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By the People: Rebuilding Liberty Without Permission
The American way of life, built on individual liberty and limited government, is on life support. American freedom is being gutted. Whether we are trying to run a business, practice a vocation, raise our families, cooperate with our neighbors, or follow our religious beliefs, we run afoul of the government—not because we are doing anything wrong but because the government has decided it knows better. When we object, that government can and does tell us, “Try to fight this, and we’ll ruin you.” In this provocative book, acclaimed social scientist and bestselling author Charles Murray shows us why we can no longer hope to roll back the power of the federal government through the normal political process. The Constitution is broken in ways that cannot be fixed even by a sympathetic Supreme Court. Our legal system is increasingly lawless, unmoored from traditional ideas of “the rule of law.” The legislative process has become systemically corrupt no matter which party is in control. But there’s good news beyond the Beltway. Technology is siphoning power from sclerotic government agencies and putting it in the hands of individuals and communities. The rediversification of American culture is making local freedom attractive to liberals as well as conservatives. People across the political spectrum are increasingly alienated from a regulatory state that nakedly serves its own interests rather than those of ordinary Americans. The even better news is that federal government has a fatal It can get away with its thousands of laws and regulations only if the overwhelming majority of Americans voluntarily comply with them. Murray describes how civil disobedience backstopped by legal defense funds can make large portions of the 180,000-page Federal Code of Regulations unenforceable, through a targeted program that identifies regulations that arbitrarily and capriciously tell us what to do. Americans have it within their power to make the federal government an insurable hazard like hurricanes and floods, leaving us once again free to live our lives as we see fit.
By the People’s hopeful message is that rebuilding our traditional freedoms does not require electing a right-thinking Congress or president, nor does it require five right-thinking justices on the Supreme Court. It can be done by we the people, using America’s unique civil society to put government back in its proper box.
By the People’s hopeful message is that rebuilding our traditional freedoms does not require electing a right-thinking Congress or president, nor does it require five right-thinking justices on the Supreme Court. It can be done by we the people, using America’s unique civil society to put government back in its proper box.
336 pages, Paperback
First published February 3, 2015
68 people are currently reading
910 people want to read
About the author
Charles Murray
87 books574 followersCharles Alan Murray is an American libertarian conservative political scientist, author, and columnist. His book Losing Ground: American Social Policy 1950–1980 (1984), which discussed the American welfare system, was widely read and discussed, and influenced subsequent government policy. He became well-known for his controversial book The Bell Curve (1994), written with Richard Herrnstein, in which he argues that intelligence is a better predictor than parental socio-economic status or education level of many individual outcomes including income, job performance, pregnancy out of wedlock, and crime, and that social welfare programs and education efforts to improve social outcomes for the disadvantaged are largely wasted.
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January 31, 2016
Charles Murray's writings are always thought-provoking and enjoyable. This book is certainly no different. He begins by showing how far American government has strayed from the intentions of our founding fathers. He also shows how nearly impossible it would be to get a return to the limited government they intended. He sees runaway regulators at the behest of interest groups crippling our economy and liberties.
How to fight back? Join together to "just say no." Where the regulatory state has become ridiculous, refuse to comply. When OSHA wants you to label common beach sand as a dangerous toxin, just ignore the command and spend your energies on real safety issues at the workplace. But what happens when you get inspected and threatened with fines? A Madisonian defense league will step in the same way the ACLU steps in and handles cases for those whose free speech liberties are threatened. And businesses who face common threats of prosecution can join together to purchase litigation insurance so that they are protected from frivolous and unreasonable government intrusion by similar legal representation.
This makes a lot of sense and just might work because of how the inept managers of a sclerotic bureaucracy will be incapable of fighting against widespread non-conformance. It doesn't undo all the problems of our modern federal government, but it does help out where the tentacles of government seem to disrupt the lives of small businesses and common people.
Murray later does a great job of showing that the fears of ethnic and cultural diversity in America are overblown - that our country started with greater diversity than most of us seem to be aware of. That was a valuable thing to learn for me. But I didn't quite follow how this diversity bears on his main theme. I think it was probably something that should go in another book and not in this one.
In the last portion he provides some optimistic pictures of how both progressives and cultural conservatives can compromise to make this a better nation with more liberty. Here is where his libertarian outlook comes shining through. I can't swallow some of what he asks for me to allow as a cultural conservative. I can't see that allowing abortion on demand in the states where it is favored really is a matter of true liberty; to me this freedom to choose ends up ending the right to life and liberty of an unborn child. Even libertarians feel one's exercise of personal liberty ought not infringe on the liberties of others. Abortion is hardly a "live and let live" sort of issue because one party doesn't get to go on living.
Even though I can't agree with all his conclusions, I benefited from reading By the People. I highly recommend it to anyone worried about the decline of personal liberty in our republic, whether he is liberal or conservative, because Murray does a good job of making his case in a way that should make sense to persons of either political leaning.
How to fight back? Join together to "just say no." Where the regulatory state has become ridiculous, refuse to comply. When OSHA wants you to label common beach sand as a dangerous toxin, just ignore the command and spend your energies on real safety issues at the workplace. But what happens when you get inspected and threatened with fines? A Madisonian defense league will step in the same way the ACLU steps in and handles cases for those whose free speech liberties are threatened. And businesses who face common threats of prosecution can join together to purchase litigation insurance so that they are protected from frivolous and unreasonable government intrusion by similar legal representation.
This makes a lot of sense and just might work because of how the inept managers of a sclerotic bureaucracy will be incapable of fighting against widespread non-conformance. It doesn't undo all the problems of our modern federal government, but it does help out where the tentacles of government seem to disrupt the lives of small businesses and common people.
Murray later does a great job of showing that the fears of ethnic and cultural diversity in America are overblown - that our country started with greater diversity than most of us seem to be aware of. That was a valuable thing to learn for me. But I didn't quite follow how this diversity bears on his main theme. I think it was probably something that should go in another book and not in this one.
In the last portion he provides some optimistic pictures of how both progressives and cultural conservatives can compromise to make this a better nation with more liberty. Here is where his libertarian outlook comes shining through. I can't swallow some of what he asks for me to allow as a cultural conservative. I can't see that allowing abortion on demand in the states where it is favored really is a matter of true liberty; to me this freedom to choose ends up ending the right to life and liberty of an unborn child. Even libertarians feel one's exercise of personal liberty ought not infringe on the liberties of others. Abortion is hardly a "live and let live" sort of issue because one party doesn't get to go on living.
Even though I can't agree with all his conclusions, I benefited from reading By the People. I highly recommend it to anyone worried about the decline of personal liberty in our republic, whether he is liberal or conservative, because Murray does a good job of making his case in a way that should make sense to persons of either political leaning.
July 4, 2015
The most important book to read this summer, Charles Murray defines a plan by which liberals and conservatives can both abandon the totalitarian wings of their parties (progressives and social conservatives) to build a sustainable government. Only a kleptocracy of nationwide scale could execute a wealth transfer $2T in one year and fail so completely to provide for the needs of its least fortunate citizens. Failure at this scale requires reliance on a tax code 4M words long, (dis)function with 22 layers of management across the Cabinets or taking a decade to resolve legal cases. Simple-minded and blunt-force trauma instruments like raising the minimum wage, 'getting the money out of politics' or taxing "the rich" will only exacerbate the cumbersome incompetence of our bureaucracy. It's time to strip the Federal Government down to a level of spending and personnel responsible for a small number of tasks it might be competent to accomplish. Stop pretending the Federal bureaucrats can solve problems miles above their intellectual weight class. Cease being a government for special interests (kill the F35, end the sugar subsidy for opening offers) and move directly forward to, "... of the people, by the people, for the people."
September 4, 2015
A Fascinating Proposal From a Master
Charles Murray ("Losing Ground", "The Bell Curve") has been at the forefront of American social science for more than half a century. In "By the People" he puts forth a startling notion for such an esteemed public intellectual: that the American political process is so broken that only widespread civil disobedience may bring about a restoration of our fundamental rights. To that end he proposes, in essence, an insurgent via the use of lawfare in order to fight back against a form of government that has grown oppressive.
Though he isn't so gauche as to say it for himself, Murray's proposal harkens back to the pre-Revolutionary actions of the Founding Fathers. In this it is timely and important.
Charles Murray ("Losing Ground", "The Bell Curve") has been at the forefront of American social science for more than half a century. In "By the People" he puts forth a startling notion for such an esteemed public intellectual: that the American political process is so broken that only widespread civil disobedience may bring about a restoration of our fundamental rights. To that end he proposes, in essence, an insurgent via the use of lawfare in order to fight back against a form of government that has grown oppressive.
Though he isn't so gauche as to say it for himself, Murray's proposal harkens back to the pre-Revolutionary actions of the Founding Fathers. In this it is timely and important.
June 30, 2020
Intelligent, insightful, forward looking, and very thought provoking...this is just an excellent read for anyone interested in American civics. And if you're an American but you're not interested in civics and the current state of the relationship between Americans and their federal government, well you should be. Highest recommendation.
August 19, 2015
I am a criminal. More precisely, I am the kind of criminal that Charles Murray likes. Now, as is well-known, everyone is a criminal nowadays, because of the enormous expansion of deliberately vague and open-ended criminal laws. The average American commits multiple federal felonies every day. But Charles Murray specifically wants every American to commit a precise type of relatively limited crime, and I realize with joy that I have been happy to oblige his request for several years.
My crime (doubtless among others I am unaware of) is that I own and run a business (itself suspicious in these days of “you didn’t build that”), and for years the United States Department of Commerce has sent me questionnaires, prominently stamped “Response Required By Law.” These questionnaires arrive every month or so, and they are voluminous and intrusive. They demand I answer questions about my customers, my sales, my profit, my employees, and so forth. I throw them in the trash, unopened, and laugh bitterly at the toxic nature of the federal government.
Charles Murray says we should all break the law this way, and we should all similarly violate a wide range of similarly disgusting, undemocratic and anti-freedom regulations imposed on us by our federal masters. From this, aided by entities that will support such lawbreakers, a revitalized America may arise.
Murray is a libertarian writer on numerous topics, and he is an excellent and compelling author. He first takes the reader on a tour through where America started, how we got the administrative governance system we have today, why that system is defective, and why our existing political process will never fix it. Much of this is familiar territory, but very well drawn.
Murray’s particular focus is the administrative state, the false premises on which its creation was based, and its current illegitimacy. He traces its development down through nearly the present day (although he writes before the 2015 Obamacare decision, King v. Burwell, which intimated the possibility that the Supreme Court might be willing to cut back on Chevron deference), and shows compellingly that no normal process will reverse the evils that it has visited upon America.
Summarizing our problems and how we got here naturally leads to profound pessimism, especially given that Murray, who is an optimist, concludes that no normal mechanism will fix things. This is usually the point at which people start muttering about the need for a Caesar, a revolution, or the aptly named Sweet Meteor Of Doom. But Murray wants us to head in a different direction.
He wants civil disobedience, coupled with a program of defense of those committing civil disobedience, to erode the foundations of the modern oppressive regulatory state. Actually, Murray’s plan would better be described not as civil disobedience as traditionally understood, but as conservative lawfare generated by civil disobedience. The Left, of course, has been very successful at using the courts as mechanisms to attack, dismay and bankrupt their opponents. When your goal is not justice but winning, and you are extremely well-funded and can coordinate legal attacks with sympathetic government agencies and a media wholly rooting for you, that is a very successful tactic. Murray wants rich conservatives to fund a similar program for the right, from the springboard of individual civil disobedience.
The problem with this is, of course, there’s a long way from here to there. Rich conservatives are rare—they are a surprisingly small group. Most of the ultra-rich are closely aligned with the Left, and most who aren’t are politically uninvolved. None seem to give significantly to existing similar conservative organizations, such as the Pacific Legal Foundation. But more importantly, the courts, the government, and the media would not be neutral—they would retaliate viciously against any of these tactics being used by conservatives as they have been by liberals, not only trying to blunt them but ruining any person who led, both financially and likely with multi-decade jail sentences using the same vague and open-ended laws of which Murray complains. The fundamental problem with Murray’s approach is that it assumes, without discussion, that the Left will subject themselves to the rules. In the modern era of Alinskyite domination, rules are only for the little people, and power is all that matters.
