“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” – United States Declaration of Independence

The American Declaration of Independence is decidedly libertarian in its message. Individuals have certain inalienable rights. Governments exist to secure these rights. Not to rule. Not to create an elite of the governors over the governed. Not to have some privileged group lord it over others.

The Bill of Rights was more specific, itemizing these rights specifically. The right to freedom of the press, freedom of religion, freedom of speech and the right to peaceful assembly. The right to keep and bear arms. The right to be free from unreasonable search and seizure. The right to due process of law including the right to not be compelled to incriminate oneself, to be tried twice for the same offense or to be deprived of property without just compensation. The right to a speedy trial and to be entitled to defend oneself in court. The right to trial by jury. The right to bail, for fines not to be excessive, and to not be subject to cruel and unusual punishment. And the ninth and tenth amendments which provide that the enumeration of rights in the first eight amendments does not exhaust all rights and that powers not delegated to the federal or state governments are retained by the people.

Now there is the belief in some circles that the primary factor invalidating the American Constitution is the question of consent. Famously raised by Lysander Spooner in No Treason: The Constitution of No Authority, the argument goes that the Constitution is not binding unless you personally consent to it being so. That any agreements reached by our ancestors in no way binds us as well. This is the basis of the anarcho-capitalist position.

Another key element in the ancap position is the primacy of contract. Hans-Hermann Hoppe writes of covenant communities, communities of like minded people within an anarchist society that join together contractually to develop a community. That such covenants may “if we deem it beneficial, impose limitations on the future use that each of us is permitted to make with our property.” (Democracy: The God That Failed)

Are there any limitations on what these limitations may be? Hoppe specifies that they may include “contractual limitations on what he can do with his property (voluntary zoning), which might include residential versus commercial use, no buildings more than four stories high, no sale or rent to Jews, Germans, Catholics, homosexuals, Haitians, families with or without children, or smokers, for example.” He goes even further, postulating that a covenant community of family-oriented libertarians could and should show “no tolerance toward those habitually promoting lifestyles incompatible with this goal. They – the advocates of alternative, non-family and kin-centred lifestyles such as, for instance, individual hedonism, parasitism, nature-environment worship, homosexuality, or communism – will have to be physically removed from society.” And he goes on to support restricting free speech in a libertarian covenant community. “No such thing as a right to free (unlimited) speech exists,” he writes, specifically arguing that “there can be no tolerance toward democrats and communists in a libertarian social order”.

So a covenant community basically has no restrictions. Anything goes. Contract trumps individual rights. Lest there be any doubt, consider Walter Block’s position on voluntary slavery. He hypotheses about a man, let’s call him Fred, who has a sick child. He needs $5 million of medical care which he can’t afford. But a billionaire named Doug who has always had a thing for the idea of slavery, offers to pay for the medical care if Fred becomes his slave. The names are thrown in for convenience. The contract can be anything the two men decide on including periodic whippings and even killing the slave. (See interview at Liberty.me – about 16 minutes in.) So for Block at least, anything goes in a contract.

Could this voluntary slavery be done on a large scale through a covenant or contract? The implication from both Hoppe and Block is yes.

To be doubly sure on this, I sent Walter an email asking the following – “whether a society that on the surface is thoroughly anti-libertarian with restrictions on free speech, certain religious practices, drug use, porn, prostitution and other victimless crimes, and taxes, these rules determined by a ruling body of some sort, democratically elected or not, can be considered libertarian if it is a covenant community with binding covenants on its land binding the people living there to these draconian rules and regulations? Spooner’s basic objection to the Constitution was lack of consent. But if consent did exist, would it be a libertarian society, even though it is exactly the same society as before?”

Walter sent a terse and to the point reply. “Yes, your draconian society is compatible with libertarianism.”

So here we have it – a covenant society, according to these gentlemen, is to be considered a libertarian society no matter what its laws and what it does if the land on which the society sits is ruled by a covenant originally freely entered into. Such a covenant lasts forever since the conditions attach to the land, not the people on the land. (Just as an easement or a mineral right that is attached to a property is a covenant that continues when the property is sold.)

So while Spooner is right in that the Constitution isn’t binding because the current population under its purview didn’t voluntarily consent to it, if the framers of the Constitution had been smart enough to use covenants and contracts instead of a Constitution to impose these rules, well then, everything would be just hunky dory. There is nothing wrong with the Constitution, or democracy or any of the other trappings of the government if only those bozos had had the wit to secure it properly – by covenant.

