By the People: Rebuilding Liberty without Permission

Charles Murray, “By the People: Rebuilding Liberty without Permission,” Crown Forum, 2015, 266 pp.

Murray, a political scientist, continues to stir-up controversy with his publications.  He is known for “Losing Ground,” which deemed the welfare state a failure; “The Bell Curve,” which he co-authored that linked intelligence, race, and socioeconomic outcomes; and “Coming Apart,” which declared that white America is separated by class and values. In “By the People,” this current book, he maintains that the American federal government at the founding was created with one overriding duty: to allow us to live freely as we see fit as long as we accord the same right to everyone else.  It worked pretty well up until the Helvering v. Davis (1937) decision by the Supreme Court that held Social Security was constitutionally permissible as an exercise of the federal power to spend for the general welfare and did not contravene the 10th Amendment. The Court's 7-2 decision defended the constitutionality of the Social Security Act of 1935, requiring only that welfare spending is for the common benefit.  (Social Security, as a result of this decision, was later deemed a tax and thus permissible through the taxing authority of the government and could be denied to people deported.  If this sounds familiar, how about Obama Care?).  Link

Previous to this Helvering decision, the government had always used the amendment process to make substantial changes to the federal government’s constitutionally allowed powers when desired outcomes were not provided for in the Constitution (e.g., ending slavery, income tax, women suffrage, prohibition).  However, with Helvering v. Davis, we now have a government of special interests, by special interests, and for special interests.  The author is not against Social Security, only it should have been accomplished through the amendment process and not opened the door to open-ended government spending for the ‘common benefit’ and the rise of the regulatory state.

My Notes:

Pg. xiii:  We are at the end of the American project as the founders intended it, only remnants remain and they are reserved for a lucky few.  The largest remnant is that able, industrious people can still get ahead in today’s America regardless of their origins.  But the people who become successful as measured by the metrics of money, power, and celebrity make up a small minority of the whole: an elite.

Pg. xiv:  By the People is written for people who are devoted to limited government.  In today’s terminology, that includes classical liberals, libertarians, and many conservatives.  The author calls these people Madisonians; Jefferson was well to the libertarian side of the spectrum, and the author wanted to include advocates of limited government who think of themselves as conservatives.  It is Madison’s Constitution that preserved limited government for the first century and a half of America’s existence (Hamilton was the other side of the coin).

Pg. 11:  Until the 1930s, the federal government remained tiny.  The federal budget of 1928 totaled $38.0 billion, expressed in 2010 dollars.  Today $38 billion is a rounding error to a federal budget in trillions.

Pg. 12:  Under the first eight amendments of the Bill of Rights, Americans’ constitutional rights had been protected only against infringement by the federal government.  The Fourteenth Amendment (1868) extended that protection to infringement by state and local governments, and the Fourteenth Amendment Due Process Clause protected a range of rights not specifically listed in the Bill of Rights.

 Pg. 13:  Three intellectual themes of progressivism were implemented through the judicial system instead of the ballot box that ultimately transformed the nation.  Two of these involved regulations and legal liability and the other is that the government itself is a lawless entity.

1.      The belief that modernity (modern times) had made the Constitution obsolete.

2.       Progressives misplaced faith in alleged disinterested expertise and their optimism about the behavior of people given access to power. (P. 72).

3.      The government is guilty of lawlessness: in that it is more costly than you can afford, there are so many laws you cannot be aware of violations, the tax code is four million words, etc… (Chapter 2).

Pg. 27:  The constitutional revolution of 1937-1942 lifted the requirement that new government powers needed to be constitutionally ratified, and instead let Congress unilaterally authorize whatever new powers it wanted.

(Given the Great Depression at the time and the country sentiment, social security could have easily been accomplished through an amendment rather than through the Court.  Also, note that social security has been deemed a tax, not some type of insurance.  This same tax interpretation was again used to OK Obama Care).

Pg. 28:  There is practically no possibility that Helvering will be or could be reversed by a Court ruling at this late date and that Congress is not permitted to spend money for the ‘general welfare’ and instead may spend only on the enumerated powers.  To reverse it would end Social Security, Medicaid, Medicare, all welfare programs…and that’s just the beginning.  From 1937 through 1942, for what were believed to be greater goods, we stopped obliging the American government to control itself.

Pg. 33:  Today, we often haven’t the least idea whether we have broken a law.  Through the first half of the nineteenth century, virtually all criminal law was defined and prosecuted by the states, with fewer than a score of crimes defined by the federal government (for example, treason or bribery of federal officials).  By WWI, the number of federal laws had reached the 500s, in 2007 about 4,450 crimes and of them, 50 percent were enacted after 1980.

