One way to approach open borders is to liberalize migration rules in existing policies. Another is to found new polities with open borders, along the lines of what French philosopher Jacques Derrida called “cities of refuge,” or what economist Paul Romer has advocated under the name “charter cities” (only with open borders). This post proposes a constitution for an imaginary City of Refuge.
It may seem silly to write a constitution for an imaginary city, yet there is a long tradition of doing so, going back to Plato’s Republic. This post, however, does not outline an ideal state starting from first principles. I don’t believe in an ideal state. The state is, at best, a sad necessity for fallen man, and a good constitution can never substitute for a virtuous citizenry. Most constitutions fail. In a sense, all constitutions fail, for even the US Constitution, perhaps the most successful in the world, has been largely eviscerated by the judiciary, giving rise to a regime quite inconsistent with what the US Constitution really authorized. Yet constitutions matter, too.
The below constitution, then, is a kind of draft of what the Constitution of a City of Refuge might look like. It is meant as a spur to the imagination and the critical faculties. It should be read with the following fictional yet plausible background in mind. Imagine that the continuing development of worldwide moral consciousness gives rise to a belief that the right to emigrate is a fundamental human right, which the international community has an obligation to guarantee. But countries still don’t want to do by opening their own borders. Instead, they resolve to create an archipelago of Cities of Refuge around the world. The international community will negotiate with particular countries to carve out small pieces of land from their territories and develop them as Cities of Refuge, perhaps in return for various benefits, including military guarantees of territory, fiscal aid and debt forgiveness, rights to migrate for their own citizens, representation on important international bodies, perhaps merely because they hope the City of Refuge will be a hub of development with positive spillovers, as Hong Kong was for China. Initially, Cities of Refuge would be founded in relatively undeveloped, unpopulated land. The international community would build infrastructure, and they would be populated by migrants. The below constitution would serve as a kind of template, which would be adapted to local conditions and then adopted as the Constitution of a new City of Refuge.
City of Refuge, Constitution
Section I. Framework and Basic Law
Governance in the City of Refuge will be based on power-sharing between:
(1) a Coalition of External Agencies;
(2) a Republic, from the Latin res publica, meaning “public affairs,” whose role is to make the city self-governing;
(3) a Host Country government.
The Coalition of External Agencies would include stakeholders like the World Bank, the IMF, the UN, representatives of donor countries, and might include private corporations, universities, churches, and other religious or secular non-governmental organizations. Its composition is expected to vary over time and to be a subject of continuing negotiations between donor governments and the representative bodies of the Republic. The Coalition of External Agencies, whatever its membership, is to be regarded as the representative of the international community, entrusted with developing the city of Refuge, in order to realize the global right to emigrate by ensuring that everyone has somewhere that they can emigrate to.
The Republic, a semi-democratic polity entrusted with giving the City of Refuge a self-governing character, is described in Section III. It will not be considered a “sovereign” polity, but it will have primary responsibility for setting public policy and providing public goods. All taxes collected on the territory of the City of Refuge will go to the Republic.
The Host Country will be held to enjoy formal sovereignty over the territory of the City of Refuge, but to have relinquished most of its rights temporarily to the Coalition of External Agencies and to the Republic. After the pre-agreed Term, the territory of the City of Refuge will revert to the full sovereignty of the Host Country, as Hong Kong reverted to China. The Host Country will also have the right and duty to monitor the treatment of its own nationals on the territory of the City of Refuge, so as to ensure that their natural rights are respected. It shall not, however, use this right and duty as a pretext for seeking special privileges for its own nationals, but rather, shall seek to ensure that its own nationals enjoy all the natural rights that the Republic and the Coalition of External Agencies respect in all persons present in the City of Refuge. Any concession made to the rights of Host Country nationals shall be deemed to be enjoyed equally by non-nationals of the Host Country.
The US dollar will be legal tender for all debts in the City of Refuge. Other currencies may be used for transactions by mutual consent of the transactors.
English, and the principal language of the Host Country, will be the chief languages of public business, education, and culture.
Basic administration of justice
One of the premises of the City of Refuge is that natural law exists, and that its content has been elucidated by international human rights law, the English common law tradition, and to some extent other traditions, but is also evident to mere enlightened common sense. Natural law will be regarded as more fundamental than, and not overridable by, positive laws promulgated by any Governmental Stakeholders.
