This is a map of the 48
contiguous United States of America, in a situation in which each state
has just begun to expand its market reach into territories which will
have formerly been exclusively governed by their neighboring states.
During this transition, where there are now interstate borders, there
would be territories in which individuals or communities would be free
to choose whether to submit the disputes which arise amongst them to be
arbitrated by the judicial system of to two or more states; essentially,
to choose their government.
The next stage of transition into panarchy would involve the
continued expansion of the states' market reaches - in proportion with
each state's fiscal and infrastructural ability to gradually expand
their market reach into new areas - to include the entire areas which
comprise the states which are their neighbors.
Areas in which multiple arbitrators or governments are available to
consumers of justice are said to lie within overlapping jurisdictions.
This phrase relates to the name of a formulation of panarchy called
Functional, Overlapping, and Competing Jurisdictions, which was proposed
by Austrian political scientist and social democrat Bruno Frey and
Reiner Eichenberger.
Panarchy is diametrically opposed to - and the antithesis of - statism (at least as it is defined by Max Weber in his essay
Politics as a Vocation).
The goal of panarchy is to provide for the abolition of statism; that
is, the abolition of local (or territorial) monopoly on legitimate
violence.
This requires that within every area, there be at least two
governments (or arbitrators) competing to provide a better quality of
justice to citizens (the consumers of justice), so that no agency
providing justice may require people to always submit their disputes to
it, and so that no such agency may prohibit others from going into
competition with it.
As long as we classify provision of justice, security,
and other government services as commercial business activity, then we
should construe the Interstate Commerce Clause to apply to such
activity, so that the Sherman Antitrust Act obligates the federal
government to intervene (constitutionally) in interstate commerce in
order to abolish the states' local monopolies on the sale of justice,
security, and other goods and services, and to abolish their local
monopsonies on the purchase of certain goods and services on the behalf
of citizens, the single-payer (i.e., monopsonistic)
health insurance system as an example.
All this begs three questions about the relationship between the federal government and the states:
1) Federal and local government
wield some influence within the states. How is that monopoly? Don't the
states compete with the federal government to make good policy?
Since the establishment of the states (earlier, colonies) began,
states were organized as wielding local monopolies over second-level
administrative jurisdiction (states are considered to be second-level
administrative divisions, while nations and federal governments are
first-level administrative divisions), within the local monopolies over
first-level administrative jurisdiction, which was wielded first by the
United Kingdom and then by the United States.
Also, county and local governments wield local monopolies over their
respective levels of administrative jurisdiction. This means that states
are not sovereign (independent), but suzerain; that is, submissive to
the federal government. This is to say that the states' monopolies are
dependent on - and framed and bounded by the extent of - the national
monopoly.
This is not a state of perfect competition, imperfect competition, or
even oligopoly, but a system of local territorial monopolies which are
subsidiaries of the larger territorial monopolies which bound,
condition, and constrain them. A system of subsidiary monopolies is
nothing more than a monopoly with a hierarchy.
Under dual federalism, the states and the federal government are
regarded as co-equal sovereigns (supreme within in their respective,
constitutionally-delineated spheres of policy influence) and the states
and federal government make policies separately but more or less
equally.
Dual federalism favors a situation in which states compete with the
federal government to make good policy more than cooperative federalism
does. But dual federalism does not support state sovereignty; only the
right of the states to nullify federal laws which unconstitutionally
transfer the authority of the states to the federal government (often
through executive orders and executive branch expansions).
Confederationism supports state sovereignty; dual federalism
instead supports well-delineated boundaries between federal and state
policy territory (or political territory, or functional jurisdiction).
The states cannot be said to truly compete with the federal government
to make good policy. There are many government
programs
which are jointly run and funded by governmental agencies operating at
more than one administrative jurisdictional level; this is not
competition but coordination and cooperation.
Also, under cooperative federalism (the federal system which we have
apparently decided is better than dual federalism), multiple levels of
government cooperate to solve common policy problems collectively. These
days, under cooperative federalism, the Tenth Amendment (the
nullification or states' rights amendment) is largely ignored (at least
by the administration which currently controls the executive branch and
the Senate), and its supporters vilified and ridiculed.
