by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Charles Murray has a knack for sparking conversations. His last book, Coming Apart, inspired a lengthy conversation on the center-right about economic mobility, wage stagnation, and inequality which spread from think-tanks to talk radio to church parking lots. His latest book makes the case for an approach to civil disobedience that is likely to achieve a similar degree of conversation for the presidential candidates and the early state voters, coming as it does at a moment when the right views itself as under assault by the IRS and the administrative state under President Obama. But there’s a trap for conservatives in Murray’s thesis, and I wonder how long it will take to reveal itself. …
… Now, I’m largely sympathetic to Murray’s argument here. The idea of a dedicated group of legal defenders tasked with smashing the state? What’s not to love? But it seems to me that Murray’s answer is impossible to justify if you are a serious traditional conservative. The argument that we should ignore perfectly legal but stupid regulations is a populist argument, a libertarian argument, occasionally an anarchist argument – but one thing it is not is a conservative argument, consistent with our views of law and order. Taking it to the next level and throwing ourselves at the mercy of the judicial branch and the courts, backed with a strong push by a legal services group for courts to strike down such regulations, goes even further into an inherent rejection of the doctrine of judicial restraint that conservatives have espoused for much of the modern era.
Murray’s case is essentially that we should defy orders that are legal but we deem stupid and unnecessary, and then turn to the courts to invite them to strike down these stupid, unnecessary, but legal (and Constitutional!) requirements. Is that not the definition of judicial activism? Now, I think of judicial restraint much the same way as I think of natural family planning (as Harry Crocker once wrote: “Try natural family planning! It doesn’t work!). But it seems to me any conservative who says they agree with Murray’s argument need to answer this question, lest the ghost of Robert Bork return from Asgard with his flaming scimitar to wreak havoc on the debate stage in Iowa.