Both on the basis of natural law, and as the fundamental premise of its Constitution, the City of Refuge will be bound to respect the right of all persons to freedom of movement. The person and “property in possession” of every human being is to be held sacrosanct, where “property in possession” includes objects physically on someone’s person or kept in a person’s abode and used frequently. It does not include ownership of land or financial assets.
Constitutionally specified details of implementation of the principle of freedom of movement are as follows. The Republic may declare up to 20% of the physical territory of the City of Refuge “gated,” and exclude Sojourners and/or Residents from it. In addition, up to 60% may be privately owned, but physically accessible via public land/easements, and requiring only the permission of the private owner to enter it. And at least 20% must be strictly public, in the sense of no physical exclusion.
The Coalition of External Agencies will initially be tasked with enforcing natural law, i.e., preventing physical violence against persons and theft of property in possession. Later, the Republic may choose to supplement this service with their own administration of justice. This Constitution hereby instructs Sojourners, Residents, and Citizens to disobey the positive laws established by the City of Refuge whenever they violate natural law, and on the other hand, to adhere to natural law even when it is not reinforced by positive law. Individuals’ first allegiance must be to the right, and not to the law. Inasmuch as the Coalition of External Authorities and the Republic fail to secure persons against physical violence or theft, self-defense measures by individuals or groups shall be considered authorized by this Constitution.
The status of Citizen within the Republic is limited to persons who show an understanding of the basic principles of the Republic, and have sworn an oath to uphold them. In particular, Citizens shall not advocate restriction of immigration, on pain of forfeiture of Citizen status.
A military force will be developed under the tutelage of the United States military and other donor countries, with which it is anticipated that it will be allied. Its function is not only the defense of the City of Refuge, but to serve as a rapid-response force for UN peacekeeping and other military tasks of general benefit to mankind and international peace, in the hope that its heroic exploits should redound to the glory of the City of Refuge. The military shall be primarily composed of Citizens of the City of Refuge, but shall have the right to recruit internationally as well in order to maximize professionalism and combat effectiveness.
Section II. Legal Status of Persons
Persons in the City of Refuge will be classified under three legal statuses, Sojourner, Resident, and Citizen, as described below.
Sojourner. Any person present in the City of Refuge who is not a Resident or a Citizen is a Sojourner.
Resident. In principle, any person whose life is centered in the City of Refuge, in the sense that the matrix of their human flourishing is located in it, should be considered a Resident. The Republic should maintain registries of Residents and establish processes for people to acquire Resident status, e.g., one year of physical presence in the City of Refuge, a declaration that the City of Refuge is their abode, evidence of familial and/or friendly connections, livelihood, etc. But it may sometimes be ascertainable that a person possessed Resident status who had not gone through the registry process, if a person was objectively resident in the City of Refuge at a given time. It is not to be regarded as at the discretion of the Republic or the Coalition of External Agencies to grant or withhold Resident status.
Citizen. Citizenship depends on informed, explicit consent to a social contract, which includes both duties and privileges, and consists in participation in the self-governing system of the Republic. The title of Citizen may be conferred in honorary fashion on children of Citizens up to a certain age, but the full rights of Citizens depend on a moderate proficiency in English and the Host Country language, knowledge relevant to civic participation as ascertained by examination, and obedience to natural and positive law. Furthermore, men, but not women, are required to serve in the armed forces of the City of Refuge in order to become full Citizens.
It is hoped that Citizen status will come to be regarded as normative for long-term Residents of the City of Refuge, and as a peculiar honor, but, on the other hand, that Citizen status will not be so economically advantageous that it will be sought primarily for mere economic gain. The Republic has the right to define how people will be admitted to Citizenship, but the criteria for Citizenship should not include race or kinship, religion, or place of birth.
Of Sojourners. Sojourners have a right to integrity of their physical person; to rent housing; to work for wages, though they may be subject to special taxes; to buy goods that are deemed to contribute to their objective flourishing; to the retention of property they carry on their person or keep in rented housing and use frequently; to freedom of speech and religion; and to such minimal freedom of contract as the authorities may deem to arise directly from natural law.
Of Residents. Residents have a right to own land and financial assets, including bank accounts with deposit insurance, backed by the Republic and/or the Coalition of External Agencies. They will enjoy a greater right to freedom of contract than Sojourners do, in that they may use forms of business organization established by statutory law. The general welfare of all Residents is to be regarded as a major governance objective for the authorities of the City of Refuge. In particular, the Republic and the Coalition of External Agencies should seek to secure low unemployment, universal primary education, and significant economic opportunity for Residents. Furthermore, the City of Refuge should provide passports to Residents and seek to secure for its passport-holders, through diplomacy, generous immigration access to other nations. The Coalition of External Agencies, in particular, is tasked with seeking to secure international mobility for City of Refuge passport holders.