But Murray soldiers on with optimism. He concedes that the administrative state at inception had some value and some sound reasoning behind it (though its modern grotesque nature has shown the falsity of the premises and released the evil genie within), but then he gives reasons why he thinks the administrative state is not at all necessary today, if elements of it were necessary in the past. In essence this is because technology enables public, decentralized oversight—the Nirvana of the libertarian. This is an original approach to the problem, certainly.
And, ultimately, Murray believes that no matter what, 200 years from now America will be much richer, because we’ve always grown in the past, and “it is unimaginable that Americans will still think the best way to live is to be governed by armies of bureaucrats enforcing thousands of minutely prescriptive rules.” This is a bit Pollyana-ish—as the law makes sellers of securities say, past performance is no indication of future results. Maybe we’ll just stagnate for 200 years. Certainly that’s where we’re heading now.
The most original part of the book is not the call for civil disobedience or lawfare. It’s that Murray tries to demonstrate that America is ready for a more libertarian, more individual way of life, because modern America is diverse in a way that pre-1950s America was diverse. He discusses “Albion’s Seed” at length, on the huge cultural divergences among Britons who populated America, together with many other groups and peoples in years after that. That is, he maintains that the perceived past homogeneity of America is a myth, and as in the past we should be able to recognize and honor our differences by getting the government off our backs. Everyone should be able to “live his life as he sees fit,” and our return to historical diversity, Murray thinks, will make this more attractive. (Here, “diversity” means actual differences among people, not “diversity” in the more common modern and academic sense of handing over free goods to unqualified minorities. Murray’s diversity does not erode excellence, like modern “diversity”—it enhances excellence.) Murray believes that the diverse elements of modern America can get together behind his program. Given that Murray is both a sociologist and a libertarian, this analysis is clearly close to his heart.
Of course, that past diversity contained within it certain universally held concepts, among them individual responsibility and the melting pot, that have largely passed into memory. Mere past and present diversity does not necessarily imply similarity in vision of the common good, and large segments of the Left exalt the centrifugal aspects of cultural diversity, an entirely new phenomenon on our country. So here as well, Murray is probably too cheerful about the prospects for the future.
Ultimately, the success of Murray’s program relies on a groundswell from a majority of Americans, tired of the costs of government and become eager to free themselves of its yoke. But it’s not true that most Americans feel like government is the problem. As with taxes, the costs of government appear to be borne by a small percentage of people. Yes, they’re really borne by a majority of people, but that’s hidden and lost in the shuffle. Most people don’t care. They’re happy they’re getting theirs. Therefore, somewhat ironically, Murray’s program is probably better suited for imposition by an oligarchical elite, not a renewed spirit of American populism.
My crime (doubtless among others I am unaware of) is that I own and run a business (itself suspicious in these days of “you didn’t build that”), and for years the United States Department of Commerce has sent me questionnaires, prominently stamped “Response Required By Law.” These questionnaires arrive every month or so, and they are voluminous and intrusive. They demand I answer questions about my customers, my sales, my profit, my employees, and so forth. I throw them in the trash, unopened, and laugh bitterly at the toxic nature of the federal government.
Charles Murray says we should all break the law this way, and we should all similarly violate a wide range of similarly disgusting, undemocratic and anti-freedom regulations imposed on us by our federal masters. From this, aided by entities that will support such lawbreakers, a revitalized America may arise.
Murray is a libertarian writer on numerous topics, and he is an excellent and compelling author. He first takes the reader on a tour through where America started, how we got the administrative governance system we have today, why that system is defective, and why our existing political process will never fix it. Much of this is familiar territory, but very well drawn.
Murray’s particular focus is the administrative state, the false premises on which its creation was based, and its current illegitimacy. He traces its development down through nearly the present day (although he writes before the 2015 Obamacare decision, King v. Burwell, which intimated the possibility that the Supreme Court might be willing to cut back on Chevron deference), and shows compellingly that no normal process will reverse the evils that it has visited upon America.
Summarizing our problems and how we got here naturally leads to profound pessimism, especially given that Murray, who is an optimist, concludes that no normal mechanism will fix things. This is usually the point at which people start muttering about the need for a Caesar, a revolution, or the aptly named Sweet Meteor Of Doom. But Murray wants us to head in a different direction.
He wants civil disobedience, coupled with a program of defense of those committing civil disobedience, to erode the foundations of the modern oppressive regulatory state. Actually, Murray’s plan would better be described not as civil disobedience as traditionally understood, but as conservative lawfare generated by civil disobedience. The Left, of course, has been very successful at using the courts as mechanisms to attack, dismay and bankrupt their opponents. When your goal is not justice but winning, and you are extremely well-funded and can coordinate legal attacks with sympathetic government agencies and a media wholly rooting for you, that is a very successful tactic. Murray wants rich conservatives to fund a similar program for the right, from the springboard of individual civil disobedience.
The problem with this is, of course, there’s a long way from here to there. Rich conservatives are rare—they are a surprisingly small group. Most of the ultra-rich are closely aligned with the Left, and most who aren’t are politically uninvolved. None seem to give significantly to existing similar conservative organizations, such as the Pacific Legal Foundation. But more importantly, the courts, the government, and the media would not be neutral—they would retaliate viciously against any of these tactics being used by conservatives as they have been by liberals, not only trying to blunt them but ruining any person who led, both financially and likely with multi-decade jail sentences using the same vague and open-ended laws of which Murray complains. The fundamental problem with Murray’s approach is that it assumes, without discussion, that the Left will subject themselves to the rules. In the modern era of Alinskyite domination, rules are only for the little people, and power is all that matters.
But Murray soldiers on with optimism. He concedes that the administrative state at inception had some value and some sound reasoning behind it (though its modern grotesque nature has shown the falsity of the premises and released the evil genie within), but then he gives reasons why he thinks the administrative state is not at all necessary today, if elements of it were necessary in the past. In essence this is because technology enables public, decentralized oversight—the Nirvana of the libertarian. This is an original approach to the problem, certainly.
And, ultimately, Murray believes that no matter what, 200 years from now America will be much richer, because we’ve always grown in the past, and “it is unimaginable that Americans will still think the best way to live is to be governed by armies of bureaucrats enforcing thousands of minutely prescriptive rules.” This is a bit Pollyana-ish—as the law makes sellers of securities say, past performance is no indication of future results. Maybe we’ll just stagnate for 200 years. Certainly that’s where we’re heading now.
The most original part of the book is not the call for civil disobedience or lawfare. It’s that Murray tries to demonstrate that America is ready for a more libertarian, more individual way of life, because modern America is diverse in a way that pre-1950s America was diverse. He discusses “Albion’s Seed” at length, on the huge cultural divergences among Britons who populated America, together with many other groups and peoples in years after that. That is, he maintains that the perceived past homogeneity of America is a myth, and as in the past we should be able to recognize and honor our differences by getting the government off our backs. Everyone should be able to “live his life as he sees fit,” and our return to historical diversity, Murray thinks, will make this more attractive. (Here, “diversity” means actual differences among people, not “diversity” in the more common modern and academic sense of handing over free goods to unqualified minorities. Murray’s diversity does not erode excellence, like modern “diversity”—it enhances excellence.) Murray believes that the diverse elements of modern America can get together behind his program. Given that Murray is both a sociologist and a libertarian, this analysis is clearly close to his heart.
Of course, that past diversity contained within it certain universally held concepts, among them individual responsibility and the melting pot, that have largely passed into memory. Mere past and present diversity does not necessarily imply similarity in vision of the common good, and large segments of the Left exalt the centrifugal aspects of cultural diversity, an entirely new phenomenon on our country. So here as well, Murray is probably too cheerful about the prospects for the future.
Ultimately, the success of Murray’s program relies on a groundswell from a majority of Americans, tired of the costs of government and become eager to free themselves of its yoke. But it’s not true that most Americans feel like government is the problem. As with taxes, the costs of government appear to be borne by a small percentage of people. Yes, they’re really borne by a majority of people, but that’s hidden and lost in the shuffle. Most people don’t care. They’re happy they’re getting theirs. Therefore, somewhat ironically, Murray’s program is probably better suited for imposition by an oligarchical elite, not a renewed spirit of American populism.
December 1, 2015
Some good ideas on a needed premise (mass civil disobedience to undermine the "arbitrary and capricious" excesses of the regulatory state), but somewhat underwhelming. I was expecting more "enlightenment" than Murray had to offer this time around, but this is still a decent primer for why political solutions to pressing issues usually fail.
June 1, 2015
Learned a lot from this, and will be blogging about it more at Mablog. A lot of shrewd insight here, which makes Murray's myopia about social conservatives right near the end pretty bewildering. Oh, well.
April 3, 2015
BY THE PEOPLE was a big surprise to me. Dr. Murray presents two major ideas in this book--first, "We are at the end of the American project as the founders intended it. Secondly, "Opportunities are opening for preserving the best qualities of the American project in a new incarnation." The author clarifies that "American project" refers to our country's experiment with minimal government interference. Dr. Murray makes it clear that the book is based on the assumption that limited government is best.
Dr. Murray explains that he struggled to find a term to describe people who agree with limited government. At first he thought of using the term "Jeffersonian," but then he settled on the term "Madisonian" instead. His reasoning is that it Madison, "more than any other individual, midwifed the Constitution and the Bill of Rights. It was his Constitution that preserved limited government for the first century and a half of America's existence."
The first part of BY THE PEOPLE describes how America got into the big government situation. Big changes began around the time of the Great Depression because "Americans, suffering from the Great Depression, weren't interested in constitutional limits on what the federal government could do." A critical event that drastically changed the limitation on the federal government was a 1937 Supreme Court decision ruling on the legality of Social Security. The case was Helvering vs Davis. This decision opened the path to more intrusive federal regulation.
Some of the founding fathers worried about the phrase in the Constitution, "general welfare." in article 1 section 8, the Constitution says that Congress has the power to provide for "general welfare of the United States." The founders disputed how exactly the term general welfare would be interpreted in future years. Some worried that it could be interpreted to mean anything. James Madison and the other Federalists who defended the Constitution believed that the enumerated powers listed in the constitution would limit the government's power to just those powers listed. Dr. Murray emphasizes that the debate amongst the founders centered on whether that phrase would give too much power to the federal government, or whether that fear was groundless. Importantly, he clarifies, "None of the leading Federalists in any of the ratified conventions defended the notion that general welfare should be interpreted as conferring authority for Congress to do anything that advance the general welfare. Not even Alexander Hamilton."
Dr. Murray asserts that the situation has gone so far that it's not a matter of just putting different judges on the Supreme Court, or winning a few more presidential elections. He explains: "Restoration of limited government is not going to happen by winning presidential elections and getting the right people appointed to the Supreme Court. A majority on the Supreme Court would help significantly at the margins. But the revolution in constitutional jurisprudence has gone too far, with too many consequences." Realistically speaking, there is no way in the world that Social Security, Medicare, and many other federal institutions are going to be dissolved. That just is not going to happen.
The big surprise in this book is what the author proposes in Part 2. Dr. Murray proposes a program of "systematic civil disobedience underwritten by privately funded legal resistance to the regulatory state." He envisions a fund, called the "Madison Fund," that would insure individuals against adverse action against them when they fight against regulations. It would be a "privately funded foundation to map terrain and probe defenses while helping ordinary Americans who are trying to cope with the regulatory state."
The Madison Fund would have three goals: First defend people who are actually innocent of violating regulations; secondly, defend people who are actually guilty, but make it so expensive to take action against them that the regulatory agency might give up; thirdly, generate tons of publicity on the negative effect of the regulations and harassment on liberties. Dr. Murray gives an example of using the fund. The ADA, American Dental Association, could insure its members against burdensome regulations from the federal government.
