Fred Smith, the founder and former President of the Competitive Enterprise Institute, has an interesting review of Charles Murray’s “By the People: Rebuilding Liberty without Permissionat CapX. It is a thoughtful and interesting article (also recommended is this review by Lenore Ealy, published by the Library of Law and Liberty).

In his book, Murray first examines the rise of the administrative state: a process which is recent and has occurred rather fast, but which seems to be irreversible. The dream of the Founders, Murray writes, is gone. He doesn’t quite say it this way, but he is basically acknowledging that Constitutional limited government has failed. Constitutions – in the US as well as elsewhere – were a generous project to tame Leviathan, but eventually Leviathan got the better of them. Limited government doesn’t stay limited, for a variety of reasons (read, among others, this wonderful short article by Anthony de Jasay).

Fred Smith agrees with Murray’s synthetic and yet effective effort in making sense of ever-growing government. But he is less enthusiastic about Murray’s practical proposal for achieving (a bit more of) freedom in our lifetime.

Murray suggests the development of a “Madison Fund” aiming at assisting pro-bono small entrepreneurs struggling with the administrative state. His dream: litigation on a grand scale, to combat bureaucratic stupidity. This could be accomplished, he suggests, either by a non-profit fund or by some sort of insurance scheme (I am not familiar with the relevant U.S. law, but unfortunately that cannot be done in other jurisdictions, for example, in Italy, where it is illegal to insure yourself against sanctions). As Fred writes, Murray “hopes that organized resistance to overregulation might push lawmakers and regulators to adopt less burdensome regulatory practices”.

In Murray’s narrative, the little guy feels hopeless in front of the ever-powerful government machine: but government is like the Wizard of Oz. Government is nothing but its numberless officials, who may decide to exercise their discretionary power depending on a number of variables.

What if many small entrepreneurs started to rebel, by not adhering to regulations that are outdated and basically useless? What if they got top notch legal defense? What if they started winning cases in court? What if the officials that exercise their powers in the most capricious and destructive ways were exposed to the media?

Were the Madison Fund or another similar device to succeed on a considerable scale, Murray reasons, we could expect bureaucrats to stop enforcing trivial regulations and focus on just the few good things they should indeed do.

He is effectively proposing civil disobedience but of a peculiar kind: he doesn’t want people to stop paying taxes or resist to all kind of laws, but only some specific regulations. Which ones?

Smith points out that

Murray seems to believe that common sense provides adequate guidance for sorting out “good” from “bad” regulations and that Americans oppose many of the bad ones. Yet, recent debates over financial, health, and environmental regulations cast doubt on this. Many feel that America is over regulated, but support specific regulations–such as for example, the left’s support for more restrictive environmental and financial regulations and the right’s calls for tighter security and immigration restrictions.

As we all know, common sense tends to be quite uncommon. This is why, in the first place, bureaucrats are so obstinate in enforcing norms that appear just, well, stupid, to any moderately liberty-respecting person.

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My favorite example of idiotic regulation is a rather harmless one. I don’t know if any of our readers are familiar with the splendid city of Matera, a little jewel in the South of Italy (consider it for you next trip!). Matera is famous for its “sassi”: traditional houses literally carved into the rock. Basically, they are caves. Which means: there is only one way in, one way out. And yet, in the newly restored restaurants in the City, you won’t miss the green “Emergency Exit” sign pointing to the, well, only available exit. The signs stand out, on the beautiful, white tuff walls.

Why do restaurant and hotel owners, who are intelligent men, keep the sign on when it is so obviously useless? Because if they get inspected (it happens, even in the Italian South), they’ll get fined.

Murray knows that in an ideal world government official will be thoughtful and considering, and thus they’ll just let go, when it comes to norms that a cleverer legislator would have updated or canceled herself. But we cannot trust officials’ self restraint, and therefore he proposes a device that considers more promising than others, in forcing restraint upon them.

I am not sure we will see such a development in the real world, but Murray is also doing something the libertarian movement really needs: that is, opening a wider strategic discussion on how to promote liberty not just as an idea, but also as a possibility for our life time. I hope more will join Fred Smith in debating his insights.