By The People by Charles Murray

Charles Murray’s new book, By The People is thoroughly depressing.  It was not intended to be thus, but this reader found it so.

By The People is broken into three parts.

Part 1

Abandon all hope, ye who enter here. Dante’s Inferno

The first part of the book is a methodical and thorough analysis of how the American political system has become untenable and worse, unfixable, by any political means.  If you suspected that this was the case, after reading Murray’s book, you’ll be utterly convinced.

Murray, perhaps anticipating some resistance to qualifying founding principles in terms of “Jeffersonian” origins, elects to use a founder with a less conflicted reputation, James Madison.  Throughout the book, he refers to the Madisonian philosophy and the correct and intended from of the U.S. government as properly Madisonian in nature.  Similarly, the correct thinking/properly grounded politician is someone Murray calls a Madisonian.

These principles conform to the conservative (and Murray adds, libertarian) principles of limited government, and more significantly, a clearly delineated separation of powers between the branches.

The debates about the proper role and scope of government in America are not new.  The Constitution was a compromise between opposing views on many topics.  The Federalists and the anti-Federalists argued about the meaning of “general welfare.” Whether he was being disingenuous or not, not even Hamilton argued publicly for a broad interpretation of the General Welfare clause.  Certainly Madison was sincere in his arguments that “the whole point of enumerating the powers of the federal government was to limit them.”

After describing the key points of contention between the Madisonian perspective and the Progressive point of view, Murray lays out a clear exposition of where things have run amok.   He explains exactly how the Court has trashed the enumerated powers, starting in the 20th century.  Murray focuses on how regulatory rules – implemented by unelected bureaucrats, have supplanted and trumped Congressional lawmaking.  This turns out to be quite handy from a political standpoint, as Congress doesn’t have to bear responsibility for the actions of “bureaucrats.”  They can rail against the bureaucracy without acknowledging any ownership of the problems. It is not practical to recount the details of every example given by Murray in part one, but they include some of the following:

• Altering the interpretation of the General Welfare Clause  (Helvering v. Davis on the Constitutionality of the Social Security Act – 1937)

The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison …

• Gutting the Ninth Amendment  (United States v. Carolene Products Co. – 1938¹)  Three consequences:
  • Limited the rights of the American people to those explicitly named in Constitution and its amendments
  • Wiped out protection of economic rights
  • Gave the court latitude to decide which rights are fundamental and those that are not.

Murray explains the Progressive Presumption of Constitutionality Doctrine in conjunction with this and other cases.  He cites legal scholars, Robert Levy and William Mellor, who offered this translation of the court’s ruling.

Unless a challenger can demonstrate that a challenged regulation is wholly irrational — that there is no possible justification, no matter how attenuated, for the government’s action — the regulation will be upheld.  The Dirty Dozen (see WWTFT review)

• Removing limits on what the government can regulate (National Labor Relations Board v. Jones and Laughlin Steel Corp. – 1937)   Court ruled that manufacturing falls within the Commerce Clause, therefore the company was not free to fire people trying form a union.)

• Government can regulate anything – even what one can grow for personal consumption (Wickard v. Filburn  1942) Roscoe Filburn grew 239 more bushels of wheat than he was allowed to, under DOA regulations.  The DOA fine was upheld under the Commerce Clause.

Murray lists many other examples, but the litany of bad court decisions was summed up by Murray quite succinctly:

From 1937 to 1942, for what were believed to be the greater goods, we stopped obliging the American government to control itself.

Not satisfied by recounting all of these bad precedents, Murray also provides a compelling argument against the fixability of the status quo.   His reason is:

Hardly any of the domestic spending of today’s federal government is associated with one of the enumerated powers. 

From a practical standpoint, it would be impossible to do away with things like:

• Social Security
• Medicaid
• Medicare
• All Welfare Programs
• All spending on K-12 education

The list goes on.  To overturn a ruling like Helvering would throw the country into chaos.  It’s just not going to happen.

Having demonstrated the state of affairs with regard to the “broken” state of the Constitution and its irreparable condition, Murray moves on the the legal system.  His thesis here is:

… the American legal system increasingly functions in ways indistinguishable from lawlessness, for reasons that are authorized by judges and congress.

