BY THE PEOPLE: Rebuilding Liberty Without Permission
By Charles Murray
Crown Forum. 319 pages. $27.
From the tea party to Occupy Wall Street to #BlackLivesMatter, America has spent much of this young century questioning its premises. And as the battles over federal spending, economic inequality and racial injustice continue, Charles Murray comes forward to identify another threat to the nation’s purpose and self-image: the rise of the regulatory state, a rapacious shadow government that has left us “at the end of the American project as the founders intended it.”
Murray, a political scientist and professional controversy magnet at the American Enterprise Institute, is known for “Losing Ground,” which deemed the welfare state a failure; “The Bell Curve,” which linked intelligence, race and socioeconomic outcomes; and “Coming Apart,” which declared that white America is torn by class and values. In “By the People,” he not only offers a bleak assessment of the health of American democracy but — and here is where things get interesting — calls for civil disobedience aimed at rehabilitating it.
Some may think of civil disobedience as a tactic employed mainly in the service of liberal causes — think civil rights or antiwar efforts — but Murray exhorts conservatives to issue “a declaration of limited resistance to the existing government,” on the grounds that it has lost legitimacy. If “Atlas Shrugged” had been written by a despondent social scientist instead of a dyspeptic novelist, it would read a lot like “By the People.”
Murray spends the first third of his book explaining what’s so wretched about our democracy today. The Constitution, that sacred scroll of American exceptionalism, has been eviscerated by progressive meddling, he argues. Murray highlights a “constitutional revolution” during the New Deal era, particularly in Helvering v. Davis, a 1937 Supreme Court case involving the Social Security Act that “destroyed the limits on the federal government’s spending authority.” Helvering allowed Congress to open its coffers for virtually anything that promotes the “general welfare” stipulated in Article 1, Section 8 of the Constitution, unconstrained by the enumerated powers that followed.
This interpretation “stopped obliging the American government to control itself,” Murray writes; it became the wedge allowing federal spending on Social Security, Medicaid, Medicare and K-12 education. It is so embedded in our politics that a reversal now would “throw the country into chaos.” No Supreme Court would risk it, and no president would enforce it.
In parallel, the legal system has become a vehicle for progressive social aims, growing arbitrary and subjective. Murray points to lower bars for bringing lawsuits, broader rules of discovery and the rise of strict liability that doesn’t require specific negligence to find guilt. All this has conspired to create a system in which defending yourself is prohibitively costly, laws are so complex as to be unintelligible and prosecutors enjoy corrupting discretionary power. Instead of a world where acts are criminalized because they are malum in se (wrong in themselves), Murray argues that a large proportion of crimes in the federal code are “malum prohibitum — not things that are bad in themselves but things that warrant criminal penalties because the government has said they do.”
And worst of all, he contends, an army of federal bureaucrats and administrators has conspired with a corrupt political process to make the United States a near kleptocracy. Murray highlights zoning regulations, employment laws, rules governing professional “best practices” and regulations restricting risky personal activities as just a few unnecessary intrusions against liberty. Because of their economy-wide mandates, the Occupational Safety and Health Administration, Environmental Protection Agency and Equal Employment Opportunity Commission are the three “most visible intruders.”
Murray decries a 1984 Supreme Court case, Chevron v. Natural Resources Defense Council, in which the court deferred to the EPA as long as its actions were “based on a permissible construction” of the relevant legislation. This judicial deference reflected “the progressives’ faith in disinterested expertise and their optimism about the behavior of people given access to power,” Murray writes. And it allows regulators to travel wherever their good intentions take them. “Congress legislates vague mandates,” he complains, “then turns the job over to the experts and lets them do as they think best.”
A Republican president and GOP congressional majorities would not set things right. The system is too ingrained, and besides, Murray admits, Republicans are no better than Democrats at constraining government or upholding individual liberties. (This is not an anti-Obama book; Murray sees the current president as symptom, not cause.) Tired of waiting for America to do the right thing, he wants it to do the wrong thing in service of a righteous cause.
