The Death of Common Sense

The Death of Common Sense: How Law Is Suffocating AmericaMother Teresa’s Missionaries of Charity believed two dilapidated buildings in New York would be ideal shelters for the city’s homeless. The city actually agreed with them and offered to sell the building for one dollar each. Yet two years later, the shelter remained unfinished and Mother Teresa’s nuns gave up in despair. New York’s bureaucracy caused so many delays and added so many costs, even at $1 per building the nuns could no longer afford to go forward. The nuns—who lived an austere lifestyle and preached simplicity and Christian humility—would not be able to purchase the building without spending hundreds of thousands of dollars installing modern elevators. Alas, New York’s homeless would remain on the street.
One might ask, how did this happen? Both parties in the transaction—and the homeless people they hoped to help—stood to benefit. There were no aggrieved parties that the homeless shelter would have damaged. No one stood to benefit by stopping the project. The homeless, presumably, would not have minded climbing stairs in order to get off the streets had anyone bothered to ask them. And yet the project was stopped dead in its tracks, not by some sinister villain but by the nameless, faceless force of bureaucratic inertia.
In country enamored with lawsuits, practicing New York lawyer Philip K. Howard took considerable personal risk in publishing the revised edition of his The Death of Common Sense. In this age of anti-government angst, he has written a book so infuriating that he is likely to give many of his readers a heart attack or stroke.
Following the story of Mother Teresa’s unfortunate nuns, Mr. Howard explains why there is a conspicuous lack of artwork in most elementary schools. Due to specific—and absolutely inflexible—fire code regulations that prohibit placing flammable paper near windows and doors, American children in many cities have to endure their schooling in Spartan, bare-walled classrooms.
“Big government is the usual suspect for these failures, “ Howard writes. “If only government got out of our hair, many think, everything would work fine. But dreaming of an agrarian republic is not likely to help much. No one I know wants to eliminate environmental protection. Fire codes are a good idea; we wouldn’t want the house next door built of kindling.
“The more important question is not why government is so big—we know in our hearts that any reduction would only occur at the edges—but why, with a few exceptions, it fails in even its simplest tasks. Government has imposed fire codes for centuries, but only our age has succeeded in barring children’s art from school walls.”
Before you write him off as just another angry white man, Howard is no anti-government ideologue. Far from it. In fact, he has worked with high-profile politicians in both parties, including—gasp!—that champion of the Left, former Vice President Al Gore. Howard even wrote the introduction to Gore’s book, Common Sense Government.

Howard’s gripe is not so much with the size of government, per se, nor with its political orientation. His contention is simply that the rule of law has been perverted to mean something very different from what a Thomas Jefferson or John Locke would have understood. Law, rather than being the codification of general principles, has come to mean procedure—precise, technical, mind-numbing procedure.

In our quest for fairness and equality, we fixate on form rather than substance and common sense is tossed out the window in favor of an inflexible rule book. The actual end—whether it be protecting the environment, ensuring worker safety or providing for the poor—doesn’t matter. The only thing that does matter is the precise means of following the rules.
As Howard explains,
Certainty, we seem to think, is important to law. Of course it is, you are probably muttering under your breath. It is, after all, the law. But look up at what we’ve built: a legal colossus unprecedented in the history of civilization, with legal dictates numbering in the millions of words and growing larger every day. Our regulatory system has become an instruction manual. It tells us and bureaucrats exactly what to do and how to do it. Detailed rule after detailed rule addresses every eventuality, or at least every situation lawmakers and bureaucrats can think of. Is it a coincidence that almost every encounter with government is an exercise in frustration.
It wasn’t always this way. Howard reminds us that as recently as the 1960s “government puttered along without detailed rules to meet every eventuality.” Forest rangers could carry the rules governing their responsibilities in their shirt pockets and “did just fine armed with a pamphlet of rules and their own common sense.”

