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| Howard |
Philip K. Howard’s powers of concision are remarkable. In a
very readable Yale Law Journal piece, “From
Progressivism to Paralysis,” Howard, author and founder of the site Common
Good, writes:
"The Progressive Movement succeeded in replacing laissez-faire with public oversight of safety and markets. But its vision of neutral administration, in which officials in lab coats mechanically applied law, never reflected the realities and political tradeoffs in most public choices. The crisis of public trust in the 1960s spawned a radical transformation of government operating systems to finally achieve a neutral public administration, without official bias or error. Laws and regulations would not only set public goals but also dictate precisely how to implement them. The constitutional protections of due process were expanded to allow disappointed citizens, employees, and students to challenge official decisions, even managerial choices, and put officials to the proof. The result, after fifty years, is public paralysis. In an effort to avoid bad public choices, the operating system precludes good public choices. It must be rebuilt to honor human agency and reinvigorate democratic choices.”
The gravamen of the article is that progressive precisionism
causes paralysis because laws and regulations must be general and non-specific
enough to allow administrative creativity. And, a correlative point,
administrators should not be permitted to arrogate to themselves legislative or
judicial functions that belong constitutionally to elected representatives.
Why not? Because in doing so the underlying sub-structure of
democratic governance is subtly, and sometimes not so subtly, fatally
undermined. The authority of governors rests uneasily upon the ability of the
governed to vote administrators and representatives in and out of office, a necessary
democratic safeguard that is subverted by a permanent, unelected administrative
state that, like a meandering stream, has wandered unimpeeded over its
definitional banks.
Detecting a beneficial change in the fetid political air,
Howard warns, “Change is in the air. Americans are starting to take to the
streets. But the unquestioned assumption of protesters is that someone is
actually in charge and refusing to pull the right levers. While there are
certainly forces opposing change, it is more accurate to say that our
system of government is organized to prevent fixing anything. At every level of
responsibility, from the schoolhouse to the White House, public officials are
disempowered from making sensible choices by a bureaucratic and legal apparatus
that is beyond their control.”
And then he unleashes this thunderbolt:
“The modern
bureaucratic state, too, aims to be protective. But it does this by reaching
into the field of freedom and dictating how to do things correctly. Instead of
protecting an open field of freedom, modern law replaces freedom.
“The logic is to
protect against human fallibility. But the effect, as discussed, is a version
of central planning. People no longer have the ability to draw on ‘the knowledge
of the particular circumstances of time and place,’ which Nobel laureate
Friedrich Hayek thought was essential for most human accomplishment. Instead
of getting the job done, people focus on compliance with the rules.
“At this point, the
complexity of the bureaucratic state far exceeds the human capacity to deal
with it. Cognitive scientists have found that an effect of extensive
bureaucracy is to overload the conscious brain so that people can no longer
draw on their instincts and experience. The modern bureaucratic
state not only fails to meet its goals sensibly, but also makes people fail in
their own endeavors. That is why it engenders alienation and anger, by removing
an individual’s sense of control of daily choices.”
Indeed, as a lawyer (sorry to bring the matter up), Howard
probably knows at first hand that complexity, which provides jobs aplenty for
lawyers and accountants, is the enemy of creative governance. The way to a just
ordered liberty is not by mindlessly following ever more confusing and complex
rules – written mostly by those who intend to preserve an iron fisted status quo – but by leaving open a wide
door of liberty in society for those who are best able to provide workable
solutions to social and political problems.
Howard, I am told by those who know him well, is NOT A
CONSERVATIVE! Indeed, besieged conservative faculty at highbrow institutions
such as Yale are simply exceptions that prove the progressive rule; such has
been the case before and since the publication of Yalie Bill Buckley’s book, God and Man at Yale.
But I am also assured that Howard is an honest and brave man.
In an era in which democracy is being throttled by a weedy
and complex series of paralytic regulations produced by an unregulated
administrative state, any man or woman who can write this – “It is better to
take the risk of occasional injustice from passion and prejudice, which no law
or regulation can control, than to seal up incompetency, negligence,
insubordination, insolence, and every other mischief in the service, by
requiring a virtual trial at law before an unfit or incapable clerk can be
removed” -- is worth his or her weight in diamonds.
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