Murray argues the following points;

• When the legal system is more costly than you can afford, it is indistinguishable from lawlessness (esp. for civil cases)

Murray elaborates on this – but this reviewer will make the assumption that the reader can intuit some of the arguments given.

• Criminal law that is sufficiently removed from the concept of mens rea² is indistinguishable from lawlessness.

Here Murray explains some legal concepts in the formulation of law.  With respect to the making of law, some things are obviously bad by definition, murder, rape, theft, etc.  Others are only ruled illegal based upon the decision of a government – these things are not wrong in themselves, but only because the state decided to prohibit them.  In the past there was a relatively low number of laws in this second class.  Consequently it was possible to know what was legal and what was illegal – and so, ignorance of the law was no excuse and was not in conflict with the age-old concept of mens rea, which specified that to be guilty of breaking the law, one not only had to break the law, but also know that the law was being broken.

It’s important to note that Murray is not making an argument against the government rule making authority – against things that aren’t “bad” on their own merits.  Murray’s arguments stem from how such a plethora of regulations has come into being and the lack of accountability by the rule-makers.  The author provides statistics on the growth of federal regulations that bear civil or criminal penalties – 4450 “crimes” listed in the 2007 federal code.

But ignorance of the “law” is no excuse for not adhering to it.

• Civil law that is sufficiently arbitrary and capricious is indistinguishable from lawlessness.

Murray explains that agencies like OSHA have rules and regulations for just about every industry or profession, and are empowered to levy fines and penalties against those not in compliance.    Furthermore, many of these regulations are downright nonsensical and bear no relationship to negligence.

• Law that is sufficiently complex is indistinguishable from lawlessness.

Here Murray provides the obvious examples of behemoth legislative packages like Sarbanes Oxley and the Affordable Care Act, which spawn thousands of new regulations in support of their mandates.   To bring this closer to home for the average citizen, Murray provides a hypothetical which should resonate with anyone.

The fact that the IRS says you owe them money doesn’t mean they’re right and you’re wrong.

… when the IRS sends you a notice that you underpaid your taxes by $1529, what do you do? If you know that you honestly reported your financial information and carefully followed the instructions of the tax preparation software, your natural impulse would be to argue with the IRS before paying it.  But usually that’s not legal.  You must pay now (or be hit with penalties and interest), which, even if successful, will take months or longer, many hours of paperwork, and perhaps the cost of a lawyer.  If you are sensible, you pay the full amount the same day you get the notice and try to forget about it.  You probably haven’t done anything wrong, but to fight it will make matters worse.

Unfortunately, there is a lot more in part one that can be covered in this review.  There is a whole section on “the extralegal state within the state”, wherein Murray shows how regulations are enforced in a system that would not be permissible in civil and criminal courts.    There is also a chapter that explains how the political system has become inherently or “systematically” corrupt, wherein Murray covers everything from the proliferation of PACs to the explosion of earmarks.   Finally, Murray concludes this brutally clear assessment of the American status quo, with an exposition of what he calls the “institutional sclerosis” of entrenched entitlements – best summed up like so: People who receive government benefits tend to vote for people who support those benefits.   This is what Murray calls the fundamental theorem of democratic policies.

If you still need more convincing that things are in a bad way, (or are just a masochist,) read the book.

Part 2

The second part of the book is not a prescription for returning to founding principles.  Murray contends that the best we can hope for is to keep the country from going completely down the tubes.  And so, Murray lays out a plan for that, nothing more.  Even that is going to be a big challenge. In Murray’s opinion, we’re too far gone to return to anything like the Founders’ vision.

Murray’s strategic vision involves three key objectives.

1. Defend Ordinary Individuals Against Government Overreach
2. Make Large Portions of the Federal Code Of Regulations de facto Unenforceable
3. Use The Supreme Court To Rule on Plausible Interpretations Which Could Transform The Way Regulations Are Created and Enforced

Murray begins with a case of selective civil disobedience.  He argues that the federal government has already lost its authority to command voluntary compliance with most of its laws.  In Murray’s view, selective civil disobedience is justified because

… the American government does not command our blind allegiance to the law.  It is part of our national catechism that government is instituted to protect our unalienable rights, and that when it becomes destructive of those rights, the reason for our allegiance is gone. At that point, revolution is not treason, but the people’s right.

