A great deal of the discussion about the Cliven Bundy standoff in Nevada has focused on the legal questions — the litigation between Mr. Bundy and the BLM, his eccentric (i.e., batzoid) legal rationales, etc. But as Rich Lowry and others have argued, this is best understood not as a legal proceeding but as an act of civil disobedience. John Hinderaker and Rich both are correct that as a legal question Mr. Bundy is legless. But that is largely beside the point.
Of course the law is against Cliven Bundy. How could it be otherwise? The law was against Mohandas Gandhi, too, when he was tried for sedition; Mr. Gandhi himself habitually was among the first to acknowledge that fact, refusing to offer a defense in his sedition case and arguing that the judge had no choice but to resign, in protest of the perfectly legal injustice unfolding in his courtroom, or to sentence him to the harshest sentence possible, there being no extenuating circumstances for Mr. Gandhi’s intentional violation of the law. Henry David Thoreau was happy to spend his time in jail, knowing that the law was against him, whatever side justice was on.
But not all dissidents are content to submit to what we, in the Age of Obama, still insist on quaintly calling “the rule of law.” And there is a price to pay for that, too: King George not only would have been well within his legal rights to hang every one of this nation’s seditious Founding Fathers, he would have been duty-bound to do so, the keeping of the civil peace being the first responsibility of the civil authority. Every fugitive slave, and every one of the sainted men and women who harbored and enabled them, was a law-breaker, and who can blame them if none was content to submit to what passed for justice among the slavers? The situation was less dramatic during the government shutdown, but every one of the veterans and cheesed-off citizens who disregarded President Obama’s political theater and pushed aside his barricades was a law-breaker, too — and bless them for being that.
Harry Reid, apparently eager for somebody to play the role of General Dyer in this civil-disobedience drama, promises that this is “not over.” And, in a sense, it can’t be over: The theory of modern government is fundamentally Hobbesian in its insistence that where political obedience is demanded, that demand must be satisfied lest we regress into bellum omnium contra omnes. I myself am of the view that there is a great deal of real estate between complete submission and civil war, and that acts such as Mr. Bundy’s are not only bearable in a free republic but positively salubrious. Unhappily, those views are not shared by many in Washington, and, if I were a wagering sort, my money would be on Mr. Bundy ending up dead or in prison, with a slight bias in the odds toward death.
Mohandas Gandhi and George Washington both were British subjects who believed that their legal situation was at odds with something deeper and more meaningful, and that the British were a legal authority but an alien power. (Washington is not really so much closer to London than New Delhi is.) Mr. Bundy is tapping into a longstanding tendency in the American West to view the federal government as a creature of the eastern establishment, with political and economic interests that are inimical to those of the West and its people. And it is not as though there is no evidence supporting that suspicion. The federal government controls 87 percent of the land in Nevada, something that would be unheard-of in any state east of Colorado. Uncle Sam owns less than 1 percent of the land in New York, 1 percent of Maine, less than 1 percent of Rhode Island, less than 1 percent of Connecticut, but nearly half of New Mexico and Arizona, more than half of Utah and Idaho, and is practically a monopolist in Nevada. And a monopolist is rarely a good and honest negotiating partner. The original Sagebrush rebels objected to conservation rules written by eastern environmentalists who had never so much as set foot in the lands they were disposing of; a century and some later, people travel more, but the underlying dynamic is the same.
There are of course questions of prudence and proportion to be answered here, and though I note that he uses the very strong phrase “lawless government,” I sympathize with Mr. Lowry’s desire that both sides should follow the law. But there is a more important question here: Is government our servant, or is it our master? The Left has long ago answered that question to the satisfaction of its partisans, who are happy to be serfs so long as their birth control is subsidized. But the Right always struggles with that question, as it must. The thing that conservatives seek to conserve is the American order, which (1) insists that we are to be governed by laws rather than by men and (2) was born in a violent revolution. Russell Kirk described the conservative ideal as “ordered liberty,” and that is indeed what we must aim for — keeping in mind that it is order that serves liberty, not the other way around. And it is the government that exists at the sufferance of the people, including such irascible ones as Mr. Bundy, not the other way around.
If the conservatives in official Washington want to do something other than stand by and look impotent, they might consider pressing for legislation that would oblige the federal government to divest itself of 1 percent of its land and other real estate each year for the foreseeable future through an open auction process. Even the Obama administration has identified a very large portfolio of office buildings and other federal holdings that are unused or under-used. By some estimates, superfluous federal holdings amount to trillions of dollars in value. Surely not every inch of that 87 percent of Nevada under the absentee-landlordship of the federal government is critical to the national interest. Perhaps Mr. Bundy would like to buy some land where he can graze his cattle.
Prudential measures do not solve questions of principle. So where does that leave us with our judgment of the Nevada insurrection? Perhaps with an understanding that while Mr. Bundy’s stand should not be construed as a general template for civic action, it is nonetheless the case that, in measured doses, a little sedition is an excellent thing.
— Kevin D. Williamson is roving correspondent for National Review.