Why Charles Murray's Attack on the Regulatory State Isn't Enough

Has the American republic passed its zenith? A building chorus of social commentary suggests that it has. Works such as Os Guinness’ A Free People’s Suicide: Sustainable Freedom and the American Future (2012), Donald J. Devine’s America’s Way Back: Reclaiming Freedom, Tradition, and Constitution (2013), James L. Buckley’s Saving Congress from Itself: Emancipating the States and Empowering Their People (2014), and Kevin D. Williamson’s The End is Near and It’s Going to Be Awesome: How Going Broke Will Leave America Richer, Happier, and More Secure (2013) each seek to describe the illness besetting our contemporary political order and to consider whether we can halt the decline.

With By the People: Rebuilding Liberty Without Permission, Charles Murray joins this chorus, which speaks to an increasingly palpable kairos, that opportune, and perhaps fleeting, moment in time when things must be said and done if a propitious outcome is to be achieved. Murray has been writing over the past decade—see his In Our Hands (2006) and Coming Apart (2012)—with a sense of urgency that has reached a crescendo in By the People, where he confesses in the tones of a jeremiad, “I am frightened by how close we are to losing America’s soul.”

That soul, for Murray, revolves around our experiment in freedom:

America can cease to be the wealthiest nation on Earth and remain America. It can cease to be the most powerful nation on Earth and remain America. It cannot cease to be the land of the free and remain America.

The loss of America as the land of the free, Murray avers, would also be a loss to humanity.

This perception of America’s role in history is not new. Americans have long experienced our sense of exceptionalism as an eruption of eternal destiny into time. From our early Puritan forefathers, who often cast their errand into the wilderness as the creation of a new city on a hill from which the light of liberty would shine forth upon the nations, to Progressives of the 20th century, who believed the modern state to be a tool for advancing the Social Gospel, America has seemed to bear a special responsibility within a larger providential plan.

In Federalist 1, as he reflected on what was at stake in the debates over ratification of the Constitution of the United States, Alexander Hamilton drew upon the rhetoric of the Enlightenment more than the rhetoric of the Puritans, but the momentous sense of America’s role in history is clear:

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.

By such lights, American history can seem a sequence of critical moments in which Americans have been called to courageous and reflective action, both as defenders of liberty and as its perpetual vanguard. Regarding the consequences of the choices we have made as a nation, however, many have begun to wonder whether “the American project” was in fact only a flickering moment in time.

“We are at the end of the American project as the founders intended it,” Murray writes in the opening sentence of the book, elaborating what he means by the American project: “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.”

When confronting a state of our own making that now—in the words of Tocqueville that Murray quotes—“compresses, enervates, extinguishes, and stupefies a people,” we wonder whether any hope remains for the continuance of the American empire of liberty.

Murray tries to maintain a shred of optimism. He notes that “opportunities are opening for preserving the best qualities of the American project in a new incarnation,” and By the People is on the whole an effort to discover some lever by which we might move America, weighty with destiny but also burdened by the encrustations of history, toward a new zenith.

Those who are students of the rise and fall of nations might consider America’s destiny in light of the nature of historical progress itself. Trenchant questions arise when we recall the observation of the Scottish Enlightenment philosopher Adam Ferguson in his Essay on the History of Civil Society:

Where states have stopped short in their progress, or have actually gone to decay, we may suspect, that however disposed to advance, they have found a limit, beyond which they could not proceed; or from a remission of the national spirit, and a weakness of character, were unable to make the most of their resources, and natural advantages. On this supposition, from being stationary, they may begin to relapse, and by a retrograde motion in a succession of ages, arrive at a state of greater weakness, than that which they quitted in the beginning of their progress; and with the appearance of better arts, and superior conduct, expose themselves to become a prey to barbarians, whom, in the attainment, or the height of their glory, they had easily baffled or despised.

In evaluating Murray’s proposals for an American renaissance we must thus look not only to the facts that support his diagnosis and the appeal of his prescription, but to whether the paradigm of cure upon which he draws is sufficient. Can it restore the health of the body politic, and replenish the springs of national spirit and character, what Tocqueville described as the mores of a people, divorced from which the political body can only be a hollow shell?