So how do how small-government conservatives conduct civil disobedience in practice? Sit-ins at the EEOC? Occupy OSHA? Or maybe thousands of senior executives chanting, “Hey hey, ho ho, innovation-stifling regulatory regimes have got go!”
Murray’s proposal is less dramatic and more ingenious. The regulatory state has two related weaknesses, he explains: It relies on voluntary compliance, and its enforcement capabilities are far inferior to its expansive mandate. So he proposes a private legal defense fund — the “Madison Fund,” honoring the father of the Constitution — that businesses and citizens can rely on for representation against federal regulators. By engaging in expensive and time-consuming litigation on behalf of clients that refuse to comply with pointless rules, the fund drains the government’s enforcement resources and eventually undercuts its ambitions. The state can compel submission from an individual or company with the threat of ruinous legal proceedings, Murray writes, “but Goliath cannot afford to make good on that threat against hundreds of Davids.”
The result Murray foresees is a “no harm, no foul” system, in which violations that cause no disruptions or injuries go ignored by regulators, because punishing them is too troublesome. He also imagines the rise of “occupational defense funds” in which trade groups pool resources to serve as a sort of insurance against regulators. In the unlikely event of a federal inspection of a particular business establishment, such funds could cover the fines.
Who pays for all this? Pointing to the emergence of “many billion-dollar-plus private fortunes over the last three decades,” Murray suggests that the Madison Fund could get started “if just one wealthy American cared enough to contribute, say, a few hundred million dollars,” or if “a dozen wealthy Americans cared enough to share the initial costs among themselves.”
It’s somehow beautiful that, for today’s conservatives, even civil disobedience requires billionaire funders.
Murray hopes this movement could become a cultural force. He imagines a hit reality TV show (“American or UnAmerican: You Decide”) showcasing citizens victimized by regulators. He drafts lofty speeches that Madison Fund lawyers could make before the courts. And he compares the effort to America’s defining conflicts: “There need be no Gettysburgs or Yorktowns; just hundreds of hit-and-run guerrilla actions.”
Things get murky when the author decides which regulations merit disobedience; his guidelines sometimes seem as arbitrary as the ones he so loathes. Murray exempts the tax code, for instance, even though he thinks it is corrupt, because collecting taxes is a legitimate state role and because he doesn’t want the fund linked to tax cheats. He conveniently sidesteps “hot-button topics” such as illegal drug use when discussing the freedom to take personal risks. When words such as “obviously” and “common sense” recur, it’s a sign that matters are hardly obvious or commonsensical. Civil disobedience must happen “in such a way that it is obvious to all who watch with an open mind that they are witnessing free people behaving appropriately, that the problem is not the person who violated the regulation but the regulation,” Murray explains. The problems with such vague benchmarks are obvious to all, too.
Murray believes the popular disdain for government means his vision could win support. For instance, he notes surveys that show falling trust in government beginning in the 1970s and largely continuing since. Yet are stifling regulations, however invasive, the main culprit? I’d suspect that the disillusionment of Watergate and Vietnam, both of which go unmentioned, had at least as much to do with that initial decline, and that partisan paralysis on basic tasks and challenges is a force behind it today. Sometimes, to make a good argument, it helps to wear blinders.
Murray’s book brings to mind two other recent laments for the American dream: “Our Kids,” by political scientist Robert D. Putnam, and “The Case for Reparations,” the 2014 Atlantic article by Ta-Nehisi Coates. All three writers worry about unequal opportunity but point to distinct forces — eroding social capital, housing discrimination and regulatory overreach. Advice for the “Charlie Rose” show or C-SPAN’s “Book TV”: How about a Murray-Putnam-Coates debate on what is really undermining opportunity, and what to do about it? If fighting over first principles is part of the American condition, that’s one bout I’d love to watch.
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