A Radical Constitutional Amendment to Protect Whistleblowers

Lately, it hasn’t been clear what exactly the First Amendment protects. Between whistleblowers PFC Manning and Edward Snowden, one awaits a sentencing of potentially 90 years in prison, and the other finds himself trapped in a country where he doesn’t speak the language. Perhaps it’s time to find a better way to protect free speech.

Though the First Amendment claims to ensure that “Congress shall make no law … abridging the freedom of speech,” this didn’t stop the creation of the 1917 Espionage Act used to prosecute whistleblowers. One of those prosecuted and convicted was PFC Manning, for leaking documents mostly related the Afghanistan and Iraq Wars.

After arrest, Manning was held without trial for more than 1,000 days. Eleven months of that time was spent in solitary confinement.

During solitary, Manning was stripped to wearing only underwear and flip flops. Eventually, the “privilege” of wearing even those clothes was taken away. Such is an image of the free speech protections provided by the First Amendment.

This might be part of the reason Edward Snowden has fled the United States. Snowden, the man who came forward with information revealing the National Security Administration’s illegal PRISM program, has been desperately going wherever he can to avoid extradition. First releasing the information from a hotel in Hong Kong, he then spent the last few days of June and all of July in Moscow’s Sheremetyevo International Airport, before being granted asylum in Russia for one year.

The Constitution’s failure to protect free speech at a seemingly basic level points to a major defect in its design. While it may be praiseworthy in forcefully demanding that the government it authorizes respect the rights of its citizens, it has not provided the real structural support to ensure that those demands are met.

Anyone seriously interested in protecting free speech must push for a very radical “constitutional amendment.” We should work not just to change the words of the document we call “the Constitution,” but instead amend our legal system by completely changing the way it’s constituted.

We shouldn’t be in a position where our only hope is to trust political institutions to keep their promises. Hence the constitutional amendment I have in mind: Abolish the state and its monopoly on provision of law and security.

The idea is basically the same as the US Constitution’s splitting of government into three separate branches: Checks and balances. The difference is that one is a system of real checks and balances, while the other is not.

Even if Congress, the President, and the Supreme Court have divergent interests, they still share a very important interest in the fact that they’re all a part of the same over-arching organization. By contrast, dissolving the services associated with law and security into free competition between an endless array of voluntary associations creates a more dependable guarantee that your rights will actually be respected.

To emphasize this point, consider the fact that the government to grant Snowden asylum was Russia’s. That this was out of some deep, heartfelt love for human freedom seems unlikely, given that the same government recently passed a law banning the spread of “homosexual propaganda.”

Vladimir Putin and the Russian government have granted Snowden asylum for one reason, and one reason only: There does exist a very limited kind of competition between governments, and the Russian government has interests contrary to those of the American government.

In the polycentric legal order that a stateless world would foster, the same thing would happen for a Snowden or Manning (or distributors of “homosexual propaganda,” for that matter) — except that there would be more competitors willing to protect them, and they wouldn’t have to move halfway across the globe for that protection.

Furthermore, those who didn’t support prosecuting them could immediately stop funding attempts to do so. The social dynamics of such a system would be a significantly more ironclad constitutional check than any string of words, no matter how elegant.

That said, talking about a Manning or a Snowden in a stateless society might be a bit odd. There would be no Iraq or Afghanistan wars for a Manning to tell us about, nor any invasive data-mining on the scale of the PRISM program for a Snowden to reveal. Even if an organization had the resources for such evil, they would lose customers and would face competitors willing to protect their customers or willing members from such attacks.

Some have drawn attention to the Obama administration’s removal of its old pledge to protect whistleblowers from its website. What we need is a legal environment where we don’t have to trust anyone to follow through on those kinds of promises. A system where no one is above the law.

To create such an environment, we must abolish political government.

Citations to this article:

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