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Judicial Activism And Charles Murray’s Call For Civil Disobedience

Charles Murray’s clarion call for civil disobedience is tempting, but it’s also something that will challenge conservative orthodoxy on the courts.


Charles Murray has a knack for sparking conversations. His last book, Coming Apart, inspired a lengthy conversation on the center-right about economic mobility, wage stagnation, and inequality which spread from think-tanks to talk radio to church parking lots. His latest book makes the case for an approach to civil disobedience that is likely to achieve a similar degree of conversation for the presidential candidates and the early state voters, coming as it does at a moment when the right views itself as under assault by the IRS and the administrative state under President Obama. But there’s a trap for conservatives in Murray’s thesis, and I wonder how long it will take to reveal itself.

An excerpt from Murray’s book ran in the WSJ this weekend:

“Regulations that waste our time and money are bad enough. Worse are the regulations that prevent us from doing our jobs as well as we could—regulations that impede architects from designing the most functional and beautiful buildings that would fit their clients’ needs, impede physicians from exercising their best judgment about their patients’ treatment, or impede businesses from identifying the best candidates for job openings… Whether we are trying to raise our children, be good stewards of our property, cooperate with our neighbors to solve local problems or practice our religious faith, the bureaucrats think they know better…

“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. Within each category, the task is to discriminate between regulations that should command our voluntary compliance from those that are foolish or worse…

“At the end of the process, we will have a large number of regulations that meet the criteria for being pointless, stupid or tyrannical. Let’s just ignore them and go on about our lives as if they didn’t exist. The risk in doing so, of course, is that one of the 70-odd regulatory agencies will find out what you’re doing and come after you. But there’s a way around that as well: Let’s treat government as an insurable hazard, like tornadoes. People don’t build tornado-proof houses; they buy house insurance. In the case of the regulatory state, let’s buy insurance that reimburses us for any fine that the government levies and that automatically triggers a proactive, tenacious legal defense against the government’s allegation even if—and this is crucial—we are technically guilty.”

Now, I’m largely sympathetic to Murray’s argument here. The idea of a dedicated group of legal defenders tasked with smashing the state? What’s not to love? But it seems to me that Murray’s answer is impossible to justify if you are a serious traditional conservative. The argument that we should ignore perfectly legal but stupid regulations is a populist argument, a libertarian argument, occasionally an anarchist argument – but one thing it is not is a conservative argument, consistent with our views of law and order. Taking it to the next level and throwing ourselves at the mercy of the judicial branch and the courts, backed with a strong push by a legal services group for courts to strike down such regulations, goes even further into an inherent rejection of the doctrine of judicial restraint that conservatives have espoused for much of the modern era.

Murray’s case is essentially that we should defy orders that are legal but we deem stupid and unnecessary, and then turn to the courts to invite them to strike down these stupid, unnecessary, but legal (and Constitutional!) requirements. Is that not the definition of judicial activism? Now, I think of judicial restraint much the same way as I think of natural family planning (as Harry Crocker once wrote: “Try natural family planning! It doesn’t work!). But it seems to me any conservative who says they agree with Murray’s argument need to answer this question, lest the ghost of Robert Bork return from Asgard with his flaming scimitar to wreak havoc on the debate stage in Iowa.

Turning to the courts to save us from the force of the administrative state is ultimately an indication of surrender on the part of representative government as a path toward reining in bureaucratic regulation. This is probably reasonable, but it still represents a step away from conservatism. Government in the American concept must have a legitimate purpose (to secure these liberties) and a legitimate source (the people). The former is mostly gone, and the latter is partly gone. The question is what we have the power to do anything about it, and whether or not we should do anything about it. Murray’s idea strikes me as a good one – in part because his answer to what we can do is not “nothing”, which is what most politicians offer today. But it is also implicitly a call for using the power of the One Ring for good, and conservatives shouldn’t pretend otherwise. We’ll see if the presidential candidates try to play pretend – but I don’t think they’ll get away with it for long.