By the People, A Book Review
The book “By the People” by Charles Murray is a manifesto for trying to recover individual freedoms in the case of an overwhelmingly large and un-elected bureaucracy that micromanages details of our lives the state was never supposed to control (in the US), prosecutes people for violations that are not immoral nor easily understood to be illegal, capricious in its implementation and oppressive in its results.
Murray’s book “By the People: Rebuilding Liberty Without Permission” outlines how we got where we are, what is wrong with our government today and a number of ways to fix it, including solutions outside of the legislative system.
Where America Went Wrong
Per Charles Murray, the problem started during the Great Depression. Progressive intellectuals, who he defines as being passionate advocates of rule by disinterested experts led by a strong unifying leader, were able to dramatically expand the size and scope of the state by using the crisis of the economic depression to justify it. (I recommend reading Amity Shlaes’s book “The Forgotten Man: A New History of the Great Depression” for a better understanding of how their policies actually extended the Great Depression.) The welfare clause was expanded to include many social programs copied from Bismark Germany, leading to the first massive financial transfers by the state in the form of work programs, Social Security and the like.
Furthermore, court cases challenging the New Deal eroded rights outlined in the Constitution as well as those delegated to the state. “United States vs Carolene Products Co” and “Levering” stripped away economic rights implied in the Constitution and gave the Supreme Court the ability to erode rights specifically in the Constitution. These cases and many others also led to the growth of the regulatory state, so big now that we often have no idea whether we’ve broken a law or not.
In the 1970s, the courts made matters worse by eliminating mens rea for being sued and punished. Being found guilty didn’t require guilty intent, simply having broken a rule. To compound matters, they relied on the Roman principle that ignorance of the law was not an excuse not to break it, ignoring the fact that there were now so many rules and regulations to date that there were too many to know. (As of 2007, there were over 4000 criminal offenses listed in the federal code.)
The Problems and Solutions According to the Author Charles Murray
What are the major problems in America today according to Charles Murray? And more importantly, how does he say we can fix these problems despite a sclerotic bureaucracy and gridlocked legislature?
Experts Are Not Apolitical
Charles Murray states that progressives assume that putting a credentialed expert into a position of power means the experts will solve problems. The problem is that disinterested experts like DNA experts reviewing hundreds of paternity tests a month are not disinterested when put in a position of authority, whose careers depend on expanding the size of their department, political influence or scope of power. Likewise, beyond daily routine tasks, people are not disinterested, and politics come into play. To quote the author, “Expertise in policy sciences isn’t the same as expertise in electrical engineering, and bias is inevitable.”
Look at the radical environmentalists in the EPA, the social justice warriors working as attorneys at the Department of Justice, and so forth. The amount of power we’ve given the bureaucracy has led to those seeking social, political and economic change to enter the bureaucracy and then try to enforce changes via regulation that bypasses both the legislative branch and most scrutiny of the courts.
One culture change Mr. Murray says we need to make is to stop assuming that the credentialed elite are better at making decisions. In fact, the fact that we give power to people with lots of certifications and supposed expertise while ignoring their politics leads to growth of the regulatory state, as they use the regulatory state to try to change society to fit their grand vision.
The Unconstitutional Fourth Branch
While no man can be a judge in his own cause, various rulings have led the courts to defer to regulatory agencies who control the courts in which they try people administratively, the appeals court within the same agency, and Constitutionally allowed courts that defer to the agency. Per Charles Murray, “Administrative law system has its own separate courts, prosecutors, judges and appeal process … which turns it into a largely independent fourth branch of government.”+
To make matters worse, administrative courts use the lowest standard of evidence, “a preponderance of the evidence”, a 50.1% you’re guilty, far less than the clear and convincing evidence standard in some courts and the beyond a reasonable doubt standard used in criminal court.
Charles Murray’s initial solution to this problem is changing the Federal Rules of Civil Procedure to eliminate the separate administrative court system, though he admits this is unlikely. Another option is changing the interpretation of section 706 of the Administrative Procedure Act so that the enforcement of regulations cannot be arbitrary, capricious or abused by discretion; right now, only regulations themselves can be challenged as arbitrary, capricious or abused by discretion, and the true courts tend to defer to the agencies in these cases.
