At the height of 2011’s debt ceiling crisis, then-Senate Minority Leader Mitch McConnell (R-KY) offered a candid explanation of why his party was willing to threaten permanent harm to the U.S. economy unless Congress agreed to change our founding document. “The Constitution must be amended to keep the government in check,” McConnell alleged. “We’ve tried persuasion. We’ve tried negotiations. We’ve tried elections. Nothing has worked.”
The amendment McConnell and his fellow Republicans sought was misleadingly named the “Balanced Budget Amendment” — a name that was misleading not because it was inaccurate, but because it was incomplete. The amendment wouldn’t have simply forced a balanced budget at the federal level, it would have forced spending cuts that were so severe that they would have cost 15 million people their jobs and caused “the economy to shrink by about 17 percent instead of growing by an expected 2 percent,” according to the Center for Budget and Policy Priorities. It was, in essence, an effort to permanently impose Tea Party economics on the nation, and to use a manufactured crisis to do so.
Few politicians are willing to admit what McConnell admitted when he confessed that elections have not “worked” to bring about the policy Republicans tried to impose on the nation in 2011. Elected officials, after all, only hold their jobs at the sufferance of the voters, and a politician who openly admits that they only believe in democracy insofar as it achieves their desired ends gives the middle finger to those voters and to the very process that allows those voters to have a say in how they are governed.
Charles Murray, an author who GOP presidential candidate Jeb Bush recently named first when he was asked which books have had a big impact upon him, is not an elected official, so he is free to rail against democracy to his heart’s content. And that is exactly what he does in his new book, By The People: Rebuilding Liberty Without Permission.
Pay no attention to the title. Government “by the people” is the last thing Murray cares to see. Murray admits that the kind of government he seeks, a libertarian fantasy where much of our nation’s regulatory and welfare state has been dismantled, is “beyond the reach of the electoral process and the legislative process.” He also thinks it beyond the branch of government that is appointed by elected officials. The Supreme Court, Murray claims, “destroyed” constitutional “limits on the federal government’s spending authority” when it upheld Social Security in 1937. Since then, the federal government has violated a “tacit compact” establishing that it would not “unilaterally impose a position on the moral disputes that divided America” (Murray traces the voiding of this compact to 1964, the year that Congress banned whites-only lunch counters).
King George’s Revenge
Murray is probably best known for co-authoring 1994’s The Bell Curve, a quasi-eugenic tract which argued that black people are genetically disposed to be less intelligent that white people. Yet, while The Bell Curve “practically spawned an entire field of scholarship devoted to debunking it,” Murray remains one of the most influential conservative thinkers in America today.
Dr. Murray’s pre-Bell Curve work shaped the welfare reforms enacted in the 1990s. Former Republican vice presidential candidate Paul Ryan cited Murray in 2014 to claim that there is a culture of laziness “in our inner cities in particular.” Last April, when Jeb Bush was asked what he liked to read, he replied “I like Charles Murray books to be honest with you, which means I’m a total nerd I guess.”
So when Murray speaks, powerful and influential men (and his acolytes are, almost invariably, men) listen, including men who shape our nation’s fiscal policy and men who could be president someday.
By The People, however, rejects outright the idea that Murray’s vision for a less generous and well-regulated society can be achieved through appeals to elected officials — or even through appeals to unelected judges. The government Murray seeks is “not going to happen by winning presidential elections and getting the right people appointed to the Supreme Court.” Rather, By The People, is a call for people sympathetic to Murray’s goals — and most importantly, for fantastically rich people sympathetic to those goals — to subvert the legitimate constitutional process entirely.
“The emergence of many billion-dollar-plus private fortunes over the last three decades,” Murray writes, “has enabled the private sector to take on ambitious national or even international tasks that formerly could be done only by nation-states.” Murray’s most ambitious proposal is a legal defense fund, which “could get started if just one wealthy American cared enough to contribute, say, a few hundred million dollars,” that would essentially give that wealthy American veto power over much of U.S. law.
Murray, in other words, would rather transfer much of our sovereign nation’s power to govern itself to a single privileged individual than continue to live under the government America’s voters have chosen. It’s possible that no American has done more to advance the cause of monarchy since Benedict Arnold.