Now let’s go one step further. Currently most libertarians, including ancaps, eschew violent revolution because of prudence. They don’t particularly care to die as martyrs against the vastly superior power of the state. But in theory, violent revolution is fully endorsed. One has the right to resist the state by any means available.

Now suppose we have in future ancap world, two adjacent communities. One is a covenant community, so it is a libertarian community. The other is not. The people who founded it were witless and didn’t bother to phrase their organizational structure in a covenant. They just adopted a democratic structure and had a Constitution which everyone agreed to. Bad, bad move.

The covenant community next door, after a few generations have passed so the original signatories are no longer alive, invokes Spooner. “That is a bastard government,” they cry. And so they assess their numbers and strength, and note that they have a vastly superior force at their disposal. “Hey,” suggests one wag, “let’s liberate those poor buggers next door!” So they declare war, a war to liberate the folks next door down-trodden by an inferior constitutional government, not the pure as the driven snow covenant community. And they do, inviting everyone who owns property to amend their deeds to include a covenant binding them forever to their free covenant community.

My friend Nathaniel Dutkevich wrote a guest blog some time ago defending the case for minarchism. In it he compares the private competing defense agencies espoused by anarcho-capitalists as “mini-governments”. “Anarchy does not ban force,” he goes on, “It’s for sale along with a lot of other things that are placed on a market, such as your individual rights.”

Dutkevich goes on to argue that the function of government is to protect individual rights and cites Hayek to the effect that codified rules over a specified geographic area provide an element of safety and security in the knowledge that laws will not be applied capriciously nor are they subject to change by whim. He argues that, “anarcho-capitalists mistakenly believe private law and private defense agencies are simply defending their individual rights, however, the implications run deeper: competing agencies, societies, laws, organizations, etc. all offering different niches on definitions and applications of force, retaliation, rights, and what freedom means.”

Further, he argues, “Anarchy takes a subjective stance on morality and the law. There is no objective morality and law.” Significantly he asks, “If anarchy promotes competing governments, is the entire world already in a state of market anarchy? Perhaps over the history of the world the anarcho-capitalist world has chosen statism? If an anarcho-capitalist nation choses democracy is it still anarcho-capitalist? If a large portion of an anarcho-capitalist nation chooses socialism is it still anarchy and capitalist?”

The answer to this is a resounding yes according to Hoppe and Block. “Yes, your draconian society is compatible with libertarianism,” says Block. Hoppe is open to censorship, and repressing gays, blacks, and poor people, or human trash as he calls them. He is open to restricting free speech so homosexualtiy, hedonism, democracy and communism cannot be discussed.

But they have gone beyond competing defense agencies to a more powerful mantra – contract and covenants that trump all other considerations. Covenants are created with consent and endure forever. Everyone is free to bind himself into slavery forever. These covenant communities are a more draconian form of mini-state than anyone envisioned.

Now a very wise man, George Orwell, once wrote a novel called 1984. In it, a totalitarian government reigns supreme in the country of Oceania. This state believes in total control. There is a slogan that governs this society.

War is Peace
Freedom is Slavery
Ignorance is Strength

The basis for these slogans is that it serves the ends of the state, to sustain and increase state power and control.

Anything-goes covenant communities bring Orwell’s nightmare to fruition. War is Peace because a covenant state, no matter how repressive, is entitled to take violent action against a supposedly repressive non-covenant community, no matter how libertarian. Freedom is Slavery – or more correctly, Slavery is Freedom, as long as it is voluntarily entered into. And Ignorance is Strength because hey, you don’t need to hear what those hedonists, nature worshippers, homosexuals, democrats and communists have to say.

Yeah baby! Anarchist paradise. A world of hundreds, maybe thousands of mini-states, all libertarian, no matter whether they embrace actual libertarian principles or Sharia law, or even fascism or communism, as long as the founders have the wit to frame everything at the beginning as a contractual covenant. As Nathaniel Dutkevich put it, “Anarchy takes a subjective stance on morality and the law. There is no objective morality and law.” Everything is tied to contract, which has no morality. Anything goes.

To the question that is the title of this essay. “Is consent enough for a society to be considered libertarian?” the answer is a resounding no.

Note: You can follow my writings at The Jolly Libertarian. I will post many of them simultaneously here.