Out to arouse the conscience of the community.

Photographer: William Lovelace/Express/Getty Images

Questioning New Standards for Civil Disobedience

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “The World According to Star Wars” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”
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Civil disobedience is an honorable American tradition. The Boston Tea Party helped spark the Revolutionary War, and during the 1960s civil rights movement, Martin Luther King Jr. celebrated civil disobedience as “expressing the highest respect for law.” Invoking King’s idea (if not his name), prominent conservatives are now calling for new forms of disobedience. Some of their arguments are hard to accept, but they have a kind of internal logic, and they are resonating in influential circles. 

Consider Charles Murray’s spirited new book, “By the People: Rebuilding Liberty Without Permission,” which is rooted in an extraordinary claim: “America is no longer the land of the free.” The source of this unfreedom is not NSA surveillance, police misconduct or mass incarceration. It is the rise of the modern regulatory state, from the New Deal to the present, which has subordinated our founding commitment to freedom. “What made America unique first blurred, then faded, and today is almost gone,” Murray writes. 

Chief culprits here include the Occupational Safety and Health Administration and the Environmental Protection Agency, which “has authority not just over workplaces but over every piece of property in the nation.” Offering numerous examples of federal overreaching, Murray argues for “systematic civil disobedience,” to be applied to the countless regulations that are “pointless, stupid and tyrannical.” 

Murray calls for disobeying such regulations whenever “no harm has occurred.” To defend the disobedient, he calls for the creation of a privately funded Legal Services Corporation. Because the federal government has limited resources, Murray thinks that those who violate occupational safety and environmental regulations could end up a lot like those who drive over the speed limit. In practice, state troopers have to allow a lot of violations; Murray hopes that OSHA and EPA will, too. 

Murray is unusual in asking for a large-scale social movement, but other conservatives have made narrower arguments for civil disobedience. With respect to a possible Supreme Court ruling in favor of same-sex marriage, former Governor Mike Huckabee has not been alone in expressing the hope that “somewhere there will be a governor who will simply say, ‘No, I’m not going to enforce’” the decision. 

In March, Senate Majority Leader Mitch McConnell wrote a letter to the governors of all 50 states suggesting they not comply with the EPA’s plan to regulate greenhouse gases. And of course some people have argued that businesses, workers and state governments should refuse to comply with the requirements of Obamacare. 

Many people dismiss these views as extreme. But it’s a lot more interesting and productive to ask: On what premises might they be right? 

In his “Letter From Birmingham Jail,” King argued that it is acceptable for people to disobey a law that their consciences declare to be unjust, if they are willing the accept the penalty “in order to arouse the conscience of the community over its injustice.” King also defended civil disobedience as an attack on laws, such as those promoting segregation, that were themselves unlawful, because they violated the Constitution. At times, King said, “the law needs help.” 

Murray also thinks the law needs help. In his view, much of the work of modern regulatory agencies is not only immoral but also inconsistent with the Constitution. Huckabee believes that if the Supreme Court requires states to recognize same-sex marriages, it will be defying the Constitution. McConnell thinks that the EPA’s proposal violates both the Clean Air Act and the Constitution. 

Can all three be counted as King’s faithful followers? 

King offered his own test. He meant to justify civil disobedience only in the most extreme cases, such as segregation, which “distorts the soul and damages the personality.” No society can function if people feel free to disobey any laws they personally abhor or think are inconsistent with the Constitution. Elaborating on King, the philosopher John Rawls argued that the case for civil disobedience applies only “to instances of substantial and clear injustice, and preferably to those which obstruct the path to removing other injustices” (such as denials of the right to vote, which King also emphasized).

Some people on the right appear to think that those “instances of substantial and clear injustice” include well-established practices of OSHA and the EPA, a pending greenhouse-gas regulation, the Affordable Care Act and a potential Supreme Court ruling that would broaden the right to marry. In my judgment, that view is quite implausible. But what’s far more important -- and illuminating about modern political divisions -- is that so many influential people now seem to embrace it. 

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Cass R Sunstein at csunstein1@bloomberg.net

To contact the editor on this story:
Mary Duenwald at mduenwald@bloomberg.net