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What Would James Madison Do?
Review: Charles Murray, ‘By the People: Rebuilding Liberty without Permission’
BY: Jay Cost
May 16, 2015 5:00 am
Charles Murray’s By the People: Rebuilding Liberty without Permission is an important book that advocates of constitutional government should consider carefully. While Murray overstates the case, his book articulates a novel argument, replete with insights on the nature of political corruption and how to fight it.
Murray’s book attempts two tasks. First, it argues that the federal state has become overbearing. During the New Deal era, Murray claims, the feds managed a remarkable inversion: whereas once the government was only able to do what the Constitution authorized, it can now do anything that it does not specifically forbid. In many cases, the government does what is explicitly forbidden anyway. Murray details how our judicial and regulatory systems are capricious, vindictive, and even lawless—harassing average citizens with an endless stream of unintelligible regulations backed by costly, unpredictable enforcement.
Second, Murray offers an unconventional way to respond: stop obeying the regulators. He calls for broad-based civil disobedience, akin to the collective response to speed limits. Nominally, the law sets the speed limit at a certain level, but in practice the police cannot enforce it strictly because everybody violates it. Murray wants to do something similar with federal regulations. He calls for a “Madison Fund” to facilitate legal challenges to the regulatory state, forcing the government to expend its limited resources litigating copious violations in court. Moreover, he promotes occupational defense funds to insure businesses from government penalties. He does not suggest using these programs to facilitate lawlessness, but to fight ordinances that violate the ideal of a “no harm, no foul” regulatory regime.
Murray believes that this strategy is a good fit for the age. Historically, the United States has been a very diverse nation, and influxes of new immigrants are making it diverse once again. Such cultural, religious, and social heterogeneity does not comport well with one-size-fits-all policy emanating from Washington. Moreover, information technology is obviating many of the original reasons for an expansive state, and exposing governmental incompetence for what it actually is. Combine these trends with what Murray predicts will be a looming taxpayer revolt, aggravation among big business for the fines it must pay for regulatory violations, a potential left-right alliance in favor of federalism (e.g. marijuana decriminalization), and a federal bureaucracy bereft of morale and vigor, and Murray sees this as a “propitious moment:” an opportunity to restore long-forgotten constitutional principles that restore pride of place to the citizen and his community. He hopes his program for civil disobedience could be the spark that lights the fuse.
Murray’s book is full of wonderful insights. Most notably, he situates corruption, mismanagement, and capriciousness in impersonal institutions, rather than in the people who happen to inhabit the positions of leadership temporarily. For Murray, the problem has to do with the rules of the game. Conservatives fussing over every dot and tittle of the presidential primary, who assume that picking the perfect nominee will solve the nation’s problems, would do well to heed Murray’s council, and reallocate some of their efforts.
Moreover, Murray expertly characterizes how the government regularly runs roughshod over individual rights, the rule of law, and the public interest. His solution—organized, well-financed non-compliance of unjust regulations—is so novel that it is a thrill to consider. The book is a rare example of actually thinking outside of the policy box. Plus, Murray is so excited about this solution that his enthusiasm is infectious.
Still, the solution is problematic. To appreciate this, it is best to mull the experiences of James Madison. Murray explicitly defines his project as Madisonian, and situates it in a tradition of limited, constitutional government that goes back to Madison and the Founding.
Yet Madison defies easy categorization. For instance, the Madison of 1786-87 was terribly concerned about unchecked majoritarianism in the states. He was thus the principal author of the Virginia Plan, which called for essentially unlimited central authority. The Madison of 1791-1800 comes closer to Murray’s characterization, by opposing increased national power as a violation of constitutional principles. However, the Madison of 1801-1817 returns to a more expansive view of federal authority. Jefferson and Madison’s heavy-handed enforcement of the Embargo Act of 1807 makes Obama’s executive overreach look quaint in comparison. And during his own presidential tenure, Madison embraced many of the old Federalist policies he once said were unconstitutional.
Scholars have struggled to explain Madison’s inconsistencies, but their efforts typically overlook his central motivation. Early in his career, Madison articulated what he called the “great desideratum” of government: the state should remain neutral between various factions in society, and should not establish itself as a faction.
In the first half of the book, Murray strikes upon a profoundly Madisonian point. Rampant corruption, lawlessness in the judiciary, and an unaccountable bureaucracy are all deeply inconsonant with the great desideratum. Ours is a government that plays favorites, and worse, favors itself over the citizens who empower it.
But what would Madison do about it?
Obviously, Little Jemmy is not around to tell us, but we can get a sense of what he might recommend—for he dealt with similar threats. He and Jefferson were appalled by the behavior of the Federalists in the 1790s. The two viewed the Bank of the United States as an unconstitutional expansion of federal authority that bribed members of Congress and systematically favored Northeastern financiers over rural farmers. Worse, the Alien and Sedition Acts were tyrannical measures that punished political opponents of the incumbent administration.
And so were born the Kentucky and Virginia Resolutions, declarations authored by Jefferson and Madison that the states could nullify unconstitutional federal laws. This is similar to Murray’s argument, which calls for individual citizens to effectively nullify federal regulations; the principle behind both is that unjust government decrees should not carry the force of law.
But it didn’t work. Madison and Jefferson had hoped the Kentucky and Virginia Resolutions would be a rallying point for other states, but no such rally ever happened. Instead, the resolutions emboldened the High Federalists and forced Madison to play defense in the Report of 1800.