A critical contention of By the People is that a constitutional revolution effected between 1937 and 1942 by the U.S. Supreme Court precipitated our current ills. This is hard to dispute, yet we must go further and consider whether the soil for these changes in constitutional jurisprudence had not already been prepared long before by a transformation of the mores of the American people. If the mores of Americans no longer reflect the moral and intellectual habits most conducive to ordered liberty, is it possible to rebuild liberty in a Madisonian framework of limited federal power?

Murray presents the argument of By the People in three parts, each recurring manifesto-like to the propositions of America’s founding documents and then marshalling the supporting evidence.

Part I, “Coming to Terms with Where We Stand,” lays out an unqualified and largely indisputable case that “America’s political system has been transmuted into something bearing only a structural resemblance to the one that the founders created.” Murray argues that the activist direction of constitutional jurisprudence, the use of law for social agendas, the thriving market for government favors, a metastasizing administrative state, and the challenges endemic to advanced democracies have so corrupted the national government in all its branches “that solutions are beyond the reach of the electoral process and legislative process.”

In Part II, “Opening a New Front,” Murray proposes “a program of systematic civil disobedience underwritten by privately funded legal resistance to the regulatory state.”  While Part I traces familiar territory to those synthesizing the daily news about the ludicrous overreach of executive branch agencies, the mishandling of the Internal Revenue Service’s and State Department’s public record emails, the innovative definition of vocabulary terms such as “tax” and “marriage” by the Supreme Court, and the revolving door between K Street and Capitol Hill, Part II moves us to unfamiliar terrain, asks us to question the political legitimacy of the federal government, and lays out principled ground rules for civil disobedience.

Murray’s civil disobedience is not the stuff of an anarchist’s dreams, however, but a limited strategic initiative devised from the very commonsense recognition that “the federal government cannot enforce its mountain of laws and regulations without voluntary public compliance.” The soft underbelly of the American Leviathan Murray identifies is the morass of administrative regulations issuing from executive branch agencies which are subject, under the Administrative Procedure Act of 1946, to being set aside if a court finds that an agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.”

Thus the author would protect a large domain of law from acts of civil disobedience—including laws prohibiting acts that are bad in themselves (malum in se), the tax code (though it requires reform, Murray affirms that taxation is a legitimate function of the state), and regulations fostering strictly defined (nonexclusive and nonrivalrous) public goods or those such as education that do entail what Murray calls “serious externalities.”   The sorts of regulations that can and should be subject to strategic civil disobedience are those that compromise the protection of private property, those that compromise people’s free practice of their crafts or professions, those that restrict access to jobs, those that prevent voluntary risk-taking, those that overly regulate employment law, and others that can be shown to involve arbitrary and capricious abuse of discretion by regulators.

The book’s centerpiece is the proposed creation of an entity Murray calls “the Madison Fund.” This would be a private legal-aid foundation directed toward three goals: defending innocent people caught in the regulatory machine; defending people whose genuine violations of regulation should not be punished because the regulations themselves are unjustified; and publicizing these cases to move public opinion and, in turn, elected officials and staffs of regulatory agencies toward reform.

Murray’s game plan for the Madison Fund is to effect a “small change in the courts’ interpretation of existing administrative law,” encouraging specifically application of section 706 of the Administrative Procedure Act not only to the creation of regulations but also to their enforcement. The end game of such litigation, especially if the Supreme Court would affirm one precedent for holding regulatory enforcement arbitrary and capricious, would be the emergence of what Murray calls a “no harm, no foul” regulatory regime. Slowly, due to the increased costs of adjudicating enforcement disputes, regulators would have incentive to begin to leave well enough alone.

In his ideal scenario, professional and trade associations would evolve in the Madison Fund’s direction. These organizations would shift some of their resources from lobbying to “insuring their members against mischief from the regulatory state.” Over time, such associations would come to see the state as an insurable hazard and would share resources to defend members who complied with established professional standards against infractions of unnecessary regulatory requirements.

