Charles Murray’s “By The People”

I sat up and took notice when a noted American conservative intellectual set out a plan for mass civil disobedience to weaken the U.S. government.

This was not the sort of thing I was used to hearing from those corners, and I was intrigued. I’ve since read Murray’s book — By the People: Rebuilding Liberty Without Permission — and I can report in more detail on what he has in mind.

Murray is of the more libertarian variety of conservatism — not for him are the wars on drugs and gay marriage, or the currently-popular quest for a Mussolini to make America great again. He’s the sort of conservative who gushes over the founding fathers’ methodical experiment in a strictly-confined federal government and thinks if we could just squeeze that government back into its cage the rest would pretty much take care of itself.

Murray calls this flavor of Constitutionally-devoted conservatism “Madisonian” and contrasts it with a “Wilsonian” progressivism that sees the Constitution as an outworn relic getting in the way of modern designs for national improvement.

In the story Murray tells about the U.S., our Madisonian republic did really well for itself — if you allow for the hiccough of the Civil War and the flaw of slavery it had to address — until the 1930s, when the small-government, Constitutional consensus began to give way, and both political parties became dominated by big-government, progressive technocrats. The Supreme Court, which had held this new order briefly at bay, was eventually overcome, and by the 1960s the republic was unrecognizable and mostly unrecoverable. There was a brief Goldwater/Reagan backlash, but it barely slowed the growing appetite, ambition, and reach of the federal government.

So now we have a country in which the federal government is enormous and all-pervasive. The legal system is indistinguishable from lawlessness — legitimizing thefts and shakedowns and masking the use of arbitrary power by the politically powerful against their enemies or those they find inconvenient. Regulatory agencies have grown like weeds, becoming a second federal government parallel to the first but only nominally beholden to it. Congress is systematically corrupt, with the raw pursuit of money and purchasing of influence and legislation normalized.

Politicians from both political parties are complicit in this: they share a big-government consensus when it comes right down to it, and they profit from the frank corruption that has resulted. And even if one party or the other or both really wanted to do something about it, there’s little they could do, as the “institutional sclerosis” has more momentum than they can fight and the power of office-holders to deviate from the consensus in meaningful ways is really very small.

This cancer is no longer treatable in strictly Constitutional ways: voting for new politicians won’t help, and the Supreme Court has thrown in the towel, give or take an angry dissent from Thomas or Scalia of mostly rhetorical effect.

The alternative Murray suggests is a systematic civil disobedience campaign, supported by a well-financed legal team and some form of insurance that protects the front-line risk takers.

The goals are to defend individuals against government overreach, to make objectionable federal laws and regulations unenforceable, and then by doing so to prompt the Supreme Court to finally get on the ball and reel the federal government back in.

In Chapter 7, Murray gives his criteria for how to conduct such a campaign:

  • This is civil disobedience, not Thoreau-like conscientious objection. It is a group activity.
  • It does not consist in breaking laws that prohibit acts that are inherently bad, but in breaking laws that prohibit acts that are only illegal because the law says they are.
  • The tax code is off limits for civil disobedience (shucks). This is because “taxation is one of the legitimate functions of even a Madisonian state,” because taxes are Constitutionally valid, and besides “civil disobedience to the tax code would be indistinguishable in appearance from cheating on your taxes.”
  • Laws and regulations that concern “public goods” — things that arguably only a central government can administer properly, like national defense — are also off-limits.
  • Laws that might be good candidates for systematic civil disobedience include:
    1. Laws that prohibit owners of property from using that property as they see fit.
    2. Laws that set the allowable standards for a craft or profession.
    3. Laws that restrict access to jobs (e.g. by mandating licensing).
    4. Laws that prevent people from voluntarily taking risks.
    5. Laws that prevent employers from hiring or firing employees.
    6. Laws “that are arbitrary, capricious, or an abuse of discretion.”
  • When choosing laws to defy, keep these guidelines in mind:
    1. Don’t choose laws with “halo effects” — laws that give people the warm fuzzies, even if they happen to be bad laws when you look at them up close.
    2. Choose laws where the people who are ostensibly helped by the existence of the law are your allies in defiance.
    3. Choose laws in which you can obey the spirit of the law — whatever beneficial purpose the law was supposed to have — while defying the letter of the law that makes it burdensome.
    4. Demand good faith of those who participate in the campaign: keep out those “who are trying to game the system.” For this civil disobedience to work, the campaigners “who are technically guilty must be ethically innocent.”

The goal of this campaign would be to make the targeted laws or regulations unenforceable. Murray compares this to how nearly everyone on the highway drives faster than the posted speed limit, and so while the Highway Patrol is authorized to (and ostensibly supposed to) stop and ticket everybody, they instead must raise the bar and only go after drivers who are actually a hazard. Murray calls this goal “a ‘no harm, no foul’ regulatory regime” in which regulators get the message that some regulations are bogus and they decide to refocus their concentration on less-bogus regulations instead of fighting the inevitable.

Murray envisions backing this campaign with something he calls the “Madison Fund” — a big pile of money that can be deployed to offer free legal defense to anyone engaged in the campaign whom the government tries to target. Where this pile of money comes from is part of the more-hope-than-plan part of his book, but folks like the Institute for Justice are putting some of this into practice on a smaller scale.

Murray also envisions a form of insurance that professionals could buy to protect them against fines and other hassles from government regulators. The insurance companies would set standards of behavior for their clients to ensure that they were not doing anything actually dangerous, fraudulent, or in other ways unethical, and, assuming they followed those guidelines, would insure them against any fines the government imposes on them for violating its bazillion silly rules that do nobody any good. If the cost of the insurance were less than the cost of the burdensome regulations the purchaser would no longer need to worry about, such an insurance could become widespread.

But if since the expiration of Murray’s Constitutional golden era everything has been going downhill with increasing speed, why is he confident that a bunch of scrappy rebels will have any chance of bringing down the empire with a scheme like this one? He gives a handful of reasons why he thinks the time is right:

The United States is becoming more diverse: ethnically, linguistically, religiously, and elsewise. This reminds Murray of the diverse variety of immigrants that made up the early United States. He thinks this diversity then gave us an advantage over more homogenous nations in that it gave us better respect for mutual tolerance, and a natural resistance to central authority setting all the standards. As diversity returns to the U.S. perhaps a love of liberty will return as well.
New tools are empowering individuals and giving them less motive to call on government to solve their problems. New technologies such as ubiquitous cameras put a curb on police abuse and make it possible for citizens to “sting” corrupt officials. Business innovations are leapfrogging over existing cartels and regulations faster than bureaucrats can react (Uber and the taxi cartels for instance).
Collapse of Trust in Government
While businesses have become more efficient and better at serving their clients, government has gotten worse in both ways and the contrast is stark. People and companies are getting fed up.
Resurgent Federalism
The idea of states’ rights had been in a long tailspin, but things like the emerging defiance of marijuana prohibition by several states may mean that it’s making a comeback.
Government Employee Morale
More and more, government work is becoming miserable and government employees are less motivated and less capable. This makes them easier foes to overcome in civil disobedience campaigns.

The book has some promising ideas, and I hope these ideas catch on. Some parts of the book are pretty well thought-through; others have some thin paper plastered over big holes. But it’s a good start, and with some help (some deep-pocketed help) could make paleocons less of an intellectual curiosity and more of a force for good.