Of Citizens. Citizens will have guaranteed access to the gated areas of the City of Refuge, and will have the rights of voting and full civic participation in the Republic. Other rights, such as tax exemptions, tax dividends, free education, etc., may be granted to Citizens by the Republic.
Section III. The Republic’s Legislative Bodies
In addition to natural law, a considerable body of positive law is deemed necessary, for the provision of public goods, the regulation of externalities, and the securing of the general welfare. Moreover, to discern the requirements of natural law, and to implement them administratively, is a demanding task. For this purpose a legislature is instituted.
The legislature of the Republic will consist of two bodies: the Assembly and the Senate.
THE ASSEMBLY. The Assembly will consist of 1% of the Citizens at any time, or 1,000 persons, whichever is less, chosen randomly and not by election. As with jury duty in the United States, participation in the Assembly is mandatory for Citizens, should the random selection fall on them. Certain excuses may be allowed for, but an unreasonable refusal to serve in the Assembly is grounds for revocation of Citizen status. Assembly members will be paid the median wage, and may appeal for up to five times this amount if they can show they would have earned more. Assembly duty will last for a minimum of one year. Assembly members who wish to do so may stay on for another year can stay on as non-voting but paid members, who will help to instruct the next Assembly in their duties and influence its deliberations.
The Assembly’s job is to consider petitions originated by Citizens or Residents and approve them, by a supermajority of two-thirds, or reject them. It may also amend them in a fashion consistent with the original intent of the petition, so as to facilitate their implementation. To be considered by the Assembly, petitions need the signatures of at least 1% of the Resident population, or 1% of the Citizen population, and should not violate the natural law or the Constitution. Assembly members may not initiate petitions for consideration during their own terms, but may register petitions for consideration by the next Assembly. The normative procedure for considering petitions is majority vote by all Assembly members. If there are too many petitions for Assembly members to read, the normative procedure for prioritizing them will be by number of signatures, but the Assembly can adopt another procedure if it so chooses.
THE SENATE. The Senate will consist of at least one hundred persons. If one hundred persons meeting the criterion of Senator as described here, enough persons to fill the number will be provided by the Host Country and the Coalition of External Agencies. Thus, for example, if only twenty active Senators derived from the Citizenry of the City of Refuge exist, forty will be appointed by the Coalition of External Agencies, and forty by the Host Country.
The Senatorial Qualifying Exam will be held annually, open to anyone who is interested, Citizen, Resident, or Sojourner. It will be a test of generally but civically-relevant knowledge, resembling the Foreign Service Exam used by the US government to recruit diplomats, but adapted to the particular needs of the City of Refuge. The Coalition of External Agencies, the Republic, and the Host Country will have joint responsibility for its preparation. Its contents are not to be regarded as arbitrary, but rather as objectively representing the best thought and knowledge attained by mankind on civic matters. A high score on this exam will be one of the criteria for attaining the senatorial office.
Citizens who excel on the Senatorial Qualifying Exam, and who have previously served in the Assembly, may be nominated for candidacy to the Senate, either by citizen petitions, by the Assembly, or by the Coalition of External Agencies. Citizens will not solicit nomination to the Senate unless the Senate has fewer than one hundred active members, but may be still be nominated to the Senate by the genuinely independent initiative of others. There shall be no limit on the number of active Senators who may serve at any given time.
Having been nominated, candidates for senatorial office will then be presented to the Citizenry in annual elections, along with a statement of their philosophy of government, prepared by the candidates. Senatorial elections are the only occasion when Citizens will vote. The vote will be conducted on majoritarian lines, with this modification: votes will be weighted so that men, collectively, and women, collectively, have equal weight. Senatorial elections will not be adversarial. Rather, voters may approve or reject each senatorial candidate separately.
Persons elected as Senators of the City of Refuge shall retain that rank permanently as an honorary title. However, the voting privileges and salary of Senator shall be conditional on continuous residence in the Republic and regular attendance at Senate meetings, as well as other conditions of conduct that may be stipulated by the Assembly as fitting for the dignity of a senator. A total senatorial salary will be split equally among all active senators.