To illustrate how such “occupational defense funds” would work, Murray provides the hypothetical example of dentists joining in a form of mutual professional insurance that would allow them to forego the burdensome costs of full compliance with federal regulations. Insurance would cover the costs of litigation for those cited with regulatory violations. In addition to allowing dentists to pursue their professions as if the federal regulations didn’t exist, these institutional innovations would return the responsibility for regulating professions and trades to those who have both the strongest interest and the best knowledge to settle upon meaningful standards. A tertiary benefit of these funds, the one Murray describes as most diffuse, but which might be among the most important, would be the reinvigoration of civil society by restoring conditions “in which people are held to standards of behavior by the approbation and disapprobation of their peers” rather than by distant regulators.

In Part III, “A Propitious Moment,” Murray is at his most optimistic, presenting his rationale for believing that “the stars are in fact aligning for a much broader rebuilding of liberty than we could have imagined even a decade ago.” Shifting gears from his earlier forays into the regulatory morass and the lever that he believes he has found in existing administrative law, Murray invites us to consider the new tools that are available to those who would seek to bring back limited government.

“Liberation technology,” as Murray depicts the new information economy, has the potential to make our decisions about governance as voluntary and informed as our decisions about which pepper grinder to buy or which plumber to hire. By helping resolve what economists call information asymmetry, the Internet allows us to make better-informed choices about a wider range of goods and services. While that is hardly a new observation, Murray correctly states the significant implications: resolving information asymmetry means the sort of consumer protection that much of the regulatory regime was designed to provide is no longer needed.

With consumers rapidly and readily trading information, vendors now have much stronger incentives to self-regulate. As Murray observes,

the vulnerability of bad behavior in the total information environment of the Internet is much more important to the prosperity of corporations than their vulnerability to government inspection.

Similar transparency is also transforming public safety and policing. Ultimately, by crashing through “the combination of regulation and collusive capitalism that stifles innovation,” the information economy can advance liberty in ways the political process increasingly cannot.

Next Murray addresses the “systemic incompetence of visible government.” While it is hard to see this incompetence as a virtue, Murray finds a silver lining, contending that its growing visibility will spur people to demand change. He highlights the impending pension crisis and the hard fact that many government services today are both visibly shoddy and fiscally unsustainable. Echoing Mitch Daniels’ similar question—can’t we all just agree on the math?—Murray notes that our federal and state budgets do not support the political rhetoric of Occupy Wall Street that the solution to our problems is to progressively tax the “One Percent.”

As Murray points out, the burden of national debt and entitlement obligations already reaches far beyond the capacity of the richest Americans to pay. Middle class families and their children are already on the hook for current spending, which Murray illustrates with a projection from the Congressional Budget Office forecasting a steep climb for the revenue-generation burden for people in the work force.  This portends a rising spirit of resistance among both taxpayers and big business that will resonate with the courage of some state and local leaders to simply say no to more mandates from Washington.

A dispirited and financially depleted public empowered with new technologies of resistance will be ripe for civil disobedience, but here Murray draws back from the most radical implications of his analysis and suggests that he does not want conflagration but only a controlled burn: “not [to] pull down the US government (that seems excessive), but [to] pull aside the curtain on one component of that government, the regulatory state, and expose the Wizard of Oz within.”

The three chapters of Part III bring us finally to the test of whether the author’s curative paradigm is sufficient to the needs of the day, to the question of whether the medicine might not be as dangerous as the disease, and whether the physician has the courage to administer the tonic.

To understand what Murray hopes for, and is willing to risk, requires us to return to the opening prologue of the book, entitled “The Paradox,” where he outlines the resurgence of Madisonian principles in the last decades of the 20th century. I have set aside Murray’s critical conception of “Madisonian thought” until this point, because it is in Part III of the book that he provides us a broader understanding of the Madisonian principles he advocates.

