Curing American sclerosis by Charles Murray see note please
http://www.aei.org/publication/curing-american-sclerosis/?utm_source=paramount&utm_medium=email&utm_content=AEITHISWEEK&utm_campaign=Weekly110715
Charles Murray spoke at a NYC luncheon last week articulating the same logical and effective response to the tyranny of some government agencies….. Read his marvelous book.
By the People: Rebuilding Liberty Without PermissionMay 12, 2015
by Charles Murray
The following remarks were delivered at The New Criterion’s gala on April 29, 2015 honoring Charles Murray with the third Edmund Burke Award for Service to Culture and Society.
“I am a little wary about receiving an award named for Edmund Burke two weeks before the publication of a book in which I advocate massive, systematic civil disobedience. I am not at all sure that Mr. Burke would approve. So let me try to placate Mr. Burke’s shade by talking for a few minutes about the roots of the book called By the People: Rebuilding Liberty Without Permission.
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Twenty20 License
The operational plan I propose in the book is reasonably straightforward. The reasons that I think we are driven to that plan speak to some complex realities facing the United States in the second decade of the twenty-first century.
First, the operational plan: to make large portions of the Federal Code of Regulations unenforceable. I want to make government into an insurable hazard, like flood, fire, or locusts. The way I want to do it is through massive civil disobedience underwritten by privately funded defense funds. Perhaps the best way to illustrate it is by telling you how I was inspired to write the book in the first place.
My wife knows a man in a town near us that I will call Bob. Bob operates one of the many kinds of businesses that use Latino workers. What makes Bob different from almost every other such employer in his line of work is that all of his workers are documented. He spends about $20,000 to $30,000 a year for the excruciatingly complicated visa process. He pays good wages, pays for his workers’ airfares, and is in other ways a model employer and member of his community.
My wife started to tell me stories about how Bob has come under relentless harassment by the government. Why pick on him, when his part of the country is full of employers who have 100 percent undocumented Latino workers? Because, by doing the right thing and documenting his workers, he opened himself up to easy inspection by government enforcers of regulations. He made himself a soft target.
The story that tipped me over the edge involved a stupid regulation that Bob could not comply with. He didn’t have enough American-born employees — and there’s no way he could get Americans to work for him. Bob became so frustrated that he told the bureaucrat that he would fight it in court — at which point the bureaucrat said to him, “You do that, and we’ll put you out of business.” And Bob knew that is exactly what would happen.
Out of my anger came a vision of a mystery man with a pinstriped suit and briefcase who appears from nowhere, taps the bureaucrat on the shoulder, and says: “We are taking over this man’s case. We will litigate it as long as it takes. We will publicize that litigation in ways that will embarrass you and your superiors. None of this will cost our client a penny, and we will reimburse him for any fine you are able to impose. And if you come back and bother him again, we will go through the whole process again.”
And that led to the idea of what I am calling the Madison Fund: a large foundation that funds legal services that will champion individual citizens against Goliath. Its longer-range point is to make clear to other Americans that they don’t have to take it any more. There are ways to force an intrusive government to back off. Specifically, the Madison Fund would have three goals:
To defend people who are innocent of the regulatory charges against them.
To defend people who are technically guilty of violating regulations that should not exist, drawing out that litigation as long as possible, making enforcement of the regulations more expensive to the regulatory agency than they’re worth, and reimbursing fines that are levied.
To generate as much publicity as possible, both to raise the public’s awareness of the government’s harassment of people like them and to bring the pressure of public opinion to bear on elected politicians and staffs of regulatory agencies.
The Madison fund is step one. But there’s no reason why individual professions can’t establish their own defense funds. Let’s take advantage of professional expertise and pride of vocation to drive standards of best practice. For example, the American Dental Association could form Dental Shield, with dentists across America paying a small annual fee. The bargain: dentists who are running practices that meet ADA’S professional standards will be defended when accused of violating a regulation that the ADA has deemed to be pointless, stupid, or tyrannical. The same kind of defense fund could be started by truckers, crafts unions, accountants, physicians, farmers, or almost any other occupation.
