Law

Want to Sabotage Bad Laws? Healthy Contempt is More Important Than Legal Strategy.

The enemy of defiance isn't tough cops or clever politicians; it's respect for the law

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Library of Congress/Public Domain

Charles Murray gets lots of buzz for his book-length plan to kneecap the intrusive state with a campaign of defiance. Salon predictably went incoherently rabid in its reaction, comparing Murray's proposal to Scientology's long battle with the IRS (perhaps the one thing L. Ron Hubbard's creation has done with which most people are sympathetic). What's setting supporters and critics off is that Murray's By the People: Rebuilding Liberty Without Permission "describes how civil disobedience backstopped by legal defense funds can make large portions of the 180,000-page Federal Code of Regulations unenforceable." Murray wants to wage legal battle while essentially making D.C.'s regulatory spiderweb an insurable hazard.

The book's detailed description of legal strategy seems intriguing (I have to read more to be sure), but it isn't enough. What's needed is a widespread skepticism toward intrusive laws, the political system that creates those laws, and the people who enforce them. With sufficiently widespread contempt for the authorities and their rules, the strategy can be flexible and adjust to opposition; without it, the whole scheme will likely be too fragile to work.

Look, legal strategies are a game the government can play, too, and officials get to write the rules by which the game is played. That's not to say that Murray's plan is unworkable—I'd love to see it tried. But I would also expect that, if it proves effective, the feds will slap the defense funds and insurance schemes with legal or regulatory blocks, fiddle courtroom outcomes, and persecute prominent participants in the defiance movement. Getting SWATed might be more of a problem when the folks doing it own their own SWAT teams.

Maybe the feds won't get that nasty. But I'd hate to have the outcome based on a bet that the same folks who ignored FBI investigatory rules to go after anti-Keystone XL activists will suddenly discover restraint when the whole monolith of federal power is challenged.

But the key to rendering stupid laws irrelevant isn't a clever strategy, it's an overall attitude of defiance that comes up with new creative strategies after the first ones have been countered and flows around enforcement efforts like an ocean of fuck-you. And the enemy of that defiance isn't tough cops or clever politicians; it's respect for the law.

Strategy did play an important role in the underground railroad that helped slaves escape the antebellum South for new lives in Canada and the North. But the network of safe houses and volunteers was fueled by an overriding disdain for laws that treated human beings as property and required the public to cooperate in their enforcement. When that smuggling strategy was countered by government action, abolitionists were willing to forcefully rescue people from federal officials. Even when such rescues were unsuccessful, battling them consumed so many resources that authorities quietly dropped their efforts in some places.

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Prohibition might have been shown the exit more quickly by better-organized opposition, but the important factor in its demise was the mass hostility of large number of Americans who refused to obey. They kept drinking booze, making it, and smuggling it. They did their best to render enforcement difficult, expensive, and dangerous. And their toughest opposition came not from the authorities, but from fellow Americans who supplied aid and comfort to the government, if in no other way than by simply respecting officials and institutions that deserved nothing of the sort.

The erosion of laws against marijuana has turned, too, on mass defiance rather than on unified strategy. Organized groups and efforts work against those laws, but people's willingness to ignore drug prohibition has been the real driver. Authorities responded with an initial escalation in prohibition tactics, but that never increased public acceptance of the law or its enforceability. Now marijuana is legal in Colorado and Washington, and Texas may be next.

So Murray's strategy is potentially part of the solution. It's an interesting idea that may well achieve some good—but only if it's driven by a healthy disrespect for the law and the creatures behind it.

And that's why, as I've written before, I'm teaching my son to break the law.