The paradox of the prologue is the troubling fact that despite the revival of Madisonian principles of limited government among lawmakers, policy analysts, media celebrities, free-market economists, defenders of restrained constitutional jurisprudence, and even popular political movements such as the Tea Party, the federal Leviathan has continued to grow. “Under Republicans and Democrats alike,” Murray writes, “the federal government went from nearly invisible in the daily life of ordinary Americans in the 1950s to an omnipresent backdrop today.” While we understand more and more about what is wrong, however, our political institutions have become corrupt and increasingly uncontestable.

In Part III, Murray returns to this dilemma as the rationale for his program of civil disobedience. Neither politics as usual nor even the careful policy work of Madisonian think tanks in Washington will do. The cure America needs cannot be found in “hope for a charismatic Madisonian president” nor in reliance upon a “friendly Congress.” Murray has built his case, but it seems he does not have the stomach to follow the logic all the way through to writing off the judicial branch as well. His program, in fact, depends upon “some luck” of aligning “five sympathetic Supreme Court justices” in favor of expanding constitutional scrutiny of regulatory practices that violate the restrictions against arbitrary and capricious action.

By the People was published in May 2015. The Supreme Court’s ruling a month later, in Michigan v. Environmental Protection Agency, which invalidated regulations for which the EPA had failed appropriately to consider compliance costs, suggests that Murray’s sense of the Court’s pliability on regulatory matters may in fact be an opening that should be exploited by public interest litigation. On the other hand, his calls for strategic civil disobedience look less propitious in the aftermath of the Court’s pronouncements in King v. Burwell (where the justices filled in what Congress must have meant by the Affordable Care Act rather than rule on what Congress actually wrote) and especially Obergefell v. Hodges (where five sympathetic justices redefined marriage, overriding the explicit will of the people of several states).

These and other recent rulings would seem to dash Murray’s hopes for the flourishing of a more diversified America, where not only the regulatory agencies but Americans themselves adopt a more “no harm, no foul” approach to civil life.

In Chapter 12, Murray makes a case for embracing the fact of diversity that would underscore a “no harm, no foul” ethic. He fluidly outlines our heritage of cultural diversity, stemming in the first instance from four very distinctive streams of British culture (Yankee, Quaker, Cavalier, and Scots-Irish) that manifested in very different quotidian cultures. American cultural diversity multiplied with the arrival of Irish and German immigrants by the thousands in the mid-19th century, the arrival of Scandinavians later, and the development and confluence of African American cultures into the mainstreams of American life after the Civil War.

Murray proposes that the apparent homogeneity of the mid-20th century, largely brought about by internal migration, the cultural effects of World War II, and the influence of the mass media, was in fact an anomaly and that demographics suggest that “America is once again a patchwork of cultures that are different from one another and often in tension.” And these patchwork cultures require freedom. “The members of most new subcultures want to be left alone in ways that the laws of the nation, strictly observed, will no longer let them,” Murray writes. He insists that “they need to be left alone if they are to live their lives as they see fit.”

Amidst ongoing cultural sorting, Murray observes that fully 72 percent of the American people live outside of the 62 contiguous urban areas containing more than 500,000 people each and declares: “My proposition is that the people in that space . . . need a lot less oversight from higher levels of government than they’re getting.”

One arrives at this statement and wishes that Murray had begun the book on this foundation rather than on the exposition of the rise of “Madisonian thought.” If indeed the intent of Murray-style civil disobedience is to free people across America from the tentacles of control emanating from Washington, we must seriously consider whether the institutions promoting “Madisonian thought” may be insufficient to the task and reliance upon the Supreme Court a non-starter. While these are questions that Murray raises at the outset, his default reliance upon national institutions is where problems begin to bubble beneath the surface of his curative paradigm.

In asking how the center can protect the peripheries, Murray seems trapped in a vision of politics defined by the very center that is threatening our well-being. He deploys a familiar analysis of American political divisions. The American Left is comprised of Progressives—epitomized by Woodrow Wilson, animated by a “core impulse to mold all of American society into the One Best Way,” and viewing both individualism and the Constitution as outmoded—and much more moderate liberals animated by the expansion of civil rights and civil liberties. The American Right is comprised of Madisonians—who are in favor of limited government and free markets and who often hold conservative views on social issues such as marriage, abortion, and drug use but do not want the federal government to legislate on these issues—and social conservatives “who want to enact their social agenda nationwide.”

