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By the People: Rebuilding Liberty Without Permission

Reviewed by Bruce Stinebrickner
  • Department of Political Science, DePauw University
  • :
Published Online: 2017-02-22 | DOI: https://doi.org/10.1515/for-2016-0041

Reviewed publication: Review of By the People: Rebuilding Liberty Without Permission By MurrayCharles (New York: Crown Forum Penguin Random House, 2015).

Charles Murray has published more than a dozen books over the past four decades, with the best known and most controversial almost certainly being The Bell Curve: Intelligence and Class Structure in American Life (1994; co-authored with psychologist Richard J. Herrnstein). His latest book, By the People, does not seem as interesting or scholarly as the most prominent of his earlier works.

This review will begin by summarizing the three main arguments of We the People. Next will come an assessment of its weaknesses and strengths: unwarranted assumptions and assertions as well as debatable analyses and interpretations, interspersed, to be sure, with some thought-provoking observations and perspectives. In concluding, I shall consider to whom By the People might be of interest and suggest that most serious students of the American political system give it a miss.

Structure, Central Arguments, and Intended Audience

By the People is divided into three Parts, which correspond to the three components of its central argument. First, the US government has become a “regulatory state” ushered in by “a series of judicial hammer blows [in 1937–1942] that removed the barriers to federal power that the founders had put in place” (p. 16). This regulatory state undermines the “limited government” and individual liberty central to what author Charles Murray calls “the American project” (p. xiii and elsewhere). Second, because the contemporary American electoral process has no chance of reversing this state of affairs, “opening a new front” – the title of Part II of the book – is the best way to try to restore limited government to the American political system. This “new front” would consist of systematic civil disobedience to carefully selected government regulations, with “defense funds” financing litigation to hamstring government efforts to enforce its “regulatory state.” Third, a number of contemporary conditions render early twenty-first century America “a propitious moment” – the title of Part III – for this civil disobedience/litigation tactic to succeed.

According to Murray, “By the People is mostly about the law” (p. 265). While this may be so, the foundations of the book’s message clearly lie in American exceptionalism and the asserted wisdom of the founding fathers in seeing limited government as the (only) way to secure individual liberty for the citizenry. In this context, “the American project” (italics in the original) means

the continuing effort, begun with the founding, to demonstrate that human beings can be left free as individuals, families, and communities to live their lives as they see fit as long as they accord the same freedom to everyone else, with government safeguarding a peaceful setting for those endeavors but otherwise standing aside. (p. xiii)

The book’s intended audience is “people... devoted to limited government...., [which] includes classical liberals, libertarians, and many conservatives.” Murray calls these people “Madisonians,” eschewing “Jeffersonians” because Jefferson was “well to the libertarian side of the spectrum” (p. xiv). Others are “invited to listen in” (p. xv). These invitees presumably include those who, like me, are inclined to favor democratic government that effectively and energetically addresses myriad collective action challenges facing contemporary societies such as the US, rather than prioritizing “limited government” as Murray and his Madisonians do.

Quintessentially American Assumptions

Murray’s quintessentially American perspectives and assumptions in approaching the American political system are by no means idiosyncratic. According to By the People, the founders are extraordinarily (all-?) wise and (all-?) knowing. The centrality of the Constitution of 1787 in America’s civic religion is assumed and celebrated. What are seen as the heretical views of early twentieth century progressives such as political scientists Frank Goodnow and Woodrow Wilson, whom Murray identifies as “the first president who was critical of the Constitution” (p. 13), are lamented, albeit with insufficient analysis or explanation. And, of course, American exceptionalism is assumed and asserted – not to mention extolled – without sufficient scrutiny. As already suggested, Murray shares these questionable and debatable – at least to me – perspectives and assumptions with many, perhaps most, Americans.

Referring to “the theoretical and empirical cases for liberty,” Murray assumes that his “[Madisonian] readers do not need to be persuaded of the rightness of our cause” (p. xv). But that disclaimer hardly justifies ignoring the formidable challenges in deciding what government policies actually enhance or diminish citizens’ liberties and overall well-being in a contemporary industrialized society such as the US. Contemporary American society is far more complex and complicated than it used to be, and effectively addressing the innumerable collective action challenges in such a society is far more complex and complicated than simply prioritizing liberty and limited government and leaving it at that. Indeed, a frequent and fundamental shortcoming of By the People is to assume and assert too much, rather than systematically addressing important, complex, and difficult questions about what constitutes desirable public policy and good governance in twenty-first century America.

Exemplifying a too-frequent American tendency, By the People eschews, for the most part, systematic cross-national comparisons that can help illuminate the workings (and strengths and weaknesses) of the American political system. I recognize that the American exceptionalism that Murray and others embrace might be seen as the ultimate cross-national declaration: the USA is fundamentally different from all other polities, and, in turn, other cross-national assessments are rendered irrelevant. Dissociating myself from that perspective, I believe that cross-national comparisons can often shed useful light on the American political system. For example, how do the undeniable foibles of the “regulatory state” in the post-1942 US compare with the nature and extent of regulations and accompanying foibles in other industrialized democracies? Is there anything to be learned from the operation of those other regulatory regimes? Perhaps exploration of such matters would shed light on whether Murray’s carefully presented and interesting narratives of U. S. government regulation seemingly run amuck are common to all contemporary regulatory regimes or plague only the purportedly exceptional US?