One of the heroes of By The People is James Madison, or, at least, a somewhat ahistoric depiction of Madison favored by Murray. Madison, as Murray correctly notes, favored an interpretation of the Constitution that would have made much of the modern regulatory and welfare state impossible (other members of the founding generation, including George Washington, interpreted the Constitution much more expansively than Madison). Thus, Murray states in his introduction, “[i]f we could restore limited government as Madison understood it, all of our agendas would be largely fulfilled.” Murray even names his proposal for a billionaire-funded organization intended to thwart governance the “Madison Fund.”
In Murray’s narrative, Madison becomes a Lovecraftian deity — dead, but not entirely dead, and still capable of working ill in American society. In his house at Montpelier, dead James Madison waits dreaming.
The real James Madison would be shocked by this suggestion that his dead-but-dreaming tentacle could reach into the future and re-instigate long-settled battles over the Constitution. Needless to say, the view Murray attributes to Madison — the view that, among other things, would lead to Social Security being declared unconstitutional — did not prevail in American history. And Madison, unlike Murray, was reluctant to displace well-settled constitutional law. As a congressman, Madison opposed the creation of the First Bank of the United States on constitutional grounds. Yet, as president, Madison signed the law creating a Second Bank. He explained that the nation had accepted the First Bank, and he viewed this acceptance as “a construction put on the Constitution by the nation, which, having made it, had the supreme right to declare its meaning.”
Madison, it should also be noted, admitted late in life that his reading of the Constitution was not consistent with the document’s text. Nevertheless, he argued that “[t]o take [the Constitution’s words] in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
To his credit, Murray acknowledges that undoing the entire post-New Deal state is not a realistic goal. The Supreme Court, he laments, “never overturns a decision like Helvering,” the 1937 case upholding Social Security, “because such a ruling would not be obeyed and the Court’s legitimacy would be shattered.” Yet the limits Murray would impose on the federal government are simply breathtaking. All employment law, according to Murray, must be subject to the strictest level of constitutional scrutiny. So must all land use regulation, and all laws that fall into vague categories Murray describes as regulations that “prescribe best practice in a craft or profession” or that “prevent people from taking voluntary risks.”
If these limits were actually imposed on the federal government, the minimum wage, overtime laws, most environmental protections and financial reforms, many worker safety laws and even, potentially, anti-discrimination laws would all fall by the wayside.
The Koch Veto
To impose these limits on society, Murray claims that his Madison Fund can essentially harass the government into compliance. The federal government, Murray claims, cannot enforce the entirety of federal law “without voluntary public compliance.” Federal resources are limited, and only a small fraction of these limited resources have been directed towards enforcement. Thus, Murray argues, by simply refusing to comply with the law and contesting every enforcement action in court, regulated entities can effectively drain the government’s resources and prevent it from engaging in meaningful enforcement.
The Madison Fund would spearhead this campaign of harassment, defending “people who are technically guilty of violating regulations that should not exist, drawing out that litigation as long as possible, making enforcement of the regulations more expensive to the regulatory agency than they’re worth, and reimbursing fines that are levied.”
There are, of course, a number of practical obstacles to this plan. One, as Murray acknowledges, is the need to find enough people with “billion-dollar-plus private fortune[s]” who are willing to contribute to such a campaign. Another is the need to find lawyers willing to risk their law licenses in order to become pawns in Murray’s game. Rule 11 of the Federal Rules of Civil Procedure requires attorneys to certify that they are not filing court documents “for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” The American Bar Association’s (ABA) Model Rules of Processional Conduct provide that a “lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.” Admittedly, lawyers have more leeway in criminal cases, but the legal profession generally frowns upon attorneys who engage in the kind of legally meritless harassment Murray proposes.
Nevertheless, Murray’s proposal cannot be dismissed out of hand simply because it is built upon a foundation of frivolous litigation. The first Supreme Court case attacking Obamacare was widely derided as meritless — an ABA poll of legal experts found that 85 percent believed that the law would be upheld. And yet the justices came within a hair of repealing the entire law. The lawyers behind a more recent attack on the Affordable Care Act, King v. Burwell, make demonstrably false claims about the history of the law, and they rely upon a completely unworkable method of interpreting statutes. But that hasn’t stopped at least some members of the Supreme Court from taking this lawsuit seriously. Conservatives simply have more leeway to assert meritless legal arguments than they once did.