Political polarization is driven by antagonisms fomented by the Progressive Left and the socially conservative Right, and “breaking the logjam” will require liberals to disavow Progressives and Madisonians to disavow social conservatives. It seems to Murray that only when the culture warriors on both sides of the political spectrum are marginalized can liberals and Madisonian conservatives come together to collaborate on rolling back government excess.

This is a somewhat appealing vision, one that implores moderates within both major political parties to forswear the ongoing culture war. But it belies some fundamental dynamics of America’s current two-party system, in which political influence has become a high-stakes game requiring intra-party bargaining and single-interest coalitions and in which the two parties effectively control balloting procedures at state and local levels, stymying the emergence of serious third-party contenders. If the branches of the federal government have grown sclerotic, so has our entire electoral system, which increasingly consumes vast amounts of money to send Representatives and Senators to Washington to figure out ways of sending something back to their districts and states. While Left/Right political divisions are increasingly problematic, so are the structural problems within American politics. These divert our attention away from the practical problems of local self-governance to winner-takes-all national politics that elevate the stakes of victory and exacerbate the culture wars.

In turning to the possibilities of electoral politics, Murray is painting a picture of what could happen if only “when a problem was sufficiently ridiculous, people of different ideologies . . . learned to put aside their differences long enough to collaborate.” The function of the Murray defense funds is to create conditions in which “citizens from different places on the political spectrum will have a cumulative common experience of treating the regulatory state as an adversary.” His hopes for a new incarnation of American freedom thus seem to rest upon transforming a tragedy of conflict between ideological parties contending for the right into a form of comedic civic drama of the ridiculous. But could this be accomplished in the ways Murray proposes?

In laying out practical ground rules for his scheme, the author proposes that Madison Fund litigators must “avoid choosing regulations with halo effects.” Because of the very nature of the American regulatory state, with its roots in the confidence of experts to align the moral good of the people with the techné of public administration, this limitation shields many of the most egregious regulatory regimes from attack. Environmental protection has become a new form of religion in America; going after affirmative action portends getting people’s backs up over discrimination and the canard of “institutionalized racism”; and let’s not tread on the sacrosanct ground of challenging “protection” of children (which often prevents teens from finding meaningful work that helps them integrate psychologically and economically into civil society). This seemingly leaves the Madison Fund skirmishing in almost invisible cul-de-sacs while the heavy artillery of statism continues to advance on the main highways.

Despite Murray’s recognition that we would have to use the mass media to accentuate the significance of these fights, people would remain free to focus their attention elsewhere. In recent weeks several folks have posted this humorous observation on Facebook: “My Facebook page looks like a battle broke out between the Confederates and a Skittles factory.” Sadly, I’ve seen no one change their profile picture to identify themselves with the victory in Michigan v. Environmental Protection Agency for forcing compliance-cost procedures on the administrative state. And there’s the rub. American democracy, for better and often for worse, has evolved to focus on the personal. For many, the aspirations of liberty have sunk to the core of our identities . . . but we have come to agree less and less on that in which liberty consists.

Not that identity politics is new; rather it seems to be an abiding feature of American politics. Disagreements about American destiny are not mere disagreements over whether government is a necessary but limited utility of self-government, or, an ideal mechanism through which the will of the people is formed and expressed. Disagreements about the meaning of liberty and the role of government in securing its blessings actually go deeper than that. They reflect two existential modes of identity. I can stick with Murray here and call the first the Madisonian mode, which could also be described as a Burkean or Tocquevillean or conservative mode, in which healthy personal identity is best formed in the family, through voluntary associations, vocation, and last and least through voting. The second is what we might call the Étatist mode, in which identity is formed only through solidarity with a collective. As the German philosopher Max Stirner put it in The Ego and Its Own (1845):

