In which I present two cases for concluding that the federal government has lost its authority to command voluntary compliance with its vast edifice of laws.
THE RULE OF law is the foundation of civilization. Deliberately choosing to ignore portions of the law is a momentous political choice. Before I describe how civil disobedience can be employed to transform the regulatory state for the better, I must state my reasons for thinking that civil disobedience is ever justified.
The short answer is that the American government does not command our blind allegiance to the law. It is part of our national catechism that government is instituted to protect our unalienable rights, and that when it becomes destructive of those rights, the reason for our allegiance is gone. At that point, revolution is not treason, but the people’s right.
I am not proposing revolution, but I am proposing a declaration of limited resistance to the existing government. I do so because the federal government has in many respects become destructive of our unalienable rights. It has lost elements of its legitimacy.
The case that the federal government’s legitimacy is waning may be made on two different grounds, both of which were adumbrated by the chapters of Part I. One case is sufficient for Madisonians but will not be sufficient for others. The second should resonate with a wider range of conservatives, centrists, and moderate liberals.
Legitimacy in a government is an elusive thing. The Chinese used to call it the mandate of heaven. Once it was withdrawn, the dynasty was doomed. In the West, the concept of political legitimacy originally involved a heavenly mandate as well: medieval kings were thought to rule through God’s will. In the centuries since belief in the divine right of kings was rejected, political legitimacy in Europe has rested on ties of ethnicity and culture, faith in the rulers, loyalty to the rule of law, or combinations of the above.1
The United States was founded on a conception of political legitimacy that had no counterpart anywhere in Europe. “It has been our fate as a nation not to have ideologies, but to be one,” historian Richard Hofstadter observed, and that is especially true of Americans’ conception of political legitimacy.2 It was grounded in John Locke’s argument that, in a state of nature, all political authority resides in individuals. The social contract that produces a state does not create political authority but transfers the political authority that pre-existed in individuals. That transfer must be voluntary; otherwise, the political authority is not legitimate.3 The iconic sentence of the Declaration of Independence, beginning with “We hold these truths to be self-evident,” is a restatement of that Lockean position.
For Madisonians today, accustomed as we are to being identified with an extreme on the political spectrum, it is important to understand that an overwhelming majority of Americans shared our views about the foundations of political legitimacy during the first century of the nation’s existence. The breadth of Americans’ devotion to the principles of the founding was one of the features of the new nation that struck European visitors most forcibly.
Francis Grund, who moved from Germany to America as an adult and published a two-volume commentary on America in 1837, about the same time as Alexis de Tocqueville, observed that American patriotism was quite unlike patriotism in other countries. “It is not an instinctive attachment to scenes with which they are acquainted from childhood, or to men to whose familiar converse they are accustomed,” he wrote. “It consists in the love of principles, for which they are ready to make every sacrifice, and which in the outset they preferred to their homes.”4 By principles, Grund meant the principles of liberty that were at the core of Americans’ identity: “American liberty is further advanced in the minds of the people than even in the laws themselves,” he continued. “It has become an active principle which lives with, and animates the nation, and of which their political constitution is but a facsimile.”5
Tocqueville made a similar point about Americans’ passionate belief that their liberty to pursue their own interests without hindrance was the key to making America work—the principle that he labeled “self-interest rightly understood.” It found “universal acceptance,” Tocqueville wrote. “You may trace it at the bottom of all their actions, you will remark it in all they say. It is as often asserted by the poor man as by the rich.”6
Throughout the nineteenth century, these were not issues on which Americans differed. They had other differences that they contested bitterly—so bitterly that the Civil War was needed to resolve some of them—but no American political party disputed the sovereign freedom of the individual and strict limits on the legitimate authority of the national government.[7]
The extent of this bipartisan allegiance is illustrated by the presidency of Grover Cleveland, whose two terms in office came near the end of the century. In 1887 he vetoed a $10,000 congressional appropriation—about $250,000 in today’s dollars—that would have allowed the commissioner of agriculture to purchase seed grain for distribution in the Texas counties hardest hit by a prolonged drought. Cleveland’s explanation for his veto was a classic statement of the narrow limits circumscribing the legitimate authority of the state:
I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering.… The lesson should be constantly enforced that, though the people support the government, the government should not support the people. The friendliness and charity of our countrymen can always be relied upon to relieve their fellow citizens in misfortune. This has been repeatedly and quite lately demonstrated. Federal aid in such cases encourages the expectation of paternal care on the part of the government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthens the bonds of a common brotherhood.8
It is hard to see any daylight between Cleveland’s thinking about the role of government and the one that Jefferson had expressed in his first inaugural address about “the sum of good government” eighty-six years earlier.