Pg. 38:  The tax code as of 2013 consisted of almost four million words—about five times the length of the King James Bible.  The IRS can almost always find something wrong.

Pg. 40:  Until late in the nineteenth century, damages were awarded for tangible damage, usually physical injury or damage to property.  Then the common law gradually began to include emotional distress and eventually ‘lost enjoyment of life’ as grounds for damages.

Pg. 74:  In 1984 the Supreme Court explicitly proclaimed the rules for ‘Chevron deference.’  Congress can give the bureaucracy a few vague instructions and leave the creation of law up to the bureaucrats.  It’s perfectly constitutional—if we ignore all constitutional jurisprudence before the 1930s.

Pg. 82: In the 1950s and early 1960s the typical House campaign cost well under $100,000 in today’s dollars, and most Senate campaigns cost around $500,000.  Corporations had been banned from making contributions to political candidates in 1907.  Unions got around this restriction by forming PACs.  Few industries followed their example because there still weren’t many ways in which the federal government could help or hurt them, and the kind of single-issue politics that motivates PACs on social issues didn’t exist.

By 2010 the average cost to run for a House seat was $1.2 million and $8 million for a Senate run. (p. 87).

Pg. 83f:  Six transformative events during the first half of the 1970s were pivotal in expanding government:

1.      Richard Nixon Ballooned the Regulatory State:  From 1970 to 1974, sixteen new major regulatory agencies were established, including the EPA and OSHA.  The Supreme Court expanded the regulatory clout of the Equal Employment Opportunity Commission (EEOC).  These three agencies had unrestricted briefs, not limited to a specific industry, each had economy-wide authority to regulate.

2.      Corporate America Got into the political power game:  Within a decade, most major corporations and industry trade organizations had established offices in Washington.

3.      Television and Polling Revolutionized Political Campaigns:   Roger Ailes’s orchestration of Nixon’s 1968 television appearances and ads had opened an era of rapidly increasing sophistication in the use of the media.  Television and polling both cost lots of money.

4.      Politicians Became Regulatory Intercessors for Business: Regulatory agencies live in a judicial world of their own.  In 1975, the Administrative Procedure Act of 1946 was amended to make it easier for outside organizations to participate in the rule-making process and it became harder to appeal against the decision of an administrative law judge.  This raised the importance of formal lobbying and made politicians the de facto court of appeals for overturning the decisions of regulatory agencies.

5.      The internal reformation of the internal operations of the House:  Before 1970, only a few dozen of the 435 members of the House had things of much value to sell.  The 1970s reforms ate into the monopoly power of the Speaker and the committee chairmen.  Now, unlike in the past, it did make sense to corral votes of ordinary members on behalf of your special interest and to engage a member as your advocate with the regulatory agencies.

6.      Passage of the Federal Campaign Act of 1974:  The act was intended to diminish the influence of wealthy individuals by limiting the amounts of money they could contribute directly to candidates during elections.  But it ended up increasing the amount of time that members had to spend ‘dialing for dollars,’ because it now took many more individual contributors to get the same amount of money.  This now brought business attention to their heretofore unexploited use of PACs.

Pg. 87:  The average cost of a Senate campaign quadrupled from 1974 to 2006 from its 1974 base of $1.9 million (an already high figure).  To get a House seat in 2006 you’d need $1.2 million (again in 2010 dollars).

Pg. 111:  All advanced democracies are welfare states, and welfare states inherently create constituencies in support of the status quo.  Germany and Japan did well after WWII whereas the winners, Great Britain and France did not do so well.  Germany and Japan could start their institutions from scratch.

Pg. 112:  When Obama was reelected in 2012, more than 1 out of 3 Americans was the recipient of either social security or welfare.  Note: this does not include Medicare or Medicaid or the Drug Benefit. The large number of beneficiaries of transfer payments further explains why principled fiscal conservatives are always a minority among Republican representatives and senators.  

Pg. 123:  In 1958, pollsters asked: “How much of the time do you think you can trust the government in Washington to do what is right?”  The positive response was 73 percent answering “just about always” or “most of the time”.  By 1980 the positive response was down to 25 percent and down to 13 percent in 2014.

Pg. 124:  The first tacit compact at the founding was that the American people wouldn’t expect much from the federal government beyond protection of their freedom at home and from enemies abroad.  Americans as recently as a half a century ago still assumed that the task of running daily life was in their own hands. And so when people had complaints about their schools, jobs, products, physicians, or churches, the federal government didn’t get blamed for failing to solve problems that weren’t their business.  

The second tacit compact was that the federal government would not unilaterally impose a position on the oral disputes that divided Americans, particularly exemplified by the dispute over slavery.  Even the Civil War was a fight to preserve the Union, not abolish slavery. 

