Thoreau on the Potomac


Review of By The People: Rebuilding Liberty Without Permission, by Charles Murray

New York: Crown Forum, 2015

Ever since I visited Germany when I was 13 years old, I have been mildly preoccupied by jaywalking. What struck me most about Germans (the first non-Canadian foreigners I had ever been among) was that they never jaywalked, no matter how clear an intersection was. If Germans were marked by an overdeveloped sense of respect for state authority, I decided that it was central to Americans’ national identity that we not stand around at empty intersections for want of authorization from a flashing “Walk” sign. Jaywalking struck me as a patriotic duty, and to this day as I make my way through the world on foot I take pride in acting alertly, in accordance with principles of just pedestrianism (e.g., “If your jaywalking forces a car to brake on green, you are a terrible person”), and without any undue deference to traffic laws.

I have sometimes pondered how this way of thinking might extend to other aspects of daily life and law: speed limits, drug laws, perhaps even trespassing laws. But Charles Murray has done me one better in his new book, By The People: Rebuilding Liberty Without Permission: he boldly argues that pedestrians are actually complying with “the spirit” of jaywalking laws when they first ensure there are no cars around, and that citizens might likewise find ways of embracing “the spirit” of various environmental laws and occupational safety laws while nevertheless crossing on red, so to speak. In grander terms, he calls for civil disobedience of a more straightforward sort on a massive scale, designed to cure the American polity of what he sees as its worst disease, the unlimited ambitions and overreach of federal regulators.

From the outset, Murray makes it clear that his target audience is “people who are devoted to limited government,” whom he calls “Madisonians.” Murray first aims to remind his intellectual fellow-travelers about what is so bad about contemporary government. He offers some florid talk of American-style “kleptocracy” and some more substantial worries about institutional sclerosis. But the central focus is on how the federal government’s grievously obtrusive presence in daily life, which Murray thinks was totally unknown as recently as 1950. This disorder is a consequence of an abandonment of our Madisonian Constitution’s central tenets, with causes that are “inextricably embedded” in hard-to-reverse constitutional, political, and institutional developments. Murray’s portrait hews closely (if sometimes selectively and using very broad strokes) to the familiar libertarian narratives of Gary Lawson, Randy Barnett, Walter Olson, and others. But he quite sensibly despairs of reversing these trends through a mere reshuffling of politicians or Supreme Court justices, claiming that a large swathe of the public needs to partake of a revolutionary spirit to reclaim America’s Madisonian exceptionalism.

To be successful, Murray’s program of widespread civil disobedience against regulators requires two assumptions: first, that the behavior of regulators really does strike a large number of Americans as a widespread and egregious source of harm; and, second, that most Americans will find it self-evident that the benefits of regulation pale in comparison to the manifest harms. Neither is obviously correct.

First, though Murray generally seems to take it for granted that the problems he focuses on are experienced by a great many Americans, most of his examples are of difficulties that federal regulations pose for small businesses or even large corporations (and actually a goodly number of his illustrations come from state and local regulations, even though he has framed his proposed struggle as being against federal overreach). Regulatory takings are of special concern, as is employment law. Recognizing that these do not regularly encroach on most people’s regular experience, he is eager to make analogies to laws that do, hence references to jaywalking, speed limits, and what he claims is a very reasonable fear of an invasive and unmanageable IRS audit of one’s personal tax return. Murray explicitly suggests that focusing on this last anxiety (which is probably not well-grounded for normal taxpayers) offers a good way to empathize with corporate executives—but are normal Americans eager to undertake that exercise? In this populist moment, it seems unlikely that the plight of managers of large businesses will offer the basis for a mass movement of any kind. (Then again, in this dawning of the era of Trump, who knows?)

Second, very few regulatory interventions are as transparently useless as Murray makes most of them sound. His main technique is to make binary judgments about the worth of regulation: yes, it is sensible to tackle “simple and objective” problems like industrialists “disgorging millions of gallons of contaminated wastewater into a river every day,” but the EPA’s contemporary actions policing the purity of the waters of the United States are nothing like that, but rather just a big waste. Yes, stopping the sale of adulterated food and drugs was an easy call, but what the FDA spends its time on now is harassing regular businesses. No doubt many people have sufficiently hostile views of government that they will be happy to follow Murray in this style of thinking. But the vast majority will be far less certain. Note that neither regulating water quality nor trying to combating food contamination is anything like banning jaywalking. When we jaywalk, we can quickly and generally reliably apprise ourselves of all of the relevant facts of the situation in a way that is quite obviously superior to any policymaker—we are here, in this moment, seeing whether it is safe to cross, and whoever made the rule is not. Local knowledge is decisive and easily ascertainable. Once technical scientific knowledge is implicated, things are very different. For many Americans, letting regulators informed by expert knowledge supervise risk management seems quite natural and sensible, even when the regulations are arcane.