Ultimately, what defeated the Federalists was the first mass-based political party. Congressional parties were evident in the Congress almost from the get-go, and in 1791 Jefferson began financing Philip Freneau’s National Gazette. But the Jeffersonians took this a step further for the election of 1800. Their new party organization raised funds, educated voters, brought them to the polls, and used the ballot box to force change. Where nullification failed, mobilization succeeded.
Two lessons are applicable to Murray’s hypothesis. First, Madison’s experience with nullification suggests the dangers of the project. It is a risky proposition for some subset of the people to bypass our governing institutions and decide for itself what does and does not count as a legitimate ordinance. The chances are good that the rest of the public will respond negatively, even if the original grievances are valid. And such public disapprobation is not without merit, either. As Madison himself says in Federalist 10: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”
The danger of nullification was confirmed when South Carolina voided the Tariff of Abominations in 1832. The tariff, designed by Andrew Jackson’s cronies to buy off Pennsylvania ahead of the Election of 1828, was extremely injurious to farmers in the Palmetto State. But that is not how anybody remembers it. Instead, history books unanimously aver that South Carolina’s reaction was wrong, and Jackson was right to respond with threat of force. By acting in such an extreme manner, the Nullifiers accidentally validated the politicization of the tax code, a problem that has plagued us ever since.
Second, when Madison and Jefferson’s backs were against the wall, they did not abandon hope that the people, through the ballot box, could correct the injustice at hand. Rather, they depended upon them to do precisely that, and developed a heretofore unseen organization, the party organization, to bring about the change.
Again, this may come as a bit of a surprise if we emphasize only one portion of Madison’s career. Neither the Virginia Plan nor the final Constitution envisions what political theorists today call “participatory democracy.” Instead, the people were cast only in a supporting role. But that was in response to the threats Madison saw in the 1780s—from fractious majorities in the state governments. In the 1790s, Madison perceived a danger from a fractious minority, namely the Federalist or Bank faction. So, he and his allies organized a party to mobilize the people. In doing so, the Jeffersonians leaned heavily on what Madison in Federalist 10 calls “the republican principle,” or the use of the ballot box to drive out a minority with “sinister views.”
Murray is essentially sketching out a similar threat to republicanism. Businesspeople (especially small business owners) and landowners have had their rights systematically violated by a regulatory state and court system in hock to a progressive minority. Moreover, this assault has done tremendous damage to the public interest—a recent estimate by the Competitive Enterprise Institute put the economic cost of government regulations at nearly $2 trillion.
So, why should Madisonians turn back to nullification, when Madison himself embraced electoral politics? Because, Murray claims, all other options have been foreclosed. The people cannot make such a demand through the ballot box, and even if they could neither party could carry out the mandate. His arguments on this front, however, are not altogether persuasive.
Murray argues that because such a vast swath of the citizenry receives government benefits, the people at large cannot vindicate the public interest in this situation. However, most of that assistance involves the provision of health care (Medicaid, Medicare, Obamacare), disability or unemployment insurance benefits, and Social Security. None of these programs has any direct relationship to the regulatory regime that Murray hopes to assault. Why can’t a Social Security recipient oppose noxious bullying by OSHA?
Moreover, Murray claims that the Republican Party has been hopelessly corrupted. This is not exactly the case, nor is Murray’s claim that corruption was moderate before the 1940s. While not as bad as it is today, corruption between the Civil War and the Great Depression was quite noxious, and regularly a top campaign issue.
Prior to the creation of the administrative state, political corruption resided primarily in the parties themselves, and saw expression through tariff laws and patronage policies. Originally conceived as vehicles for collective action during the Jeffersonian and Jacksonian eras, the parties had become ossified machines by the end of the 19th century. In the South, Jim Crow systematically excluded dissidents from the political process, benefitting the Bourbon Democrats of the plantations. In the North, government patronage and bribes from big businesses funded statewide Republican machines that easily resisted public opinion. The worst offenders—like Nelson Aldrich of Rhode Island and Matt Quay of Pennsylvania—openly bragged about how they were immune from the will of the people. This is why the fifty years after the Civil War saw three third-party movements: the Liberal Republicans, the Populists, and the Progressives. All were efforts to circumvent what the Progressives called the “invisible government” that the two parties colluded to create.
Yet most of this has been done away with. Murray is right that today’s Republican Party is in a decrepit state, and as it exists now it is a poor vehicle for Madisonian reform. However, today’s GOP is quite unlike the machines of yore. It is an open institution, and indeed there are (poorly attended) party primaries scheduled every spring to nominate candidates to all manner of offices. There is no way for the party to resist insurgents who make up a majority of a primary electorate, assuming they actually show up to vote.
Tea Partiers probably bit off more than they could chew by targeting long-tenured senators like Pat Roberts and Thad Cochran in 2014. But why not go after anti-Madisonian House Republicans, or even state and local officeholders? Why not try to seize county and state party committees? Like Murray’s vision for the Madison Fund, party reform could start out small, notch some victories, figure out how best to exploit the rules of the game, and build from there.
Is this what Madison would do? Nobody knows. But, when faced with a similar threat in the 1790s, this is pretty close to what he actually did. He tried nullification, which didn’t work. Then he tried mobilization, which did.
Murray’s insightful, lively book develops a new and provocative idea—using the mechanisms and procedures of the regulatory state against itself. While this strategy entails problems, along the way Murray offers enormous insight into the nature of corruption, and the challenges that conservatives face in restoring the vision of the founding.