The author admits that this is a radical tack: "What I am advocating through the defense funds is unquestionably subversive." He admits that the federal government will certainly come after the Madison fund. So, one of the first tasks of the fund will undoubtedly be to defend itself.
The latter part of the book suggests there are technical reasons that make limited government more practical today. In particular, the internet and information technology have made information a lot cheaper and more widespread. This would seem to mitigate against burdensome regulations, since the purported misdeed would be more widely known and publicized. This would tend to make the regulations redundant.
Dr. Murray explains that in the entire history of the world there has been no experiment like America: "The United States of America from 1789 to the 1930's is the sole example of truly limited government anywhere, at any time." No other country in the entire history of the world started with a theme of limiting the power of government and maximizing individual freedom.
The author laments that if America continues down the path of social democracy, as in Europe, it would mean "the loss of a unique way of life grounded in individual freedom. Under the umbrella of individual liberty, America went from a small group on the East coast to the richest and most powerful nation on earth.
√ All in all, BY THE PEOPLE is a thoughtful, creative dissertation that aims on restoring the freedom and limited government on which our country was founded. No question--Dr. Murray proposes some controversial ideas, all of which will be severely criticized. It remains to be seen whether a fund such as the Madison Fund will actually come to fruition. In any case, Dr. Murray has presented an ingenious way forward. At the rear of the book, the author provides an extensive Notes section that provides further information on the various points made. There is also an extensive bibliography.
Advance copy for review courtesy of NetGalley.
Dr. Murray explains that he struggled to find a term to describe people who agree with limited government. At first he thought of using the term "Jeffersonian," but then he settled on the term "Madisonian" instead. His reasoning is that it Madison, "more than any other individual, midwifed the Constitution and the Bill of Rights. It was his Constitution that preserved limited government for the first century and a half of America's existence."
The first part of BY THE PEOPLE describes how America got into the big government situation. Big changes began around the time of the Great Depression because "Americans, suffering from the Great Depression, weren't interested in constitutional limits on what the federal government could do." A critical event that drastically changed the limitation on the federal government was a 1937 Supreme Court decision ruling on the legality of Social Security. The case was Helvering vs Davis. This decision opened the path to more intrusive federal regulation.
Some of the founding fathers worried about the phrase in the Constitution, "general welfare." in article 1 section 8, the Constitution says that Congress has the power to provide for "general welfare of the United States." The founders disputed how exactly the term general welfare would be interpreted in future years. Some worried that it could be interpreted to mean anything. James Madison and the other Federalists who defended the Constitution believed that the enumerated powers listed in the constitution would limit the government's power to just those powers listed. Dr. Murray emphasizes that the debate amongst the founders centered on whether that phrase would give too much power to the federal government, or whether that fear was groundless. Importantly, he clarifies, "None of the leading Federalists in any of the ratified conventions defended the notion that general welfare should be interpreted as conferring authority for Congress to do anything that advance the general welfare. Not even Alexander Hamilton."
Dr. Murray asserts that the situation has gone so far that it's not a matter of just putting different judges on the Supreme Court, or winning a few more presidential elections. He explains: "Restoration of limited government is not going to happen by winning presidential elections and getting the right people appointed to the Supreme Court. A majority on the Supreme Court would help significantly at the margins. But the revolution in constitutional jurisprudence has gone too far, with too many consequences." Realistically speaking, there is no way in the world that Social Security, Medicare, and many other federal institutions are going to be dissolved. That just is not going to happen.
The big surprise in this book is what the author proposes in Part 2. Dr. Murray proposes a program of "systematic civil disobedience underwritten by privately funded legal resistance to the regulatory state." He envisions a fund, called the "Madison Fund," that would insure individuals against adverse action against them when they fight against regulations. It would be a "privately funded foundation to map terrain and probe defenses while helping ordinary Americans who are trying to cope with the regulatory state."
The Madison Fund would have three goals: First defend people who are actually innocent of violating regulations; secondly, defend people who are actually guilty, but make it so expensive to take action against them that the regulatory agency might give up; thirdly, generate tons of publicity on the negative effect of the regulations and harassment on liberties. Dr. Murray gives an example of using the fund. The ADA, American Dental Association, could insure its members against burdensome regulations from the federal government.
The author admits that this is a radical tack: "What I am advocating through the defense funds is unquestionably subversive." He admits that the federal government will certainly come after the Madison fund. So, one of the first tasks of the fund will undoubtedly be to defend itself.
The latter part of the book suggests there are technical reasons that make limited government more practical today. In particular, the internet and information technology have made information a lot cheaper and more widespread. This would seem to mitigate against burdensome regulations, since the purported misdeed would be more widely known and publicized. This would tend to make the regulations redundant.
Dr. Murray explains that in the entire history of the world there has been no experiment like America: "The United States of America from 1789 to the 1930's is the sole example of truly limited government anywhere, at any time." No other country in the entire history of the world started with a theme of limiting the power of government and maximizing individual freedom.
The author laments that if America continues down the path of social democracy, as in Europe, it would mean "the loss of a unique way of life grounded in individual freedom. Under the umbrella of individual liberty, America went from a small group on the East coast to the richest and most powerful nation on earth.
√ All in all, BY THE PEOPLE is a thoughtful, creative dissertation that aims on restoring the freedom and limited government on which our country was founded. No question--Dr. Murray proposes some controversial ideas, all of which will be severely criticized. It remains to be seen whether a fund such as the Madison Fund will actually come to fruition. In any case, Dr. Murray has presented an ingenious way forward. At the rear of the book, the author provides an extensive Notes section that provides further information on the various points made. There is also an extensive bibliography.
Advance copy for review courtesy of NetGalley.
August 2, 2018
I read this book due to the recommendation of a conservative/libertarian friend. I think this book has a lot to offer to both liberals and conservatives in pointing out the obvious and more insidious largesse of government, the crony capitalism, corporate collusion, idiotic regulation, overstep of governmental authority to regulate every aspect of our lives without congressional or, in most cases, judicial oversight, the abdication of the moral and legal authority of the Supreme Court of the United States at various times in history in order to bow to public pressure rather than fall into irrelevance, the insidious power of lobbying, gerrymandering, the ludicrous cost of obtaining ‘justice,’ politicians leaning towards the lunatic fringe on both sides, and so very much more.
I docked the book one star because I have little faith that his solution, legal defense funds to battle arbitrary and capricious regulations of government are unlikely to manifest, as the larger powers that be have a vested interested in maintaining the status quo and protecting their barriers to market entry that they have purchased from legislators. I don’t see folks like the Koch brothers intervening for similar reasons. And given the recent and bizarre changes to the Republican Party (even ignoring the point of the author that government has often ballooned while Republicans were in power) give me even less faith in their ability to curtail excess. It seems to be an intractable and hopeless problem.
I docked the book one star because I have little faith that his solution, legal defense funds to battle arbitrary and capricious regulations of government are unlikely to manifest, as the larger powers that be have a vested interested in maintaining the status quo and protecting their barriers to market entry that they have purchased from legislators. I don’t see folks like the Koch brothers intervening for similar reasons. And given the recent and bizarre changes to the Republican Party (even ignoring the point of the author that government has often ballooned while Republicans were in power) give me even less faith in their ability to curtail excess. It seems to be an intractable and hopeless problem.
March 29, 2016
Last year I sat up and took notice when Charles Murray set out a plan for mass civil disobedience to weaken the U.S. government. This was not the sort of thing I was used to hearing from conservatives, and I was intrigued enough to seek out this book.
Murray is of the more libertarian variety of conservatism — not for him are the wars on drugs and gay marriage, or the currently-popular quest for a Mussolini to make America great again. He’s the sort of conservative who gushes over the founding fathers’ methodical experiment in a strictly-confined federal government and thinks if we could just squeeze that government back into its cage the rest would pretty much take care of itself.
Murray calls this flavor of Constitutionally-devoted conservatism “Madisonian” and contrasts it with a “Wilsonian” progressivism that sees the Constitution as an outworn relic getting in the way of modern designs for national improvement.
In the story Murray tells about the U.S., our Madisonian republic did really well for itself — if you allow for the hiccough of the Civil War and the flaw of slavery it had to address — until the 1930s, when the small-government, Constitutional consensus began to give way, and both political parties became dominated by big-government, progressive technocrats. The Supreme Court, which had held this new order briefly at bay, was eventually overcome, and by the 1960s the republic was unrecognizable and mostly unrecoverable. There was a brief Goldwater/Reagan backlash, but it barely slowed the growing appetite, ambition, and reach of the federal government.
So now we have a country in which the federal government is enormous and all-pervasive. The legal system is indistinguishable from lawlessness — legitimizing thefts and shakedowns and masking the use of arbitrary power by the politically powerful against their enemies or those they find inconvenient. Regulatory agencies have grown like weeds, becoming a second federal government parallel to the first but only nominally beholden to it. Congress is systematically corrupt, with the raw pursuit of money and purchasing of influence and legislation normalized.
Politicians from both political parties are complicit in this: they share a big-government consensus when it comes right down to it, and they profit from the frank corruption that has resulted. And even if one party or the other or both really wanted to do something about it, there’s little they could do, as the “institutional sclerosis” has more momentum than they can fight and the power of office-holders to deviate from the consensus in meaningful ways is really very small.
This cancer is no longer treatable in strictly Constitutional ways: voting for new politicians won’t help, and the Supreme Court has thrown in the towel, give or take an angry dissent from Thomas or Scalia of mostly rhetorical effect.
The alternative Murray suggests is a systematic civil disobedience campaign, supported by a well-financed legal team and some form of insurance that protects the front-line risk takers.
The goals are to defend individuals against government overreach, to make objectionable federal laws and regulations unenforceable, and then by doing so to prompt the Supreme Court to finally get on the ball and reel the federal government back in.
Murray envisions backing this campaign with something he calls the “Madison Fund” — a big pile of money that can be deployed to offer free legal defense to anyone engaged in the campaign whom the government tries to target. Where this pile of money comes from is part of the more-hope-than-plan part of his book, but folks like the Institute for Justice are already putting some of this into practice on a smaller scale.
Murray also envisions a form of insurance that professionals could buy to protect them against fines and other hassles from government regulators. The insurance companies would set standards of behavior for their clients to ensure that they were not doing anything actually dangerous, fraudulent, or in other ways unethical, and, assuming they followed those guidelines, would insure them against any fines the government imposes on them for violating its bazillion silly rules that do nobody any good. If the cost of the insurance were less than the cost of the burdensome regulations the purchaser would no longer need to worry about, such an insurance could become widespread.
The book has some promising ideas, and I hope these ideas catch on. Some parts of the book are pretty well thought-through; others have some thin paper plastered over big holes. But it’s a good start, and with some help (some deep-pocketed help) could make paleocons less of an intellectual curiosity and more of a force for good.
Murray is of the more libertarian variety of conservatism — not for him are the wars on drugs and gay marriage, or the currently-popular quest for a Mussolini to make America great again. He’s the sort of conservative who gushes over the founding fathers’ methodical experiment in a strictly-confined federal government and thinks if we could just squeeze that government back into its cage the rest would pretty much take care of itself.
Murray calls this flavor of Constitutionally-devoted conservatism “Madisonian” and contrasts it with a “Wilsonian” progressivism that sees the Constitution as an outworn relic getting in the way of modern designs for national improvement.
In the story Murray tells about the U.S., our Madisonian republic did really well for itself — if you allow for the hiccough of the Civil War and the flaw of slavery it had to address — until the 1930s, when the small-government, Constitutional consensus began to give way, and both political parties became dominated by big-government, progressive technocrats. The Supreme Court, which had held this new order briefly at bay, was eventually overcome, and by the 1960s the republic was unrecognizable and mostly unrecoverable. There was a brief Goldwater/Reagan backlash, but it barely slowed the growing appetite, ambition, and reach of the federal government.
