The Murray Option : Small Victories Leading to Bigger Results?

Well, we've had lots of talk around these parts about the "cult vaporware" of the Dreher Benedict/"BenOp"/Bunker Option.  Keep up the good work.

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).  

*****

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?  

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.

*****

*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.)  

**The disobedience is directed at federal regulations, because it is the federal government that has become illegitimate in Murray's view and thus can be morally attacked, in the sense of the Declaration of Independence.

***Which is rapidly becoming unwatchable, primarily because of its numerous "outrage of the day" stories.

What we're up against

As promised here, it's time for an installment of my take of By the People by Charles Murray, which I am in the process of reading.  The first portion of the book summarizes his take on how we got to where we are today, under the boot heel of a lawless regulatory state.  The book will later get to his prescription for how we can deal with that, which I will get to in later posts.

But for our purposes here in analyzing the so-called and undefinable Benedict Option and perhaps other options to that Option, the first part of the book usefully illustrates just what we, as nominally free people, are up against.  Pace Barack Obama, we should identify the actual enemy in order to develop our strategy. Mr. Murray summarizes that quite well, I think:

To simplify, progressive intellectuals were passionate advocates of rule by disinterested experts led by a strong, unifying leader.  The were in favor of using the state to mold social institutions in the interests of the collective.  

And quoting Woodrow Wilson:

...government is not a machine, but a living thing.  It falls, not under the theory of the universe, but under the theory of the universe, but under the theory of organic life.  It is accountable to Darwin, not to Newton. ... All that progressives ask or desire is permission -- in an era when "development," "evolution," is the scientific word -- to interpret the Constitution according to the Darwinian principle.

Brought to you by the progressive movement

By the People sets out how the progressives put these ideas into practice via the judiciary:  elimination of constitutional limitations on the federal government, enabling use of civil litigation as a tool of wealth transfer for the "collective good", and unleashing the lawless regulatory state.  Mr Murray also sets out why we can't undo those actions directly.

My take from this is that we are up against a progressive movement that believes that the experts and elites ("disinterested", of course) can and ought to use the power of the State to change social institutions for the collective good as they see it.  Worse yet, the progressive movement seems to believe that human nature has evolved -- in the Darwinian sense -- such that the constraints presented by pre-modern documents such as the Constitution, as written and adopted, must also evolve.

And this is why, IMO, the so-called Benedict Option (as best one can understand it) would be useless.  Our progressive regulatory oppressors, or at least the true believers among them, will not accept limits on their ability to mold social institutions in the interests of the collective, even to the extent of leaving small insignificant groups alone.  And arguing merely from "tradition" (as in the weak tea of Dreher's SSM opposition) will be considered irrelevant by the progressives; after all, human nature has evolved, and constitutional liberties are to be interpreted according to the Darwinian principle as a result.

To the extent argument can still be used (which Murray seems to believe will be eventually fruitless -- but I'll see how the rest of the book turns out on that point), it will be essential to apply reason, backed by the knowledge that acting in accordance with reason is consistent with revealed truth and God's nature.

And in a more practical sense, we must say "no".  This will be the topic of the second part of By the People, and I will keep y'all updated as I work through it.

Rod Dreher's Benedict Option™: the blue pill of world-aversion

Rod Dreher's Benedict Option™ is your response to the challenges facing Christianity if you've become grumpy and world-averse, not because of  "Low T" (No, really, he tells you himself, and see the beard? He's a lumberjack), but because you share the traits and values of a latent autistic-spectrum middle-aged man:

I told my wife the other day that as I’ve aged this last few years (I’m 48), I have seen latent autistic-spectrum tendencies within myself manifest more acutely. The other day I went into a restaurant in town to pick up some take-out food, and didn’t realize till I walked out how strangely I had behaved. I kept my eyes on my smartphone as I walked in, and barely looked up the whole time I sat at the counter and waited. I didn’t want to meet anybody’s gaze, because … why? Why was I so anxious?

This is happening more and more. I used to be very social, but I find now that solitude is what I crave most of all. I don’t think I’m seeking solitude from a position of strength, but from a position of weakness. I find it increasingly exhausting to be out and about, and I’m not sure why. I know I fought depression a couple of years ago, but I don’t think that’s what this is. You know what I think it is? Living most of my life online.

While we here at EQE may have been the first to point out that the ontology of Rod Dreher's Benedict Option™ perfectly mirrors and recapitulates his peculiar psychology - Rod Dreher's Benedict Option™ is nothing more or less than a visionary world 3D-printed from Rod Dreher's mind - we are hardly the only ones. Commenters on his own blog are saying the same thing to his face:

But I have to ask this, perhaps as the devil’s advocate. Is it possible that this aspect of your inner life is also partially behind your advocacy of the Benedict Option? I personally have always been attracted to the notion of a life of study and contemplation with like-minded fellows, cut off from the larger outer world which is going to hell in a handbasket, much as I imagine the monasteries of Europe functioned as the Dark Ages came crashing down upon the carcass of the Roman Empire. As appealing as I find this—I would love to spend time boning up on Latin and Greek—I always run up against the wall of the Gospels. As far as I can tell, Jesus called upon his followers to go forth and engage with the world, not withdraw from it, even in times of persecution—turning the other cheek and all that. We are supposed to be busy loving our neighbors, who are essentially defined as those as far removed from us as possible in society. How does something so fundamental become reconciled with the Benedict Option? And perhaps your personal inclination to live “not in the real world”?

