So, my current best idea for building a libertarian State:
The State would consist of two levels of government (local districts and a national government), both governed by the same constitution. The whole structure would rely on the concept of enumerated powers limited by individual rights. Powers would be divided roughly as follows:
National Government
Chief Executive - Acts as CEO of the national government and commander in
chief of the national military. Responsible for the conduct of foreign
policy.
National Legislature - Does *not* have a general legislative power. It sets budgets, levies taxes, and votes on whether to accept treaties negotiated by the chief executive. It can review and annul laws passed by the Districts, but has very limited lawmaking abilities of its own (it can regulate international trade and travel, but nothing else). The legislature would only meet for a few months out of the year.
National Judiciary - A court system empowered to hear appeals from the
District courts, and to try cases involving national law (which is pretty
much limited to tax evasion and issues involving international trade). Any
court at the national level can strike down a law as unconstitutional, and
the supreme court also has the power to hear peremptory challenges to a law
(i.e. you don't have to wait until there is a trial going to challenge a
law).
District governments would follow the same pattern, except that their legislatures would have a general power to amend their criminal and civil codes. They would have no authority to regulate trade (except via taxes), or to fund public works.
Bill of Rights - The constitution would enumerate a significant body of rights that are to be protected against infringement, including both basic freedoms (of speech, property, association, travel and contract) and procedural rights (protection against self-incrimination, no ex post facto laws, and so on). The few allowable exceptions to these rights (i.e. military secrets in time of war) would be explicitly spelled out, and an absolutist interpretation would otherwise be encouraged.
In general, I think this pattern works for populations of up to several tens of millions (for a larger nation, add an intervening mechanism to allow groups of districts to be represented by a single individual in the national legislature). The key feature is that the Districts should be relatively small and fairly numerous, so that they effectively must compete for citizens and businesses. The national government has the power to restrain a District that tries to pass unconstitutional laws, but has little ability to pass such laws itself.
Now, obviously this is not an ideal society - we would still have taxes
(although they usually be very low), and the State would still have some
minimal ability to regulate our lives. However, it is far better than
anything that has ever actually existed, and we can see that it would be at
least as stable as any other form of government. With a bit of careful
attention to the details of how it is implemented, we could get something
substantially more stable than the original situation in the U.S. - which
means it will easily last longer than we are likely to need a human
government.
To my mind, the major advantage of anarcho-capitalism over this approach is that you would not have to move to a different area to change the laws you live under. From an ideological viewpoint it also has the advantage that PPA payments are in theory voluntary, while taxes are not (although in practice there is little difference, since not having any kind of legal protection is not a realistic option).
Can we agree on this much?
Billy Brown, MCSE+I
bbrown@conemsco.com