In order for this justification to make rational sense, one has to come to the conclusion that government has lost much of its legitimacy.  Murray makes two arguments in support of this contention.

The first argument is simply a brief recap of his analysis of how the system went off the rails with the constitutional revolution of 1937-1942.    Murray acknowledges that this argument will resonate with those having a Madisonian philosophical outlook.

The second argument is one that Murray thinks should resonate with a wider range of people, including conservatives, centrists and moderate liberals. In 2014, only 13% of the American people felt that they could trust the government to do the right thing most of the time.    When this question was first polled in 1958, the percentage of people who answered “just about all of the time,” was 73%.

Part of the explanation for this astonishing drop consists of the problem of lawlessness described in chapters 2 and 3.  Americans with a wide range of political views have been disturbed by laws that are so complicated, they are impossible to obey; by a tax code riddled with favors for people with connections and filled with hazards for ordinary Americans; by laws that can send people to jail for things that other people have done;by occasions when property has been confiscated for reasons that seem patently unfair.  They’ve seen people prosecuted for politically motivated reasons or for failing to comply with unreasonable regulations.  They’ve watched politically connected people go unprosecuted. It comes down to a common recognition across political lines.  American government isn’t supposed to work this way.

According to Murray, historically there were three basic, shared understandings, or “compacts” between the American people and their government.

1. The American people didn’t expect much from the federal government beyond protections for their freedoms at home and from enemies abroad.
2. The federal government would not unilaterally impose a position on the moral disputes that divided Americans.
3. The third tacit compact was that the federal government would make it easy for Americans to take pride in themselves.

Murray contends:

From 1964 onward, the federal government voided all three compacts.

He supports his contention with some pretty persuasive arguments which, for reasons of space, this reviewer will not rehash.  The relevant bit here is to note that Murray makes these arguments as the justifications for his practical proposals for civil disobedience.

On the notion of practicality, Murray starts by setting the ground rules for civil disobedience.  Murray aims at what he believes is an attainable goal, and therefore seeks to avoid problematic areas and focus on things that can be accomplished.  To achieve success, Murray lays out a methodical plan.  In general he refers to regulatory civil law in his discussion.  From a high level, Murray’s strategy is:

• Identify regulations that may be ignored in general
• Identify regulations that are exempt from systematic civil disobedience
• The tax code is exempt from civil disobedience
• Regulations that pertain to nonexclusive and nonrivalrous public goods – things like public defense

Murray then proposes some likely targets for civil disobedience.  It’s important to note, that the author argues for “strict scrutiny” rather than making a blanket declaration in any case.  Some of the regulations that Murray identifies for such scrutiny include:

• Regulations that prohibit owners of land from doing whatever they wish with it
• Regulations that prescribe best practice in a craft of profession
• Regulations that restrict access to a job
• Regulations that prevent people from taking voluntary risks
• Employment laws
• Regulations that are arbitrary, capricious, or an abuse of discretion

Practical Ground Rules

By definition, civil disobedience means that the person who engages in it breaks the law.  Civil disobedience must therefore be undertaken in such a way that it is obvious to all who watch with an open mind that they are witnessing free people behaving appropriately–that the problem is not the person who violated the regulation, but the regulation or its interpretation by the bureaucrats.

With this principle in mind, Murray further refines his tactics with a series of key points to observe in conducting civil disobedience.   For instance, he recognizes that some things, regardless of their merits, will never get a fair hearing by the general populace, so he urges that time and resources not be expended in those areas.  His chief example here is so-called “protection of the environment.”  People have largely bought in to the propaganda.   He refers to such regulations as those with “halo effects.”  There are some exceptions to this rule, specifically if the people who might be harmed by violating the regulation are willing parties.

When choosing a regulation to violate, obey the spirit of the regulation while violating the letter of the law. Murray uses the example of people crossing against the light when there is no traffic.