However, if you're a woman in one of Rod's communes of petulant retreat, here's how you can probably expect to be treated if you don't tread the prescribed line:

amanda says:
May 15, 2015 at 6:23 pm

“… but I honestly don’t know if it will come down to actual persecution,…”

In Para 1 you are qualifying your persuecution …

BUT …

“Or, less kindly, it’s about telling the unwilling woman to lay back and enjoy it, because it’s really not so bad once you get used to it.”

… Para 4, you are comparing your situation to being raped.

Something very odd and insulting happened here.

[nfr: my, what a delicate flower. If you read in the newspaper someone accusing big business of "raping the environment," do you fall to pieces? -- rd]

The whole point of pursuing Christian religious liberty is to achieve Christian religious liberty, not to end up in a snark prison ruled by self-appointed cult patriarchs like Rod Dreher.

If you no choice but to share the traits and values of a grumpy, petulant, misogynistic latent autistic-spectrum middle-aged man, God bless you and keep you, and best of luck following the leadership of someone who's latest book on Dante is about the dark wood of consequences he found himself in when he tried to retreat to his home town and conduct a trial run of his Benedict Option™ among his family and friends, the people closest to him and who know him best.

However, if you don't share or can overcome those stunting traits which have led Rod Dreher on a spectacular career journey of bad reasoning and even worse choices, why not choose the Red Pill of reality instead?

Instead of the Blue Pill of Rod Dreher's solipsistic, latent-autistic Benedict Option™, choose the Red Pill instead, the Murray Option.

After all, our response to the challenges faced by Christians today should actually lead us to true religious liberty - and sooner, not later. It's not supposed to be just one more thing about the failing ways in which a Rod Dreher tries to apprehend the real world.

An Option to the so-called Benedict Option?

While Dreher has spilled a tanker-load of virtual ink over at his blog about his so-called eponymous "Benedict Option", he hasn't yet figured out what he means by it.  OTOH, our discussions have identified at least two salient characteristics:  it's self-promoting if not self-aggrandizing (Dreher being the "self"), and it is essentially rolling into a ball and letting others do the fighting.

But just like the question of what the Repubs in Congress are going to propose in place of Obamacare should the Supreme Court (rightly) drive a stake into Obamacare, it is a fair question to wonder whether there are any options to the utopian Dreher Bunker Option.  Only here at EQE, unlike the weak-kneed GOP leadership in Congress, we're going to try to answer that fair question.

Some time back I linked to a blurb of a new book by Charles Murray, author of Coming Apart (which I highly highly recommend) and co-author of the much-discussed The Bell Curve.  The new book is By The People: Rebuilding Liberty Without Permission:

In last Saturday's Wall Street Journal, Murray contributed the Saturday Essay (read the whole thing, as they say -- no paywall) in which he summarizes this promising concept. Here are a couple of pull quotes:

It was our boast that in America, unlike in any other country, you could live your life as you saw fit as long as you accorded the same liberty to everyone else.... Americans were to live under a presumption of freedom.... 

We now live under a presumption of constraint....The number of federal crimes you could commit as of 2007 (the last year they were tallied) was about 4,450, a 50% increase since just 1980.  A comparative handful of those crimes are "malum in se" -- bad in themselves.  The rest are "malum prohibitum" -- crimes because the government disapproves....

Whether we are trying to raise our children, be good stewards of our property, cooperate with our neighbors to solve local problems or practice our religious faith, the bureaucrats think they know better. And when the targets of the regulator state say they've had enough, that they will fight it in court, the bureaucrats can -- and do -- say to them, "Try that, and we'll ruin you." 

For example, see the sub-headline here :

"relatively unregulated, but that could change".  I bet it could, and I bet it will.

So what to do?  Here's his proposal:

And so my modest proposal:  Let's withhold that compliance through systematic civil disobedience. Not for all regulations, but for the pointless, stupid and tyrannical ones....

The risk in doing so, of course, is that one of the 70-odd regulatory agencies will find out what you're doing and come after you.  But there's a way around that as well:  Let's treat government as an insurable hazard, like tornadoes.

Sounds promising.

At the nudging of others (thanks!), I'm about to start reading Murray's book on the subject.  I'll drop a post here every so often during the process for comment if you are so inclined.  No, not in Dreherian canto-by-canto-Dante style so you can tell me how awesome I am.  Nor will I be fishing for a publishing deal on my book about how someone else's book helped me deal with (sorta, kinda, but not really) my peculiar problems that others caused me.  But maybe, if this makes sense, we few -- we happy few -- can find a way to take action instead of heading to the bunkers.

Stay tuned.

UPDATE (already) :  Great minds ... etc.  Pauli's contemporaneous post immediately below hits this very same point at the very same time.  This passage he quotes is right on point with the above:

...the Catholic enclaves will have to be defended by Catholic lawyers and political activists.

The reference to Catholics is because the piece quoted was written to Catholics.  But as we of course know from history and as Murray notes above, it isn't just the Catholic enclaves that will have to be defended, but the founding idea of the Nation.

UPDATE 2nd:  Thanks, Pauli, for pointing out that I omitted the title of the Murray book.  Fixed that above.