Civil Disobedience
This morning Michael Barone passed on a suggestion from Charles Murray: Government has become so intrusive in our lives and limits so much of our personnel freedoms, particularly economic, that it is perhaps time to start using civil disobedience in an attempt to break government’s suffocating hold on us. For conservatives, who generally revere law and order, to propose such a course shows how desperate they have become with the seemingly unbreakable hold that the government boa constrictor has on us.
“Whoa!” you say. “What can you possibly mean? I don’t feel government breathing down my neck. Except for paying my taxes and stopping at red traffic lights, something I would do anyway, I have very little interaction with government. I have freedom of speech, and I can associate with anyone I want and read anything I want. What more could I desire?” All of this is true and is different from many other parts of the world. It is a part of what has made the United States of America an exceptional nation. It is the breakdown of other parts of America’s exceptional nature that are the big worry.
When the Constitutional Convention of 1787 produced its final product, which was soon thereafter amended with the Bill of Rights, it produced a government divided into three parts. Each held the power to check the others’ exercise of power. See reference [P1]. The President has the power to check the Congress by vetoing legislation; the Congress has the power to check the President by passing legislation and by passing it over a presidential veto with a two-thirds vote to over-ride. If the President became too tyrannical, the Congress had the power to impeach and remove him. The House of Representatives could check the Senate, and vice versa. The Supreme Court and lower federal courts could check both the President and the Congress by ruling laws unconstitutional. If the President violated statutes in his actions, the court system could rule that he must obey them. In addition this constitutional ordering could be changed only by going through a very arduous procedure to amend the Constitution.
The animating spirit of the Constitutional Convention in producing such a limited, partitioned government was the horror of being subject to tyrannical powers. Even in a republic such as the United States, a tyranny could arise if the electorate mistakenly put a party in control of the executive and/or the legislative branches that wanted to seize some extra power over society. Therefore as much as possible, the nation’s founders wanted to place as many roadblocks as possible in the way of a governmental branch that did not secure sufficient unanimity to reflect the over-all will of the people. Of course, if a sufficient majority of the electorate were seduced into desiring a tyranny, all hope would be lost and the people would get what they deserved.
And here is where the ideologies of the political Right and Left collide. Progressives have long been impatient with constitutional restrictions placing roadblocks in the way of their visions for society. To my knowledge the progressive Woodrow Wilson was the first U.S. President to be openly contemptuous of the Constitution. In a 1912 presidential campaign speech, Wilson concluded that both the Declaration of Independence and the Constitution had outlived their usefulness. He thought that the branches of government should not be checks against each other, as the founders intended, but should be entirely cooperative. In his 1908 book Constitutional Government in the United States, he wrote
Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All the progressives ask or desire is permission—in an era when “development,” “evolution,” is the scientific word—to interpret the Constitution according to the Darwinian principle….
Ever since then progressives have emphasized that the constitution is a “living” constitution to be changed by changing interpretations of it, rather than changing it by the constitutionally mandated amendment procedures. Their one concession with procedure seems to be that the changes should be made by the justices of the Supreme Court.
Conservatives strenuously object to this wholesale change in the way the Constitution can be amended by just a handful of justices. Article V of the Constitution allows two different ways for constitutional amendments to be proposed: one through the Congress with a two-thirds majority vote in favor in both houses, and the other through another constitutional convention called for by two-thirds of the state legislatures. In either case before the proposed amendment can be an actual amendment, three-fourths of the state legislatures must ratify it. The reason the amendment process was made so arduous is that the founders wanted to make certain the amendment had the support of a wide majority of the American people. Just as with the checks and balances between the branches of government, this difficult constitutional amendment process is one defense against a single party erecting tyrannical government.
So now we can finally address why Charles Murray thinks we may have to exercise civil disobedience to break the arbitrary government that has developed over a century. Checks and balances between branches, especially between the executive and the legislature, have greatly eroded. Much if not most of this erosion has come from the houses of Congress ceding power to the executive to make law by making regulations. The President then pushes the authority to make regulations, i.e. to make law, down to various departments and agencies. Instead of Congress making the law, it is bureaucrats in the Department of Treasury, the IRS, the Department of Justice, the Department of Labor, the Environmental Protection Agency, the Federal Trade Commission, the National Labor Relations Board, etc,. etc., etc. This has led to a vast body of administrative law, authorized but not made by Congress.
The body of law that we all have to observe has become so large that no one person can possibly keep it all in his head, One hoary principal of law has been that ignorance of the law is no excuse for breaking it. Yet it has been estimated that the average American through ignorance commits three felonies a day (See here and here and here and here) . If any one of us causes the displeasure of someone in power who can alert some agency to look for our violations of some regulation, we could probably be arrested in very short order, Is this not the very definition of tyranny?
This is what Charles Murray wants us to bring down by civil disobedience. I wonder how long it will take to hear of him going to prison?
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