While cooperative federalism can promote coordination between
different levels of government, it is not very useful in promoting
political competition, except in that it allows voices from multiple
levels of administrative jurisdiction to be heard. We might be inclined
to liken this arrangement to competition across levels, but it is
competition only in theory and ideology, and not in practice, because
this cooperation is directed at implementing a single universal policy
rather than simultaneous experiments in policy conducted in different
territories.
Additionally, cooperative federalism has for the most part been
subsumed and replaced by idea that the federal government is supposed to
direct and order the states and their subsidiaries (directed and
ordered by the states) to act in accordance with whatever set of
policies have been deemed by the executive branch of the federal
government to be in the interest of the general (read as "vague", not
"universal") welfare of the nation at large. Essentially, that the Tenth
Amendment is no longer in effect, and that.the federal government has
the right to force a state to violate the Constitution that balances
state and federal power and keeps the nation's governmental structure together.
We may see the federal government backing off of the states on the
issues of legalizing the medicinal and recreational uses of cannabis,
and gay marriage, and it is true that in the Obamacare decision we saw
the Supreme Court enjoin the federal government from withdrawing Medicare subsidies from states which do not increase medical welfare for the poor.
This may suggest that dual federalism is still considered legitimate to some degree
in modern constitutional law, but this small degree of dual federalism
does not remotely approach a situation of full competition in
government. Also, these popular policy issues distract from more
fundamental questions pertaining to competition and government
structure, such as "Whom shall arbitrate disputes?" and "How may dispute
resolution be conducted voluntarily?"
2) What is the proper relationship between the federal government and the states under panarchy?
The only federal arrangements which would allow for real competition
(i.e., competition in practice, not just in theory and speech and
potential) would be the dual federalist, triple federalist, or other
multiple-federalist systems, and even then, individuals would choose
independently which level of government have jurisdiction over them and
arbitrate their disputes.
In such an arrangement (a transitional state between dual federalism
and panarchy), individuals would choose independently whether this or
that level of government governs them for some case or for some period
of time. For example, a person could subscribe to only the local or
county government; to only the state or federal government; to two or
three thereof; to all four, or to none thereof
However, individuals are not free to choose independently which level(s) of government apply
to them. Section I of Amendment XIV to the U.S. Constitution reads,
“All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside.”
Many libertarian, originalist, and textualist scholars of constitutional law are apt to criticize Section I of the 14
th
Amendment because it causes citizens of the states to additionally
become citizens of the federal government, and because the law and the
manner in which it became the law are constitutionally and procedurally
questionable.
The main problem of this is that support of the 14
th
Amendment typically comes with a defense of the idea that the amendment
somehow subverts the states to the federal government; that it sets up a
power structure wherein the citizen is subjugated to the states, which in turn are subjugated to the federal government.
If in a system of voluntary accession to government(s) on an
individual basis, a person chose to become subject to both the state and
federal government – or any group of governments from among the various
levels of administrative division – such agencies' authority could only
reasonably apply to the same person if there were no conflict of interest between them.
The dispute between the states and the federal government regarding the 10
th
Amendment is precisely the conflict of interest which is threatened by a
federal government which neglects the need for a clear constitutional
delineation between what is the functional jurisdiction of the state
government and what is the political territory of the federal
government.
This is especially problematic because – being that the purposes of the 14
th
Amendment include to authorize the federal government to prevent the
states from making or enforcing laws which abridge the privileges or
immunities associated with federal citizenship – the 14
th
Amendment is intended to empower to the federal government to address
inequalities in legal protections (un-“equal protection of the laws”
which arise across states, and there are many ways to show that the
federal government has invoked the 14
th Amendment and the
Commerce Clause in order to justify undue obstructive intervention in
interstate commerce rather than to keep interstate commerce regular,
i.e., free from inhibitions and interruptions.
All of this presents a problem to constitutional scholars, because
the federal government is only supposed to wield exclusive jurisdiction
within the District of Columbia and the overseas territories; however,
it has come to wield something resembling exclusive jurisdiction over
the states through its administration of vast swaths of state lands
(around 90% of the land area of some western states are administered by
the federal government) for natural resource protection purposes,
through its neglect of the 10
th Amendment, and through the 17
th Amendment which shifted the responsibility to elect U.S. Senators from the state houses to the people.
