The Madison Fund

Charles Murray makes the case for conservative civil disobedience in a book called Rebuilding Liberty Without Permission. A review:

In parallel, the legal system has become a vehicle for progressive social aims, growing arbitrary and subjective. Murray points to lower bars for bringing lawsuits, broader rules of discovery and the rise of strict liability that doesn’t require specific negligence to find guilt. All this has conspired to create a system in which defending yourself is prohibitively costly, laws are so complex as to be unintelligible and prosecutors enjoy corrupting discretionary power. Instead of a world where acts are criminalized because they are malum in se (wrong in themselves), Murray argues that a large proportion of crimes in the federal code are “malum prohibitum — not things that are bad in themselves but things that warrant criminal penalties because the government has said they do.”

Think of the case of the pension in Paraparaumu taken to court by the Council because she had someone cut down a tree on her property.

So how do how small-government conservatives conduct civil disobedience in practice? Sit-ins at the EEOC? Occupy OSHA? Or maybe thousands of senior executives chanting, “Hey hey, ho ho, innovation-stifling regulatory regimes have got go!”

Murray’s proposal is less dramatic and more ingenious. The regulatory state has two related weaknesses, he explains: It relies on voluntary compliance, and its enforcement capabilities are far inferior to its expansive mandate. So he proposes a private legal defense fund — the “Madison Fund,” honoring the father of the Constitution — that businesses and citizens can rely on for representation against federal regulators. By engaging in expensive and time-consuming litigation on behalf of clients that refuse to comply with pointless rules, the fund drains the government’s enforcement resources and eventually undercuts its ambitions. The state can compel submission from an individual or company with the threat of ruinous legal proceedings, Murray writes, “but Goliath cannot afford to make good on that threat against hundreds of Davids.”

I think this is a great idea. It would be the equivalent of the ACLU. Imagine in the US a billion dollar fund that will help people fight against mindless regulations that serve no public good.

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