So now we have a country in which the federal government is enormous and all-pervasive. The legal system is indistinguishable from lawlessness — legitimizing thefts and shakedowns and masking the use of arbitrary power by the politically powerful against their enemies or those they find inconvenient. Regulatory agencies have grown like weeds, becoming a second federal government parallel to the first but only nominally beholden to it. Congress is systematically corrupt, with the raw pursuit of money and purchasing of influence and legislation normalized.
Politicians from both political parties are complicit in this: they share a big-government consensus when it comes right down to it, and they profit from the frank corruption that has resulted. And even if one party or the other or both really wanted to do something about it, there’s little they could do, as the “institutional sclerosis” has more momentum than they can fight and the power of office-holders to deviate from the consensus in meaningful ways is really very small.
This cancer is no longer treatable in strictly Constitutional ways: voting for new politicians won’t help, and the Supreme Court has thrown in the towel, give or take an angry dissent from Thomas or Scalia of mostly rhetorical effect.
The alternative Murray suggests is a systematic civil disobedience campaign, supported by a well-financed legal team and some form of insurance that protects the front-line risk takers.
The goals are to defend individuals against government overreach, to make objectionable federal laws and regulations unenforceable, and then by doing so to prompt the Supreme Court to finally get on the ball and reel the federal government back in.
Murray envisions backing this campaign with something he calls the “Madison Fund” — a big pile of money that can be deployed to offer free legal defense to anyone engaged in the campaign whom the government tries to target. Where this pile of money comes from is part of the more-hope-than-plan part of his book, but folks like the Institute for Justice are already putting some of this into practice on a smaller scale.
Murray also envisions a form of insurance that professionals could buy to protect them against fines and other hassles from government regulators. The insurance companies would set standards of behavior for their clients to ensure that they were not doing anything actually dangerous, fraudulent, or in other ways unethical, and, assuming they followed those guidelines, would insure them against any fines the government imposes on them for violating its bazillion silly rules that do nobody any good. If the cost of the insurance were less than the cost of the burdensome regulations the purchaser would no longer need to worry about, such an insurance could become widespread.
The book has some promising ideas, and I hope these ideas catch on. Some parts of the book are pretty well thought-through; others have some thin paper plastered over big holes. But it’s a good start, and with some help (some deep-pocketed help) could make paleocons less of an intellectual curiosity and more of a force for good.
December 14, 2022
There are things i liked about this books as well as many i didn't like.
What i liked:
The author does an overall good job at providing examples where federal agencies have fallen short and even made gross mistakes. It is unquestionable that there are many things in our governmental system that don't work well. There was also plenty of data and example on how the complexity across all branches of government has grown organically over time
What i disliked:
The author ideas. They are simply outlandish. First off, there is nothing really related to people in this book. 99% of examples are related to corporations. And basically the author is saying "the government is over-reaching into wanting to tell corporations what they can and cannot do". His argument is "Look at these cases where things didn't work out: we should get rid of all these agencies and regulations". This is not libertarianism, it's savagery. Libertarianism originated as a very progressive philosophy based on the principle of letting people (not corporation) to organize their civil society freely. Libertarianism example is participatory economy. What the author wants is deregulation to unshackle businesses and their speculative and profit driven nature, which is highly predatory of civil society.
I'd rather put a bullet in my head than live in this kind of "libertarian" system...
What i liked:
The author does an overall good job at providing examples where federal agencies have fallen short and even made gross mistakes. It is unquestionable that there are many things in our governmental system that don't work well. There was also plenty of data and example on how the complexity across all branches of government has grown organically over time
What i disliked:
The author ideas. They are simply outlandish. First off, there is nothing really related to people in this book. 99% of examples are related to corporations. And basically the author is saying "the government is over-reaching into wanting to tell corporations what they can and cannot do". His argument is "Look at these cases where things didn't work out: we should get rid of all these agencies and regulations". This is not libertarianism, it's savagery. Libertarianism originated as a very progressive philosophy based on the principle of letting people (not corporation) to organize their civil society freely. Libertarianism example is participatory economy. What the author wants is deregulation to unshackle businesses and their speculative and profit driven nature, which is highly predatory of civil society.
I'd rather put a bullet in my head than live in this kind of "libertarian" system...
July 8, 2015
Heavy on big ideas about how to fight the overreach of government, but light on ways for ordinary citizens to get involved in that fight (lots of things for the super rich to do). Also gets a bit bogged down in places, making it not the most readable political book out there. But big kudos for opening my eyes to the extent of the regulatory state in a way even John Stossel hadn't done for me. I hadn't even known before this what an administrative court is. Scary stuff (constitutionally speaking, anyway).
The author bills this as a strategy for getting rid of big government. It's not so much. But it does have some good educational value.
The author bills this as a strategy for getting rid of big government. It's not so much. But it does have some good educational value.
June 16, 2015
Yes! Another Charles Murray book, as bracing and provocative as we've come to expect. If only our overlords in government and academic public policy circles had been paying attention to Murray during the last thirty-five years or so, the country might not be in such a mess…
April 21, 2016
A good book which takes to task the pet projects of the Conservatives and Progressives. Unfortunately none of them will read it and nothing will get accomplished.
May 30, 2015
A guide ot sophisticated civil disobedience.
May 12, 2015
By the People is Charles Murray’s answer to what to do about a regulatory state metastasized and gone mad (if you disagree about that it’s probably best to start elsewhere). And what he recommends is not to act through the traditional democratic channels, but to instead engage in what he calls “systematic civil disobedience.” It meets the dictionary definition, but it is not civil disobedience as we generally think of it, nor is it necessarily that different than some of the pushback against the State already going on, albeit on a larger scale. We’ll get to that.
Murray divides By the People into three parts. Part I covers how we got to where “we are at the end of the American project as the founders intended it” and why “the normal political process will not rescue us.” Part II outlines the particular sort of civil disobedience that Murray recommends. Part III takes a look at the various reasons, e.g., demographic, cultural, why Murray thinks now is an especially apt time for change. He sees a broad market for what he’s selling and uses the term “Madisonian” throughout to refer to classical liberals, libertarians, and conservatives (and presumably conservatarians) who generally agree that government should be limited. And he is preaching to the choir; this is a call to action, not a call for conversion.
Part I breaks down the problem into discrete areas, first describing what went wrong and then making the case as to why it can’t be fixed through the normal democratic process. For example, the chapter titled “A Broken Constitution” starts with a short history of the New Deal Court’s abandonment of a federal government limited to its enumerated powers. It ends by arguing that reversing the key decisions just discussed will never happen. For example, reversing Helvering would require the federal government to “end Social Security, Medicaid, Medicare, all welfare programs, all spending on K-12 education” and more. If it were enforced it would throw the country into chaos and the Supreme Court would never do it. Murray also covers lawlessness of the legal system as a whole (due to the huge cost of civil litigation, the abandonment of the requirement of a guilty mind in criminal law, etc.), the extralegal regulatory state, a systematically corrupt legislature (the sort of corruption requiring campaign contributions to get anywhere with legislation), and institutional sclerosis.
Part II addresses what to do about it, assuming that Murray is correct that the normal democratic processes will be inadequate. It advocates “systematic civil disobedience.” That civil disobedience, though, mostly means people continuing to do what they did before, invariably running afoul of one regulation or another from time to time, only now with a privately funded legal resistance. That legal resistance would take two forms. The first is a legal defense fund that he calls the Madison Fund, much like a Pacific Legal Foundation or Institute for Justice but on a much larger scale and specifically focused on protecting against government overreach of a certain sort. The second is insurance against government funded by industry groups (this idea doesn’t get as much attention). These would first and foremost “defend ordinary individuals against government overreach, even if it accomplishes nothing else.” But Murray also wants to “make large portions of the Code of Federal Regulations de facto unenforceable.” Murray goes on to spend quite a bit of time on the nuts and bolts, laying out categories of regulations that should not be candidates for civil disobedience and giving principled and practical decision rules for choosing regulations to ignore. Defense against a regulatory action would be both legal and in the public square.
Part III is when things fall apart a bit. Which is funny, because Part III is where Murray finally returns to his wheelhouse—social science. He runs through several findings that I take it are to provide support of Murray’s argument that the time is now, but it doesn’t come through forcefully. It’s still wonderful stuff, though. Murray points out that we’ve always been a pluralistic society with at least as much of a cultural gulf among the original four groups that settled America (he owes a lot to and explicitly discusses Albion’s Seed here) as among the various groups in America today. It was the period from the 1950s to the 1970s that was anomalous. He points out that a significant portion of Americans still live in small towns or small cities where local government remains relatively personal, effective, and light (only 28% of Americans live in urban areas of more than 500,000 people). Technology offers new opportunities to evade burdensome, protectionist regulations (Uber is a case study). He adds an argument at the end that the Left should give up on public sector unions, the Right should give up on eliminating transfer payments, and both sides should reject their cultural absolutists (progressives and (some) social conservatives, respectively). In doing so he makes a perceptive, and overlooked, distinction between progressives and left-liberals. There is also a one paragraph description of our “civic religion” that rivals W.J. Cash’s summation of the South in The Mind of the South for nailing the mores of a people in just a few words.
I’m not entirely sold, though. Murray very early on asserts that the answer is not electing the right politicians or getting the right judges appointed. But his plan looks less like traditional civil disobedience than it looks like conservative legal activism over the past few decades. His Madison Fund admittedly looks a lot like existing groups like the Pacific Legal Foundation and the Institute for Justice, only on a much larger scale. As in several hundred million dollars a year versus $25 million a year for the existing groups combined. When groups like that are already doing such great work, what is the basis for funding on a much larger scale for a new group? And despite Murray’s dismissal of seeking change through the courts, his plan for the Defense Fund assumes just that. First, a major change in the level of scrutiny courts give enforcement actions is a bigger deal than fighting enforcement actions on an individual level. That kind of change requires first and foremost the sort of intellectual credibility conservative and libertarian attorneys and academics have been building on a number of issues over the past few decades. Murray really seems to be relying on a change in law and not what the term civil disobedience suggests to me, which is to leave the regulations and enforcement options intact but effectively useless because of the scale of violation. Rather than spend time on how things play out if there is no sea change in the law, Murray relies on such a change. That isn’t crazy. Legal positions that were considered crazy by most of the academy, such as the Second Amendment as an individual right and the Commerce Clause having any constraining principle, were resurrected because judges have to show their work and in the law reasoning and principles really do matter. Sackett v. EPA was huge, important win. But it’s a daunting road. The Supreme Court’s most vocal proponent of Chevron deference, after all, is Justice Scalia.
Changing the law would require principled argument, but it would also require principled judges. Murray is wrong to dismiss the importance of who is elected president for that reason alone. But perhaps more importantly, the president can have enormous influence over the regulatory state through his veto pen and as head of the executive branch. The institutional sclerosis Murray so vividly paints a picture of is real. But who would argue, when it comes to wrangling the regulatory state, that Reagan was not preferable to both Bush the elder and Bush the younger? Or even that Clinton was preferable to Obama? Public choice principles might suggest any president will be loath to devolve any power from the executive branch, but I think it is feasible because so little of the power of the regulatory state is really at the hands of the president (in stark contrast to our military and foreign policy apparatus). Congress is a lost cause, but the presidency has the potential to counterweight Congress’ inherent foibles in this area as it so often has on trade.
Further, I don’t think Murray spends enough time considering the threats of blowback and a regulatory state that proves more entrenched than expected. For example, look at the prohibition of drugs, especially marijuana. The American people have practiced a sort of civil disobedience in that large numbers of Americans ignore drug laws and continue to use drugs. But for decades the federal government’s response was to double down again and again on drug prohibition and to encroach on its citizens’ civil liberties in more and greater ways. The courts facilitated, rather than impeded, this response. Prosecutors and criminal courts found a way to handle huge case loads. States even began to retreat from harsh enforcement of drug laws (again, especially marijuana) without the federal government beating a similar retreat, although this may be beginning to happen (on a related note, Murray commits an egregious error of law in discussing state marijuana decriminalization by suggesting that because the federal government prohibits marijuana, states MUST also prohibit it; this is plainly wrong under current and correct federalism jurisprudence). Murray does mention briefly in his conclusion that the efforts he recommends may “further erode the legitimacy of the federal government.”