Nor had there been much change in the thinking of the population at large. Toward the end of his two-volume study written at about the same time as Cleveland’s veto, James Bryce, a leading British scholar of American society at the end of the nineteenth century, reflected on “certain dogmas or maxims which are in so far fundamental that … one usually strikes upon them when sinking a shaft, so to speak, in an American mind.” These were among the dogmas he cited that today put Madisonians on the political extreme, and that in the late nineteenth century were believed by Democrats and Republicans alike: “Certain rights of the individual, as, for instance, his right to the enjoyment of what he has earned, and to the free expression of his opinions, are primordial and sacred.… Where any function can be equally well discharged by a central or a local body, it ought by preference to be entrusted to the local body.… The less government the better.” 9
Just as Cleveland’s position as president was effectively identical to Jefferson’s, the consensus political ideology that Bryce described in the 1880s was essentially unchanged from the one that prevailed in the 1780s and that Grund and Tocqueville described in the 1830s. It amounted to a national civic religion.
Judged by that standard, the federal government lost its legitimacy in theory during the constitutional revolution of 1937–1942, lost its legitimacy in practice during the 1960s, and it has been downhill ever since. It is by that historical understanding that many of us who are devoted to limited government have thought of ourselves as living in a post-American country, governed by people who mouth the clichés about America as the land of the free without understanding what freedom means.
Judging from the polls, only about 10 to 20 percent of all Americans will be persuaded by the argument I just presented.[10] But it is just as clear that a substantial majority of Americans have a sense that something has changed in the federal government’s relationship with the American people. I now turn to a way of thinking about waning federal legitimacy that I hope will find broader agreement.
Since 1958, pollsters have periodically asked exactly the same question of representative samples of Americans: “How much of the time do you think you can trust government in Washington to do what is right: Just about always, most of the time, or only some of the time?”11
When it was first asked in 1958, 73 percent answered “just about always” or “most of the time.” When it was next asked in 1964, an even higher proportion, 76 percent, gave those answers. Then that percentage abruptly began to decline and kept declining. By the time the 1980 election campaign was being contested by Jimmy Carter and Ronald Reagan, only 25 percent of Americans thought they could trust the government in Washington to do what is right all or most of the time—a 51 percentage-point drop in just sixteen years.
That percentage rose somewhat during the Reagan years, then fell, rose again during the last half of the 1990s, and spiked briefly after 9/11. The secular trend has been down. The percentage trusting the government most or all of the time hit a new low in 2014, standing at 13 percent. In other words, we moved from more than 3 out of 4 Americans who trusted the government in 1964 to fewer than 1 out of 7 in 2014.
Part of the explanation for this astonishing drop consists of the problems of lawlessness described in chapters 2 and 3. Americans with a wide range of political views have been disturbed by laws that are so complicated, they are impossible to obey; by a tax code riddled with favors for people with connections and filled with hazards for ordinary Americans; by laws that can send people to jail for things that other people have done; by occasions when property has been confiscated for reasons that seem patently unfair. They’ve seen people prosecuted for politically motivated reasons or for failing to comply with unreasonable regulations. They’ve watched politically connected people go unprosecuted. It comes down to a common recognition across political lines: American government isn’t supposed to work this way.
Another part of the explanation is generated by the problems described in chapter 4. Washington looks like a sophisticated kleptocracy—in the fortunes acquired by people from exploiting their government service, the necessity of paying (in the form of campaign contributions) senators and representatives to get anything done, in the political parties’ shakedown of businesses for such contributions, and in the use of government by private interests to make trouble for their adversaries. These practices have led ordinary citizens with a wide range of political views to recognize that both political parties and the bureaucracies of the government are systemically corrupt. American government isn’t supposed to work this way.
These specific forms of government misbehavior are part of a broader betrayal of the role that the federal government traditionally played in national life. When Kennedy was assassinated in 1963, at a time when 76 percent of Americans still trusted the federal government to do the right thing, most Americans were still in love with the idea that as American citizens they were free and independent, equal before the law with other Americans, living their lives as they saw fit. Americans saw the federal government not only as legitimate but as the best government in the world—an attitude that had characterized us all the way back to the founding.[12] But this happy state of affairs hadn’t happened by accident. It was sustained through good times and bad, war and peace, massive immigration and massive social changes, because of three tacit compacts between the federal government and the American people.13
The first tacit compact was that the American people wouldn’t expect much from the federal government beyond protection of their freedom at home and from enemies abroad. As I noted in chapter 4, few corporations had an office in Washington as late as the Kennedy administration because, with only isolated exceptions, businesses had to worry only about competing in the marketplace, not coping with the federal government. The federal government during the Kennedy administration still had no significant role in K–12 education, local law enforcement, or health care. The federal government had no policies about the practice of religion. Americans of half a century ago still assumed that the task of running daily life was in their own hands. And so when people had complaints about their schools, jobs, products, physicians, or churches, the federal government didn’t get blamed for failing to solve problems that Americans didn’t think were its business anyway. It’s easy to trust the federal government to do the right thing when the expectations of that government are limited.
