Long before the U.S. Supreme Court’s majority declared that “words no longer have meaning,” to quote the recent dissenting opinion in King v. Burwell, libertarian scholar Charles Murray had concluded that it was no longer possible to use the existing political process to restore the republic the American Founders envisioned more than two centuries ago.
Like those Founders in 1776, Murray advocates a major course correction. And the first half of his new book, By The People: Rebuilding Liberty Without Permission, describes a “train of abuses and usurpations” similar to the list spelled out at the beginning of the American Declaration of Independence.
Members of the Continental Congress felt compelled to detail the British crown’s many failures before announcing to the world that 13 royal colonies were severing ties with that crown and striking out on their own.
Now, 239 years later, Murray devotes entire chapters to a “broken” Constitution, “lawless” legal system, “extralegal” regulatory state, “systematically corrupt” political system, and a state of “institutional sclerosis” that plagues our advanced democracy.
“We are living under a political system that has tied itself in knots,” Murray writes. “‘Cleaning house’ in Washington will do nothing to untie those knots.”
“It is impossible for a government in the grip of the disease to cure itself,” he adds. “The symptoms of the disease prevent the government from acting to cure it.”
Short of losing a “total war,” the fate Germany and Japan suffered in the 1940s before starting new political institutions from scratch and undergoing explosive decades-long stretches of economic growth, the American system cannot expect to rebound, Murray suggests.
Unlike his patriotic predecessors from the late 18th century, though, Murray does not advocate another armed revolution. Instead he proposes “a program of systematic civil disobedience underwritten by privately funded legal resistance to the regulatory state.”
This leads readers to the heart of the book: Murray’s description of the Madison Fund. It’s a proposed private legal-aid foundation that would help ordinary Americans stand up to government overreach.
“Specifically, the Madison Fund would have three goals,” Murray explains. “1. To defend people who are innocent of the regulatory charges against them. 2. To defend people who are technically guilty of violating regulations that should not exist, drawing out that litigation as long as possible, making enforcement of the regulations more expensive to the regulatory agency than they’re worth, and reimbursing fines that are levied.
“3. To generate as much publicity as possible, both to raise the public’s awareness of the government’s harassment of people like them, and to bring the pressure of public opinion to bear on elected politicians and staffs of regulatory agencies.”
“Those are the goals, and they are achievable,” Murray continues. “We do not need anyone’s permission to achieve them — not the permission of a sympathetic president, Congress, or Supreme Court.”
Lest readers think that Murray is granting them tacit permission to skip tax payments, dump their sewage in the nearest lake, punch their neighbor, or take other flagrant steps to flout the law, the author spells out the limited circumstances under which a Madison Fund defense ought to be employed for acts of civil disobedience.
The overarching goal ought to be a “no harm, no foul” approach to regulation. Targets would be limited to rules that restrict land use, limit practice of a craft or profession, prevent some people from taking a job, stop others from taking voluntary risks, and otherwise limit employment. In addition, “regulations that are arbitrary, capricious, or an abuse of discretion are automatically eligible for civil disobedience.”
Plus Murray adds some “practical ground rules” to those based on principle. For example, even bad environmental, safety, and anti-discrimination regulations can have a “halo” effect. Open violations of those rules could prove counterproductive to the overall cause of winning public support for disobedience.
“When 87 percent of Americans do not trust the federal government ‘to do what is right’ even most of the time, it is also obvious that the alienation does not break along party lines,” Murray writes. “The legitimacy of the federal government is not gone for a majority of the population, but it has waned. … The civil disobedience I proposed is against a government that over five decades earned our distrust.”
Given Murray’s pessimism about the current state of the “sclerotic” government, and his caution about the types of rules that might lend themselves to successful disobedience, this reader finds him overly optimistic about the potential response to his plan.
He counts on public engagement in the cause, the mainstream media’s portrayal of anti-government civil disobedience in a positive light, and acts of surrender from government bureaucrats targeted for action.
Each of those propositions strikes this observer as problematic. Nonetheless, Murray offers a thought-provoking argument. In the last section of By The People, titled “A Propitious Moment,” he explains how factors such as increasing cultural diversity and technological advances could help his cause.
For instance, younger adults who choose a smartphone-based transportation option such as Uber, even if it means skirting government rules designed to protect a taxi monopoly, might be more inclined to engage in other forms of civil disobedience that challenge “ridiculous” government dictates.
Murray admits his policy prescription amounts to a “long shot, but it is, in fact, a shot. It could work.”
“The bureaucracies of the federal government really are sclerotic,” he explains. “Their thousands of edicts really can’t be enforced without our voluntary compliance. Withholding that compliance really could have transforming effects on the political landscape.”
It’s a transformation all liberty-loving Americans should hope to see.
Mitch Kokai is an associate editor of Carolina Journal.