For purposes of this presentation, let’s stipulate that today’s regulatory state is as big a problem as I argue at length in the book. Even if we stipulate that, the questions remain: Why is such an apparently disruptive and adversarial plan necessary? Why can we not seek to elect a sympathetic president? Get five sympathetic members of the Supreme Court? Elect veto-proof majorities in both houses of Congress? In other words, why not continue to seek solutions to our problems through the normal political process?
That brings me to the ambitious proposition I want to defend tonight: we cannot use the normal political process to roll back the reach of government. By “cannot,” I mean it is “impossible,” and not just for now but for the remainder of America’s existence.
First, a clarification. We can use the normal political process to achieve many good changes in discrete policies in education, welfare, law enforcement, and a dozen other policy areas. Nothing I say is intended to belittle that noble effort. But we cannot meaningfully reduce the scope of government through the political process. Here’s why:
You all know about the sugar subsidy. For decades, the federal government has artificially boosted the price of sugar in America to about twice the world market price. The sugar subsidy has survived repeated attempts to end it, most recently in 2013. Why? Because a small number of sugar growers really, really care about maintaining the sugar subsidy. They will exert themselves to the utmost to preserve it. The price of sugar just doesn’t matter that much to the rest of the population. And so it comes to pass that members of Congress obtain tangible rewards if they vote to retain the sugar subsidy but no rewards if they vote to eliminate it.
The founders understood this danger. Read Federalist 10, wherein Madison discusses the problem of faction. But it was left to the economist Mancur Olson to reframe the problem in precise economic terms in a book called The Logic of Collective Action. In advanced democracies, small groups with powerful incentives can routinely obtain their objective over a large, diffuse opposition with minor incentives. Organizing a few thousand people to acquire a crucially important benefit is easy. Organizing a few hundred million people to oppose a trivially important cost is impossible.
The other dynamic that Olson identified is the self-multiplying nature of these interests. We call them “special interests,” which makes them sound selfish, but seen from another perspective they are simply doing what we all see ourselves as doing, worrying about legitimate concerns. Even if we assume honesty and good faith on both sides, their interests are going to clash. If the Sierra Club is lobbying for what it sees as reasonable restrictions on logging, Weyerhaeuser cannot afford to assume that the Sierra Club’s definition of reasonable will be reasonable from Weyerhaeuser’s point of view. Weyerhaeuser needs to have its own position represented in the fight. Now imagine what happens when thousands — tens of thousands, hundreds of thousands — of parties with competing interests are involved.
Mancur Olson described the result as institutional sclerosis. Jonathan Rauch gave a very nice description of it in his book Government’s End: “If you see others rushing to lobby for favorable laws and regulations, you rush to do the same so as not to be left at a disadvantage. But the government can do only so much. Its adaptability erodes with each additional benefit that interest groups lock in . Thus if everybody descends on Washington hunting some favorable public policy, government becomes rigid, overburdened, and incoherent. Soon its problem-solving capacity is despoiled. Everybody loses.”
And that’s where we are now. We are living in a political system that has tied itself in knots. “Cleaning house” in Washington will do nothing to untie those knots. When it comes to an explanation of why government under both Democrats and Republicans has become so pathetically ineffectual across the board, even at simple tasks, a powerful underlying explanation is that American government suffers from an advanced case of institutional sclerosis.
Mancur Olson argued that there’s only one way to recover from advanced institutional sclerosis: be utterly defeated in a world war. He compares the postwar experiences of Germany and Japan with the postwar experiences of Britain and France to make his case. Germany and Japan had to start from scratch. That’s precisely why they were able to grow so much more quickly than Britain and France after the war, which won the war and thereby were encumbered by the survival of their prewar institutions — and their prewar sclerosis.
How did the United States government avoid institutional sclerosis through almost two centuries of its existence? The answer is simple: the founders set up a system that by its nature prevents institutional sclerosis from getting out of hand. The enumerated powers restricted the number of favors within the power of government to sell. Sclerosis is impossible if no amount of lobbying can give Congress the power to satisfy the desires of the special interests.
