A new book from a mainstream author and publisher not only details the problems created by the federal regulatory state, it recommends a course of action to stop it quite familiar to supporters of the Tenth Amendment Center.
Followers of the Tenth Amendment Center’s work are no strangers to the continuing growth of federal power. From expansive wars overseas, to disproportionate incarceration of citizens, to complete disregard of constitutional jurisprudence, there seems to be no limit to the continuous expansion of federal authority.
In Charles Murray’s most recent book By the People: Rebuilding Liberty Without Permission (Crown Forum, 2015) the focus is on just that. However, rather than the typical aggregate summary of the current state of affairs, Murray focuses on what is sometimes referred to as the fourth branch of government – the regulatory state; that is the extensive and intertwined network of unelected administrative agencies, each dominating their area of “expertise.”
Introducing the book, Murray carefully describes the rise of big government in America. In part 1, titled “Coming to terms with where we stand,” he makes the case that our political process is beyond repair and no longer an effective avenue for change. He identifies the Supreme Court as a key tool expansionists used to legitimize any overreaching law or interpretation thereof (think general welfare clause).
Murray continues his evaluation with precise and fact-based findings to cement his position. He often cites the Code of Federal Regulations, which grew from 22,877 pages to 174,545 pages in a span of 50 years, as black and white proof of an over burdensome bureaucracy. Murray correctly points out these codes are primarily malum prohibitum (wrong not in and of themselves, but because statute asserts so.) That leaves Americans complying with counter-productive regulations that are expansive and bad for society overall, despite the image lawmakers strive to sell.
Ideally, Murray argues that regulatory bodies should harbor a “no harm, no foul” outlook on their rulings; the discretion sports referees take when making a call. As Murray writes;
“If a violation of a rule has occurred but it has no effect on the action of the game, the officials ignore it and the game goes on, to the greater enjoyment of both players and spectators. As the sports announcers say, ‘The officials are letting them play tonight.'”
Having identified the problem, Murray goes on to explain why conventional political methods, such as electing the right representatives or depending on judges, are of little use in reining in the beast. Referencing the fact that the Supreme Court continually affirms most of what the legislative branch passes anyway, and even adds to existing law (think Chief Justice Robert’s most recent ruling on King vs. Burwell), there seems to be no hope in asking lawmakers to restrain themselves when they have a judicial stamp of approval operating less than a mile away.
Murray notes that in the few cases the Supreme Court actually did overturn law, such as Brown v. Board of Education and Plessy v. Ferguson, it amounted to only a roadblock to federal operations and not its limits. And it’s the lack of limits of federal power that is the root of overreaching government actions. With lawmakers legislating outside the sphere of their constitutionally enumerated powers, we see time and time again a blurred line between what Congress can and cannot do.
Unlike many typical social science books, Murray doesn’t just leave the reader with a laundry list of grievances. Instead he constructs a very plausible strategy to stop them. By the People details, what Murray calls, “systematic civil disobedience” – a distinct initiation of defiance to certain regulations. As Murray explains:
“Not…all regulations, but…pointless, stupid and tyrannical ones. Identifying…categories that should come under strict scrutiny include regulations that prescribe best practice for a craft or profession; restrict access to an occupation; prohibit owners of property from using it as they wish; prescribe hiring, firing and working conditions; and prevent people from taking voluntary risks. Within each category, the task is to discriminate between regulations that should command our voluntary compliance from those that are foolish or worse…”
Under his strategy, laws which are malum in se (bad in themselves) are exempt. Murray also excludes public interest items such as the tax code and national defense from his “systematic civil disobedience,” leaving issues that nearly everybody opposes such as bureaucratic red-tape, over bearing OSHA regulations and other administrative laws.
Murray’s approach to methodical defiance distances himself from individuals applying similar techniques to more controversial topics, which it’s assumed, could tarnish the cause. It seems Murray chooses to focus on the low hanging fruit of federal grievousness for the sake of plausibility, or to focus action on issues that cross party lines. Be that as it may, attacking the issues We the People covers would be a step in the right direction for liberty.
Murray’s proposed mechanism for attack is what he calls “The Madison Defense Fund.” A private legal defense fund which treats government as an “insurable threat,” much like floods and fires. As Murray sees it, businesses take out insurance for workers compensation, and they can do the same for government meddling.
In a recent example, Sackett v. EPA, the Sackett family was accused of building their home on government protected wetlands. The family attempted to contest the decision, but was not allowed to since the administrative courts would not hear their case. In the meantime, the family racked up $37,000 a day in fines (The Sacketts were eventually vindicated in court). This is the typical case – and one Murray highlights – as the Madison Defense Fund’s main target.
As Murray explains it, initially the private firm would notify the regulatory agency that it will represent the defendant, and that it will relieve the defendant of any and all financial hardship the regulatory agency wishes to impose on them. Furthermore, not only will the Madison Defense Fund relieve the financial burden, it will also publicly announce the heavy handedness of the regulation and its effect on the people. The strategy is to win a “war of attrition,” ending with the government backing down because the benefit of the said legal battle would be outweighed by the negative public backlash.
All in all, By the People offers a refreshing outlook on how to further the liberty fight. The book spotlights the issues at hand and offers a seemingly plausible solution that appeals to those in favor of peaceful civil disobedience.
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