The third compact was that the federal government would make it easy for Americans to take pride in themselves. 

From 1964 onward, the federal government voided all three compacts.  The first compact is so obviously void that little more need be said.  There is no social or economic problem of which a president can say, ‘That’s not the federal government’s responsibility.’  The second compact is also void.  Whether by executive action, legislation, or judicial decision, it has imposed policies on the entire nation that large numbers of Americans opposed on grounds of deeply held moral principles.  By imposing federal policies on abortion, affirmative action, drug use, education, employment, expressions of religious faith, marriage, and welfare, the federal government has alienated large numbers of Americans from all points of the political spectrum.  The breaking of the third compact is a result of the geometric expansion of law.  All of us are now criminals, insofar as almost all of us have broken some of those thousands of laws.    

Pg. 145:  The author believes the only way to fight back against the regulatory state and regain our lost individual liberties is through civil disobedience exercised through the courts and funded by wealthy individuals.  He proposes that this fund be called the Madison Fund.  It would have three goals:

1.  To defend people who are innocent of the regulatory charges against them.

2. To defend people who are technically guilty of violating regulations that should not exist, making enforcement of the regulations more expensive to the regulatory agency than they’re worth, and reimbursing fines that are levied.

3.      To generate as much publicity as possible like in Kelo v. City of New London.

Pg. 146:  This Madison Fund would generate public backlash as occurred in the famous loss in the eminent-domain case Kelo, in which private homes were condemned so that the land could be turned over to private developers.  As a result of that decision, forty-four state laws were passed that strengthened protections of property rights.

Pg. 158:  To create a new and better regulatory regime, we don’t need a flat-out reversal of broad and binding Supreme Court precedent.  All we need is a simple shift in the Court’s interpretation of the Administrative Procedure Act of 1946 which governs all administrative law.  Clause 706(2)(A) says, ‘The reviewing court shall…hold unlawful and set aside agency action, findings, and conclusions found to be…arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”  The Madison Fund will maintain that the phrase “arbitrary, capricious, (or) an abuse of discretion” applies to the enforcement of regulations as well as to their creation.  This is not a minor point.

Pg. 177:  When the Supreme Court decided in 1943 to discard the requirement that regulators be constrained by a legislative ‘intelligible principle,’ in National Broadcasting Co. v. United States, they turned over de facto legislative power to unelected bureaucrats.

Pg. 203:  The primary driver of quotidian cultural diversity throughout American history and continuing today, independently of ethnicity, religion, wealth, politics, or sexual orientation is the size of the place where people live.  Gated communities and silo thinking need large cities to thrive.

Pg. 210:  In 2012 Whites constituted only 63 percent of the population, compared to the 80-plus percent that had held true from the founding through 1980.  However, outside the largest cities, it has been exceedingly rare for town and city populations to mirror the national distribution...  Most of America (smaller towns) has one-ethnicity towns or cities (mostly with a dominant majority of whites, but some with dominant majorities of African Americans, Latinos, or American Indians) and two-ethnicity towns or cities (white-black, white-Latino). 

Pg. 240:  The Supremacy Clause of the Constitution states that federal laws ‘shall be the supreme law of the land,’ yet twenty-one states have passed laws legalizing marijuana in some form despite the Controlled Substance Act of 1970 which makes it illegal.

Pg. 242:  Few corporations have more than six management layers.  The median for cabinet departments in the federal government is twenty-two layers.

Pg. 251:  This book has described many problems of which reasonable people will already say “This is ridiculous”  It is ridiculous for a nation to have a tax code four million words long, bureaucracies with twenty-two management layers, ten years to decide court cases…

Pg. 260:  Progressive intellectuals were passionate advocates of rule by disinterested experts led by a strong unifying leader.  They were in favor of using the state to mold social institutions in the interests of the collective.  They thought that individualism and the Constitution were both outmoded.  This is the hard-left.  They are found in universities where they have shut down intellectual debate on many issues, making certain that the faculty and even visiting speakers pass progressive litmus tests.  Liberals, in contrast to the Progressives, still believe in the separation of powers, checks and balances, and the president’s duty to execute the laws faithfully.  Liberals can be brought to support freedom of choice on complex moral issues.  Progressives cannot.

Pg. 261:  On the right, we have a similar split between what the press usually describes as ‘conservatives’ and ‘social conservatives.’  The social conservatives are to the right what the progressives are to the left; they are both minorities of their respective sides of the political divide, but they drive the political polarization.  Liberals have to start distinguishing themselves from Progressives and Conservatives from Social Conservatives.