Murray then moves on to the next tactic, which involves the formulation of a “Madison Fund.”  Murray points out that there are a lot of billionaires out there, and cites private involvement in things like the cure of malaria and space exploration as examples of how this could work.

The Madison fund could get started if just one wealthy American cared enough to contribute, say, a few hundred million dollars.  It could get started if a dozen wealthy Americans cared enough to share the initial cost among themselves… Money isn’t going to be a problem if the strategy can be shown to work.

So what is the strategy of the Madison Fund?  The Madison Fund would operate as a counterweight to the government.  It’s immediate point would be to act as the champion of individual citizens against the gargantuan regulatory state. Longer term, its purpose would be to “make it clear to other Americans that they don’t have to take it anymore.”

There are ways to force an intrusive government to back off.  Specifically, the Madison Fund would have three goals:

1. To defend people who are innocent of the regulatory charges against them.
2. To defend people who are technically guilty of violating regulations that should not exist, drawing out that litigation as long as possible, making enforcement of the regulations more expensive to the regulatory agency than they’re worth, and reimbursing fines that are levied.
3. To generate as much publicity as possible, both to raise the public’s awareness of the government’s harassment of people like them, and to bring the pressure of public opinion to bear on elected politicians and staffs of regulatory agencies.

These are the goals, and they are achievable. We do not need anyone’s permission to achieve them — not the permission of a sympathetic president, Congress, or Supreme Court.

Perhaps the most interesting chapter in this section of the book is chapter 9, entitled Treating The Government As An Insurable Hazard.  In it Murray makes a compelling case for marginalizing the bureaucrats.  Just as powerful corporations with well healed lobbyists bend and contort the rules to get unfair competitive advantage and place themselves into a position where government regulation is a mere nuisance or cost of doing business, the Madison Fund could make government regulation largely irrelevant to ordinary citizens – a mere insurable hazard.

Using the Madison Fund(s) as legal resource, Murray argues that professional associations could change from spending some of their money trying to lobby the government to insuring their members “against mischief of the regulatory state,..”

Murray lays out an hypothetical situation entitled “If Dentists Fought Back,” in which he explains that there are a myriad of OSHA regulations to which dentists have to comply, that have nothing whatsoever to do with the practice of dentistry.  While the risks of being inspected are low, the average penalties which might be assessed if, say a disgruntled employee complaint results in an inspection, are substantial, on average $7,000 per inspection.    Murray asks hypothetically, “Why not buy insurance against the low-probability of an inspection by a regulatory agency?”

Suppose that the ADA, acting on this way of looking at things, decides to offer its members low-cost insurance against the government, calling it Dental Shield.  It charges a nominal $100 per year.  About 90 percent of dental offices take up the offer, producing an annual fund of almost $12 million, which is used to reimburse fines, and to pay for costs of litigating cases that meet the ADA’s established criteria.  Suppose that the average inspection results in fines of $10,000.  That would permit the ADA to reimburse fines for 200 inspections per year and still leave almost $10 million for litigation costs.  Given the rarity of inspections, that should be enough.

Murray even muses that, perhaps there is a business plan here. If sufficiently, profitable, it could be offered as a product like malpractice insurance!

The author points out several benefits to taking this approach to “pouring sugar” into the engine of the regulatory state.  His third point is especially worth quoting.

A by-product of systematic civil disobedience can be a reinvigoration of civil society. A society in which a central government tries to surveil everyone is on its way to tyranny, no matter what forms of democracy it retains. A society in which people are held to standards of behavior by the approbation and disapprobation of their peers is operating in the way that the great theorists of freedom and the founders both anticipated.

There is more in part 2 than can be covered adequately in the space of this, already too-long review.  It will have to suffice to say that Murray has put considerable thought into what is a fairly comprehensive and, in this reader’s estimation, a plausible strategy.  Perhaps a wealthy American or two will pick up the gauntlet and accept the challenge to organize a Madison Fund.

Part 3

The last part of the book, entitled A Propitious Moment, is, perhaps a feeble attempt to counter the pessimism inherent in the first part. Murray concludes with a proposition that this might just be the optimal time to open a second front against an oppressive government.