Common Law and Common Sense
Given the size of the Federal Register and its equivalents at the state and local level, it is easy to forget that the United States has a common law legal system, inherited from the English. While continental Europe has a long tradition of precise, detailed civil codes, common law systems are more flexible and based on general principles and the weight of past precedent. In praising the common law system,
Howard writes,
Application of the common law always depends on the circumstances: The accident caused by swerving to avoid the child is excusable; falling asleep at the wheel is not. The most important standard is what a reasonable person would have done. Every principle has exceptions. More than anything else, the common law glorifies the particular situation and invites common sense. It was the common law that developed the jury system, in which a group of peers, not an expert in law, would decide right and wrong in each case.
These days, the exact opposite is generally true. Juries are instructed to decide whether particular laws were technically broken rather than consider the circumstances or the rightness or wrongness of the law itself.
In the traditional Anglo-American model, there was never a belief in the necessity of allowing for every possible contingency; human beings were presumed to be rational and capable of exercising judgment. They didn’t need a series of “if…then” statements like a computer.
The U.S. Constitution, Howard reminds us, is “a model of flexible law that can evolve with changing times and unforeseen circumstances,” and the founders of the country had a strong aversion to specificity. Alexander Hamilton was against the drafting of the Bill of Rights because he believed that enumerating any rights at all would imply the absence of other rights.
Perversely, it is the traditional American aversion to big government that is actually part of the problem, according to Howard. Because Americans instinctively mistrust the government, they have stripped its agents of anything resembling discretion. Discretion could lead to favoritism or arbitrary government, after all. But in attempting to shackle the government by reducing its regulatory role to a massive checklist, we have unwittingly made it even bigger and more arbitrary.
Unfortunately, the suppression of human discretion and common sense comes with a steep price tag, and by this I do not mean the explicit cost of running the government—which at nearly $4 trillion is not cheap, I might add. Time, money, and energy spent in complying with unnecessary rules are a major distraction, and the costs of lost productivity are incalculable. There is also a human cost. The U.S. Food and Drug Administration takes, on average, six years longer than other Western countries to approve new drugs and medical devices. Six long years can make the difference between life and death for patients in need of new treatments.

With Crisis Comes Opportunity
The Death of Common Sense is a book that is both maddening and depressing, but Howard does hold out hope that change is possible. It is not likely, however, without a massive change in priorities that will only be possible with a sufficiently large crisis.
Howard gives the example of the 1994 Los Angeles earthquake, which devastated the city’s highway infrastructure. California did not have the luxury of relying on procedure; every day that commuter travel was disrupted was a day of productivity lost to the state. Realizing the sense of urgency, California governor Pete Wilson threw procedure out the window. As Howard recounts,
Instead of a four-year trudge through government process, the Santa Monica freeway was rebuilt in sixty-six days, to a higher standard than the old one. From law’s perspective, the Los Angeles repair project was a nightmare of potential abuse. The process wasn’t completely objective; almost nothing was spelled out to the last detail. When the rule book got tossed, all that was left was responsibility. State officials took responsibility for deciding which contractors would be allowed to bid, and they knew they would be accountable if the contractors
At the Federal level, there are also a handful of agencies that still operate in this fashion. Though it has become a bit of a political lightning rod in the aftermath of the bank bailouts and “quantitative easing,” the Federal Reserve, arguably the most important and influential government institution in America, runs monetary policy at the discretion of the Board and Chairman Ben Bernanke. (While there are plenty of Americans who would love to see the Fed audited, consider this: if you think it is bad now, imagine how bad it would be if the Fed were run like the Food and Drug Administration.) If Ben Bernanke can take responsibility for the country’s monetary policy without being constrained by procedural hurdles, surely an elementary school teacher should be allowed to teach their class in peace and surely an OSHA inspector can make an on-sight ruling on whether a railing is safe or not—regardless of whether it meets government height guidelines.
While natural disasters will always be a part of life, it is man-made crises that present the biggest threat to the prosperity of the country. With the retirement of the Baby Boomers, Social Security and Medicare are effectively bankrupt, and the national debt is spiraling. If we are to deal with these issues as a country, we will need to see a return of discretion and common sense.
I recommend Mr. Howard’s book, and I believe it should be required reading for any candidate of either party in the coming presidential election. I would gladly cast my vote for any candidate who made the book their campaign manifesto.
Charles Lewis Sizemore, CFA
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