So while Murray may have some “Madisonian” admirers willing to follow him to the ramparts without delay, the prospects for a genuinely widespread campaign of civil disobedience look dim. Fortunately for Murray, his book’s main prescription for fighting back against the regulatory state does not depend on anything so fickle as the attention of the American public.

Instead, the book is best read as an unusually elaborate grant proposal for an unusually large ask: Murray is looking for a nine-figure investment from a billionaire (or, he allows, a small clique of like-minded hundred-millionaires) interested in bankrolling a new “Madison Fund” which would “be the champion of individual citizens against” the “Goliath” of federal regulators enforcing senseless rules. The Fund, which would be a kind of scaled-up combination of the Institute for Justice, Competitive Enterprise Institute, Pacific Legal Fund, etc., would provide vigorous legal defenses to those in regulators’ crosshairs, taking a page from Scientology’s legal playbook by seeking to clog up the legal process as much as is permissible in the course of the defense. What is more novel, the Fund would also pay any fines that ultimately stick, changing individuals’ and firms’ willingness to risk defiance.

With this “beachhead” established with the backing of a far-sighted Madisonian philanthropist, Murray hopes professions would find less altruistic models along the same lines. He offers the illustration of “Dental Shield,” which would be funded by fees from dentists and would provide the same kind of legal protection against regulatory enforcement as the Madison Fund. If the dentists’ group found that, by its own judgment, the dental office targeted by regulators had done nothing actually blameworthy, it would also reimburse any fine. Regulators would go from being a terrible menace to an “insurable hazard.” As profit-seeking enterprises adopted this model, they would demonstrate the avoidability of our current regime. Their struggles could be democratized by “a reality TV show showing ordinary Americans being victimized by regulators, American or UnAmerican: You Decide.” (If Parking Wars could make it, why not this?) Resistance against regulators might thus inspire a broader national rediscovery of self-government.

Quite apart from its imposing startup costs, there are countless ways in which Murray’s vision could flounder, and I have a hard time seeing how it would ignite a genuine mass movement. And yet there is something appealingly concrete and of-the-moment about his dream. Murray would never put it this way, but what his partial revolution would create is a bureaucratized counter-bureaucracy better able to push back at scale against faceless state power than the likes of Harry Tuttle, the freelance heating engineer of Terry Gilliam’s Brazil who wages a lonely personal campaign against official fecklessness one mess of ductwork at a time. Given Murray’s political orientation it is deeply important to him that the private sector pony up to establish this new institution, and yet in some ways it would be akin to a form of legal aid for the commercially active. This new legal institution would hardly bring about the liberation from overlawyering that Murray advertises, but it could plausibly curb the worst excesses of our regulatory state. Probably there are worse ways to spend a few hundred million.

And yet there may also be an ironic twist lurking within Murray’s vision. When he is imagining how Dental Shield and its brethren groups would work, Murray once again makes it seem like it is a trivial task to distinguish upright professional conduct from negligent behavior. As he tells it, there is little in between these two poles. But practitioners are likely to have much more complicated ideas about what professional responsibility requires. Just to take dentistry as an example, exactly what sterilization techniques achieve sufficient levels of safety? What instruments and techniques should be considered safe and efficacious? What kind of documentation is necessary to adequately demonstrate care is being taken? Ironing out answers to these questions and developing processes to assess compliance will be costly, contentious, and open to many of the same manipulations as our state-run regulatory process.

The outcome, guided by practitioners themselves, would almost certainly be elaborate codes of conduct—which have sure enough emerged in recent decades for nearly every type of business. Witness the non-governmental International Organization for Standardization, with 19,500 standards on its books. There is a serious possibility that the anti-bureaucracy bureaucracy’s efforts would simply layer on top of official regulations, thereby multiplying the compliance headaches Murray laments rather than sweeping them away. Some of the Madison Fund’s work might well prove liberating, but embracing Murray’s plan could potentially teach a more frustrating lesson: that self-government in globalized, bureaucratized, risk-averse modernity is little more appealing than the sometimes byzantine system of delegated administration we already have.

Posted on 23 November 2015.

PHILIP WALLACH is a Fellow in Governance Studies at Brookings.