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Charles Murray Returns to Help the GOP Demolish Modern America

May 13, 2015

As the race for the 2016 Republican presidential nomination heats up, one name keeps popping up as the GOP's go-to guy on poverty, economic inequality and social policy. "My views on this were shaped a lot on this by Charles Murray's book," Jeb Bush recently proclaimed, adding. "I like Charles Murray books to be honest with you, which means I'm a total nerd I guess."
Being an acolyte of the Harvard social scientist and libertarian crusader doesn't make you a nerd, but it does make you a fellow traveler in support of some of the more extreme views in American public policy. After all, in his 1984 book Losing Ground, Murray argued the unintended consequences of liberal social engineering were making the lives of poor worse. In 1994's The Bell Curve co-authored with Richard Hernstein, Charles Murray further suggested that due to the inferior IQ's of racial minorities, government intervention was unnecessary and unlikely to succeed. Three years ago in Coming Apart, Professor Murray proclaimed the poors were simply undeserving of assistance, as the supposed pathologies plaguing the lower classes were due to their blighted values, not their blighted job prospects.
Now in his new tome the By the People: Rebuilding Liberty Without Permission, Charles Murray is apparently* proposing conservatives kill the post-New Deal American government by suing it to death.
Decrying the rules and regulations issued by Congressionally-created administrative agencies in the Executive Branch, Murray has issued a simple marching order to his followers: ignore them:

And so my modest proposal: Let's withhold that compliance through systematic civil disobedience. Not for all regulations, but for the pointless, stupid and tyrannical ones.
Identifying precisely which regulations are pointless, stupid or tyrannical will be a lengthy process, but categories that should come under strict scrutiny include regulations that prescribe best practice for a craft or profession; restrict access to an occupation; prohibit owners of property from using it as they wish; prescribe hiring, firing and working conditions; and prevent people from taking voluntary risks.

At first blush, that may sound like the thinking of the bastard love child of a sovereign citizen and an anarchist. But to make his Hobbesian war of each against all of the federal government work, Murray argues for deploying a private legal army backed by the deep pockets of any number of right-wing sugar daddies. As Carlos Lozada summed it up in his Washington Post review:

Who pays for all this? Pointing to the emergence of "many billion-dollar-plus private fortunes over the last three decades," Murray suggests that the Madison Fund could get started "if just one wealthy American cared enough to contribute, say, a few hundred million dollars," or if "a dozen wealthy Americans cared enough to share the initial costs among themselves."

In response to that "large number of regulations that meet the criteria for being pointless, stupid or tyrannical," Murray declares, "Let's just ignore them and go on about our lives as if they didn't exist." And when, say, OSHA, the EPA or the NLRB comes after any business or land owner, the conservative counterattack will take place in court:

I propose two frameworks for implementing this strategy. The first would be a legal foundation functioning much as the Legal Services Corporation does for the poor, except that its money will come from private donors, not the government. It would be an altruistic endeavor, operating exclusively on behalf of the homeowner or small business being harassed by the regulators. The foundation would pick up all the legal costs of the defense and pay the fines when possible.
The other framework would be occupational 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 whose practices meet the 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.

Overwhelmed by a tidal wave of litigation from an ocean of conservative cash, Uncle Sam will relent. The cost and bad publicity, Murray argues, will increasingly lead to infrequent enforcement. "Faced with many people who are technically breaking the law but who are actually driving safely," he explained using the highway analogy, "state troopers stop only those people who are driving significantly faster than the flow of traffic or driving erratically."
If Murray's program sounds like it longs for a return to the survival of the fittest society predating Progressive Era protections for workers, children and the environment, that's because it does. In that position, he is joined by Kentucky Senator Rand Paul, who lamented how the New Deal Supreme Court overturned the 1905 Lochner decision which declared the "liberty to contract" trumped workplace regulations. As Yale Law professor Akhil Reed Amar warned, "It's a return to the playbook of the early 20th century, and an attack on the progressive movement." Nothing, Lozada explained, would make Charles Murray happier:

Murray spends the first third of his book explaining what's so wretched about our democracy today. The Constitution, that sacred scroll of American exceptionalism, has been eviscerated by progressive meddling, he argues. Murray highlights a "constitutional revolution" during the New Deal era, particularly in Helvering v. Davis, a 1937 Supreme Court case involving the Social Security Act that "destroyed the limits on the federal government's spending authority." Helvering allowed Congress to open its coffers for virtually anything that promotes the "general welfare" stipulated in Article 1, Section 8 of the Constitution, unconstrained by the enumerated powers that followed.
This interpretation "stopped obliging the American government to control itself," Murray writes; it became the wedge allowing federal spending on Social Security, Medicaid, Medicare and K-12 education. It is so embedded in our politics that a reversal now would "throw the country into chaos." No Supreme Court would risk it, and no president would enforce it.

Don't be so sure. In his majority opinion in the 2012 Obamacare case (NFIB v. Sebelius), Chief Justice John Roberts upheld the law's individual mandate not on "Commerce Clause" grounds, but on the basis of Congress' taxation power. And as Jeffrey Rosen warned in 2005, many of the leading jurists on the right advocate the "Constitution in Exile" theory as a strategy for wiping away 80 years of law regarding workers' rights, environmental protections, old-age pensions and health care, and so much more.

In a nutshell, Constitution in Exile (CNE) advocates argue that the Court since the New Deal has broadly and mistakenly applied the Commerce Clause, enabling a dramatic expansion of federal regulatory power not just in the economy, but into a range of social issues. The result according to CNE is not only illegitimate federal power, but the unconstitutional delegation of Congressional roles and authorities to a panoply of administrative agencies. For CNE proponents, the United States since FDR has built a national government without a basis in the Constitution, an exile, so they say, of 70 years.
New Bush circuit judge Janice Rogers Brown was speaking in the context of the Constitution in Exile when she said, "The Constitution itself was transmuted into a significantly different document...1937...marks the triumph of our own socialist revolution." Her views, and those of many potential Bush additions to the Court, clearly imply an upheaval in the American economy and society as well between the federal government and the states.

Ten years later, there is no shortage of Republican presidential candidates willing to make Rosen's nightmare--and Murray's dream--of shredding the safety net come true. Even former Texas Governor Rick Perry was able to articulate the stakes to South Carolina voters last week:

"Something I want you all to think about is that the next president of the United States, whoever that individual may be, could choose up to three, maybe even four members of the Supreme Court," Perry told the South Carolina audience. So this election "isn't about who's going to be the president of the United States for just the next four years. This could be about individuals who have an impact on you, your children, and even our grandchildren. That's the weight of what this election is really about."

"These justices could change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights," Rosen presciently warned in 2005, "making it difficult for the federal government to address problems for which the public demands a national response." If that comes to pass, the GOP won't need long to execute what Digby deemed Murray's "Scientology Strategy" of suing the federal government to death. A new conservative Supreme Court would be only too happy to kill modern America itself.
* I say "apparently" because I haven't yet read the book.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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