Posted: January 5th, 2011 by Militant Libertarian
When one studies Montana’s constitution, something should become apparent—and perhaps alarming. That is, there is virtually no limit to the government’s power to pass and execute any law it deems right in its own discretion. The only limitations of government power expressed in Montana’s constitution are the Declaration of Rights (Article 2). While the Declaration of Rights contain some essential elements of maintaining a free society, students of political experience know that where government’s powers are not expressly limited, the natural tendency is for government to extend its powers however it pleases. Just look at the federal constitution and how it supposedly limits the federal government’s authority significantly; yet, Congress passes virtually any law it darn well pleases. This tendency is no different for state government, though admittedly, the purposes of state and federal government are strikingly different and distinguishable, the state rightly possessing much more power to regulate individual actions of its citizens. Still, no matter which government you are dealing with, appropriate limits should be expressed to ensure that individual freedom is protected from the tyranny of majority.
One such political jurist who discussed this subject of implementing adequate guards against the tyranny of the majority (which is executed by public authority) was John Stuart Mill, particularly in his thesis, On Liberty. Mill displays the problems with a government administered merely by the will of the majority, which in operation equates to the “will of the people”; all the while, the will of the minority becomes suppressed by the majority. This tyranny necessarily means the enforcement of laws passed by the majority. This danger formidably exists unless a clear principle of governance can be stated within the constitution itself. As such, Mill observes,
“there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose…its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compels all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence.”
To Mill, without an expressed principle of limitation upon government, the rule of the majority’s tyranny will become “more formidable than many kinds of political oppression.” In an effort to reveal a natural law limitation upon the force of society (i.e. government/rule by majority) against the individual’s natural and God-given independence, Mill expresses the following principle:
“That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others…[T]he conduct from which it is desired to deter him must be calculated toproduce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute.”
From a sociological standpoint, Mill’s premise behind this principle is that where humans have the capacity to think and do for themselves, their actions should not be compelled by force, unless their actions hurt others in society. So says Mill,
“As soon as mankind attained the capacity of being guided to their own improvement by conviction or persuasion…compulsion…is no longer admissible as a means to their own good, and justifiable only for the security of others.”
In contrast to the position that government has the power to regulate and punish “all pertaining to social act, habit, relation, subject only to a discretionary power vested in the State itself, and not in the individual, to be within it” the principle of limitation upon government requires that laws may punish individual actions which are calculated to hurt others.
So, what is to be said of a constitution which limits the power of the government to pass and execute laws only by virtue of a few reserved rights? And which does not limit the government’s power to criminalize actions which do no harm to others or property? A prime example of one such use of government power is Montana’s requirement that all persons obtain a license to drive a vehicle on all public highways and violation of the same is a crime, despite the long-held common law right to travel without government licensure. So says MCA 61-5-102:
“(1)(a) [A] person may not drive a motor vehicle upon a highway in this state unless the person has a valid Montana driver’s license. (b) [T]he penalty for a first violationof this section is a fine of not more than $500, imprisonment for not more than 6 months, or both a fine and imprisonment. The penalty for second and subsequent violations of this section is a fine of not more than $500 and imprisonment for not less than 2 days or more than 6 months.”
Admittedly, a persuasive constructive argument could be made that such a statute violates one or more of the inalienable rights which the citizens of Montana possess by nature and protected by Montana (and federal) constitution. Yet we know that most states have such a statute to comply with the federal government’s requirements to receive federal funding for road system improvement and more. (What the federal government cannot accomplish by force, it does so by bribery.) So, instead of comporting to the fundamental notions of individual freedom as protected against societal tyranny, State governments would rather trade freedom for money from the federal government (which of course is taken away from the States to begin with.)
Thankfully there are some state legislators who are trying to combat the manipulation of freedom’s principles by introducing bills such as the Right to Travel Act, as introduced by Rep. Bobby Franklin in Georgia. And while I commend the efforts of him and those like him, why not go to the root of the problem facilitating laws to be passed which violate the only-when-hurt principle? Why not propose a state constitution amendment such as:
“No law of any kind may be passed and executed in the State of Montana to make criminal or punish as criminal any action that does not cause damage or injury to a person or property.”
This type of constitutional provision seems to serve as a more adequate limitation on government to intrude upon the individual independence and autonomy of the citizen and would conform to the fundamental maxim that no action is a crime unless it actually and intentionally hurts a person or damages their property. It does more than require attorneys and citizens to have to construct creative arguments using the Declaration of Rights to limit the government’s virtually limitless power to pass and execute whatever laws it discretionarily chooses: it limits the government by express mandate and reduces the timely and expensive litigation on matters that should be fundamentally clear.
Is this principle acceptable and desirable to the people of Montana? If so, is there enough motivation in the minds and hearts of the people to use their power of initiative and referendum?
 John Stuart Mill, On Liberty, from Great Books of the Western World, (Chicago, IL, Encyclopedia Britannica, 1952), 269.
 Ibid., at 271 (emphasis added).
 Ibid., at 272.
 Ibid., at 310.