Wednesday, June 8, 2016
By the People by Charles Murray
I love Charles Murray. He is a self-described curmudgeon full of wise advice and original thoughts about society. I was so excited to hear he had a new book out called By the People: Rebuilding Liberty Without Permission. That title! That alone, with it’s allusions to the Constitution and the Gettysburg address, along with the word “liberty,” I already knew I would love it.
Murray first makes the case that the door on a Constitutional Republic has been slammed shut. We will never and can never reclaim a Constitutional government. It is simply too late. Extra-Constitutionalism is baked in and can never be done away with. There’s a happy thought. I said he was a curmudgeon.
He begins by quoting Alexis de Tocqueville, “I think that the species of oppression by which democratic nations are menaced is unlike anything that ever before existed in the world…
"The supreme power than extends its arm over the whole community. It covers the surface of society with a network of small, complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”
I’m not sure de Tocqueville could have described the state of America today better if he had witnessed it firsthand. We are definitely being oppressed by a benevolent bureaucracy.
Murray traces the beginnings of this tyranny to the 1930s. Up until that point, the Constitution was still reasonably intact. In fact freedom and liberty had been extended by the 13th, 14th, and 15th Amendments. But everything changed with Helvering v. Davis in 1937. The Supreme Court upheld the constitutionality of Social Security by reinterpreting the “general welfare” clause of the Constitution. Prior to this, the phrase “general welfare” had not been stretched to allow the government to reach outside its constitutionally proscribed enumerated powers. But this decision opened the doors to an activist government that need only make the case that its latest venture enhanced the “general welfare” regardless of whether the actual power was found in the Constitution. The court explicitly knew what it was doing and intentionally overturned precedent which had limited the federal government.
After that, the Supreme Court continued to expand federal power. Today, the 9th and 10th Amendments are dead letters. The “commerce clause” and the “general welfare clause” allow the federal government to do whatever it sees fit. The court has ruled we do not in fact have rights not guaranteed by the Constitution, contrary to the 9th Amendment. And there are no powers reserved to the states and denied to the federal government. The interpretations have become so embedded in our culture, there is simply no way to reverse course.
Therefore, we have entered an age of lawlessness. He gives several examples of ways in which our nation is indistinguishable from lawlessness. The legal process is too costly for most. Mens rea (the idea that usually an activity should be against the law because it is wrong on the face of it, like murder) is gone. Now something is illegal because it is illegal. The law is arbitrary and capricious. The law is overly complex to the point that one author claims that every American is guilty of three felonies a day. The law is subjective. The law is discretionary. Everyone is a lawbreaker, so anyone can be subject to punishment at the whim of whomever is in power. Private property is no longer protected and can be taken without compensation. Judges invite innumerable lawsuits by allowing for strict liability. This means that if there is any harm, by definition, a company is liable. No negligence must be proved. Cases can be “forum shopped” in order to find a friendlier jury. And Congress has pushed for a private enforcement regime, in which private citizens, not necessarily regulatory bodies, may sue for violations of federal regulations.This has led to myriad lawsuits filed and won that only have to prove a regulation was violated even if no harm was done. For these reasons, Murray believes we live in a lawless society and should be therefore freed from having to follow the law in all cases.
It is impossible to roll all these changes back. The problem is simply that while a few benefit mightily from these developments, the costs are spread out widely over society. It is easy for the beneficiaries to fight to keep the perks and hard for those only slightly affected to push back.
So what to do? Murray has come up with a very interesting idea. He states, “I am not proposing revolution, but I am proposing a declaration of limited resistance to the existing government. I do so because the federal government has in many respects become destructive of our unalienable rights. It has lost elements of its legitimacy.” He claims that, “the federal government lost its legitimacy in theory during the constitutional revolution of 1937-1942, lost its legitimacy in practice during the 1960s, and it has been downhill ever since.” It’s hard to imagine, but only a little over a half century ago, the federal government had very little to do with K-12 education, healthcare, or local law enforcement.
Back then, we had three tacit compacts between the people and their government that have broken down in irreparable ways. The first “was that the American people wouldn’t expect much from the federal government beyond protection of their freedom at home from enemies abroad.” The second was that the government would let the people work out complex moral issues through Constitutional amendments. The third was that an American who worked hard, took care of his family, and didn’t bother anyone constituted a “good American.” In fact, we are all criminals now and any one of us in is in danger of governmental prosecution. “The federal government has changed from being a vehicle through which the American people celebrate themselves and each other to being a vehicle through which a ruling class hectors and pesters us about our shortcomings.” Of course we feel alienated from and anger toward our government.
He suggests limited civil disobedience. He has in mind the store owner who will fight to the very end over routine violations. Perhaps the mirror in his bathroom is an inch too low for ADA standards. He will fight the fine and the citation as long as possible eventually making the government bureaucrats think twice before attacking otherwise good, law-abiding citizens. This will be funded with a slush fund called The Madison Fund. Its sole purpose will be to help defend citizens from an overzealous and essentially lawless government by effectively using their rules against them.
The endgame is to finally get the Supreme Court to recognize that simple “enforcement of a regulation can be arbitrary and capricious regardless of whether the content of the rule rises to the that level.” In other words, there must be actual harm before a regulation can be enforced. Wow. Imagine that.
This will put the regulatory agencies on notice. Those litigants backed by the Madison Fund will continue to tie up limited federal resources in lawsuits, citing the precedent above, the “no harm, no foul” rule. This can eventually lead to de facto unenforceable laws. This will force the agencies to carefully consider the precedents they want to set when the take the risk of enforcing a rule where there has not been, and will not be, any harm. For example if sand is not properly labeled as “poison” and the company owner is prosecuted, and the agency, after expending expensive resources, loses, this could effectively end the rule to label something as a poison. That would not be in the best interest of the agency as real poisons could go unlabeled.
Murray senses that the time is right. Our society is becoming increasingly individualized and customizable. Yet our government remains sclerotic and unanswerable to the people. A little, or a lot, of civil disobedience may be just the thing to shake the government loose from our daily lives. He likens it it exposing the Wizard of Oz. We are many. They are few. We can fight back if we do it in sufficient numbers to significantly raise the cost of regulating our lives in the most minute details.
Finally, Murray notes three potential reactions to his proposal. First, he is simply wrong in his diagnosis and therefore wrong in his prescription. Second, he is far too optimistic about the effect a Madison Fund could have. Third, what of the danger of success?
To the first he replies, “Fair enough.”
To the second, he replies, “What other choice do we have?”
To the third, he sympathizes. Success may lead to a further erosion of the legitimacy of the federal government. But he feels it is worth the risk. We are already a very polarized nation. We are not going back to any kind of homogeneity. We may make the divisions worse by engaging in civil disobedience, but it is already pretty bad and getting worse on its own.
I think he is onto something. I’d love to see someone put his plan into action. My own preference is for a Madisonian “GoFundMe” type website where people can have vetted situations put before a liberty loving public to support them in their fight.
I’d fund that!