What would Madison do?
The book By the People: Rebuilding Liberty without Permission
by Bill Hamm
Charles Murray’s book, By the People: Rebuilding Liberty without Permission, attempts two tasks.
Plus Excerpts from Jay Cost's commentary in www.freebeacon.com
First, it argues that the federal state has become overbearing. During the New Deal era, Murray claims, the feds managed a remarkable inversion: whereas once the government was only able to do what the Constitution authorized, it can now do anything that it does not specifically forbid. In many cases, the government does what is explicitly forbidden anyway. Murray details how our judicial and regulatory systems are capricious, vindictive, and even lawless—harassing average citizens with an endless stream of unintelligible regulations backed by costly, unpredictable enforcement.
Second, Murray offers an unconventional way to respond: stop obeying the regulators. He calls for broad-based civil disobedience, akin to the collective response to speed limits. Nominally, the law sets the speed limit at a certain level, but in practice the police cannot enforce it strictly because everybody violates it. Murray wants to do something similar with federal regulations. He calls for a “Madison Fund” to facilitate legal challenges to the regulatory state, forcing the government to expend its limited resources litigating copious violations in court. Moreover, he promotes occupational defense funds to insure businesses from government penalties. He does not suggest using these programs to facilitate lawlessness, but to fight ordinances that violate the ideal of a “no harm, no foul” regulatory regime.
Excerpts from Jay Cost's commentary in freebeacon.com
Obviously, Little Jemmy (Madison) is not around to tell us, but we can get a sense of what he might recommend—for he dealt with similar threats. He and Jefferson were appalled by the behavior of the Federalists in the 1790s. The two viewed the Bank of the United States as an unconstitutional expansion of federal authority that bribed members of Congress and systematically favored Northeastern financiers over rural farmers. Worse, the Alien and Sedition Acts were tyrannical measures that punished political opponents of the incumbent administration.
And so were born the Kentucky and Virginia Resolutions, declarations authored by Jefferson and Madison that the states could nullify unconstitutional federal laws. This is similar to Murray’s argument, which calls for individual citizens to effectively nullify federal regulations; the principle behind both is that unjust government decrees should not carry the force of law.
But it didn’t work. Madison and Jefferson had hoped the Kentucky and Virginia Resolutions would be a rallying point for other states, but no such rally ever happened. Instead, the resolutions emboldened the High Federalists and forced Madison to play defense in the Report of 1800.
Ultimately, what defeated the Federalists was the first mass-based political party. Congressional parties were evident in the Congress almost from the get-go, and in 1791 Jefferson began financing Philip Freneau’s National Gazette. But the Jeffersonians took this a step further for the election of 1800. Their new party organization raised funds, educated voters, brought them to the polls, and used the ballot box to force change. Where nullification failed, mobilization succeeded.