However, Section I of the 14
th Amendment does not, in
fact, subvert the states and the people thereof to the federal
government; rather, it provides that citizens of states only become
“subject to the jurisdiction” of the federal government if individuals
willingly subject themselves to the federal government.
Although the following fact is not well publicized and considered
dangerous and discussion of it treasonous, individuals may
constitutionally renounce their federal citizenship and become citizens
only of the states in which they reside. However, today the federal
government maintains that a person may only renounce his U.S.
citizenship (without committing treason) if he is at a U.S. embassy in a
foreign country in which he intends to become a citizen.
But there are constitutional scholars who would point to the fact
that in 2009 the federal government confirmed that Article I of the 1783
Treaty of Paris – in which the American colonists and the British
acknowledged the right of the states to be “free, independent, and
sovereign” - was the only article of the treaty which was still in
affect; these scholars would argue that the states and the federal
government are to be construed as nations which are foreign to one
another, which would suggest that a U.S. citizen may renounce his
federal citizenship and retain his state citizenship as long as he were
to do so at a federal office established as a federal diplomatic office
in a state.
To answer the original question, the proper relationship between the
federal government and the states is for neither to exist as a
geographic entity which wields exclusive jurisdiction. The proper
relationship between
governmental agencies at the various levels of administrative divisions,
however, is to perfectly align themselves with some of the other levels
of government, and to permit other levels of government to be different
from them.
But to focus on this is to ignore the need to ask why various levels
of administrative divisions would be necessary in the first place, when
utilizing the various other types and modes of social organizations to
deliver goods and services currently provided inefficiently by
government remains an option (this will be discussed).
This would provide for individual freedom to choose to have one's
disputes resolved by zero, one, or multiple governments, multiple
governments being possible because governments which perfectly align and
jointly govern citizens would have had their conflicts of interest
resolved.
Additionally – insofar as we are promoting the need for various
levels of administrative division, and speaking within the context of
currently existing federalism as it develops into panarchy – the most
important role the federal government should play is to provide a
solution in areas in the states which most severely lack competition (i.e., choice from
among several available alternative governments which would actually
govern individuals
in practice, rather than solely existing in
potential as a minority vote within a majoritarian system) in interstate
provision of governmental goods and services (as commercial business
activity).
To be explicit and to use a concrete example: suppose that you lived
in the center of the state of Wyoming, and the nationwide transition to
panarchy had just recently begun. In such a situation, the state
governments of Montana, South Dakota, Nebraska, Colorado, Utah, and
Idaho would only just recently have begun to offer dispute resolution
and other government services to persons living and
traveling
in Wyoming, so you could not reasonably expect the government service
providers in those states to be immediately available in your remote
location in Wyoming.
Only with efficient utilization of and improvements to governmental
commercial infrastructure can such expansions in market reach become
possible. But the federal government – which has long had offices in and
relations with Wyoming – is already established there, so its services
should substitute as the single alternative to the Wyoming state
government until such time as local and interstate alternatives become
available.
This state of affairs would ensure that more than one alternative is
available, and this will promote competition as long as neither federal
nor state government prohibit such alternatives from competing, and as
long as federal and state government do not collude to keep such
competitors out of the government marketplace. Basically, the federal
government should come in to offer alternatives, not orders and
mandates.
3) This proposal invites the federal government to
intervene in the states' affairs, and invites the federal and local
governments to compete with the states within the territories over which
the states are supposed to wield exclusive jurisdiction. How can you
defend this as a constitutional proposal when it undermines state
sovereignty?
This proposal does not authorize the federal government to intervene
in the states' affairs; only to obligate the federal government to
assume the authority contained in the Interstate Commerce Clause of the
Constitution, i.e., to regulate interstate commerce (insofar as
provision of goods and services by government is commercial activity.
That is, the federal government has the authority to keep
governmental commerce between the states regular, meaning free from
inhibitions and interruptions. I argue that exclusive territorial
jurisdiction of any kind constitutes an inhibition and interruption of
interstate governmental commerce which can only be constitutionally
resolved by the federal government, acting on the authority given to it
by the Sherman Antitrust Act.