By The People is, at its heart, a work of constitutional law. It assesses what Murray believes to be fundamental flaws in our constitutional democracy and proposes a course of action that bypasses the Constitution. Yet Murray is, by his own admission, not the least bit qualified to write such a book. “Not being a constitutional scholar myself,” he explains in a sidebar, “I have drawn my description of the key Supreme Court decisions and their historical context” from a rogue’s gallery of constitutional scholars who are very much on the outskirts of the field. They include Obamacare antagonist Randy Barnett; Richard Epstein, a law professor who wrote an entire book arguing against employment discrimination laws; and Michael Greve, a man who compared the Affordable Care Act to the Holocaust.
Constitutional law is a rich and diverse field, and it is obviously difficult for a lay person to sort out reliable constitutional scholars from cranks. Nevertheless, here’s a pro tip for Dr. Murray: if your constitutional advisers lead you to the conclusion that Social Security is unconstitutional, that’s a pretty good sign that you need better advisers.
So Murray has written a terrible book. It is at once credulous of fringe thinkers and contemptuous of American democracy. Yet he has also written a deeply revealing book about the nature of conservatism in the age of Obama. When President Ronald Reagan was in office, he spoke with the confidence of a man who believed that the American people were on his side. Reagan pledged to appoint judges who support “judicial restraint,” a testament to Reagan’s belief that he did not need the unelected judiciary to enact conservative policies, and his administration’s understanding of the Constitution was decidedly moderate when compared to the ideas of men such as Barnett, Epstein and Greve.
Since then, however, the Republican Party has lost Reagan’s self-confidence. Instead, they reflexively turn to the judiciary when they are unable to win battles on health care, immigration, the environment, or a myriad of other issues. Democracy, as McConnell said in 2011, no longer works to give conservatives what they want.
Yet this strategy has yielded only mixed success. The Supreme Court rendered a key prong of Obamacare optional, but they kept the bulk of the law in place. Religious objectors enjoy a right to opt-out of federal birth control rules, but the rules still bind most employers. A high-profile Supreme Court attack on the Environmental Protection Agency barely ended with a whimper. Republicans dominate the Supreme Court, but these justices do sometimes temper their Republicanism with obedience to the law and the Constitution.
By The People, by contrast, bypasses the law entirely. It abandons even the trappings of a legitimate constitutional process, and instead places government in the hands of billionaires loyal only to an anti-government agenda. It is, in many ways, the perfection of post-Obama conservatism, barely even bothering to pay lip service to the notion that the American people should be governed by the people they elect.
But By The People is also more than an unintentional indictment of conservatism, it’s also a warning for liberals. In a 1993 tribute to the late Justice Thurgood Marshall, future Justice Elena Kagan wrote about a case, Torres v. Oakland Scavenger Co., that came before the Court during her year clerking for the legendary civil rights advocate. The case involved whether an employment discrimination suit would fail because a lawyer’s secretary accidentally omitted the name of one of the plaintiffs from a court filing. Kagan and her fellow clerks pleaded with Marshall to say that this accident was not fatal, but Marshall refused, citing the essential role that obedience to legal rules play in protecting the least fortunate:
The Justice referred in our conversation to his own years of trying civil rights claims. All you could hope for, he remarked, was that a court didn’t rule against you for illegitimate reasons; you couldn’t hope, and you had no right to expect, that a court would bend the rules in your favor. Indeed, the Justice continued, it was the very existence of rules — along with the judiciary’s felt obligation to adhere to them — that best protected unpopular parties. Contrary to some conservative critiques, Justice Marshall believed devoutly — believed in a near-mystical sense — in the rule of law. He had no trouble writing the Torres opinion.
Men and women who seek to lift up the poor and the downtrodden, in other words, must rely on the law to do so. And this very enterprise depends on the law itself being afforded deference and legitimacy by officials who would rather disregard it. Meanwhile, men and women such as Murray, who wish to shield the already powerful from the forces of government, may do so either by making the law more favorable to the most fortunate or by tearing down the institution of law itself. In a state of nature, the strong man always eats first.
This is why liberalism is an inherently more challenging project than conservatism. Liberals must constantly fight a two-front war — supporting laws that extend opportunity broadly while simultaneously recognizing the legitimacy of many laws that undermine this goal. Charles Murray, meanwhile, can work within the edifices of government or he can simply decide to tear the entire edifice down.