Jay Cost analyzes for the Washington Free Beacon the thought-provoking arguments in Charles Murray‘s latest book.

He calls for broad-based civil disobedience, akin to the collective response to speed limits. Nominally, the law sets the speed limit at a certain level, but in practice the police cannot enforce it strictly because everybody violates it. Murray wants to do something similar with federal regulations. He calls for a “Madison Fund” to facilitate legal challenges to the regulatory state, forcing the government to expend its limited resources litigating copious violations in court. Moreover, he promotes occupational defense funds to insure businesses from government penalties. He does not suggest using these programs to facilitate lawlessness, but to fight ordinances that violate the ideal of a “no harm, no foul” regulatory regime.

Murray believes that this strategy is a good fit for the age. Historically, the United States has been a very diverse nation, and influxes of new immigrants are making it diverse once again. Such cultural, religious, and social heterogeneity does not comport well with one-size-fits-all policy emanating from Washington. Moreover, information technology is obviating many of the original reasons for an expansive state, and exposing governmental incompetence for what it actually is. Combine these trends with what Murray predicts will be a looming taxpayer revolt, aggravation among big business for the fines it must pay for regulatory violations, a potential left-right alliance in favor of federalism (e.g. marijuana decriminalization), and a federal bureaucracy bereft of morale and vigor, and Murray sees this as a “propitious moment:” an opportunity to restore long-forgotten constitutional principles that restore pride of place to the citizen and his community. He hopes his program for civil disobedience could be the spark that lights the fuse. …

… [T]he solution is problematic. To appreciate this, it is best to mull the experiences of James Madison. Murray explicitly defines his project as Madisonian, and situates it in a tradition of limited, constitutional government that goes back to Madison and the Founding.

Yet Madison defies easy categorization. For instance, the Madison of 1786-87 was terribly concerned about unchecked majoritarianism in the states. He was thus the principal author of the Virginia Plan, which called for essentially unlimited central authority. The Madison of 1791-1800 comes closer to Murray’s characterization, by opposing increased national power as a violation of constitutional principles. However, the Madison of 1801-1817 returns to a more expansive view of federal authority. Jefferson and Madison’s heavy-handed enforcement of the Embargo Act of 1807 makes Obama’s executive overreach look quaint in comparison. And during his own presidential tenure, Madison embraced many of the old Federalist policies he once said were unconstitutional.

Scholars have struggled to explain Madison’s inconsistencies, but their efforts typically overlook his central motivation. Early in his career, Madison articulated what he called the “great desideratum” of government: the state should remain neutral between various factions in society, and should not establish itself as a faction.