However, the federal government has not yet contended with the idea
that government services should be considered commercial business
activity, and it is for this reason that the existence and actions of
the federal government have served only to entrench the hierarchical
system of monopolies which are subjugated to one another, rather than to
promote a competitive market in governance.
This proposal may invite the federal government into the states'
affairs, but such invitation can be done without violating 1) the
libertarian, originalist, and textualist views of the Interstate
Commerce Clause of – and the 10
th Amendment to - the Constitution, and the Sherman Antitrust Act; 2) the conditions required for a perfect and complete
system of markets; and 3) the conditions necessary for a system of
justice (namely, that no arbitrator of disputes be permitted to require
others to always come to it in order to resolve their disputes, because
that arbitrator – which could simultaneously be judge and defendant –
could not be trusted to rule against itself when it is in the wrong).
While the United States of America may have begun as a confederation,
since 1787 there has been a federal government which has constitutional
powers. This is not to say that states' rights to nullify federal law
do not exist; they exist, however the states are not sovereign. On the
contrary, the federal government and the state governments are
“co-equally sovereign” in their respective, constitutionally-delineated
spheres of political influence on the various activities and industries.
Furthermore, the idea of sovereignty (alternatively: statism, local
monopoly on legitimate violence, exclusive dominion) – in addition to
the related ideas of suzerainty and co-equal sovereignty - stands in
direct opposition to the notion of a free and competitive market to
provide good governance to individuals and communities who have the
freedom to choose which agency or agencies resolve their disputes and
provide them with justice, security, and other goods and services customarily provided by government.
Also, sovereignty and its variants are monopolistic, oligopolistic,
monopsonistic, and oligopsonistic; they favor situations in which single
and few buyers and sellers exist, which distorts the calculation of
prices such that price, cost, supply, and demand can be easily
manipulated by those who wield the ability to influence market prices,
due to their purchasing power and their willingness to use coercion to affect the market.
Sovereignty is literally the right of governments to threaten
individuals, enterprises, and other organizations to purchase or sell
goods and services at some price determined unilaterally by the
sovereign. State sovereignty, the federal-over-state structure, and all
other forms and variations of sovereignty are exclusive dominion over
people, businesses, and resources.
It is ownership of people and things; human ownership, chattel and
political and debt slavery, involuntary servitude, choiceless accession –
subjugation – to political contractual “agreement”/ It is a
system that can trap a man in a prison of a land – and deprive him of
his natural freedom of travel - for committing a victimless crime.
It is a system in which a man can be condemned to death within an appeals process system that
ends.
The system of checks and balances of the current federal system stands
in direct contrast to a private system of courts in which there would be
a potentially infinite series of appeals, because in such a system the
parties to disputes would submit their dispute to be resolved by some
mutually chosen arbitrator which is neutral and has no vested interest
in the outcome of the resolution of the dispute.
A ban on monopolies – sovereign entities (that is, governments) included –
as monopolization is a fundamental transgression of the rules of a perfectly and completely competitive system of markets would
provide that no state could exist which could compel parties to
disputes to come to it for resolution, nor to prohibit parties to
disputes from choosing to have their disputes resolved by some entity
other than the local sovereign.
At this point, it should be
clear that the proper way to constitutionally provide for a free-market
solution to the problem of statism (local monopoly on violence, and on
dispute resolution) in the United States – at least insofar as we are
talking about the structure of the government – is to enable the various
levels of administrative divisions of government to compete against one
another to sell their goods and services to individual consumers (and
to voluntary communities and voluntary collectives) without regard to
their location, so that citizens may have political choice which can be
actualized in terms of materially affecting how they are governed,
rather than political choice which exists only in potential as a
minority within a majoritarian decision-making system.
Additionally, this solution involves explicitly authorizing the
federal government to regulate interstate governmental commerce; to keep
it regular and free from inhibitions and interruptions by providing
that potential competitors are not prohibited from going into
competition with one, several, or all of the local sovereign governments
and the agencies thereof.
However, there is one last issue which remains to be addressed. Let
us suppose that two neighbors live near what is now the border between
Wyoming and Montana, but which in a transition to panarchy would be a
territory in which the state governments of Wyoming and Montana – in
addition to the federal government, and the municipal and county
governments within those states - municipal, county, and federal
governments – would offer dispute resolution services.