Murray is also more optimistic about our cultural readiness. He points to our pluralism, noting that cultural pluralism has been the rule in America, not the exception, and he points to the decline of network television. He’s right about that, but I still have my doubts. The rise of the progressive faction on the Left has led to a rather shocking attempt to enforce cultural hegemony. The rise of the Long Tail may actually make things worse, not better, leaving a few dominant media properties without an effective counterweight. I see this seemingly every morning as the morning shows have found something new about which people are outraged. How can we be ready for limited government when parents might get arrested if they let their kids walk home from the park alone?
Finally, Murray doesn’t consider the threat of another source of sclerosis. Our enormous wealth. Our government is largely a parasite, but it’s a parasite with a host unmatched in human history—the American economy. When we remain so much richer today than yesterday, how will the problem of a kudzu-like regulatory state ever be sufficiently acute to take real action? Good, after all, is often the enemy of great.
But in many ways the above critiques are more a feature than a bug, because the book spurred me to think deeply about the issue. It spurred me to rethink a lot of stuff that I had written off as inevitable. And it spurred me to come back to the basic problem I’ve always wrestled with as a libertarian—how do we get from where we are today to a basically free future? Murray doesn’t have all the answers. But I think he has part of the answer.
Disclosure: I received a copy of By the People through NetGalley.
Murray divides By the People into three parts. Part I covers how we got to where “we are at the end of the American project as the founders intended it” and why “the normal political process will not rescue us.” Part II outlines the particular sort of civil disobedience that Murray recommends. Part III takes a look at the various reasons, e.g., demographic, cultural, why Murray thinks now is an especially apt time for change. He sees a broad market for what he’s selling and uses the term “Madisonian” throughout to refer to classical liberals, libertarians, and conservatives (and presumably conservatarians) who generally agree that government should be limited. And he is preaching to the choir; this is a call to action, not a call for conversion.
Part I breaks down the problem into discrete areas, first describing what went wrong and then making the case as to why it can’t be fixed through the normal democratic process. For example, the chapter titled “A Broken Constitution” starts with a short history of the New Deal Court’s abandonment of a federal government limited to its enumerated powers. It ends by arguing that reversing the key decisions just discussed will never happen. For example, reversing Helvering would require the federal government to “end Social Security, Medicaid, Medicare, all welfare programs, all spending on K-12 education” and more. If it were enforced it would throw the country into chaos and the Supreme Court would never do it. Murray also covers lawlessness of the legal system as a whole (due to the huge cost of civil litigation, the abandonment of the requirement of a guilty mind in criminal law, etc.), the extralegal regulatory state, a systematically corrupt legislature (the sort of corruption requiring campaign contributions to get anywhere with legislation), and institutional sclerosis.
Part II addresses what to do about it, assuming that Murray is correct that the normal democratic processes will be inadequate. It advocates “systematic civil disobedience.” That civil disobedience, though, mostly means people continuing to do what they did before, invariably running afoul of one regulation or another from time to time, only now with a privately funded legal resistance. That legal resistance would take two forms. The first is a legal defense fund that he calls the Madison Fund, much like a Pacific Legal Foundation or Institute for Justice but on a much larger scale and specifically focused on protecting against government overreach of a certain sort. The second is insurance against government funded by industry groups (this idea doesn’t get as much attention). These would first and foremost “defend ordinary individuals against government overreach, even if it accomplishes nothing else.” But Murray also wants to “make large portions of the Code of Federal Regulations de facto unenforceable.” Murray goes on to spend quite a bit of time on the nuts and bolts, laying out categories of regulations that should not be candidates for civil disobedience and giving principled and practical decision rules for choosing regulations to ignore. Defense against a regulatory action would be both legal and in the public square.
Part III is when things fall apart a bit. Which is funny, because Part III is where Murray finally returns to his wheelhouse—social science. He runs through several findings that I take it are to provide support of Murray’s argument that the time is now, but it doesn’t come through forcefully. It’s still wonderful stuff, though. Murray points out that we’ve always been a pluralistic society with at least as much of a cultural gulf among the original four groups that settled America (he owes a lot to and explicitly discusses Albion’s Seed here) as among the various groups in America today. It was the period from the 1950s to the 1970s that was anomalous. He points out that a significant portion of Americans still live in small towns or small cities where local government remains relatively personal, effective, and light (only 28% of Americans live in urban areas of more than 500,000 people). Technology offers new opportunities to evade burdensome, protectionist regulations (Uber is a case study). He adds an argument at the end that the Left should give up on public sector unions, the Right should give up on eliminating transfer payments, and both sides should reject their cultural absolutists (progressives and (some) social conservatives, respectively). In doing so he makes a perceptive, and overlooked, distinction between progressives and left-liberals. There is also a one paragraph description of our “civic religion” that rivals W.J. Cash’s summation of the South in The Mind of the South for nailing the mores of a people in just a few words.
I’m not entirely sold, though. Murray very early on asserts that the answer is not electing the right politicians or getting the right judges appointed. But his plan looks less like traditional civil disobedience than it looks like conservative legal activism over the past few decades. His Madison Fund admittedly looks a lot like existing groups like the Pacific Legal Foundation and the Institute for Justice, only on a much larger scale. As in several hundred million dollars a year versus $25 million a year for the existing groups combined. When groups like that are already doing such great work, what is the basis for funding on a much larger scale for a new group? And despite Murray’s dismissal of seeking change through the courts, his plan for the Defense Fund assumes just that. First, a major change in the level of scrutiny courts give enforcement actions is a bigger deal than fighting enforcement actions on an individual level. That kind of change requires first and foremost the sort of intellectual credibility conservative and libertarian attorneys and academics have been building on a number of issues over the past few decades. Murray really seems to be relying on a change in law and not what the term civil disobedience suggests to me, which is to leave the regulations and enforcement options intact but effectively useless because of the scale of violation. Rather than spend time on how things play out if there is no sea change in the law, Murray relies on such a change. That isn’t crazy. Legal positions that were considered crazy by most of the academy, such as the Second Amendment as an individual right and the Commerce Clause having any constraining principle, were resurrected because judges have to show their work and in the law reasoning and principles really do matter. Sackett v. EPA was huge, important win. But it’s a daunting road. The Supreme Court’s most vocal proponent of Chevron deference, after all, is Justice Scalia.
Changing the law would require principled argument, but it would also require principled judges. Murray is wrong to dismiss the importance of who is elected president for that reason alone. But perhaps more importantly, the president can have enormous influence over the regulatory state through his veto pen and as head of the executive branch. The institutional sclerosis Murray so vividly paints a picture of is real. But who would argue, when it comes to wrangling the regulatory state, that Reagan was not preferable to both Bush the elder and Bush the younger? Or even that Clinton was preferable to Obama? Public choice principles might suggest any president will be loath to devolve any power from the executive branch, but I think it is feasible because so little of the power of the regulatory state is really at the hands of the president (in stark contrast to our military and foreign policy apparatus). Congress is a lost cause, but the presidency has the potential to counterweight Congress’ inherent foibles in this area as it so often has on trade.
Further, I don’t think Murray spends enough time considering the threats of blowback and a regulatory state that proves more entrenched than expected. For example, look at the prohibition of drugs, especially marijuana. The American people have practiced a sort of civil disobedience in that large numbers of Americans ignore drug laws and continue to use drugs. But for decades the federal government’s response was to double down again and again on drug prohibition and to encroach on its citizens’ civil liberties in more and greater ways. The courts facilitated, rather than impeded, this response. Prosecutors and criminal courts found a way to handle huge case loads. States even began to retreat from harsh enforcement of drug laws (again, especially marijuana) without the federal government beating a similar retreat, although this may be beginning to happen (on a related note, Murray commits an egregious error of law in discussing state marijuana decriminalization by suggesting that because the federal government prohibits marijuana, states MUST also prohibit it; this is plainly wrong under current and correct federalism jurisprudence). Murray does mention briefly in his conclusion that the efforts he recommends may “further erode the legitimacy of the federal government.”
Murray is also more optimistic about our cultural readiness. He points to our pluralism, noting that cultural pluralism has been the rule in America, not the exception, and he points to the decline of network television. He’s right about that, but I still have my doubts. The rise of the progressive faction on the Left has led to a rather shocking attempt to enforce cultural hegemony. The rise of the Long Tail may actually make things worse, not better, leaving a few dominant media properties without an effective counterweight. I see this seemingly every morning as the morning shows have found something new about which people are outraged. How can we be ready for limited government when parents might get arrested if they let their kids walk home from the park alone?
Finally, Murray doesn’t consider the threat of another source of sclerosis. Our enormous wealth. Our government is largely a parasite, but it’s a parasite with a host unmatched in human history—the American economy. When we remain so much richer today than yesterday, how will the problem of a kudzu-like regulatory state ever be sufficiently acute to take real action? Good, after all, is often the enemy of great.
But in many ways the above critiques are more a feature than a bug, because the book spurred me to think deeply about the issue. It spurred me to rethink a lot of stuff that I had written off as inevitable. And it spurred me to come back to the basic problem I’ve always wrestled with as a libertarian—how do we get from where we are today to a basically free future? Murray doesn’t have all the answers. But I think he has part of the answer.
Disclosure: I received a copy of By the People through NetGalley.
December 11, 2016
The book does an excellent job on identifying how Americans have been being f*cked since 1932 by the govt and unruly nonsensical Kafkaesque laws that in most cases are left intentionally ambiguous and subjective to wield leviathan govt power over individuals (some court cases are listed below to illustrate the acutal f*cking). These laws (passed by the Supreme Court) have created huge precedent that are nearly impossible to overturn without having a major economic collapse or some sort of world war (as in Germany and Japan were devastated but bounced back economically because they had the lack of govt oversight and large bureaucracies which was destroyed during the wars). Murray is very good at identifying the problems, but the solutions are left unfulfilling. He speaks to the lawyers and the rich to figure out to resolve this issue, not much is mentioned for the average man.
It is also comforting to know that this growing leviathan of a govt has been going on for nearly 80+ years and is not the responsibility of the most recent generation. Take that old previous generations! THANKS A LOT!!
Murray's solutions for "civil disobedience" is not something the average man could practice who is working two jobs to keep food on the table (lawyers are another story according to the book). And isn't that how we got in this mess to begin with; lawyers?! I don't know the solution is to add more lawyers to the mix? Dumping garbage on top of garbage makes for more garbage. Civil disobedience, according to Murray, is having a large legal defense fund defend average Americans in cases brought up by the govt bureaucracies (e.g. EPA cases against individuals, etc). The rich would fund it and the lawyers would do it pro bono (think Bill Gates or the Koch brothers funding it).
I wonder if raising large legal defense funds is how George Washington/the founders resolved issues with Britain? Anyways, the solutions to political problems in the book leaves much to be desired.
By The People Quotes:
'I think that the species of oppression by which democratic nations are menaced is unlike anything that ever before existed in the world... The supreme power then extends its arm over the whole community. It covers the surface of society with a network of small, complicated rules, minutes and uniform, through which the most original minds and the most energetic characters cannot penetrate to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd.'
-Alexis De Tocqueville, Democracy in America
'The power which a multiple millionaire, who may be my neighbour and perhaps my employer, has over me is very much less than that which the smallest functionaire possesses who wields the coercive power of the state, and on whose discretion it depends whether and how I am to be allowed to live or to work'
-Friedrich von Hayek, The Road to Serfdom
"Dismantling Limits on the Federal Government's Spending Authority (Helvering v Davis, 1937)" p16
"The Great Depression as a Cause of the Constitutional Revolution" p17
"Gutting the Ninth Amendment and More (United States v. Carolene Co., 1938)" p21
"Removing Limits on What the Government Can Regulate (National Labor Relations Board v Jones & Laughlin Steel Corp., 1937, and Wickard v Filburn, 1942)" p24
"But the Supreme Court ruled that the provisions of the Agricultural Adjustment Act were constitutional under the Commerce Clause anyway. After all, if Filburn had not used his own wheat, he would have had to buy it. If enough farmers like him had to buy their own wheat, it would have an effect on the price of wheat. And the price of a commodity has an effect on interstate trade. So it's constitutional for the federal government to tell a farmer what he may grow on his own land for his own use...
