As a change of pace, tho, maybe it's time for another installment of my book report on By the People: Rebuilding Liberty Without Permission, by Charles Murray. Previously (as they say at the beginning of an episode of 24), the argument was that the allegedly "disinterested" experts and elites can and ought to use the power of the State to change social institutions for the collective good, with the Constitution evolving to allow if not authorize those changes. Whether one characterizes the federal government as having lost its legitimacy, it has at least become, in Murray's words, a "vehicle through which a ruling class hectors and pesters us about our shortcomings". And a vehicle that is not amenable to change by conventional political means, not the least of which is the corruption of the legislative branch (a recent example of which is this*).
The second part of By the People describes a way of effecting this change: namely by "systematic civil disobedience". This systematic civil disobedience is not a general attack on all federal laws and regulations, but only on a subset for which one can persuasively argue "no harm, no foul". Murray provides guidelines on which federal** regulations ought to be exempt from this systematic civil disobedience (e.g. regulations on acts that are in fact bad, i.e. malum in se; the tax code; regulations directed to classically defined public goods), and those which shouldn't be attacked for practical reasons (e.g. those with "halo" effects). Candidates for systematic civil disobedience include federal regulations touching the use of one's property, so-called "best practices" regulations on crafts and professions, those regulations directed to activities in which willing participants are the ones who are ostensibly "protected", and those for which which the accused is obeying the spirit of the rule but not the letter.
The tools suggested by Murray for carrying this out are:
- a private legal aid foundation providing pro bono services to defend the innocent, to defend those technically guilty of violating regulations that should not exist (and inflicting litigation pain on the agency while doing so), and to generate publicity about the issue; and
- an insurance vehicle for covering fines, costs, and damages incurred by the accused
Collectively, these tools are referred to as the "Madison Fund" (I like it!).
The goal of these actions is to effect changes in the behavior of the federal government, including the judiciary, in several ways. One way is to change the legal standard for evaluating federal agency action so as to prohibit the "arbitrary and capricious" enforcement of regulations (currently, the arbitrary and capricious standard is applied only to the adoption of regulations). Another way is to overrule the Chevron Supreme Court decision granting judicial deference to administrative agency decisions (deferring to the agency because they're disinterested omniscient experts, ya know) for those regulations that are not mandated by an intelligible principle in the enabling legislation (i.e., regulations that Congress specifically requires the agency to make) but are instead discretionary regulations that the agency enacts on authority it happens to find under the statute. Once deference to the agency on those discretionary regulations is removed, the courts will be free to decide the merits of the regulation in an adversary proceeding.
But there is even a larger goal of this systematic civil disobedience. Murray hopes that the courts will see that these changes will overwhelm the judicial system with a flood of litigation, enough so that reform of the civil court system as a whole will be made. Such reform, hopefully, will change the system so that the process is no longer the punishment, as it is today (to wit, this example).
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The main issue that I have with Murray's approach is that the suggested systematic civil disobedience, while necessary, may not be sufficient to effect meaningful change, for a couple of reasons.
First, I think the primary problem is over-regulation of a free people generally, including in those instances in which actual injury may occur. Trying to find those laws and regulations in which "no harm, no foul" will apply may be looking for needles in haystacks. The progressives can always find some victim of anything -- all we have to do is watch the news. A fertilizer plant blows up in West, Texas, and the Governor is blamed for it, because he promoted the business-friendly regulatory climate of Texas. Even Fox and Friends*** had successive jihads on unsafe bounce houses and an "unsafe" stewardess photo one day this week. We've all heard the old "if only one life is saved, it'll be worth it" screeds. And if this issue isn't addressed, then we'll be in the same absence of personal responsibility, somebody's-gotta-do-something-there-oughta-be-a-law mode that we've been in.
Second, there are certain critical issues today that may not be able to wait for the long game of the Murray Option. The topics of religious freedom and the damage wrought by Obamacare directly come to mind. I guess this means the Murray Option is not an either/or proposition -- gotta do both.
And finally, reaching the intended goals seems to be resting on multiple long shots in succession that all have to come out right way, including the legality of Madison Fund Insurance (can one insure against their violations of law?), and then convincing the courts to make significant changes in the law from cases involving only the stupidest of regulations. In other words, can small victories lead to bigger, Nation-altering, results?
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| Maybe so. |
Murray has hope that it will. I say it's worth a shot, but it'll take work and it'll take time. It sure beats "antipolitical politics", anyway.
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*How does someone enter Congress after having been a high school teacher and emerge wealthy enough to pay $3.5M in hush money? (Presumably this means he's got a few $M left over, or he wouldn't have paid.)
***Which is rapidly becoming unwatchable, primarily because of its numerous "outrage of the day" stories.