And that brings me to my second reason for arguing that we cannot roll back the reach of government through the political process: the constitutional revolution that occurred from 1937 through 1943.
I learned a lot writing this book, and nothing was more startling to me than coming to understand how little the Supreme Court can roll back the federal government even if we had nine Antonin Scalias or nine Clarence Thomases sitting on it. The details are more complicated than I can describe here, but, reduced to the bare bones, the Supreme Court made three irreversible changes to the Constitution from 1937 through 1943.
First: the Supreme Court liberated regulatory agencies from the will of Congress.
The first words of the Constitution after the Preamble are “All legislative powers herein granted shall be vested in a Congress of the United States.” From 1789 until the 1930s, the Supreme Court took that statement very seriously. Congress could not state some lofty goal in general language and then leave it to the bureaucracy to implement that goal. Legislation was required to have what the Supreme Court called an “intelligible principle” for the bureaucracy to implement. In 1943, in a case involving the National Broadcasting Company and the newly established Federal Communications Commission, the Supreme Court lifted that requirement. So today Congress can pass a “clean air” act that lets the EPA decide what “clean air” means, or task OSHA with making workplaces “safe,” without telling OSHA what “safe” means.
Second: the Supreme Court removed the limits on what the federal government can regulate by redefining the Commerce Clause. From 1789 until the 1930s, the Commerce Clause was restricted to the meaning the founders had in mind. Congress could regulate the buying, selling, or bartering of goods “among the several states.” In other words, Congress could prevent Pennsylvania from doing things such as levying a tax on rice imported from South Carolina. In two key cases in 1938 and 1942, the Supreme Court reinterpreted “commerce” to mean anything involving manufacturing and agriculture — a huge expansion. And it reinterpreted “among the several states” to mean indirect effects on interstate commerce. Thus, in Wickard v. Filburn in 1942, the Court found that it was okay to fine Roscoe Filburn, an Ohio farmer, for producing 239 more bushels of wheat than the Agricultural Adjustment Act said he could produce, even though he used most of the wheat himself and sold the remainder to people in a nearby Ohio town. In the words of the federal judge Alex Kozinski, the Commerce Clause became the “Hey, You Can Do Anything You Feel Like” Clause.
Third — and this is the real killer — the Supreme Court removed the limits on what the government can spend money on. In a 1937 case that challenged the constitutionality of the Social Security Act, it reversed 150 years of Supreme Court jurisprudence that treated the enumerated powers seriously, and instead said that a phrase in the introduction to the enumerated powers — the two words “general welfare” — conferred a plenary power on Congress to spend money on anything that plausibly, or even implausibly, advanced the general welfare.
I should add that this interpretation flew in the face of the clear meaning of “general welfare” that had been established during the ratification debates in 1787-1788, with Madison and Hamilton both arguing vigorously and explicitly — Madison in earnest, Hamilton disingenuously — that “general welfare” was merely a phrase used to introduce the enumerated powers. If they had not assured the ratifying conventions of that, there is not a snowball’s chance in hell that the Constitution would have been ratified.
None of those three changes to the Constitution imposed by judicial fiat can be reversed. To reverse any one of them would mean that about 90 percent of everything the federal government does is unconstitutional. That’s not going to happen. No president would enforce such a decision. The legitimacy of the Supreme Court would be shattered. No set of judges, however originalist their principles, will vote to destroy the institution.
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Uncover additional content on American exceptionalism from AEI scholars
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So we are going to have to live with an America that suffers from advanced institutional sclerosis, and one in which the Constitution that limited government no longer exists from now until the United States comes to an end. Sounds pretty gloomy.
Think ahead for two centuries. First, we can expect national wealth per capita to be vastly higher than it is now. That’s a realistic prospect — economic growth doesn’t depend on limited government. That increased wealth will have transformed the range of the possible in organizing society.