In effect, the Supreme Court announced to the nation that the federal government could regulate just about any economic activity of any sort that it felt like regulating- indeed, as subsequent decades were to reveal, it could regulate even non-economic activities that had potential effects on economic activities that had potential effects on interstate commerce." p25
"Bullies and Little Guys in the Key Cases..."p26
"Hardly any of the domestic spending of today's federal government is associated with one of the enumerated powers. To reverse 'Helvering', and have that reversal enforced by the executive branch, would throw the country into chaos. Even in the unimaginable event that five justices would be willing to accept that chaos, they wouldn't vote to reverse Helvering anyway, because they could be sure that no president would be willing to enforce the decision. In reversing Helvering, they would be signing the Supreme Court's death warrant. Helvering is not going to be reversed, no matter who is on the Supreme Court or in the White House. As constitutional scholar Gary Lawson has put it, "In this day and age, discussing the doctrine of enumerated powers is like discussing the redemption of Imperial Chinese bond.' And as long as Helvering's interpretation of the General Welfare Clause remains in force, there are no constitutional ways to restrain Congress from spending money on whatever it wishes to spend money on. It is only fractionally easier to imagine a reversal of Carolene Products, Jones & Laughlin Steel, or Wickard. The consequences of reversals in those cases would also be so drastic that no president would try to enforce them. Thus my reasons for asking you to accept that a restoration of limited government is not going to happen by winning presidential elections and getting the right people appointed to the Supreme Court. A Madisonian majority on the Supreme Court would help significantly at the margins. But the revolution in constitutional jurisprudence has gone too far, with too many consequences that are now part of the warp and woof of the nation's economy and society to be reversed. The landmark Supreme Court decisions from 1937 to 1942 irreversibly increased the range of legislation that Congress could pass and the activities in which the executive branch could engage."p29
"It was an outcome that would not have surprised the founders. The members of the Constitutional Convention in the summer of 1787 had systematically studies previous attempts at republican government. They tried their best to construct a Constitution that would survive the forces that had destroyed other republics. But they were realists. Their letters, essays, and public pronouncements are sprinkled with warnings of how things could go wrong. Thomas Jefferson said it most succinctly: "The natural progress of things is for liberty to yield and government to gain ground." In Federalist #51, and one of the most acute passages in all the literature of the founding era:
It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
From 1937 through 1942, for what were believed to be greater goods, we stopped obliging the American government to control itself." p29
'Wherever law ends, tyranny begins,' wrote John Locke....p30
"Today, we often haven't the least idea whether we have broken a law. Setting aside state and municipal law, which add hugely to the problem, so many things have become federal crimes that it is impossible to keep track of them. Through the first half of the nineteenth century, virtually all criminal law was defined and prosecuted by the states, with a fewer than a score of crimes defined by the federal government (for example, treason or bribery of federal officials). By World War I, the number of federal laws had reached the 500s. As of the most recent count, in 2007, the federal code numbered about 4450 crimes. We have seen an increase of about 50 percent just since 1980." p33
**"Law that is sufficiently complex is indistinguishable from lawlessness....An excellent informal statement of the rule of law was given to us by James Madison in Federalist #62:
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which little known, and less fixed?" p37-38
"The complexity of the law often sets up a situation that is indistinguishable not only from lawlessness but from a kleptocracy. Owners of small businesses of all kinds routinely pay lawyers they can't easily afford in order to get a decision out of a bureaucracy- not an unusual decision, just a run-of-the-mill permission to go ahead with some innocuous business activity. The rules and regulations are so complicated that lawyers are required. The business owners pay the lawyers for the same reason that people pay bribes in Third World countries. It's the only way to get get the government to allow you do something that the government would otherwise arbitrarily refuse to let you do. I will return to this theme in the next chapter."p39
"If the objective rules are discarded, then the rule of law morphs into a modern day version of a primitive legal system in which people with a quarrel have to accept whatever the headman of the tribe says is right." p40
"Employment Law. You are an employer who has fired a woman for incompetence. She files a lawsuit alleging sex discrimination. You provide the court with objective evidence of the woman's incompetence on the job. But she is able to present evidence that you have in the past made sexist remarks. You can still be required to pay damages. It is known as a "mixed-motive firing." The jury will look into your soul and decide whether the degree of your sexism was great enough to trump the woman's demonstrated incompetence. Now you are not just taking it to the headman; you're taking it to the shaman."p41
I have to return this book to the library. This is my excuse for lazily not adding all the quotes I should....This whole thing has gone to shit....sorry. I will just putting page #s with the first few words of the sentence...
p61 Why we can't go home again
p83 Richard Nixon ballooned the Regulatory State
p90 In a corrupt system, government is a way to get rich
p102 The nature of that corruption ensures that the size and reach of government will increase no matter which party is in power.
p110 The Nature of the electorate in advanced welfare states...It is impossible for a government in the grip of the disease to cure itself.
p111 Couldn't Britain and France, both democracies, have mustered the votes to modify their systems when they saw the blazing success of Germany and Japan? Can't the US now? No, because of the nature of the electorate in advanced democracies. All advanced democracies are welfare states, and welfare states inherently create constituencies in support of the status quo.
People who receive government benefits tend to vote for people who support those benefits. The theorem applies as much to middle-class Social Security recipients as to impoverished welfare mothers; as much to farm owners getting agricultural subsidies as to farm laborers getting Food Stamps; as much to defense contractors getting billion-dollar contracts as to nonprofits staying afloat with small government grants.
p112 Graph showing from 1935 to 2012, the proportion of Americans receiving major benefits from the federal government went from 0-35 percent
p113 ...when more that 40 percent of people who actually cast votes have an active interest in the preservation and expansion of Social Security or Medicare, no Congress will have the votes to pass major structural reform that entails significant cuts in those benefits until fiscal catastrophe is imminent. And perhaps not even then.
PART 2....But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty to throw off such government, and to provide new guards for their future security
......
It is also comforting to know that this growing leviathan of a govt has been going on for nearly 80+ years and is not the responsibility of the most recent generation. Take that old previous generations! THANKS A LOT!!
Murray's solutions for "civil disobedience" is not something the average man could practice who is working two jobs to keep food on the table (lawyers are another story according to the book). And isn't that how we got in this mess to begin with; lawyers?! I don't know the solution is to add more lawyers to the mix? Dumping garbage on top of garbage makes for more garbage. Civil disobedience, according to Murray, is having a large legal defense fund defend average Americans in cases brought up by the govt bureaucracies (e.g. EPA cases against individuals, etc). The rich would fund it and the lawyers would do it pro bono (think Bill Gates or the Koch brothers funding it).
I wonder if raising large legal defense funds is how George Washington/the founders resolved issues with Britain? Anyways, the solutions to political problems in the book leaves much to be desired.
By The People Quotes:
'I think that the species of oppression by which democratic nations are menaced is unlike anything that ever before existed in the world... The supreme power then extends its arm over the whole community. It covers the surface of society with a network of small, complicated rules, minutes and uniform, through which the most original minds and the most energetic characters cannot penetrate to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd.'
-Alexis De Tocqueville, Democracy in America
'The power which a multiple millionaire, who may be my neighbour and perhaps my employer, has over me is very much less than that which the smallest functionaire possesses who wields the coercive power of the state, and on whose discretion it depends whether and how I am to be allowed to live or to work'
-Friedrich von Hayek, The Road to Serfdom
"Dismantling Limits on the Federal Government's Spending Authority (Helvering v Davis, 1937)" p16
"The Great Depression as a Cause of the Constitutional Revolution" p17
"Gutting the Ninth Amendment and More (United States v. Carolene Co., 1938)" p21
"Removing Limits on What the Government Can Regulate (National Labor Relations Board v Jones & Laughlin Steel Corp., 1937, and Wickard v Filburn, 1942)" p24
"But the Supreme Court ruled that the provisions of the Agricultural Adjustment Act were constitutional under the Commerce Clause anyway. After all, if Filburn had not used his own wheat, he would have had to buy it. If enough farmers like him had to buy their own wheat, it would have an effect on the price of wheat. And the price of a commodity has an effect on interstate trade. So it's constitutional for the federal government to tell a farmer what he may grow on his own land for his own use...
In effect, the Supreme Court announced to the nation that the federal government could regulate just about any economic activity of any sort that it felt like regulating- indeed, as subsequent decades were to reveal, it could regulate even non-economic activities that had potential effects on economic activities that had potential effects on interstate commerce." p25
"Bullies and Little Guys in the Key Cases..."p26
"Hardly any of the domestic spending of today's federal government is associated with one of the enumerated powers. To reverse 'Helvering', and have that reversal enforced by the executive branch, would throw the country into chaos. Even in the unimaginable event that five justices would be willing to accept that chaos, they wouldn't vote to reverse Helvering anyway, because they could be sure that no president would be willing to enforce the decision. In reversing Helvering, they would be signing the Supreme Court's death warrant. Helvering is not going to be reversed, no matter who is on the Supreme Court or in the White House. As constitutional scholar Gary Lawson has put it, "In this day and age, discussing the doctrine of enumerated powers is like discussing the redemption of Imperial Chinese bond.' And as long as Helvering's interpretation of the General Welfare Clause remains in force, there are no constitutional ways to restrain Congress from spending money on whatever it wishes to spend money on. It is only fractionally easier to imagine a reversal of Carolene Products, Jones & Laughlin Steel, or Wickard. The consequences of reversals in those cases would also be so drastic that no president would try to enforce them. Thus my reasons for asking you to accept that a restoration of limited government is not going to happen by winning presidential elections and getting the right people appointed to the Supreme Court. A Madisonian majority on the Supreme Court would help significantly at the margins. But the revolution in constitutional jurisprudence has gone too far, with too many consequences that are now part of the warp and woof of the nation's economy and society to be reversed. The landmark Supreme Court decisions from 1937 to 1942 irreversibly increased the range of legislation that Congress could pass and the activities in which the executive branch could engage."p29
"It was an outcome that would not have surprised the founders. The members of the Constitutional Convention in the summer of 1787 had systematically studies previous attempts at republican government. They tried their best to construct a Constitution that would survive the forces that had destroyed other republics. But they were realists. Their letters, essays, and public pronouncements are sprinkled with warnings of how things could go wrong. Thomas Jefferson said it most succinctly: "The natural progress of things is for liberty to yield and government to gain ground." In Federalist #51, and one of the most acute passages in all the literature of the founding era:
It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
From 1937 through 1942, for what were believed to be greater goods, we stopped obliging the American government to control itself." p29
'Wherever law ends, tyranny begins,' wrote John Locke....p30
"Today, we often haven't the least idea whether we have broken a law. Setting aside state and municipal law, which add hugely to the problem, so many things have become federal crimes that it is impossible to keep track of them. Through the first half of the nineteenth century, virtually all criminal law was defined and prosecuted by the states, with a fewer than a score of crimes defined by the federal government (for example, treason or bribery of federal officials). By World War I, the number of federal laws had reached the 500s. As of the most recent count, in 2007, the federal code numbered about 4450 crimes. We have seen an increase of about 50 percent just since 1980." p33
**"Law that is sufficiently complex is indistinguishable from lawlessness....An excellent informal statement of the rule of law was given to us by James Madison in Federalist #62:
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which little known, and less fixed?" p37-38
"The complexity of the law often sets up a situation that is indistinguishable not only from lawlessness but from a kleptocracy. Owners of small businesses of all kinds routinely pay lawyers they can't easily afford in order to get a decision out of a bureaucracy- not an unusual decision, just a run-of-the-mill permission to go ahead with some innocuous business activity. The rules and regulations are so complicated that lawyers are required. The business owners pay the lawyers for the same reason that people pay bribes in Third World countries. It's the only way to get get the government to allow you do something that the government would otherwise arbitrarily refuse to let you do. I will return to this theme in the next chapter."p39
"If the objective rules are discarded, then the rule of law morphs into a modern day version of a primitive legal system in which people with a quarrel have to accept whatever the headman of the tribe says is right." p40
"Employment Law. You are an employer who has fired a woman for incompetence. She files a lawsuit alleging sex discrimination. You provide the court with objective evidence of the woman's incompetence on the job. But she is able to present evidence that you have in the past made sexist remarks. You can still be required to pay damages. It is known as a "mixed-motive firing." The jury will look into your soul and decide whether the degree of your sexism was great enough to trump the woman's demonstrated incompetence. Now you are not just taking it to the headman; you're taking it to the shaman."p41
I have to return this book to the library. This is my excuse for lazily not adding all the quotes I should....This whole thing has gone to shit....sorry. I will just putting page #s with the first few words of the sentence...
p61 Why we can't go home again
p83 Richard Nixon ballooned the Regulatory State
p90 In a corrupt system, government is a way to get rich
p102 The nature of that corruption ensures that the size and reach of government will increase no matter which party is in power.
p110 The Nature of the electorate in advanced welfare states...It is impossible for a government in the grip of the disease to cure itself.
p111 Couldn't Britain and France, both democracies, have mustered the votes to modify their systems when they saw the blazing success of Germany and Japan? Can't the US now? No, because of the nature of the electorate in advanced democracies. All advanced democracies are welfare states, and welfare states inherently create constituencies in support of the status quo.