The commonalty is nothing else than the thought that the State is all in all, the true man, and that the individual’s human value consists in being a citizen of the State. … The State is to be a fellowship of free and equal men, and every one is to devote himself to the ‘welfare of the whole,’ to be dissolved in the State, to make the State his end and ideal. State! State! so ran the general cry, and thenceforth people sought for the ‘right form of State,” the best constitution, and so the State in its best conception. The thought of the State passed into all hearts and awakened enthusiasm; to serve it, this mundane god, became the new divine service and worship. The properly political epoch had dawned. To serve the State or the nation became the highest ideal, the State’s interest the highest interest, State service (for which one does not by any means need to be an official) the highest honor.

No matter that Americans have come recently to identify themselves in solidarity with subgroups according to their race, class, gender, or sexual preference rather than the State per se. The fact is these identity groups apply their solidarity foremost to gain recognition by the State and to take up their roles within the penumbra of dignity conferred by men in black robes in order that they too can stand armed at the barricades to mock, deconstruct, and ultimately crush any quotidian culture that seeks to keep to itself or that breeds men and women unwilling to subsume their identity in the will of the State.

Has America, the land of the free, ironically created for itself a soft despotism not altogether unlike the state of social affairs of the Czechs after decades of Soviet oppression? And are we left only to hire Madisonian attorneys to perform Kundera-esque social parodies of the ridiculous in the nation’s courtrooms?

The proposal Murray makes for the defense funds may be a necessary tool for the renewal of freedom in America, but he does not make the case that they will be sufficient to re-ground that freedom in cultural mores, in moral and intellectual frameworks of the people, that are conducive to individual dignity and freedom that arise from sources outside the power of the State.

Perhaps the only path out of the culture wars that plague us will be to transcend them, but transcending them from where we are today will require all of us to reexamine the ideologies that we have created and sustained, and this will require self-criticism by all political factions. This need for more critical thinking includes Madisonians, many of whom have mapped their thought onto a historical narrative that pits early 20th century Progressives against the Madisonian Constitution, but fails to examine the myriad ways in which the Madisonian Constitution was already compromised by Americans within five decades of its ratification. In many ways, the current Madisonian paradigm limned by Murray depends upon a view of the Civil War, and of Lincoln as the charismatic statesman of that conflict, as a restoration of the Madisonian Constitution. It is an appealing but very flawed interpretation.

The roots of centralization—and the demise of a meaningful federalism that would protect the survival of diverse quotidian cultures—arose many decades prior to Wilson’s theoretical construction of the administrative State to remedy the defects of congressional government. We can see the centralized power being consolidated in the early debates over internal improvements and in the development of the American System of political economy that favored national policies such as high protective tariffs and national investment in transportation infrastructure and banking.

We can also see the impulse to mold America to One Best Way emerging well before the Civil War in the reform movements that grew from the Second Great Awakening, first expressing themselves in hopes for universal spiritual revival but soon seeking, through national political activism, to consolidate Protestant morality as the nation’s civil religion. Fearing that Papism would wash into American politics in the floods of Irish and German immigrants, reformers erected publicly funded common schools, fought for temperance laws (the Maine Law was enacted in 1851 and soon replicated by other states), and soon took up the cause of radical abolition.

We can see the coming apart of America in the years leading up to the Civil War as the institutions of civil society, those places where moral suasion can best be hoped to work itself out without political compulsion, succumbed to sectionalism over the slavery question. The amazing and robust network of pre-war national associations, church denominations, and political parties among Americans came apart, as did families, torn asunder by the strong persistence of Americans’ identification as much with their states as with their nation, an identity politics that transcended even the economic interests and moral beliefs of many who took up flags for the North and the South. (We must not forget that in the wave of state constitutional conventions of the 1840s and 1850s, people in states from Ohio to Iowa overwhelmingly supported laws that would exclude free Negroes from taking up residence in their communities, and these prejudices were not much changed even by the eve of Civil War.)