Rules about senatorial conduct cannot be retroactive. They are to be regarded as under the arbitrary discretion of the Assembly, and not as arising from natural law. For example, the Assembly might rule that senators must not work in the financial sector, deal in lewd art, divorce their spouses, or possess more than $1 million in net worth. However, rules of conduct for senators must not violate freedom of religion, e.g., it should be regarded as unconstitutional to require a senator to trample on the Cross. Moreover, senators whose lifestyles are inconsistent with newly promulgated rules can ask for a three-year reprieve as that adapt to new expectations. Also, if rules of conduct require senators to spend money, e.g., to maintain a lifestyle of peculiar dignity and decorum, they may document their expenses and require compensation from the Republic.
In addition to approving petitions, senators can award up to 10% of the Republic’s tax revenue, at their own discretion, as public monuments and beautification of the City, as well as awards for inventions, achievements in poetry and the arts, military heroism, and other great services to the City.
Section IV. Public Finance
Basic government functions in the City of Refuge will be guaranteed by the Coalition of External Agencies, as a last resort, but deemed primarily the responsibility of the Republic. The Republic will not be authorized to borrow, but must pay for spending out of current revenues or by selling accumulated assets.
Spending. The Republic will dedicate funds to agencies or classes of persons, while funds permit. If funds are available, in the form of tax revenues or saleable assets, funding commitments will be met in full. If funds are insufficient, they will be met proportionally. Prioritizations may be set in place, such that some dedicated funding will be paid in full before other categories of dedicated funding begin to be paid.
Taxes. Residents and Sojourners shall be subject only to indirect taxes, which may include wage taxes, rent taxes, car taxes, tariffs on international trade, financial transactions taxes, taxes on bank accounts, user fees for government services, land taxes, excise taxes and luxury taxes, corporate taxes, and sales taxes. Income and wealth taxes on Residents and Sojourners will be deemed impermissible, as an excessive invasion of their privacy.
By contrast, Citizens will be required to report their incomes and net worth annually to the Republic and pay income and wealth taxes. In return, they may be exempted from indirect taxes and made eligible for social insurance, subsidized education, and other benefits.
Budget process. Budget proposals may originate through petition or be proposed by the Assembly or the Coalition of External Agencies, but their passage is ultimately the responsibility of the Senate, to be exercised in a fashion consistent with the framework of law established through the petitionary process. The Senate shall not have an obligation to pass budgets annually. Rather, as long as revenues are sufficient to cover expenses, taxes will be collected and dedicated funds paid out by whatever rules are in place. The Senate may, however, change the taxing and spending rules at any time, if such changes command the assent of two-thirds of active Senators. If revenues fall short of expenses, the Senate shall be obligated to revise the taxing and spending rules so that dedicated funding obligations can be met. In this case, a simple majority suffices to make changes to the budget.
Laws and mandates passed through the Assembly and the petition process which involve changes in budgetary rules will be incorporated into the taxing and spending rules which comprise the budget. However, the Senate can defund such laws and mandates if it deems such changes desirable from a budgetary perspective. In that case, after a reasonable lapse of time, they shall be considered null and void.
Excess revenue. If revenue exceeds spending, the surplus will be used to purchase US Treasury bonds, or whatever asset the Senate shall deem suitable, up to a threshold, initially set to $5 million. Excess revenue above this amount will be divided equally and paid out to Citizens. The threshold may be raised or lowered with the consent of the Senate and the Assembly.
Section V. Education and Public Discourse
Freedom of conscience, speech, and religion will be recognized as fundamental principles of the City of Refuge.
The primary role of government in education will consist in scheduling regular public examinations, equally available in English and in the Host Country language. Such exams will be part of the basis for determining eligibility for Citizen status, and for senatorial candidacy, but they should also be developed and administered in such a fashion that they are regarded by private sector employers as valuable indicators of human capital.
Compulsory education in publicly-provided schools will be regarded as a violation of the right to be educated in a manner consistent with one’s beliefs. If the City of Refuge chooses to educate children at the public expense, it must do so through a voucher system, so that the ideological content of education may be determined in the marketplace of ideas and not by government fiat. However, the City may disqualify schools from the receipt of voucher funding on grounds of underachievement on public examinations of objective knowledge.
The Constitution of the City of Refuge will make no commitment to neutrality among opinions, religions, worldviews, etc. On the contrary, it will leave Governmental Stakeholders free to give law and policy an educative function, and to seek to shape public opinion, e.g., through publicly financed and administered news media. The City has a positive right to express its own views and opinions, but not a negative right to suppress the views or opinions of others. There shall be no censorship of opinions and views.