If the neighbors got into a dispute, and one would choose to have his
disputes resolved by the government of the state of Wyoming, and the
other by Montana, then wouldn't those states have to submit their
dispute to the federal government? Wouldn't that result in a huge number
of cases which would normally be resolved by a single state to be
submitted to be resolved by the federal government?
In the current federal system, yes, a dispute arising between the
states of Wyoming and Montana would have to be resolved by the federal
government. But under panarchy, a dispute between those states would be
resolved by whichever neutral, independent third-party arbiter they
choose.
Of course, any municipal, county, or federal government which could
be chosen to resolve a dispute could be easily argued to have vested
interest in the outcome of the dispute resolution. This is to say that
any government which is now practicing statism and / or its variants
would be prohibited from providing government services, because their
presence makes competition impossible in practice, and for all of the
reasons discussed above.
But going back to the premise of how a dispute between two states
would play out during a transition to panarchy: yes, many cases which
would normally be resolved by a single state would clog the federal
court system. However, this presents us with an opportunity to ensure
that equal protection of the law is provided, and that the interests of
governments at various levels may be aligned if such governments and
their subscribers so choose.
In fact, not only would this alignment of interests achieve one of the goals of the 14
th
Amendment (and of cooperative federalism), it would serve to fulfill
(at least as far as the market for government is concerned) one of the
conditions for a perfectly and completely competitive system of markets,
which is homogenous products; that the qualities and characteristics of
a market good or service do not vary between different suppliers.
Simply put, increasing citizen choice in the market for good
government would increase the rate at which the federal government
resolves disputes between the states - and addresses inequalities in
legal protection which arise between the states - thus increasing the
homogeneity of justice provision. Problems arising from an excessive
amount of homogeneity of justice and other government goods and services
(problems such as mediocre standards of justice and rationing of
justice services) might be ameliorated in three ways.
1) By placing strict conditions for – or outright bans on – market
participation by governments having contributed to hierarchical and
oligopolistic conditions in the market for government
2) By exploiting what appears to be a loophole in the requirement
that a good or service be homogenous; that is, by allowing various sets
of government services to be “bundled” together (as in the “bundle” of
property rights), and allowing there to arise arrays of rights,
liberties, privileges, immunities, and responsibilities – in addition to
sets of functional (political) jurisdiction across administrative
divisions (or voluntary community or collective territories) - which are
offered as packages.
The sets which the markets prefer would become common, and -
eventually - standard and homogenous. But of course, imperfect
homogeneity would exist during the transition. Significant amounts of
research, development, and public information might mitigate this
problem.
3) Permitting any and all manners of social organizations and
societal institutions – be they individuals, enterprises, business
alliances, trade associations and organizations, consumers' groups,
social enterprise agencies, charity organizations, non-profit and
non-for-profit organizations, interest groups, unions, syndicates,
communities, cooperatives, cooperative corporations, guilds, mutuals, or
private communities – to come to offer to consumers the goods and
services which are now provided by states, in order to provide
alternatives to consumers where existing sovereign governments (which
are transgressors against the conditions for a free market and
competition in government, and which therefore ought to be disqualified
from selling something they cannot be rightfully be trusted to call real
justice) do not yet offer services.
“...it is in the
consumer's best interest that labor and trade remain free, because the
freedom of labor and of trade have as their necessary and permanent
result the maximum reduction of price... the interests of the consumer
of any commodity whatsoever should always prevail over the interests of
the producer... the production of security
should, in the interests of the consumers of this intangible commodity,
remain subject to the law of free competition... no government should
have the right to prevent another government from going into competition
with it, or to require consumers of security to come exclusively to it for this commodity.” - Gustave de Molinari, 1849
“Every contract, combination in the form of trust or otherwise, or
conspiracy, in restraint of trade or commerce among the several States,
or with foreign nations, is declared to be illegal. Every person who
shall monopolize, or attempt to monopolize, or combine or conspire with
any other person or persons, to monopolize any part of the trade or
commerce among the several States, or with foreign nations, shall be
deemed guilty of a felony.” - Sherman Antitrust Act, 1890
Originally Written and Published on October 26th, 2013
Edited on February 27th, 2019
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