Summarizing the thesis of his new book in the Wall Street Journal, Charles Murray calls for citizens to push back against government overregulation by refusing to comply with laws that are “pointless, stupid, or tyrannical”—especially when they interfere with our ability to earn a living, run a business, or use our own property.
Responding to Murray’s call for selective civil disobedience, Ben Domenech expresses sympathy with Murray’s concerns about overregulation but challenges his prescription on three somewhat overlapping grounds: first, ignoring stupid but “perfectly legal” regulations impugns traditional conservative respect for law and order; second, embracing Murray’s call to seek relief from those regulations in court undermines judicial restraint; and third, ideally “the force of the administrative state” should be resisted through representative government instead of judicial intervention.
These are substantial concerns worthy of careful consideration, and I will not attempt to fully address them here. Instead, I will address two underlying premises that seem to animate those concerns.
First is the notion that the regulations Murray urges people to ignore are in fact “perfectly legal.” As I argue in my own book “Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government,” for nearly a century our courts have systematically abdicated their responsibility to enforce constitutional limits on government power in wide areas of life, including particularly economic regulations, property rights, and the promise of limited federal power reflected in the structure of the Constitution and underscored by the Tenth Amendment.
Thus, the mere fact that a court says it is constitutional to bulldoze people’s homes in order to build nicer ones, or license the sale of floral arrangements, or exercise federal control of local pet-care decisions does not make it so. Those decisions are so obviously wrong—and so poorly reasoned—that they can make no serious claim to anyone’s intellectual or civic allegiance.
Tyrannical Decisions Require No Allegiance
Moreover, the Supreme Court has adopted as the default setting in constitutional cases a framework called the rational-basis test, whose entire function is to enable judges to avoid exercising any actual judgment in cases where it applies. If the Framers’ assumption that the constitutionality of particular laws would be seriously considered by all three branches of government is no longer valid—and if, as is manifestly true now, the constitutionality of many regulations receives no serious consideration by any branch of government—then the precept that citizens should treat as presumptively legitimate even those laws that are demonstrably “pointless, stupid, and tyrannical” becomes much harder to sustain.
Second, and relatedly, it is far from clear that conservative regard for law and order mandates obedience to all laws deemed constitutionally valid. For example, more than half the states enacted eugenic sterilization laws at some point during the last century, a policy the Supreme Court upheld in the notorious case of Buck v. Bell (1927), featuring Justice Oliver Wendell Holmes’s observation that “three generations of imbeciles are enough.” Some modern conservatives agree with that decision, however reluctantly, because nothing in the text of the Constitution specifically prohibits state governments from experimenting with eugenic sterilization in their respective “laboratories of democracy.”
But those who agree with the decision are certainly not thereby obligated to surrender their daughters to the scalpel-wielding butcher-bureaucrats of the local health department. Examples of similar cases are legion, and include the court-approved internment of Japanese-Americans during World War II, state-mandated racial segregation, and the federal government dictating to farmers how much wheat they may grow on their own property even when they do not sell that wheat on the interstate market.
Simply put, when the government’s abuse of its authority is sufficiently clear, sufficiently oppressive, and sufficiently offensive to the conscience and morals of decent people, there is nothing un-conservative about resisting it, even (or perhaps especially) when the Supreme Court is out to lunch—as it so often is.