Charles Murray's Abracadabra State

Charles Murray has an amusing strategy for fighting regulation, which contains within it a rather naive theory of the state:

And so my modest proposal: Let’s withhold that compliance [with regulations] through systematic civil disobedience. Not for all regulations, but for the pointless, stupid and tyrannical ones.

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I propose two frameworks for implementing this strategy. The first would be a legal foundation functioning much as the Legal Services Corporation does for the poor, except that its money will come from private donors, not the government. It would be an altruistic endeavor, operating exclusively on behalf of the homeowner or small business being harassed by the regulators. The foundation would pick up all the legal costs of the defense and pay the fines when possible.

The other framework would be occupational defense funds. Let’s take advantage of professional expertise and pride of vocation to drive standards of best practice. For example, the American Dental Association could form Dental Shield, with dentists across America paying a small annual fee. The bargain: Dentists whose practices meet the ADA’s professional standards will be defended when accused of violating a regulation that the ADA has deemed to be pointless, stupid or tyrannical. The same kind of defense fund could be started by truckers, crafts unions, accountants, physicians, farmers or almost any other occupation.

Like the sovereign citizen movement, which is known for filing bizarre court briefs using antiquated legal language and weird capitalization, Charles Murray seems to have partially fallen prey to an idea that I call the Abracadabra State.

The Abracadabra State is this fantastical idea of a state that, through clevery trickery and maneuvering, can be stymied from successfully exerting its will. The sovereign citizens imagine that, if they use magic words in their legal briefs, courts will have to side their way. Certain fringe anti-tax people imagine that, by showing the income tax amendment to the constitution was adopted in a procedurally defective manner, they can keep from paying income taxes. And Charles Murray imagines that, through clever insurance entities, regulatory agencies can be frustrated.

The problem with all of these Abracadabra strategies is that they discount the degree to which a committed state has nearly endless tools for achieving compliance. The state is not a robot. It consists of politicians and other officials that can and do change things when necessary to achieve some specific goal.

In Murray's case, it's not difficult to imagine how the state could disrupt his insurance strategy because many courts have already basically dealt with this problem. It's very common in the US, though not universal, for courts to forbid defendants from insuring against punitive damages. The reasoning for making such damages uninsurable is, among other things, that the damages are assessed specifically to dissuade people from intentionally carrying out egregious acts. And, obviously, if they are not made to personally bear the costs of such damages, that purpose is frustrated.

It would be trivial, following that line of reasoning, to declare that damages assessed to persons intentionally disobeying regulations cannot be insured against. It would likewise be trivial to enjoin these mutual insurance companies from operating, holding their officers in contempt, even jailing them if they try to act unlawfully as regulation avoidance insurance.

The state, through the courts or legislatures, may or may not opt for these compliance mechanisms, but the point is that they easily could. If they opt not to, it's not because you found some tricky way to beat state power. It's because state power actually supports what you are doing.

General Point

It's become somewhat cliche these days to vaguely declare that certain bad trends in the US (e.g. inequality) are actually about power. This observation gets at an important point, even if those who make it don't always understand it.

Societies exist in a state of constant flux, with new technologies and organizational forms always churning things over and pushing them to drift in one direction or another. Those changes don't determine political economic outcomes by themselves, though this is how they are often analyzed. The outcome of any particular development depends on how political institutions respond to and accommodate the development. In that sense, it really is about power: whoever controls the political institutions determines how new developments in the world are funneled into eventual outcomes.

For inequality, states captured by egalitarian power structures can plan around economic trends to ensure gains are shared broadly. Less egalitarian power structures will naturally direct changes in less egalitarian ways. For Murray, states committed to effective regulation will easily blow up his Mickey Mouse insurance scheme, while those less committed may permit it to flourish. But at all times, it is not so much the outsider trends that are driving things to their eventual outcomes. It's how the state uses its power that is.

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