The primary solution outlined in Charles Murray’s book “By the People” is the creation of a new legal defense fund, the Madison Fund. It would step in when the regulatory branch tries to capriciously apply rules and regulations to businesses and individuals, and in too many cases, applying massive levies for minor offenses or supposedly collectively unacceptable systems of behavior, turning large businesses into a cash cow. For example, it would defend people innocent of regulatory charges against them, defend people guilty of violating regulations that should not exist, and raise public awareness of regulations that shouldn’t exist and the excessive persecution of those who break them. In the interim, his book lists several legal defense funds that do this already but have very small budgets.
He also says one solution to the stifling bureaucracy is losing a total war, as Japan and Germany did in World War 2. While losing much of their infrastructure set them back economically, the loss of stifling bureaucracy and excessive regulation allowed their economies to roar back and past their unconquered neighbors.
Yet another solution to the burdensome regulatory state is replacing it with self-policing associations. For example, the American Dental Association are already regulating dentists and their practices, and they should have the primary role doing so, instead of the government. He suggests that groups like the ADA, AMA and professional associations in the short term set up insurance to protect their members from excessive and confiscatory federal fines for minor offenses, in the form of insurance. In the long term, he suggests they fight the federal government’s contradictory and overly-complex regulations on how professionals do anything on the job.
He suggests replacing government oversight with public oversight, since there is no longer any such thing as a local fiefdom immune from exposure to the rest of the country, which necessitated federal intervention.
He has an entire chapter describing nonviolent resistance to unacceptable regulations, but there are so many rules and caveats to this solution as well as its implementation (beyond the Madison Fund) that I cannot summarize it here.
Best Quotes from the Book By The People
The book By the People by Murray contains many good quotes. Those quotes attributed to someone other than Charles Murray are noted as such.
Law that is sufficiently complex is indistinguishable from lawlessness.
Business owners pay lawyers for the same reason that people pay bribes in the Third World – it is the only way to get the government to allow you to do something that the government otherwise would arbitrarily refuse to let you do.
Law that is sufficiently discretionary is indistinguishable from lawlessness. (This is referring to prosecutors able to lay on additional and excessive crimes to the initial charges in an effort to pressure people into pleading guilty.)
Per George Priest, “Tort law in the United States was radically reformed … from a minor mechanism for dealing with a small subset of accidents into an institution that conceptually aspires to regulate all industries and social activities, making it the most significant regulatory body in American society”.
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 government made several tacit compacts with the American people when founded: the people wouldn’t expect much from the federal government beyond protection of their freedom at home and protection from enemies abroad, the federal government would not unilaterally impose a position on the moral disputes that divided America, and that the government would make it easy for Americans to take pride in themselves. … Now it seeks to solve every problem, imposes solutions from the judiciary instead of allowing democratic solutions as we had for prohibition and suffrage, and berates the average people as racist, bigoted, stupid, greedy, racist, homophobic.
Only regulatory law has been sheltered form the requirement that it be enforced in the context of circumstances.
It has been confirmed by experience over millennia: people who are given the right to order other people to do things tend to exercise that power mindlessly.
It is wrong for the courts to continue to allow citizens to be punished for breaking bad laws created by unelected officials. It violates a foundational principle of American democracy.
Voters with insecure job tenure … simply will not pay higher taxes so bureaucrats can enjoy lifetime tenure and secure pensions.
Executives have been treated not as cash cows for campaign contributions but as cash cows for supplementing government budgets through the criminalization of business.
Trivia from the Book By The People
“By the People: Rebuilding Liberty without Permission” is packed full of amazing trivia, such as:
Do you hate Political Action Committees? The first PAC was actually founded by the Congress of Industrial Unions to get around the Taft-Hartley Act in 1947.
When Obama was elected in 2012, more than 1 in 3 people were dependant on Medicaid, Medicare, Social Security and other welfare programs.
As of the book’s writing in 2015, 87% of Americans do not trust the federal government to do what is right even most of the time.
In 2002, annual criminal fines of corporations was less than 100 million dollars, In 2011, they surpassed 4 billion dollars.
There are really people in the federal government with its 22 management layers with job titles like deputy associate deputy administrator and chief of staff to the associate deputy assistant secretary.
Per capita wealth was flat across societies and history until the start of the 17th century. Per capita wealth started to rise since them, with the rise of industrialization and capitalism.
Franklin Roosevelt and pro-union George Meany both thought unionization of government workers was ridiculous.