The second tacit compact was that the federal government would not unilaterally impose a position on the moral disputes that divided Americans. This was exemplified by the dispute over slavery, the most divisive of all American moral disputes. The history of federal policy from the time the abolitionist movement began in the 1820s until the beginning of the Civil War was one long, tortured attempt not to impose a federal solution to slavery on the nation. Even the Civil War itself was undertaken as a fight to preserve the Union, not to abolish slavery. That same extreme reluctance to impose unilaterally enacted federal solutions on moral disputes remained through the first half of the twentieth century. The moral dispute over alcohol (a very big deal for more than a century) was resolved by a constitutional amendment, not a federal law. So was the moral dispute over women’s suffrage. A constitutional amendment not only requires Congress to pass it and the president to sign it but also requires at least three-quarters of the states to ratify it. When it came to moral issues, the whole nation had to participate in their resolution. Those on the losing side had to recognize that their defeat was national and consensual. It’s easy to trust a federal government that doesn’t unilaterally decide morally divisive topics by narrow margins in Congress or a one-vote margin on the Supreme Court.
The third tacit compact was that the federal government would make it easy for Americans to take pride in themselves. Americans who made an honest living, took care of their families, and didn’t bother anyone else were good Americans—as good as the highest in the land. Elected officials constantly said so and, until the 1960s, the federal government didn’t ask more than that in practice. It’s easy to trust a federal government that validates your good opinion of yourself.
From 1964 onward, the federal government voided all three compacts.
The first compact is so obviously void that little more need be said. There is no social or economic problem of which a contemporary president can say, “That’s not the federal government’s responsibility.” One consequence is that Americans now do blame the government when things go wrong. When the government creates a Federal Emergency Management Agency—slow and inept, as so many government agencies are—it gets blamed for the catastrophe in New Orleans after Hurricane Katrina. That New Orleans was built below the level of the Mississippi River and that its own city government responded with spectacular incompetence are irrelevant. The feds get blamed because the feds asked for it. And so it is with every domain in which the federal government has taken on responsibility for fixing things.
The second compact, that the federal government would not unilaterally impose a position on one side of specific moral issues, is also void. Whether by executive action, legislation, or judicial decision, it has imposed policies on the entire nation that large numbers of Americans opposed on grounds of deeply held moral principles. By imposing federal policies on abortion, affirmative action, drug use, education, employment, expressions of religious faith, marriage, and welfare, the federal government has alienated large numbers of Americans from all points on the political spectrum. Thomas Jefferson got it right when he wrote that “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”14
The federal government has always had to face the problem of moral opposition when it has undertaken military action. Every American war has had its conscientious objectors and war protesters. But those reactions occurred in the context of a national consensus that the country must have armed forces and that it must be the federal government that directs them. There is no similar consensus on domestic issues that have caused people to lose trust in the government, either on the issues themselves or on the federal government’s right to rule on them. Those who are outraged do not trust the federal government to do the right thing. Add up all the people who have felt this kind of outrage on at least one issue, and you’ve got a majority of the citizenry.
The breaking of the third compact, the one that made it easy to be a good American, follows from the geometric expansion of law. Just about all of us are criminals now, insofar as almost all of us have broken some of those thousands of laws, and, technically speaking, almost anyone could be successfully prosecuted if the federal government so chose. Many of us watch the experiences of those whom the government has decided to go after, and say to ourselves, “That could be me.”
It’s not just the expansion of laws that has alienated us from the government. The government’s rhetoric has changed. The officials of the federal government no longer celebrate us as fine Americans if we make an honest living and mind our own business. On the contrary, they tell many of us who think we are making an honest living and minding our own business that we are selfish, greedy, racist, or homophobic when we haven’t the slightest internal sense that we are any of those things. The federal government has changed from being a vehicle through which the American people celebrate themselves and each other to being a vehicle through which a ruling class hectors and pesters us about our shortcomings. This too helps explain why so many of us have shifted from a broad loyalty and affection for the government to alienation and anger.
In summary, I am arguing that the federal government over the last half century has separated itself from the American people in a way it had never done before. Americans have a long history of getting mad at government. See Pap Finn’s rant about “govment” in Huckleberry Finn. But something’s different now. The federal government has become an entity distinct from our conception of America, with agendas that have nothing to do with serving the American people and everything to do with the health and well-being of the federal government itself. Many of us see that entity as hostile, something against which ordinary citizens must defend themselves. Philip Howard, writing from the political center, has put it harshly but accurately: “A group that no longer shares basic values with the society is categorized by sociologists as a ‘deviant subculture.’ Washington has become a deviant subculture.”15
When 87 percent of Americans do not trust the federal government “to do what is right” even most of the time, it is also obvious that the alienation does not break along party lines. The legitimacy of the federal government is not gone for a majority of the population, but it has waned. When I propose to use systematic civil disobedience, it is not against a government that has made a few unintentional missteps and should be given the benefit of the doubt. The civil disobedience I propose is against a government that has over five decades earned our distrust.