On occasion, We the People does traffic in cross-national analysis. Chapter 5 (“Institutional Sclerosis and American Democracy”) addresses the “Dynamics of Collective Action in Advanced Democracies” and the “Nature of the Electorate in Advanced Welfare States.” One key conclusion advanced is that “all advanced democracies are welfare states, and welfare states inherently create constituencies in support of the status quo” (p. 111). Murray attributes differences in the post-World War II economic fortunes of Germany and Japan, on the one hand, and England and France, on the other, to “the one known cure for institutional sclerosis [in government]”: losing a total war and, with it, the hidebound “political and administrative infrastructure” that holds back economic growth (p. 111). The “explosive economic growth” (p. 110) that Germany and Japan experienced after World War II has, of course, slowed by now, but Murray does not probe the contemporary regulatory regimes of any of these four industrialized democracies to see how they compare with the current American “regulatory state.” We the People would have been a better book if he had.

Later in the book, Murray uses the demise of the Soviet Union as an analog to his Part III argument that the American regulatory state would not be impregnable to his civil disobedience/litigation “new front.” Murray attributes the fall of the Soviet Union to both Ronald Reagan’s “we win, they lose” strategy and “that the Soviet Union in 1981 [when Reagan became president] was already a hollow shell, with a sick economy and political institutions that set new standards of sclerosis” (p. 247). In his last Chapter, entitled “Once the Curtain Has been Pulled Aside,” Murray argues that his “new front” defense funds can “pull aside the curtain on one component of... [the] government, the regulatory state, and expose the Wizard of Oz within” (p. 248). Analogizing the condition of the USSR in 1981 and the condition of the contemporary American “regulatory state” seems an unwarranted stretch, even as I admit to being charmed by Murray’s use of Wizard of Oz imagery in making his point.

“An Odd Project” (Murray’s Words) and Too Much Unevenness (My Words)

In more than one respect, We the People seems an “odd project” (p. 266), to use a term that the author himself employs. The chance that the “new front” of civil disobedience supported by well-heeled legal defense funds will succeed is, in Murray’s own words, “[p]robably small” (p. 187), an estimate that is reinforced by his later observation that “[s]ystematic civil disobedience may be a long shot, but it is, in fact, a shot” (p. 262). In my view, even the author’s pessimistic predictions exaggerate the likelihood that the “new front” will ever be more than the centerpiece of this likely-to-be mostly unnoticed book. Odds aside, however, Murray is convinced that in 200 years the US’s contemporary “leviathan government” and its regulatory state will have disappeared as inevitable increases in wealth per capita and new technologies make it “unimaginable that Americans will still think the best way to live is to be governed by armies of bureaucrats enforcing thousands of minutely prescriptive rules” (p. 250; italics in the original). It seems that Murray’s proposed “new front” is no more than his own way of trying “a long shot” at hastening what he sees as inevitable.

The book is odd in other ways as well. Most noteworthy, perhaps, is its unevenness – from narratives and sub-arguments that are thought-provoking and instructive to passages that fall far short of that; from resort to the usual sources for polemical works with Murray’s libertarian (or “Madisonian”) orientation (Tocqueville, Hayek, Hofstadter, the Declaration of Independence, the US Constitution, Federalist 10, Locke, Bryce, Thomas Jefferson, etc.) to use of some interesting academic and quasi-academic literature to occasional injections of what might be considered original research. All of these materials are unsatisfactorily – or at best only loosely – tied together in the book’s three-part argument summarized earlier in this review.

Among the better passages in By the People is the readable and seemingly authoritative ten-page treatment of what Murray calls the “constitutional revolution” of 1937–1942 (pp. 16–26). This is hardly unplowed ground, of course, but Murray seems to breathe new life into the story. Highlighting the analysis is the assertion that the Supreme Court’s upholding – in Helvering v. Davis in 1937 – provisions of the Social Security Act requiring employers to make payments and deductions “was the most far-reaching decision since 1803 [Marbury v. Madison]” (p. 18). This constitutional revolution gave birth, in Murray’s eyes, to the “regulatory state,” the focus of the book.

Also instructive are Murray’s accounts of “strict product liability” (pp. 50ff), “the broadening of discovery” (pp. 55ff), congressional enactments of “private enforcement regimes” (pp. 59ff), and the consequential and often little-noticed “‘administrative law’ system” in Chapter 3: “An Extralegal State within the State” [including treatments of, among other things, so-called Chevron deference (pp. (69–71)]. These and other elements of the American legal system figure into the author’s portrayal of the regulatory state. They also help fuel the excessive litigiousness of the contemporary American polity, which Murray appropriately laments and for which he blames “the progressives” (p. 50). Ironically, however, Murray’s proposed “new front” – civil disobedience backed by legal defense funds – depends on excessive and obstructionist litigation in its “long shot” attempt to bring down the regulatory state.

