[This article appears in the September-October 2015 issue of The Austrian.] Charles Murray thinks that government has become arbitrary and tyrannical. In doing so, it has betrayed the “Madisonian” heritage of America, which strictly limited the power of the government to interfere with individual liberty. “As I [Murray] got into the book, I discovered I had to find a label less cumbersome than ‘people devoted to limited government’ … my first impulse was to call us Jeffersonians, but Jefferson was well to the libertarian side of the spectrum, and I wanted to include advocates of limited government who think of themselves as conservatives. I settled on Madisonians instead.”
Murray says that “the Constitution that once sustained limited government is broken, and cannot be fixed by a Madisonian majority on the Supreme Court.” The problems are not confined to misinterpretations of the Constitution. “The American legal system increasingly functions in ways indistinguishable from lawlessness, for reasons that are authorized by judges and Congress.” Of most concern to Murray is the regulatory or administrative state, which operates “by rules that wouldn’t be permitted in civil and criminal courts, and [enforces] laws it has made upon its own.” The political system offers no relief from this “extralegal state within the state” because it is corrupt and dominated by institutions averse to change and under the control of special interest groups. “Combine the effects of institutional sclerosis with the effects of a growing percentage of Americans who depend on the benefits provided by the welfare state, and the political landscape for Madisonians is bleak and getting worse.”
In response, Murray proposes a bold strategy of civil disobedience. People should refuse to obey unjust government regulations. The government lacks the resources to enforce its mandates on a large number of violators; in addition, a defense fund would provide aid for those that the government sought to prosecute.
Murray has devoted much care to a description of our current legal woes; and, for the most part, he writes with a sure touch about legal issues. (Not always, though. It is not correct that the president must sign a constitutional amendment proposed by Congress, and it is doubtful that state laws that legalize marijuana violate the Supremacy Clause.) Further, he works out his conception of civil disobedience in a careful and imaginative way. Should we then welcome this book with enthusiasm?
I do not think that we should. Though Murray writes with insight about our present plight, he does not really want to do much about it. He opposes, for example, any disobedience to tax laws. “The tax code is exempt from systematic civil disobedience.”
Is this, though, a good reason to criticize Murray? The changes he suggests are ones he thinks will command widespread support. Much of the modern state, he suggests, cannot realistically be rolled back.
If this is Murray’s view, should we criticize him for holding it? He is a social scientist of great experience, famous for his studies of social policy. If he arrives at a pessimistic assessment of the prospects for liberty, should he be condemned for this?
But it is not for his pessimism, though I disagree with it, that I wish to challenge Murray. Rather, he is an “uncertain trumpet”; he is only in part an opponent of the Leviathan State. To be sure, he is, by his own lights, a “Madisonian,” but his commitment to limited government is not without its limits. For example, he opposes tax resistance not simply for reasons of prudence, but because taxation is “one of the legitimate functions of even a Madisonian state.”
It is not only taxation to support the night watchman state, furthermore, that our author defends. He also favors government funding of education, among other “public goods.” The latter, we learn, must not be defined strictly but include externalities as well.
Fostering public goods is also one of the legitimate functions of any government. … Strictly defined public goods fall into two broad sets. One set consist of things that can be done only by government because of the nature of the task. … [These goods are nonexclusive and nonrivalrous.] Other public goods are those that may or may not be nonexclusive and nonrivalrous, but do entail serious externalities, meaning that a cost is borne by someone involuntarily or a benefit is provided to someone who cannot be charged for it. … It is appropriate that education be publicly funded, with people contributing to its cost whether or not they have children attending school.
It is well known that as economists define this term, practically all actions generate externalities. Murray’s statement, then, hardly fills us with confidence about his support for a genuine free market. Our unease about the extent of Murray’s support for liberty is not allayed by his remark:
The Constitution needed to change as the United States evolved from the agrarian society of the eighteenth century to the post-industrial society of today, and some of these changes would have permitted wholly new areas of government activity. … If in the 1960s, LBJ had mounted a campaign for passage of an amendment permitting the government to spend money on protecting the environment, he would have been seeking permission for the government to engage in an activity that meets all the classic tests of a public good.
One might imagine that a supporter of the free market would welcome every possible tax deduction. But Murray holds a different opinion. He says: “Consider the case of the tax deduction for mortgage interest. It is regressive. … People can argue from principle for progressive taxes or flat taxes, but no political philosophy tries to make a principled case for a regressive tax. And so it should be [politically] possible to get rid of the mortgage interest deduction. But it isn’t.” He fails to grasp that the problem with the mortgage exemption is not the deduction, but the taxation of others. His “free market” proposal is to extend taxation.
At times, he sounds like a standard welfare state liberal, albeit of a moderate sort. “Changes in the labor market have changed the moral arguments in favor of redistribution for the working population … the economic value of many blue- collar and midlevel white-collar jobs has stagnated or dropped, not because of policy or market failures but because so many jobs can be done as well, or cheaper, by machines. … It is time for conservatives to make some of their political friends mad at them and acknowledge that, in a country as rich as America, it is ridiculous that anyone lacks the means for a decent life.” “Technological unemployment” is a long-exploded fallacy, and this is not the place for an account of it. I mention it only to show, once more, how very limited indeed is our Madisonian’s commitment to the free market.
There is a glaring omission in his account of the rise of the powerful state. He says nothing about war as a means to aggrandize the state; for him, the works of John T. Flynn, Garet Garrett, Murray Rothbard, and Robert Higgs do not exist. The little he says about foreign policy suggests that here too Murray sides with statism. Asking why the Soviet Union ceased in 1991 to exist, he says that “it is already clear that Reagan poked a shaky Soviet system in some vulnerable places — by arming the mujahedeen in Afghanistan with Stinger missiles; starting a technological arms race that the Soviet leadership knew it could not match …” I would not have thought that starting an arms race is the best way to limit government.
Murray’s palliative measures, though all right in their place, respond inadequately to the realities of empire and tyranny. We need to do more than protect ourselves against overzealous factory inspectors.