CHAPTER 7 THE GROUND RULES FOR CIVIL DISOBEDIENCERead more at location 2421
In which I present criteria for deciding whether a given regulation may be legitimately ignored in principle, discuss some of the practical considerations, and express what I believe to be an attainable goal.Read more at location 2424
I need to define the specific way in which the concept of civil disobedience is used here, to wit: when a group of people agrees to ignore a law or regulation. This is distinct from following one’s individual conscience and acting individually, as Henry David Thoreau advocated in Resistance to Civil Government (1849).Read more at location 2429
My use of the phrase civil disobedience is also distinct from decisions to break the law because of overriding circumstances,Read more at location 2432
Regulations That Are Exempt from Systematic Civil DisobedienceRead more at location 2437
Laws prohibiting acts that are bad in themselves—malum in se—are exempt from systematic civil disobedience.Read more at location 2440
murder, manslaughter, rape, assault, robbery, burglary, larceny, fraud, arson, destruction of another’s property, and kidnapping.Read more at location 2442
The tax code is exempt from systematic civil disobedience.Read more at location 2450
taxation is one of the legitimate functions of even a Madisonian state. In particular, the income tax,Read more at location 2454
There is also a practical problem. Principled civil disobedience to the tax code would be indistinguishable in appearance from cheating on your taxes.Read more at location 2457
Regulations that foster public goods classically defined are exempt from systematic civil disobedience.Read more at location 2460
National defense is one classic example; protection of the environment is another.Read more at location 2468
K–12 education qualifies as a public good in this sense. A democracy cannot be sustained without an educated electorate.Read more at location 2471
Regulations that prohibit owners of land from doing whatever they wish with it are subject to strict scrutiny.Read more at location 2488
the proper limits on the right to use one’s own land as one sees fit trace back to an ancient precept of the common law, “Use what is yours so as not to harm what belongs to others.” No property owner has the right to pollute his neighbor’s water, for example.Read more at location 2493
regulations putatively justified by the protection of the environment or endangered species have resulted in egregious infringements on property rights.Read more at location 2497
The “wetlands” provisions of the Clean Water Act have been the source of some of the most well-publicized government overreach (you will get an example at the end of chapter 10), as the EPA and the Army Corps of Engineers have applied absurdly wide definitions of “wetland” and thereby stripped private property of its value.6 Any farmer or rancher can give you other examples of regulations imposed by the Bureau of Land Management, the Fish and Wildlife Service, and state agencies that prevent them from engaging in innocuous maintenance or improvement of their property.Read more at location 2498
Regulations that prescribe best practice in a craft or profession are subject to strict scrutiny.Read more at location 2504
Most of us are happy that many agencies regulate the health industry, that the Federal Aviation Administration regulates the airline industry, and that the Securities and Exchange Commission regulates the financial industry. But talk to any physician, pilot, or financial executive about those regulations, and you will get a sense of how different things look from their side of the street. They will agree that certain rules need to be in place—but the necessary rules are a small subset of all the ways in which regulators have made it more difficult for them to do their jobs as they should be done.Read more at location 2508
Regulations that restrict access to a job are subject to strict scrutiny.Read more at location 2522
One may argue that the government has a compelling reason to pass licensing laws when the profession is one that involves life and death. But licensing now affects about 1 out of 3 workers.Read more at location 2525
Should people really be required to get a license to work as an interior designer? Shampooer? Florist? Coffin maker?Read more at location 2526
Regulations that prevent people from taking voluntary risks are subject to strict scrutiny.Read more at location 2530
They should be free to ski down dangerous slopes, scuba-dive in hazardous waters, climb sheer cliffs, and engage in all the other recreations that can easily break bones or even end lives.Read more at location 2535
People should also be free to make informed and voluntary decisions about their health care, even if those decisions put them at risk. Regulations that prohibit access to a nontraditional treatment or to a drug that shows promise but hasn’t completed the FDA’s tortuous approval process are subject to strict scrutiny.Read more at location 2537
A leading resource for employers, The Essential Guide to Federal Employment Laws, has separate chapters for twenty major pieces of legislation that impose requirements on employers.Read more at location 2542
Regulations that are arbitrary, capricious, or an abuse of discretion are automatically eligible for civil disobedience.Read more at location 2546
it is essential that people reading or watching news reports about the trial are overwhelmingly on the side of the defendant, even though everyone knows that the defendant is technically guilty.Read more at location 2555
Protection of the environment is the leading example. Even people who are not active environmentalists reflexively think that violating a regulation intended to protect the environment is wrong. Sometimes environmental regulations are so egregiously stupid that the halo effect can be overcome and systematic civil disobedience is appropriate.Read more at location 2560
Many safety regulations also carry a halo effect, so we should avoid arguing that “ignoring this regulation increases the risk of injury only for people who are complete idiots.” Sometimes that argument will get support (the woman who sued McDonald’s because her coffee was too hot was widely derided), but we live in a world in which a substantial part of the population has become amazingly risk-averseRead more at location 2565
Employment regulations involving discrimination carry a halo effect. Affirmative action is a divisive issue in American life. In that context, disobeying regulations that are supposed to prevent discrimination will seldom get the overwhelming popular support that is needed for successful civil disobedience.Read more at location 2568
Choose regulations in which the people who might be harmed by violating the regulation are willing parties.Read more at location 2571
Choose regulations in which the spirit of the regulation is being obeyed even though the letter is being violated.Read more at location 2576
For example, the spirit behind the use of traffic lights is to facilitate the efficient flow of traffic and to protect pedestrians from being run over. But if there are no vehicles that can possibly reach the intersection before you cross the street, you can walk across the street against a red light without violating that spirit, as thousands of people do on the streets of Manhattan every minute of every working day.Read more at location 2578
Systematic civil disobedience cannot succeed if it is used on behalf of people who are trying to game the system. It is essential above all else that my proposed measures for supporting civil disobedience be used for defendants who have acted in good faith.Read more at location 2585
A good way to think about my strategy is that it will force regulators to confront the same reality that faces state troopers on America’s interstate highways. Typically, the flow of traffic on an interstate is above the stated speed limit. A majority of drivers on America’s interstates are engaged in civil disobedience just about all the time. The state troopers could stop any one of them and fine them. But normal practice is to stop only those people who are driving significantly faster than the flow of traffic or driving erratically. The state troopers are forced by circumstances into limiting enforcement of the lawRead more at location 2605
In sports, this enforcement philosophy is called “no harm, no foul.” If a violation of a rule has occurred but it has no effect on the action of the game, the officials ignore it and the game goes on, to the greater enjoyment of both players and spectators.Read more at location 2611