One last example of potentially interesting, but in the end unpersuasive, analyses occurs in Chapter 12, “The Return of Diversified America.” Relying too much, for my tastes, on historian David Hackett Fischer’s Albion’s Seed (1989), Murray tries to make the case that contemporary “diversity” in the US is a return to the norm of historical diversity established by Yankees, Quakers, Cavaliers, and Scots-Irish in colonial times. He then makes the intriguing assertion that what he calls “quotidian cultural diversity” in the US varies markedly today according to “the size of the place where people live” (p. 203), not because of differences in racial/ethnic/religious diversity, but because “hardly anyone in a town or small city is anonymous” (p. 205). Finally, he presents data (p. 209 – “author’s analysis” of “decennial census data from Social Explorer”) showing how the relatively lower proportion of foreign-born Americans in “roughly the 1940s through the 1970s” (p. 192) was anomalous, thus supporting his conclusion of a contemporary return to the historical status quo. This chapter contains both several unpersuasive lines of argument and some interesting food for thought.

Counterbalancing the useful or at least interesting passages just treated, however, are too many unwarranted and unsubstantiated generalizations and assertions. In justifying his proposal of a “new front” of civil disobedience to the regulatory state, Murray identifies “three tacit compacts between the federal government and the American people”: (1) “the American people wouldn’t expect much from the federal government beyond protection of their freedom at home and from enemies abroad,” (2) “the federal government would not unilaterally impose a position on the moral disputes that divided Americans,” and (3) “the federal government would make it easy for Americans to take pride in themselves” (pp. 124–127). By their very nature, I suppose, “tacit” compacts – because they are unspoken – cannot be authoritatively or convincingly attributed. Indeed, Murray sources these three tacit compacts to a Wall Street Journal article he authored in December, 1997 (Note 13, p. 286). Beyond that, where did they come from? Who subscribes or subscribed to them? As some have tellingly suggested in other contexts, if author Charles Murray had to respond to a question asking him to identify the origins and legitimacy of these three “tacit compacts” at a press conference, how would he fare?

In another example of subpar parts of the book, Chapter 2, entitled “A Lawless Legal System,” advances such provocative and, I think, easily contestable propositions as “When the legal process is more costly than you can afford, it is indistinguishable from lawlessness” (p. 32), “Criminal law that is sufficiently removed from the concept of mens rea is indistinguishable from lawlessness” (p. 32), “Law that is sufficiently complex is indistinguishable from lawlessness” (p. 37), and “Law that is sufficiently discretionary is indistinguishable from lawlessness” (p. 41). While some may see kernels of insightful commentary in such propositions, I mostly see bombastic overstatements that obfuscate more than they clarify.

As already noted, Murray does not systematically engage with the complications and complexities inherent in a large, diverse – yes, diverse – industrialized society such as the 21st century US. One example arises in two paragraphs relating to “regulations that prevent people from taking voluntary risks” and health care (p. 135). This is hardly an issue on which I propose to break new theoretical or analytical ground in this book review, and this particular passage is by no means central to the entire book. These things having been said, to disregard altogether the externalities involved in government regulation of health care delivery systems, who pays for health care, and what Murray calls “one’s unalienable ownership of one’s own body” (which he identifies as a Lockean conception) leaves the impression that no challenging theoretical and policy issues arise in the health care policy arena. In reading too many passages in this book, I was moved to react with “Wait a minute! What about this or that, or this and that?” and I think that other readers would, too. As I have already said, too much is assumed, and too much is left unaddressed.

Who Should Read this Book and Who Should Not?

For starters, let me repeat my judgment that this “odd project” is not to be ranked in importance or seriousness with the most prominent of Murray’s earlier books. My hunch is that the author himself would probably agree. Indeed, maybe, just maybe, the author’s endearing use of Wizard of Oz imagery signals a certain whimsicalness about the whole By the People project.

This is not a book that I would assign to undergraduate students in American political science courses. But, of course, Murray does not intend the book for such an audience. Selected passages, however, might figure into my own thinking on relevant matters and thereafter affect my treatment of some material in my American politics courses. I can even imagine, I suppose, the assignment of selected excerpts in a course or two, even as I have no specific plans to do so, and, to use a term of Murray, such an eventuality is probably a “long shot.”

Nor would I suggest that fellow political scientists rush to read the book (unless, I suppose, they were involved in systematic research on books of this sort by authors such as Murray). Far too many more instructive books and articles about the American political system beckon.

Perhaps By the People is a worthwhile read for devoted “Madisonians,” the author’s intended audience. Perhaps not. As a non-Madisonian, I may well not be a good position to make such a determination. I can say, however, that nothing in this book tempts me to join Murray and his Madisonians in their political views.

Published Online: 2017-02-22

Published in Print: 2016-12-01

Citation Information: The Forum. Volume 14, Issue 4, Pages 505–511, ISSN (Online) 1540-8884, ISSN (Print) 2194-6183, DOI: https://doi.org/10.1515/for-2016-0041, February 2017

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