believe that most Americans would,if not embrace the ruling, at least acquiesce. Itis hard to imagine significant numbers of Americans supporting violent battles to collect income taxes or to disarm peaceable citizens. And if they did support violence towards these ends, at least we would have an end to the charade of being free people who respect the Constitution and our Natural Rights.
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Hi Hamilton, there is a basic inconsistency in your argument that I thought might be pointed out. In the second para, you state "this is nothing more than theater until one person takes action against another....". then under 'Objections' you mention that other political "Ideologies" could not attain status as "Second Authorities". It is not possible to take action through an Ideology, which is only an idea. Unless you propose a totalitarian "second authority", freedom of ideas would be permitted.
Absolutely right. Let me clarify this terminology.
Define Authority as Ideology + Institutions + Action.
We use the word "government" or "regime" to describe the First Authority that dominates a society and typically asserts exclusive authority. I.e., governments typically reserve to themselves the right to engage in Actions that abridge or infringe the rights on individuals.
Practically speaking, any ideology can establish itself as an Authority by employing organization and force in the service of its ideas.
The Second Authority I propose is a special type of Authority with one essential qualification: It will only take action to obstruct or ameliorate the action of other agents (regardless of their authority). By its nature and constitution it cannot initiate unprovoked action.
I assert that this qualification, along with the fact that its ideology should be grounded in the U.S. Constitution, makes its emergence plausible in the United States of America: All of the U.S. First Authority agents take an oath to support and defend the Constitution. When the Second Authority credibly asserts that the First is acting in violation of the Constitution agents can in good conscience respect the conclusion of the second.
In contrast, an ideology that requires the application of unprovoked action can become an Authority (through the accretion of an organization and agents willing to take action), but it does not meet the criterion of the Second Authority.
I like your conclusion. It reminds me of Rothbard (For a New Liberty, p.237):
There is another vital consideration that would make it almost impossible for an outlaw police force to commit anything like the banditry that modern governments practice. One of the crucial factors that permits governments to do the monstrous things they habitually do is the sense of legitimacy on the part of the stupefied public. The average citizen may not like — may even strongly object to — the policies and exactions of his government. But he has been imbued with the idea — carefully indoctrinated by centuries of governmental propaganda — that the government is his legitimate sovereign, and that it would be wicked or mad to refuse to obey its dictates. It is this sense of legitimacy that the State's intellectuals have fostered over the ages, aided and abetted by all the trappings of legitimacy: flags, rituals, ceremonies, awards, constitutions, etc. A bandit gang — even if all the police forces conspired together into one vast gang — could never command such legitimacy. The public would consider them purely bandits; their extortions and tributes would never be considered legitimate though onerous "taxes," to be paid automatically. The public would quickly resist these illegitimate demands and the bandits would be resisted and overthrown. Once the public had tasted the joys, prosperity, freedom, and efficiency of a libertarian, State-less society, it would be almost impossible for a State to fasten itself upon them once again. Once freedom has been fully enjoyed, it is no easy task to force people to give it up.
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