People who receive government benefits tend to vote for people who support those benefits. The theorem applies as much to middle-class Social Security recipients as to impoverished welfare mothers; as much to farm owners getting agricultural subsidies as to farm laborers getting Food Stamps; as much to defense contractors getting billion-dollar contracts as to nonprofits staying afloat with small government grants.
p112 Graph showing from 1935 to 2012, the proportion of Americans receiving major benefits from the federal government went from 0-35 percent
p113 ...when more that 40 percent of people who actually cast votes have an active interest in the preservation and expansion of Social Security or Medicare, no Congress will have the votes to pass major structural reform that entails significant cuts in those benefits until fiscal catastrophe is imminent. And perhaps not even then.
PART 2....But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty to throw off such government, and to provide new guards for their future security
......
October 5, 2022
Charles Murray's books are reliably excellent, By the People being no exception. He does his research thoroughly, drawing from superb, highly applicable sources, he intelligently and searchingly analyzes the data and the views and analyses of others, then he synthesizes his own meanings and implications. Often quite influentially. And he communicates them with clear, graceful, jargon-free prose within very rational structures. Perhaps best known, his 1984 Losing Ground was much read and discussed, considered by many to have led to the welfare reform a decade later. One can hope this book sinks in with many as well, getting a broad swath to see the simple logic and plain good sense of reigning in the administrative state and returning to government and individual liberties per the US Constitution.
By the People is a critique of the administrative state, what Murray considers better called the regulatory state, a term also used by another great Libertarian, Richard Epstein, in his superb and widely read Simple Rules for a Complex World. Murray outlines the regulatory state's essential characteristics, provides a synoptic history, and explains why these characteristics are constitutionally illegitimate, unreasonable and unnecessarily burdensome, showing how they are used to abuse ordinary people, businesses and organizations, and violate our natural rights which are enshrined in the Constitution, their protection supposedly being the primary purpose of our government. He then suggests a way to effectively oppose and undermine the regulatory state, causing enough trouble for the troublemakers and their anti-constitutional systems that, he believes, citizens, businesses and other organizations can succeed at opposing the abuse, making the abuse too much work with too little reward for the abusive bureaucrats.
Murray describes why he believes things are becoming such that success is possible. With this important and quite substantial first step being a key aspect of a non-violent counter-revolution to return to robust, valid application of the US Constitution after over a century of its continuously ongoing and expanding destruction by Progressives, i.e., a return to limited government with three strictly separate federal branches, each exercising only its enumerated powers with no others exercising them; with federalism, i. e., non-enumerated powers (and those few specifically enumerated for the states) again reserved to the people and their states; and with the people once again having robust and protected rights to life, liberty, and property, absent unreasonable government interference in our lives and in our economy, including the absence of government coercion and of illegitimate seizure or transfer of property or rights. Murray also nicely summarizes the foolish errors of Progressive thought that led to the mess and has sustained it, showing how those errors are destructive and are mindless nonsense. And he briefly describes how the "Madisonian" ideas in the Constitution are reasonable, valid, and have been fruitful when applied.
Important in his critique and discussion are several key features of contemporary America that have supported the expansion and continuation of the regulatory state: the essential lawlessness of the current legal system; the "extralegal state within the state" (primarily regulatory administrative agencies within the federal executive, some nominally and anti-constitutionally "independent" of oversight by the elected PresIdent, which promulgate their own regulatory laws, also anti-constitutionally but with winks and nods from both parties in Congress [happy to have less work, more time for fundraising, and no political accountabity for the pseudo-legislation, just as the unelected pseudo-legislators have none]), and which have their own anti-constitutional judiciaries (violations of both separation of powers and of numerous rights required for defendants and plaintiffs such as jury trials, ability to produce evidence, be told sources of evidence, cross-examine); what he convincingly calls our systemically corrupt political system (largely a pay to play system); and what he calls the institutional sclerosis characteristic of advanced democracy. The one legal specific I'll mention is deference to adminstrative agency interpretations of their own pseudo-legislation required by federal courts including the Supreme Court, particularly per the especially odious Chevron deference doctrine.
The solution depends on widespread civil disobedience in the many cases that, for virtually any sane person of virtually any political persuasion, are obviously abusive and cannot conceivably have moral justification. With support for those accused, warned/threatened, dragged into court, from "Madasonian" legal defense fund organizations who will defend the harassed, pay their fines, spread word about unreasonable government abuse of those causing no harm and about arbitrary and capricious government abuses, build case records and use them, and find and target weak spots in the regulatory state. Leading to a "No Harm, No Foul" regulatory regime rather than the current Mafia-like regime that shakes down essentially law-abiding citizens and businesses and threatens to destroy them financially and otherwise, and waste many of their years, if they don't comply with generally random, often marginally applicable and almost always ludicrous diktats.
So in this step one, the regulatory bureaucrats get used to the idea that it is too much trouble to target people in ways that are not clearly defensible and represent principles the general public can support; the general public gets better educated about the regulatory state; people, businesses and organizations get used to the idea that it can be worth it to oppose regulatory agencies; courts see that the people do not accept unreasonable regulatory agency abuse, will fight it and will get effective help; and, hopefully, the agencies and courts adopt a "No Harm, No Foul" approach. With the stage then set for step two in the return to Constitutional government and liberties.
By the People is a critique of the administrative state, what Murray considers better called the regulatory state, a term also used by another great Libertarian, Richard Epstein, in his superb and widely read Simple Rules for a Complex World. Murray outlines the regulatory state's essential characteristics, provides a synoptic history, and explains why these characteristics are constitutionally illegitimate, unreasonable and unnecessarily burdensome, showing how they are used to abuse ordinary people, businesses and organizations, and violate our natural rights which are enshrined in the Constitution, their protection supposedly being the primary purpose of our government. He then suggests a way to effectively oppose and undermine the regulatory state, causing enough trouble for the troublemakers and their anti-constitutional systems that, he believes, citizens, businesses and other organizations can succeed at opposing the abuse, making the abuse too much work with too little reward for the abusive bureaucrats.
Murray describes why he believes things are becoming such that success is possible. With this important and quite substantial first step being a key aspect of a non-violent counter-revolution to return to robust, valid application of the US Constitution after over a century of its continuously ongoing and expanding destruction by Progressives, i.e., a return to limited government with three strictly separate federal branches, each exercising only its enumerated powers with no others exercising them; with federalism, i. e., non-enumerated powers (and those few specifically enumerated for the states) again reserved to the people and their states; and with the people once again having robust and protected rights to life, liberty, and property, absent unreasonable government interference in our lives and in our economy, including the absence of government coercion and of illegitimate seizure or transfer of property or rights. Murray also nicely summarizes the foolish errors of Progressive thought that led to the mess and has sustained it, showing how those errors are destructive and are mindless nonsense. And he briefly describes how the "Madisonian" ideas in the Constitution are reasonable, valid, and have been fruitful when applied.
Important in his critique and discussion are several key features of contemporary America that have supported the expansion and continuation of the regulatory state: the essential lawlessness of the current legal system; the "extralegal state within the state" (primarily regulatory administrative agencies within the federal executive, some nominally and anti-constitutionally "independent" of oversight by the elected PresIdent, which promulgate their own regulatory laws, also anti-constitutionally but with winks and nods from both parties in Congress [happy to have less work, more time for fundraising, and no political accountabity for the pseudo-legislation, just as the unelected pseudo-legislators have none]), and which have their own anti-constitutional judiciaries (violations of both separation of powers and of numerous rights required for defendants and plaintiffs such as jury trials, ability to produce evidence, be told sources of evidence, cross-examine); what he convincingly calls our systemically corrupt political system (largely a pay to play system); and what he calls the institutional sclerosis characteristic of advanced democracy. The one legal specific I'll mention is deference to adminstrative agency interpretations of their own pseudo-legislation required by federal courts including the Supreme Court, particularly per the especially odious Chevron deference doctrine.
The solution depends on widespread civil disobedience in the many cases that, for virtually any sane person of virtually any political persuasion, are obviously abusive and cannot conceivably have moral justification. With support for those accused, warned/threatened, dragged into court, from "Madasonian" legal defense fund organizations who will defend the harassed, pay their fines, spread word about unreasonable government abuse of those causing no harm and about arbitrary and capricious government abuses, build case records and use them, and find and target weak spots in the regulatory state. Leading to a "No Harm, No Foul" regulatory regime rather than the current Mafia-like regime that shakes down essentially law-abiding citizens and businesses and threatens to destroy them financially and otherwise, and waste many of their years, if they don't comply with generally random, often marginally applicable and almost always ludicrous diktats.
So in this step one, the regulatory bureaucrats get used to the idea that it is too much trouble to target people in ways that are not clearly defensible and represent principles the general public can support; the general public gets better educated about the regulatory state; people, businesses and organizations get used to the idea that it can be worth it to oppose regulatory agencies; courts see that the people do not accept unreasonable regulatory agency abuse, will fight it and will get effective help; and, hopefully, the agencies and courts adopt a "No Harm, No Foul" approach. With the stage then set for step two in the return to Constitutional government and liberties.
November 17, 2015
Thomas Jefferson said in his first inaugural address that the “sum of good government,” was one “which shall restrain men from injuring one another” and “shall leave them otherwise free to regulate their own pursuits of industry and improvement.” Americans were to live under a presumption of freedom. Today, we no longer live under that presumption.
The pages of Federal administrative code in the US numbers over a million. The number of restrictions in EPA regulations numbers in the 100's of thousands. The number of federal crimes you could commit is 4,450 (as of 2007). The Affordable Healthcare Act is over 400,000 words. Need I continue? How could any person keep track of every rule he or she must follow? We are drowning in administrative rule and it will eventually sink us. This book points out the staggering amount of legislation by way of administrative law that we all deal with, directly or indirectly, every day and how we have gotten to this point. This review of American jurisprudence is key in understanding how we find ourselves in this mess.
Murray presents a lot of solid thinking in this book and it really gets to the heart of the matter that so many of us experience, that is, we are dying a death of a thousand cuts. We have allowed the administrative state in America to rule us. We have taken away reasoned judgement and inserted inflexible rules, rules that rarely capture the whole story.
But, there is good news! There is a way out but it isn't through normal political channels, those avenues are dead ends. How do we get from under this massive weight of administrative rules? Ignore them. Murray suggests a system of defense funds that fight the silliest rules, the ones that penalize otherwise good people for breaking a rule that harms no one. A system that would force government entities, by way of a sympathetic court, to fix a system that is badly broken. By aggregating the frustrations of people everywhere who agree, "this is ridiculous".
