Magazine | July 20, 2015, Issue

A Civil, Respectful Cudgeling

By the People: Rebuilding Liberty without Permission, by Charles Murray (Crown Forum, 336 pp., $27)

By the time that Charles Murray sat down to write this book, he had decided that he’d had enough. During the process, he confides in the acknowledgments, his wife had been a touch worried about him: “‘No more mister nice guy,’ I would say ominously, and then disappear back into my lair.” Once she read the finished manuscript, though, she concluded that she’d been overly concerned.

It is quite the trick to call for substantial civil disobedience but to do so without ever worrying the reader, but Murray has pulled it off. In By the People, he appears as a mild-mannered Howard Beale, sticking his head out the window of the social-sciences train and announcing, with frustrated resignation, “I’m not going to take this anymore!” In so doing he joins a long line of American rebels who have contrived to take up literary arms against the established order, and to reclaim their birthrights from Leviathan. If you want a book that will crisply outline what has happened to Madisonian America since the Great Depression, without scaring the neighbors, it’s your lucky day.

That Murray is a restrained warrior should not be taken as an indication that his diagnosis is half-hearted or that his indignation is faint. His intention, he explains candidly on the first page, is no less than to convince his readers that “America’s political system has been transmuted into something bearing only a structural resemblance to the one that the founders created.” How bad have things become? Bad enough at least that Part I begins with a host of serious epithets — America is “lawless”; “systemically corrupt”; in a state of “advanced sclerosis”; saddled with a “broken constitution” — and that, by the time their use has been assiduously justified, the reader does not consider them hyperbolic.

Once upon a time, Murray contends darkly, the United States enjoyed a political order that was uniquely effective at limiting the influence of government. Alas, since the New Deal that order has been slowly perverted: in part by faithless courts that have failed to police the state and to uphold the Constitution as written; in part by the abandonment of crucial common-law principles such as mens rea and limited negligence standards; in part by the metastasization of the administrative state, which has taken power away from Congress and become a law unto itself; in part because democracies inevitably eat themselves; and in part because the very political system that could in theory push back against these excesses has itself become corrupted. By Murray’s lights, there is no realistic chance that, simply by electing the right people to Washington or by appointing Scalia-esque justices to the Supreme Court, the voters can reverse the decline. “It is not,” he submits, “unlikely” that the United States will be restored at the ballot box — it is “impossible.” And so, it is time to raise some hell.

Clearly anticipating the obvious charge — that he is merely bitter that his own team has not been winning of late — Murray goes to great pains to rest his case upon the legal strictures contained within the original Constitution and upon the universal precepts of the Declaration of Independence. In most polities, to claim that the government is on “the wrong path” makes little logical sense. The inevitable question in, say, Italy, is “By what yardstick?” But “American government,” as Murray contends convincingly, “does not command our blind allegiance to the law.” Indeed, “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.”

These are potentially seditious words, and because there is such a thin line between legitimate rebellion and unwarranted law-breaking, a good number of Americans will presumably recoil at them. But, ultimately, they need not worry. Murray insists that he is “not proposing revolution” so much as suggesting that the government has “lost elements of its legitimacy” and needs therefore to be selectively challenged from the outside. To underscore this claim, he reports polling data illustrating a concerning fact: Voters of all stripes have lost faith in their institutions as those institutions have grown beyond recognition. Suspect that it’s just tea-party types who are disgruntled with the way Washington works? Think again. Jefferson’s “consent of the governed” has been lost.

Those who are hoping to recruit Murray to their side in a broader fight against the state will be disappointed. Certainly he has of late adopted “an adversarial stance toward the federal government.” But his ideal insurgency is a limited one. In Murray’s view, there are no victories to be won by encouraging Americans to cheat on their taxes or to chip away at the nation’s civil-rights laws or to put people in physical danger — or, for that matter, to pick any public fight during which the state can trot out a sympathetic victim. Nor does he believe that conservatives can win their battle against extensive transfer payments, restore the federal government to its pre-1932 role, or overturn the more damaging of the Supreme Court’s acts of constitutional vandalism. Rather, he aspires to give a voice to the voiceless, and accord to the put-upon a realistic chance of fighting back against a bureaucratic machine that routinely crushes anything that finds itself in its path.

The “repeated injuries and usurpations” against which Murray hopes to wage war are regulatory and administrative in nature. He is on the side of the dentist whose business is destroyed by an overly literal hygiene inspector; of the restaurant whose owners are fined for keeping cheese a single degree above the temperature established in the rules; of the family-run storage-drum-reconditioning plant that is threatened with a $9.3 million fine for no discernible reason whatsoever.

Murray’s troops are lawyers — representatives of a proposed pro bono group that he has termed “the Madison Fund” — and their role in the mutiny is to “pour sugar into the government’s gas tank.” Murray envisions that, by tying up in court the most capricious and petty among the regulators, his liberty-friendly attorneys would achieve two salutary victories against Goliath. First, they would bring much-needed legal relief to a host of tormented Davids: No sooner would the government threaten to end a career or put a company out of business than a counselor with a legal briefcase would show up and announce his intention to take it from there. This, in turn, would force the nation’s mandarins to rethink their approach, enjoining the out-of-control bureaucratic state to contemplate whether it is really worth issuing a citation for that minor infraction. Just as the federal government lives in constant fear of restricting speech lest the ACLU show up at its door, and just as the states tend to shy away from limiting the right to keep and bear arms for fear that the NRA will jump on their case, so too would America’s many Departments of Frivolous Interference think twice before sending out a crack squad to smash a peanut with sledgehammers.

Which is to say that, despite the high-flown appeals to the liberty of man and the bleak assessment of the scale of the “abuses and usurpations” to which modern Americans are daily subjected, the Charles Murray of By the People is not Sam Adams, and his weapon of choice is not the musket; he is Atticus Finch with a Gadsden Flag.

All revolutions rely for their success on timing, tactical prowess, and the identification of their enemy’s key weaknesses. Murray’s would be no different. We are, he proposes in his final chapter, coming out of an era of peculiar homogeneity and entering an era of technological change and genuine intellectual and political diversity. The one-size-fits-all government that grew up during the culturally uniform post-war period is no longer suitable in the age of the “liberation technology” that we now take for granted. In consequence, he argues, we might be on the verge of a broad rejection of prior regulatory norms, and of a moment in which the rest of the country stands up and insists loudly that we refrain from treating the United States as if it were merely an extension of New York City. Should this happen, and should the government choose to react by persevering in the manner to which it has become accustomed, it will more than likely expose itself to be a paper tiger, unable to enforce its will without inviting the ire of the disaffected. “What looks like Goliath to any one of us,” Murray submits, “is actually the Wizard of Oz.” If we want to restore our liberty, we have only to pull off the mask — whether we are permitted to do so or not.

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