Is there any way to reverse the trend to ever more intrusive, bossy government? Things have gotten to such a pass, argues Charles Murray, that only civil disobedience might — might — work. But the chances are good enough, he says, that he’s written a book about it: By the People: Rebuilding Liberty Without Permission.
Murray has a track record of making seemingly outlandish proposals that turn out to be widely accepted public policy. His 1984 book Losing Ground recommended the radical step of abolishing all welfare payments. A dozen years later the federal welfare reform act took a long step in that direction.
Murray was prompted to write By the People, he says, when a friend who owns a small business was confronted by OSHA inspectors and had an experience similar to one recounted in Philip Howard’sThe Death of Common Sense.
The inspector found violations. Railings in his factory were 40 inches high, not 42; there was no automatic shutoff on a conveyor belt cordoned off from workers; a worker with a beard was allowed to use a non-close-fitting dust mask. Picayune stuff. But unless changes were made, the inspector said, we’ll put you out of business.
How had things come to this pass? Murray ascribes it to the abandonment of effective limits on government embedded in the Constitution by its prime architect James Madison. That started with the early twentieth century Progressives, who passed laws setting up independent and supposedly expert bureaucrats in charge of regulation, and furthered by New Deal Supreme Court decisions.
Murray argues that these mistakes cannot be reversed by the political or judicial processes. The Court won’t abandon longstanding doctrines on which millions of people have relied. Congress, even a Republican Congress working with a Republican president, won’t repeal vaguely worded statutes that give regulators wide-ranging discretion.
State and local governments are just as bad. They pass laws protecting established businesses (notably taxi cartels) by restricting competition.
What is to be done? Citizens, says Murray, should be willing to violate laws that the ordinary person would instantly recognize as ridiculous. And deep-pocketed citizens should set up a Madison Fund, to subsidize their legal defense and pay their fines.
Civil disobedience will stick in the craw of conservatives who revere law and order. Deep-pocket donors may be repelled. And Murray admits that deciding what regulations civil disobeyers should disobey involves tricky judgment calls.
But he argues that his project might not be entirely quixotic, because the nation has changed in ways not envisioned by the Progressives and New Dealers, and contrary to the predilections of the regulators at agencies like OSHA and EPA.
The Progressives thought that the nation was becoming more uniform and that supposedly disinterested regulators could and should make it more so. Murray points out that the contrary is the case.
The cultural uniformity that people remember from the post-World War II decades is the exception rather than the rule in American history. We were a religiously, ethnically and regionally diverse nation in James Madison’s time, Murray says, and we are once again. The uniformity temporarily imposed by shared wartime and postwar experiences is no more.
In addition the assumption that centralized regulators would have unique expertise has proven unfounded. Government bureaucracy is increasingly a kludgeocracy (a word coined by the liberal political scientist Steven Teles), mindlessly enforcing absurdly precise rules by threatening ruin upon anyone who resists.
But regulators are actually thin on the ground, unequipped to deal with mass — and subsidized — civil disobedience. When a spotlight is shined on their tyrannical behavior, even courts will rebel.
Case in point: in 2012 the Supreme Court in Sackett v. EPA ruled that regulators couldn’t impose a $75,000 per day fine until the agency, in its own good time, acted on a landowner’s challenge to its ruling that his landlocked two-thirds of an acre parcel was a wetland.
The Progressive push to give politically insulated bureaucrats power to impose detailed and often incomprehensible rules was a product of the industrial era, a time when it was supposed that experts with stopwatches could design maximally productive assembly lines.
That idea is out of date in an information era, when expertise is widely dispersed and readily accessible to citizens acting on their own initiative and inspiration. Bureaucracy’s time has passed, Murray argues, and its tyranny is ripe to be overthrown by creative Madisonian civil disobedience.