The pages of Federal administrative code in the US numbers over a million. The number of restrictions in EPA regulations numbers in the 100's of thousands. The number of federal crimes you could commit is 4,450 (as of 2007). The Affordable Healthcare Act is over 400,000 words. Need I continue? How could any person keep track of every rule he or she must follow? We are drowning in administrative rule and it will eventually sink us. This book points out the staggering amount of legislation by way of administrative law that we all deal with, directly or indirectly, every day and how we have gotten to this point. This review of American jurisprudence is key in understanding how we find ourselves in this mess.
Murray presents a lot of solid thinking in this book and it really gets to the heart of the matter that so many of us experience, that is, we are dying a death of a thousand cuts. We have allowed the administrative state in America to rule us. We have taken away reasoned judgement and inserted inflexible rules, rules that rarely capture the whole story.
But, there is good news! There is a way out but it isn't through normal political channels, those avenues are dead ends. How do we get from under this massive weight of administrative rules? Ignore them. Murray suggests a system of defense funds that fight the silliest rules, the ones that penalize otherwise good people for breaking a rule that harms no one. A system that would force government entities, by way of a sympathetic court, to fix a system that is badly broken. By aggregating the frustrations of people everywhere who agree, "this is ridiculous".
August 3, 2015
If millions (or even hundreds of thousands) of Americans rose up against the regulatory state and began ignoring its rules that were capricious and arbitrary (here thinking of OSHA, EPA, and dozens of other agencies that think they need to dictate so many minutiae of so many aspects of American life), could those agencies prosecute them all? Of course not.
Murray looks at how we got to this point on American life, how we can fight back, and then closes with some optimism for the future. Early chapters deal with ignoring the Constitution (the ship of enumerated-powers-only sailed a long time ago), a whole system of administrative law where the government is judge, jury, appellate court, and executioner), a political system built on paying for access and power (and yes, the GOP is just as bad as anybody else), and general institutional sclerosis.
How does Murray want to respond? A "Madison Fund." This would be an organization that funds those battling stupid regulations. If the Fund loses your case, it would pay your fine. By carefully picking its battles, the Fund could get public opinion on its side. The goal is a "No Harm, No Foul" approach to regulation. Another component is private regulation/insurance. His example is dentistry. Doesn't the ADA know a lot more about safe dental practices than OSHA? What is the ADA offered its members insurances against OSHA fines? The ADA would make sure its members were in compliance with general rules of safety. If OSHA wanted to add dumb regulations on top of that, the ADA would pay the fines of any dentist who broke the dumb ones (after fighting it to the max in the administrative or civil courts, of course). Would OSHA back down to a "No Harm, No Foul" outlook? Probably.
Murray finishes with some optimism. He echoes the obvious but important line that if something can't go on forever, it will eventually stop. He wants to be the brakes that make it happen.
Murray looks at how we got to this point on American life, how we can fight back, and then closes with some optimism for the future. Early chapters deal with ignoring the Constitution (the ship of enumerated-powers-only sailed a long time ago), a whole system of administrative law where the government is judge, jury, appellate court, and executioner), a political system built on paying for access and power (and yes, the GOP is just as bad as anybody else), and general institutional sclerosis.
How does Murray want to respond? A "Madison Fund." This would be an organization that funds those battling stupid regulations. If the Fund loses your case, it would pay your fine. By carefully picking its battles, the Fund could get public opinion on its side. The goal is a "No Harm, No Foul" approach to regulation. Another component is private regulation/insurance. His example is dentistry. Doesn't the ADA know a lot more about safe dental practices than OSHA? What is the ADA offered its members insurances against OSHA fines? The ADA would make sure its members were in compliance with general rules of safety. If OSHA wanted to add dumb regulations on top of that, the ADA would pay the fines of any dentist who broke the dumb ones (after fighting it to the max in the administrative or civil courts, of course). Would OSHA back down to a "No Harm, No Foul" outlook? Probably.
Murray finishes with some optimism. He echoes the obvious but important line that if something can't go on forever, it will eventually stop. He wants to be the brakes that make it happen.
September 22, 2016
I don't think I have ever really understood how the federal bureaucracy works until this book. An example is that most private companies have a management structure that goes 7 layers. Agencies in federal government have structures that go 22 layers. Can you imagine being 20 layers away from the head of your agency? I work for a Fortune 500 company and I am 6 layers from the CEO and I have no direct reports.
I always knew that regulatory agencies were picking and choosing their enforcement of laws, but I didn't realize how often they were writing their own laws and how time consuming it would be for companies to try to understand them all. The description of how the federal government works is enough to make you understand that we're lucky it functions at any level.
Next Murray explains civil disobedience and how we could bring down the excesses of the regulatory state. He's not trying to put the EPA or the SEC out of business. He is trying to make agencies think twice about setting arbitrary rules by making them take the time and money to defend such nonsense. Eventually he believes they will be forced into sticking to common sense measures. His plan is straightforward but it will take a lot of working together and money from free market supporters to get off the ground. I think it would have a better chance of working than getting off the ground.
This is my favorite Charles Murray book since What It Means to be a Libertarian. It's both descriptive in the problems and prescriptive in the solutions. I hope it creates the kind of movement he calls for, but I am pessimistic.
I always knew that regulatory agencies were picking and choosing their enforcement of laws, but I didn't realize how often they were writing their own laws and how time consuming it would be for companies to try to understand them all. The description of how the federal government works is enough to make you understand that we're lucky it functions at any level.
Next Murray explains civil disobedience and how we could bring down the excesses of the regulatory state. He's not trying to put the EPA or the SEC out of business. He is trying to make agencies think twice about setting arbitrary rules by making them take the time and money to defend such nonsense. Eventually he believes they will be forced into sticking to common sense measures. His plan is straightforward but it will take a lot of working together and money from free market supporters to get off the ground. I think it would have a better chance of working than getting off the ground.
This is my favorite Charles Murray book since What It Means to be a Libertarian. It's both descriptive in the problems and prescriptive in the solutions. I hope it creates the kind of movement he calls for, but I am pessimistic.
October 9, 2015
Murray is considered a staunch conservative, so it is a bit of a surprise to find him advocating civil disobedience. He argues that the government is out of control in many areas, and he particularly takes on the regulatory state, the often ridiculous rules promulgated by EPA, OSHA, and the many other bureaucracies in federal agencies. Government agencies are trusted to make sane rules to carry out congress's intent when the agencies were created. The victims of the abusive rules are often forced to face the fact that it would cost them more to protest than to knuckle under and pay the penalties. Murray proposes to set up a national defense fund to make it feasible for ordinary citizens to "fight city hall."
There are many examples of ridiculous rules that the Left and the Right can agree are burdensome. Murray's proposal is a step in the direction of bringing about cooperation, rather than bitter rivalry, in some aspects between the two sides of the political arena.
It's an important book, and a proposal I would happily support, because it's the only one I've seen that has a prayer of success, however unlikely it may be.
There are many examples of ridiculous rules that the Left and the Right can agree are burdensome. Murray's proposal is a step in the direction of bringing about cooperation, rather than bitter rivalry, in some aspects between the two sides of the political arena.
It's an important book, and a proposal I would happily support, because it's the only one I've seen that has a prayer of success, however unlikely it may be.
October 19, 2016
I read 90% of this book then set it aside during a hectic period during which I had to study other things, then lost it for a time because we moved and it was packed and inaccessible. I know many people may dismiss this book out of hand because of Murray's political leanings or the lingering stigma from the undeserved character assassination he suffered after the publication of The Bell Curve, but I would offer that you'll hear a reasonable and compelling voice and, if you're skeptical, I'd beg you to try a sample by simply reading Chapter 14. Chapter 14 in itself is worth 5 stars, especially during the divisive and extreme political climate we are in at the moment. Murray offers solutions that should appeal to all but the most extreme at both ends of our political spectrum. Those extremes he writes off, as most objective thinkers must.
January 2, 2017
Very good read --- upsetting (but hardly surprising) to read how our freedoms have been eroded over the years due to expansion of big, bloated government/excessive regulation/abuse of executive powers.
June 8, 2015
Bravo to Murray for writing such an intriguing book as "By the People". In it, Murray offers an insightful and well-researched study into what has gone wrong with American government. In addition, Murray offers a different path for how to save constitutionally-limited government. Instead of thinking that America will go the way of Rome and eventually collapse under its own weight, Murray presents novel ideas for the future. Murray acknowledges that the American federal government is a monstrous leviathan that is bent on destroying everything in its path, but then gives really interesting ideas for how to put the beast back in its cage. After reading this, I have a lot to think about, and I think you will too.
September 1, 2015
One could write a book review of this book that would literally take hours to compose, but I don't have the time, and I really think you should read it for yourself.
If you sense there is fundamentally something wrong about the current state of the American government, this includes moderate liberals, centrists, and conservatives, then you should drop every other book you are reading and pick this one up.
I'll leave you with a simple quote from the book that defines what it is about, and why I think you must read it:
"Attacking the regulatory state through the legal system is the only option for rebuilding Liberty. You are not going to stop the growth of government through the political process."
If you sense there is fundamentally something wrong about the current state of the American government, this includes moderate liberals, centrists, and conservatives, then you should drop every other book you are reading and pick this one up.
I'll leave you with a simple quote from the book that defines what it is about, and why I think you must read it:
"Attacking the regulatory state through the legal system is the only option for rebuilding Liberty. You are not going to stop the growth of government through the political process."
June 14, 2015
A well written and informative book on our current rapidly growing and increasingly frustrating nanny government. Just as every warning on a product is the result of someone elses idiocy, so many narrow and expensive laws,and regulations are the result of an opportunistic bureacracy. "Do not use in tub" is on electrical appliance boxes because some idiot did that and then sued the company. Someone blocked up their stream to better irrigate their farm, and their naighbor complained. The government intervened and took over all waterways, puddles and rainwater included. Every fee and penalty Americans pay is a tax against their own freedom, and a daily constant encroachment on our personal liberty. There are many links to follow; this is just a starting point.
November 2, 2015
In "By the People", Charles Murray lays out where we stand as a country in the second decade of the twenty first century after several defining changes in the twentieth century, including reinterpretation of the general welfare and commerce clauses of the constitution (late 1937 to 1942), the lawless legal system (1950 to 1970), systematic corruption of political system (1970 to 1975) and finally institutional sclerosis. He presents a potential new front in moving forward from our current circumstances and describes how that and other forces could result in a broad rebuilding of individual liberty in the future of America. Well thought out with exceptional references, this book is worth reading.
December 9, 2015
The first section of this book is a potent summary of how much of its essential liberty the United States has lost. I more or less knew most of what it said already, but reading it all in a condensed form was emotionally exhausting for me. It took me a while to get through it.
The second second is a plan for how we might be able to get some of our liberty back using a combination of the legal system and what is, basically, insurance against foreseeable hazards.
The third section contains reasons why the second section might work and makes a plea for federalism.
The book is worth reading for all friends of liberty.
The second second is a plan for how we might be able to get some of our liberty back using a combination of the legal system and what is, basically, insurance against foreseeable hazards.
The third section contains reasons why the second section might work and makes a plea for federalism.
The book is worth reading for all friends of liberty.
January 5, 2017
Murray exposes our lawless and obese regulatory state and proposes a solution to fight it: legal defense funds. He cheerfully cites Stein's law: "If something can't go on forever, it will stop", similar to Margaret Thatcher's trouble with socialism--eventually you run out of other people's money.
But that can take a long while, so we need to slack and burn--a four million word tax code, bureaucracies with twenty-two management layers, and byzantine regulations. Murray's hope is in American exceptionalism that is doomed to fail. But there are a number of tools here for Christocentric Christians to pick up and use.
But that can take a long while, so we need to slack and burn--a four million word tax code, bureaucracies with twenty-two management layers, and byzantine regulations. Murray's hope is in American exceptionalism that is doomed to fail. But there are a number of tools here for Christocentric Christians to pick up and use.
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