American Elephants


The Regulatory State Gone Amok. A Free People No More! by The Elephant's Child
May 9, 2015, 11:28 pm
Filed under: Politics | Tags: , ,

Americans generally take great pride in being a free people. That was at least partly the essence of American exceptionalism, an idea largely rejected by the President of the United States. At least as he has described it — everybody probably thinks their country is exceptional, and we’re just one nation among many. Did Americans stand up and say Whoa there, or just pay no attention to an odd verbal gaffe?

We always thought that in America, unlike most other countries, you could live your life as you saw fit as long as you assumed the same liberty applied to everyone else. Charles Murray, writing in today’s Wall Street Journal, quoted Thomas Jefferson’s first inaugural address:

The “sum of good government” was one “which shall restrain men from injuring one another” and “shall leave them otherwise free to regulate their own pursuits of industry and improvement.” Americans were to live under a presumption of freedom.

The federal government remained remarkably true to that ideal—for white male Americans, at any rate—for the first 150 years of our history. Then, with FDR’s New Deal and the rise of the modern regulatory state, our founding principle was subordinated to other priorities and agendas. What made America unique first blurred, then faded, and today is almost gone.

We now live under a presumption of constraint. Put aside all the ways in which city and state governments require us to march to their drummers and consider just the federal government. The number of federal crimes you could commit as of 2007 (the last year they were tallied) was about 4,450, a 50% increase since just 1980. A comparative handful of those crimes are “malum in se”—bad in themselves. The rest are “malum prohibitum”—crimes because the government disapproves.

What has happened? Joe and Nicole Naugler of Breckenridge County, Kentucky own 26 acres in a remote area of Breckenridge County, and on May 6th Kentucky police raided their home and took their ten children away. The police arrived, acting on “an anonymous tip,” entered their property and home without a warrant or probable cause. Nicole was home with the two oldest boys. She got in the car to leave, but got only a short way down the driveway when officers pulled her over, took the two boys in custody, offering neither justification nor documentation. Nicole, 5-months pregnant, was slammed belly first into the police car, and taken into custody. Joe was driven to the location by a friend, was ordered to turn the remaining eight children over to the County Sheriff’s deputies by 10:00 a.m. and threatened with felony charges if he did not comply. Officials have placed the kids among families in four separate counties, that the Nauglers do not know.

Child Protective Services have never visited the home, but it is believed the arrests took place because of the parents choice of “unschooling” for their children. which the family calls a “back to basics life” centered on raising animals and gardening. The children are well treated and extremely happy, their needs are being met. But the children have been taken away because someone considers their lifestyle to be “backwards.”

In New Jersey, Christopher Zimmer and his wife were interrogated by a CPS caseworker on their son’s homeschooled education to questions about vaccination and guns in the home. She demanded to enter the home, called police who allowed the CPS worker to enter the home before conducting a warrantless search. The Zimmers are suing CPS for $60 million in a case before the U.S. District Court in Trenton.

In 2013, the Code of Federal Regulations numbered over 175,000 pages. Only a fraction involved something spelled out in legislation. Since the early 1940s, Congress has been permitted by the Supreme Court to tell regulatory agencies to make rules that are “generally fair and equitable” or “just and reasonable” or that prohibit “unfair methods of competition” or “excessive profits” and leave the rest up to the regulators. Big mistake!

If a regulatory agency comes after you the “administrative courts” through which they operate are run by the agencies themselves, and there are no juries, proof of guilt beyond a reasonable doubt, disinterested judges. Think of the EPA and the Sacketts. There are regulations that mandate a certain kind of latch for a bakery’s flour bins, for the registration form to be attached to a toddler’s folding chair, A Florida lifeguard was fired for rescuing a person who was drowning just outside the lifeguard’s assigned zone.

Charles Murray advocates systematic civil disobedience—if the government prosecutes someone for ignoring a designated regulation even though no harm has occurred, ordinary citizens will be overwhelmingly on the side of the defendant. Ignore regulations that meet the criteria for being pointless, stupid or tyrannical. Ignore them and go on about your lives as if they didn’t exist.

He advocates insurance that reimburses us for any fine the government levies and automatically triggers a proactive, tenacious legal defense against the government’s allegation even if we are technically guilty. He suggests a legal foundation whose money comes from private donors, an altruistic endeavor operating on behalf of the homeowner of small business. Or in addition, occupational defense funds that take advantage of professional expertise and drive standards of best practice.

Federal courts are already empowered to overturn agency actions that are “arbitrary,,” “capricious” or ‘an abuse of discretion,” The agencies usually win, gut the Supreme Court has a history of responding to an emerging social consensus.

One hundred and seventy-five thousand pages of federal regulations in 2013, How many more pages have been added in the last year and a half? I shudder to think. The stories of those who have fallen affray of the regulatory agencies would fill volumes. I’ve written of quite a few myself, and experienced a few as the regulatee.

Republicans do not hope to change the world. They are too mindful of the catastrophes brought about by those who dream of a better world created if they can just fix the American people and rearrange the future to fit their Progressive vision. The world has tried that and it never, never works, but ends in tyranny and poverty. Jefferson’s ideas of simply restraining men from injuring one another and leaving them otherwise free to regulate their own pursuits of industry and improvement worked pretty well for our first one hundred and fifty years. We might fortuitously try it once again.

Mr.Murray’s essay was adapted from his new book, “By the People” Rebuilding Liberty Without Permission,” published on May 12th by Crown Forum. Charles Murray is a scholar at the American Enterprise Institute.


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