On May 12, Charles Murray released a new book called By the People: Rebuilding Liberty Without Permission. In it, he makes the case that government has greatly overstepped any legitimate functions it may have had, has grown too powerful to fight, and cannot be reined in by normal political means, such as voting and court challenges. While technological advances are helping to return some liberty to the people, there is still a burdensome regulatory state that holds back economic growth and does little (if anything) to actually protect people.
His strategy for dealing with this problem is to overwhelm the enforcement means of the state through large-scale civil disobedience. Examples could include becoming part-time Uber drivers, routinely making deposits of $9,999, or parents including cupcakes in their schoolchildren’s packed lunches. It could also mean people continuing to live life as they have, even though doing so is now in violation of government regulations. To aid in such efforts, Murray proposes a legal defense fund and an insurance against regulatory action. He calls the former the Madison Fund, which is to be an organization that will defend individuals and small businesses against government regulations which would be too costly and time-consuming for them to fight on their own. The latter is to be an effort to treat government fines for regulatory non-compliance as an insurable hazard like other natural or man-made incidents that can lead to financial losses. To aid in such efforts, he proposes that only regulations which are arbitrary, capricious, and lacking in public support be targeted. His goal is to “make large portions of the Code of Federal Regulations de facto unenforceable” and return the United States government to the constraints outlined in the U.S. Constitution.
While this strategy is better than nothing, it leaves much to be desired from a philosophical libertarian perspective. Let us see why this strategy is bad, but should be tried anyway.
The first thing to note is that this is not a strategy for harm elimination, but for harm reduction. Even if Murray’s proposals come to fruition and everything goes as planned, this tactic does nothing to end the source of the problem. His ultimate goal is merely to repeat the experiment of 1787, and we already know how this experiment plays out. The government will stay small for a time, but eventually people will figure out how to buy influence, vote themselves money from the public treasury, and use state power to get protections for themselves at the expense of others. In another century or two, our descendants will face the same problems all over again if Murray has his way. His strategy will also send the message that keeping and using the statist system is the path to liberty, despite the fact that the statist system has caused the erosion of liberty in the first place. There could scarcely be a more detrimental idea to the pursuit of liberty. It must also be noted that while the resisters are gaining inches through their acts of disobedience and court challenges, the state will continue to take miles behind their backs, just as it always has.
Another problem is that when such cases go to court, the courts are not an impartial forum for dispute resolution, as starry-eyed progressives would have us believe. The courts are monopolized by the state and presided over by judges on a government payroll. The prosecutors are also on a government payroll, and any jury members present are there because the state has summoned them. This degree of conflict of interest would not be tolerated in any situation not involving the government. It is thus in the rational self-interest of prosecutors to get decisions that favor the expansion of state power, judges to make such decisions, and both to nudge jurors in that direction. In short, the scofflaws will not get a fair hearing. There is also the matter that politicians will use the sudden clogging of the courts as a pretext for expanding the power of government by creating more courts.
Perhaps the greatest flaw in Murray’s presentation is that he does not fully consider the likely response of the state to his plans. The state will respond to challenges to its power as it always does, with violence, threats, fear, and intimidation. While Murray recognizes that many regulations are arbitrary and capricious, he does not seem to account for the fact that the penalties for violating said regulations can also be made arbitrarily severe to counter the influence of his proposed Madison Fund and insurance companies. Another likely response by the state will be to pick a few high-profile cases, preferably with defendants viewed unsympathetically by the public, and make examples of them, ruining their lives and livelihoods for daring to stand against the almighty colossus of state power. One should also expect to see the IRS and other agencies target the Madison Fund and any insurance company offering policies to protect against regulatory actions. The insurance companies may simply be banned by law from offering such policies, while the Madison Fund could be harassed out of effective operation by civil asset forfeitures and SWAT raids. The Madison Fund and the insurance companies will likely find no relief from this abuse in the courts for reasons explained above, and their manpower and resources would be too busy defending themselves to be able to help those it is intended to help.
There is also the matter that civil disobedience is something of a misnomer. Given that governments are institutions of force, its agents will respond uncivilly to those who practice civil disobedience. In the American civil rights movement and the struggle for Indian independence from Great Britain, the two most common examples used by advocates of non-violent resistance, many demonstrators were assaulted, kidnapped, and murdered. The leaders of these movements were both rewarded with assassination for their pacifism. Non-compliance until force is used risks sending a message to the public that government violence is the solution to the problem of dealing with lawbreakers, regardless of the nature of the laws being broken.
Clearly, this strategy has some serious flaws. But why should it be tried anyway? Murray correctly notes that civil disobedience can succeed where democratic voting cannot. Fewer people are needed to nullify regulations through mass non-compliance than are needed to vote out those who created the regulations, if such people are even subject to elections. More important, however, is the fact that the manpower and resources to resist the state more forcefully are not yet available, and perhaps the only way to gain them is to try more peaceful methods like those advocated by Murray and demonstrate their inadequacy. After all, most people are empiricists to the point of being anti-rational, depending mostly upon their own experiences with some influence from the experience of others, but with very little a priori logic involved. They will not be swayed by reason (otherwise the fight for liberty would have been won long ago!) and must therefore learn by observation and bitter experience. If we are to form a culture of resistance and end the state in our lifetimes, we must recognize that people tend to do the right thing once they run out of other options and do everything we can to test those other options and show their shortcomings as soon as possible.