It’s not just wealth that will have done so. The information technologies that have revolutionized daily life over the last three decades will look primitive compared to those of two centuries from now. We will fully understand the human genome, and along with it deep truths about how human beings flourish that can guide public policy. For that matter, humankind will long since have acquired the ability to modify its own genome. The natural outcome of this new knowledge will be to enhance human capabilities and empower the individual in fabulous ways. It is, of course, possible that some nightmarish political dystopia will have triumphed, but that is not the most plausible scenario.
National wealth that dwarfs today’s, and technology that gives the individual access to total information and the capacity to apply that information to everyday life: under those conditions, it is unimaginable to me that Americans will still think the best way to live is to be governed by armies of bureaucrats enforcing thousands of minutely prescriptive rules. Somehow, the American polity will have evolved toward more efficient ways of working and living together. In the language I use in the book, America will do a better job of leaving people free to live their lives as they see fit as long as they accord the same freedom to everyone else.
I think the key event in the evolution of that better world will be a recognition that government is increasingly the Wizard of Oz. It makes a lot of noise, sounds very fearsome, but when the curtain is pulled, is revealed to be a pathetic old man. It doesn’t mean that the government can’t hurt us. But we are going to discover all sorts of ways in which the government becomes irrelevant, and is something that can be sidestepped, something that can be worked around.
I see systematic civil disobedience as an initial step in this process of consigning government to its proper box once again. Equally important, it is the initial step in sustaining our unique civic culture. America isn’t the only great place to live. I can think of a dozen countries, just among the ones I know, where I could have made a satisfying life for myself. The loss of the way of life of any one of them would make the world culturally poorer.
But that truth should not obscure another one: America is unique not because of the kinds of cultural particularities that make every country different from every other country. If America becomes like the advanced social democracies of Europe, as it threatens to do, it would mean the loss of a unique way of life grounded in individual freedom.
No other country throughout the history of the world began its existence with a charter focused on limiting the power of government and maximizing the freedom of its individual citizens. Even after we set the example, no other new country subsequently has followed it. Neither has any old country modified its charter to become more like ours. The United States of America from 1789 to the 1930s is the sole example of truly limited government anywhere, at any time. Under that aegis, we also happened to go from a few million colonists along the East Coast of North America to the richest and most powerful nation on Earth. We became a magnet for people around the world who wanted to share in the opportunities afforded byAmerican freedom. But these achievements were ancillary to the most important of all:
America’s unique charter produced a unique culture. American exceptionalism is not an idea that we invented to glorify ourselves but a reality recognized around the world at the time of the founding and for well over a century thereafter. America’s unique culture — its civic religion, as I have called it — made for a unique people. Some of our characteristics are not to everyone’s taste, but I love them all. Our openness. Our passion to get ahead. Our passion to see what’s over the next hill. Our egalitarianism. Our over-the-top patriotism. Our neighborliness. Our feistiness. Our pride. All wrapped in our individualism.
Those American qualities are fading, once-bright colors left too long under an alien sun. The words of Alexis de Tocqueville that I used as an epigraph for By the People increasingly describe us today. As Tocqueville feared would happen to democracies, the government now “covers the surface of society with a network of small, complicated rules, minute and uniform.” As Tocqueville predicted, we have experienced not tyranny but a state that “compresses, enervates, extinguishes, and stupefies a people.”
Systematic civil disobedience offers a chance to revive those colors. Perhaps not to the primary intensity they once had, but enough that we are once again different from everyone else, uniquely American. If that process diminishes the majesty of the American government, I don’t care. Our government is not supposed to be majestic. Neither does the government command our allegiance independently of its own allegiance to its proper role. The federal government was created with one overriding duty: to allow us to live freely as we see fit, as long as we accord the same right to everyone else. It has betrayed that duty.
America can cease to be the wealthiest nation on Earth and remain America. It can cease to be the most powerful nation on Earth and remain America. It cannot cease to be the land of the free and remain America. I am not frightened by the prospective loss of America’s grandeur. I am frightened by how close we are to losing America’s soul. It’s time to do something about it.
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