And while we can look back upon the tragedy of the Civil War with thanks that it put an end to the slavery question, we should not consider the political history of the war years without recognizing the dramatic centralization effected by Congress after the departure of the Southern voting bloc—a centralization of power exemplified by the quick move of the U.S. Congress in 1862 to enact the Homestead Act, to pass the Morrill Act establishing land-grant colleges with federal funds, and to create the U.S. Department of Agriculture. We cannot study the history of Reconstruction without recognizing the numerous ways that the newly constituted Republican national power would come to obliterate the power of the states, impose conditions that exacerbated racial tensions, and violate the civil rights of Southerners even to the level of interfering with the independence of churches by barring from them ministers who would not swear oaths of loyalty and pray for the President of the United States.

When Murray calls for Madisonian conservatives to disavow social conservatives, he leaves the Madisonians quite unable to exert any significant influence in national politics without making a pragmatic deal with liberals, many of whom were among those who painted their Facebook pages in rainbow colors in the wake of Obergefell v. Hodges. Doesn’t such celebration of Obergefell suggest that these liberals have proven themselves pliable to an ideology quite incompatible with the limited government vision that Madisonians purport to hold? In fact, the Madisonian vision of limited government itself must be examined anew because too many of its proponents continue to understand it more through hagiography and mystic chords of memory than through the honest courage required of those who would grapple with the burden of history.

American liberty was infected with a cancer long before the Progressive era. Whether our generation is up to the task of renewing the Founders’ hope for America depends upon reexamining the persistent ideologies that divide us and in fact keep us powerless to stand athwart our own history and call STOP! to the growing Leviathan.

In his important 1978 essay The Power of the Powerless, Vaclav Havel calls upon us to understand the nature of ideologies:

Ideology is a specious way of relating to the world.  It offers human beings the illusion of an identity, of dignity, and of morality while making it easier for them to part with them.  As the repository of something suprapersonal and objective, it enables people to deceive their conscience and conceal their true position and their inglorious modus vivendi, both from the world and from themselves. It is a very pragmatic but, at the same time, an apparently dignified way of legitimizing what is above, below, and on either side.  It is directed toward people and toward God.  It is a veil behind which human beings can hide their own fallen existence, their trivialization, and their adaptation to the status quo.

America today is torn by ideologies well embedded on all sides of the culture wars. The cure for ideology, according to Havel, who has authority from experience to speak to the matter, is

to shed the burden of traditional political categories and habits and open oneself up fully to the world of human existence and then to draw political conclusions only after having analyzed it.

“More than ever before,” Havel continues, “such a change will have to derive from human existence, from the fundamental reconstitution of the position of people in the world, their relationships to themselves and to each other, and to the universe.”

In the end, Madisonians may have to set aside their identity as Madisonians and may have to take up their identity simply as human beings. They may fare better in influencing the prospects of American liberty if they execute a form of the Benedict Option that Rod Dreher has recently commended to orthodox Christians. They might best pack up their books, leave the District of Columbia, and consider taking up residence in that vast hinterland among the 72 percent of Americans who Murray believes can be left alone to make meaningful lives in real places.

Will they be left alone? Perhaps not at first. Perhaps they will need to be defended by a Madison Fund, but in the end, there are no shortcuts to the re-formation of men with chests and the remaking of associational life upon which the rule of law depends. Someone has to start, and the work must be done until once again we are an American people who can decide from reflection and choice whether we desire to be free and to new model our institutions to support that freedom.

As Havel so clearly put it: “A better system will not automatically ensure a better life. In fact, the opposite is true: only by creating a better life can a better system be developed.”  This is the work of our age. We must bring to it political strategies and realignments such as those commended to us by Murray. We cannot rest our hopes there, however. We must also understand, as Adam Ferguson observed, that there may be limits beyond which nations may not progress, and that those limits for Americans may indeed be the limits of a nationalized politics. The soul of the American project is the belief that there are realms of human endeavor with which government must not interfere; when politics compromises our enjoyment of our families, our friends, our faiths, and our fortunes, our freedom rests only on a house of sand. Charles Murray is right to fear.