In a surprising take on cultural diversity, Murray argues that America now looks more like the America of the eighteenth and nineteenth centuries.  In particular he is referring to the influx of immigrants and the degree of cultural diversity that has come as a result.

Murray makes his case by starting with the country’s founding.  He argues that America at the time of the founding was far from homogenous and cites David Hacket Fischer’s book Albion’s Seed.   The significance of this diversity was a disparity in the ways each distinctive group approached what Murray calls “quotidian culture,” to live life as one sees fit.

Murray compares the “four streams of original Americans” documented by Fischer with the whites, blacks, Latinos, and Asians of today.  It is not practical to delve into this analysis, but it seemed not without merit to this reviewer.

The Anti-Federalists believed that the cultural diversity of the the thirteen new states was so great that a strong central government was unworkable,…

But the Federalists prevailed in their arguments, not because they didn’t acknowledge these differences,

…but because the powers of the federal government were so constrained.  Americans at the founding, Federalist and Anti-Federalist alike, demanded a Constitution that severely restricted federal power not just because of an abstract attachment to federalism or because of the single issue of slavery but because of the many concrete ways in which peoples with different ways of life didn’t want a government which would interfere with those ways of life.

This is the crux of Murray’s argument,

…America today bears some striking similarities to America of the nineteenth century.

The America at the time of the founding produced our form of government and if today’s population shares some of the same struggles, perhaps it will be amenable to some of the same solutions.

Continuing in this hopeful theme, Murray sees advantages in technological advancement.  In his words, “technology makes liberty practical as never before.”

In an interesting reprise to part two, Murray uses Uber as an example of the disrupting force technology can work in favor of liberty.  When fines are levied against its drivers, Uber has been known to pay them.  Enforcing regulations against independent contractors who drive for Uber has been proven to be difficult – this bears no little degree of similarity in form to Murray’s arguments for treating government regulations, if not with contempt, as a nuisance to be insured against.

… a city hall that tangles with Uber has to worry about how much grief it is going to bring down upon itself, in the same way that I want regulatory agencies to worry about creating problems for themselves if they litigate against defense fund clients. 

Reverting to some more depressing detail about the financial straits into which many state and municipal governments have placed themselves, Murray bolsters his arguments by pointing out that the system is already in danger of collapsing under its own weight and is ripe for an attack on its regulatory nonsense – it can’t possibly fight on all fronts at once.

In Summary

Murray’s book is interesting, if depressing.  By The People lays out a strategic plan that might just strike terror into the hearts of bureaucrats if it comes to fruition.  An honest reader, with an open mind, should see the truth in much of what Murray says.  The book will resonate most strongly with those of a libertarian bent and is not necessarily geared to conservatives.  Murray tries to present an honest appraisal of the state of government and a practical strategy for fixing some of the issues before us.  As he says throughout, we can never go back, but he thinks he has a way forward which at least ensures our survival.

1. The case dealt with a federal law that prohibited filled milk (skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream) from being shipped in interstate commerce. The defendant argued that the law was unconstitutional on both Commerce Clause and due process grounds.

The previous term, the Court had dramatically enlarged the activities considered to be in, or affect, interstate commerce. It had also altered its settled jurisprudence in the area of substantive due process, the doctrine dealing with rights not specifically enumerated in the Constitution. These changes meant that many New Deal programs that the Court would previously have struck down as unconstitutional would henceforth be found constitutional.

The defendant company charged with breaking the law described above at trial filed a motion to dismiss on the grounds that the law was unconstitutional. The United States District Court for the Southern District of Illinois granted the defendant’s motion, and the Seventh Circuit Court of Appeals affirmed the District Court’s ruling.

Justice Harlan Stone, writing for the Court, held that the law was “presumptively constitutional” properly within legislative discretion, and hence was not for the courts to overrule because it was supported by substantial public-health evidence, and was not arbitrary or irrational. In other words the Court applied a “rational basis” test. Wikipedia

2. Mens rea is a legal phrase used to describe the mental state a person must be in while committing a crime for it to be intentional. It can refer to a general intent to break the law or a specific, premeditated plan to commit a particular offense.