While freedom of conscience, speech, and religion are recognized as fundamental rights, Citizenship is not a right, but a privilege, and may be made conditional on expressed opinions. The right of the Republic to regulate the speech of its members, arising from the principle of freedom of association, will be used in only two respects:
1. Citizens shall not advocate the violation of the human rights of others, in particular the freedom of migration which is the City’s raison d’etre.
2. Citizens shall not assert a right of the City of Refuge to secede permanently from the Host Country.
Any Citizen who is found to have expressed these forbidden opinions may be stripped of Citizenship. The Coalition of External Agencies shall be primarily responsible for the disqualification of Citizens who advocate restrictions of migration or violation of human rights. The Host Country shall be primarily responsible for the disqualification of Citizens who advocate secession.
Section VI. Dissolution
At the end of the pre-agreed period, the City of Refuge will revert to the sovereignty of the Host Country, which may choose to what extent it will maintain the institutions that have evolved in the meantime, or assimilate them to its own internal institutions. However, the Host Country agrees to permit all Citizens and Residents of the City of Refuge to become citizens of the Host Country at this time, on equal terms with existing citizens.
If, at the time when reversion to full Host Country sovereignty is scheduled, the Coalition of External Agencies deems that the Host Country has refused to guarantee the continued right of residence of inhabitants of the City of Refuge, it may postpone the reversion of the City of Refuge to Host Country, until such time as the Host Country has provided such guarantees.
It is fascinating to think about what kind of society would emerge in the framework of a Constitution like this. I don’t know of course, but I have a few guesses.
Imagine Singapore juxtaposed on a UNHCR-administered refugee camp. I think Cities of Refuge would tend to be a little like that. Smart policy, foreign aid, and entrepreneurial migrants would generate a lot of economic growth, but masses of desperate people would be difficult to absorb comfortably. You might see skyscrapers next to shantytowns.
There would be an eccentric element in the population, misfits and outputs from all over the world, dangerous or innocuous. It would be a mecca for market-dominant minorities, as well as for NGOs and international humanitarian types– another interesting juxtaposition.
A romantic element in the population would be international couples who had trouble getting visas to one another’s countries.
Universities would love it, because they could attract students from all over the world, without needing to worry about processing visas. In general, there’d be a lot of learning and self-improvement. MOOCs would do brisk business.
Culturally, the mixture of people of so many backgrounds would be discombobulating, as well as stimulating. However, a cultural center of gravity might be created through a fusion of (a) an international Americanized bourgeoisie with (b) a large influx of Host Country nationals. Others could assimilate to this culture, but there would be large pockets of unassimilated immigrants from particular regions. All in all, the cultural landscape would be rather clannish and segregated. Nonetheless, I don’t think it would be too difficult to secure civil peace and make the interaction of races and cultures fruitful rather than hostile.
The Cities of Refuge would attract religious communities persecuted in their homelands, and would become centers of Christian missions as well.
There would be enormous economic inequality in the City, but not so much among Citizens. Some very rich tax refugees would settle in the Cities of Refuge, but might prefer not to become Citizens because they would then be subject to income and wealth taxes, as well as Assembly and (for men) military service obligations.
Much depends on whether Citizens would really come to feel pride in their City, and in the attainment of various offices and honors within it. But I think they would. Human beings thirst for recognition, and I think many a downtrodden refugee would be greatly moved and inspired by a chance to be called Citizen of a famous City, and to have a real role in its self-governing constitution– much more of a role, indeed, than the typical citizen of a Western democracy enjoys.
head contests of Republican against Democrat, or Labor against Conservative. The frequent need for supermajorities would make mere partisan victories rather hollow. Note that the rules for joining the Senate tend to impede political ambition, since one can’t be elected Senator without serving in the Assembly, and that depends on random chance. The Constitution is designed to encourage government by a consensus among ordinary Citizens, as opposed to competition among elites. In my view, the combination of ethnic fractionalization with democracy tends to be disastrous precisely because democracy is divisive, and while fomenting divisions can be usefully stimulating when there is sufficient pre-existing homogeneity, it is dangerous when the population is already fragmented. So my Constitution is designed to foment not division, but consensus.
The Citizens themselves may amount to a kind of elite. They are likely to be a minority of the resident population, more rooted and better educated. That they receive direct transfers out of excess tax revenues will give them a strong incentive to run the City of Refuge in a way that fosters wealth creation and keeps government small. Participation in the military and the Assembly will strengthen their attachment to the Republic, and their knowledge of its procedures.
All these guesses may be far off the mark, but one thing I can say with confidence. A passport-free Charter City would be a fascinating place.