Originalism is the way we all want to be read, so why doesn't it have more adherents?
Philip K. Howard, 71, is a white-shoe corporate lawyer (senior counsel at Covington and Burling) who since the 1990s has been arguing, in a series of succinct and well-reviewed books, that what America needs most is fewer lawyers like him. The first of those volumes, The Death of Common Sense (1995) was subtitled How Law Is Suffocating America. It argued that our nation is drowning in bureaucratic overkill and stumbling in a legalistic miasma occasioned by a plethora of economically paralyzing statutes and regulations. Howard followed that bestseller with The Collapse of the Common Good: How America’s Lawsuit Culture Undermines Our Freedom (2002), Life Without Lawyers: Restoring Responsibility in America (2009), and The Rule of Nobody: Saving America From Dead Laws and Broken Government (2014). The last became a finalist for the Manhattan Institute’s Hayek Prize, named after the Austrian champion of free markets and national economies liberated from Keynesian dirigisme.
In 2002, Howard founded Common Good, a studiously nonpartisan nonprofit whose advisory board includes such luminaries across the political spectrum as Newt Gingrich, Francis Fukuyama, Shelby Steele, and former Democratic Sen. Bill Bradley. In 2017, Howard served on Donald Trump’s transition team and then, briefly, as a member of Trump’s since-disbanded Strategic and Policy Forum, a group of business leaders tasked with advising the new president on ways to create jobs and achieve economic growth, primarily by streamlining regulations. The experience left him disillusioned, he writes in his introduction to his new book Try Common Sense: Replacing the Failed Ideologies of Left and Right:
The 2016 election . . . showed, sooner than I expected, that voters are so fed up with overbearing government that they were ready for change at almost any price. But the tepid response by both parties surprised me more. After continuing to work through 2017 with the new administration and Congress to try to unstick the gears, I realized that persuading Washington is hopeless.
One might argue that in fact over the past two years the Trump administration has done a pretty good job, via deregulation and shepherding tax cuts, of pushing both employment and economic growth to record 21st-century levels, in contrast to the tepid figures that marked the previous presidential administration. But Howard’s quarrel isn’t really with Trump, Congress, Republican or Democratic versions of inertia, or, indeed even the “failed ideologies” to which his book’s title refers. He devotes a mere eleven pages to a rather superficial run-through of what he regards as the “unworkable” political world-views of both liberals and conservatives (liberals push ever more fine-grained government intervention, conservatives are mindlessly obsessed with free markets), then positions himself squarely in the middle: “I find myself agreeing with conservatives such as Friedrich Hayek on individual initiative, and with liberals like Arthur Schlesinger on the need for stewardship for the future.”
The real theme of this book, however, as he reveals a sentence later, is the very same theme that he explored in his first four books: the U.S. legal system’s sheer excess of statutes, administrative rules, permit requirements, and court decisions, all designed to ensure the achievement of laudable goals (fairness, workplace safety, public health, and so forth), but in reality stifling inventiveness and exacting huge tolls from the economy. Howard attributes this to “visions of correctness”—essentially blind faith in the rule of law—held by liberals and conservatives alike. “Our goal was to create a kind of automatic government, where law would operate as a software program,” he writes. “But shackling officials with detailed rules, paradoxically, resulted in disempowering ourselves.”
Howard is an entertaining writer, and his catalogue of the horrors wrought by the current snarl of laws, regulations, and bloated bureaucracies is entertaining indeed. There’s the family-owned apple orchard in upstate New York that must comply with 5,000 different rules issued by seventeen different regulatory agencies—including walking around the trees every morning to check for mouse and deer droppings. There were the volunteer firemen in Virginia who saved a suffocating toddler’s life by rushing her to a hospital in their firetruck—and then got suspended because the truck wasn’t supposed to be used as a “transport” unit for victims. There was the Washington, D.C., judge who sued a dry cleaner for $54 million over a lost pair of pants. He lost the suit and was disciplined—but why was he allowed to file it in the first place? Caregivers can’t pick up screaming children because they’re not allowed to touch. Parents get in trouble for letting their kids walk to school by themselves. Opening a restaurant in New York City requires eleven separate permits.
Part of the problem, Howard believes, is our government’s accumulation of obsolete laws: farm subsidies left over from the New Deal, a Davis-Bacon Act dating from 1930 that sets wages on federal construction projects (and raises labor costs by 20 percent). “Congress is like the Roach Motel,” he writes. “Laws check in but they don’t check out.” He saves his most acid criticism, however for public-employee unions—unknown and even unthinkable until John F. Kennedy allowed civil servants to engage in collective bargaining during the 1960s as payback for their support in his election and Congress codified those rights in 1978. The unions promptly began the process that cynics had predicted: using their power to elect officials who would give them the green light to consolidate their power even further. It’s difficult to fire underperforming workers in the first place thanks to a raft of protective laws and litigation precedents. It’s almost impossible to fire them if they work for the government. The city of Los Angeles spent five years and $3.5 million to fire seven allegedly incompetent teachers but succeeded in getting rid of only four, “at an average legal cost of almost $1 million each,” Howard writes. He adds: “[P]ublic unions have evolved into an enemy of the common good.” Amen, brother!
The opposite of the rule of law is the rule of men, and this is essentially Howard’s proposed solution. It’s what he means by “try common sense.” In an appendix titled “Ten Principles for a Practical Society,” he recommends scrapping the entire tottering U.S. legal and bureaucratic superstructure for a skeletal armature of laws and regulations that would give both private individuals and public officials the scope and flexibility to exercise personal responsibility. One-stop permitting shops for small businesses would replace today’s labyrinthine system. Statutes and rules would be sunsetted if they no longer served the public good. Agencies could terminate incompetent or disruptive employees without further ado (which would have the benefit of raising all-around workplace morale and restoring pride to civil service), and judges could summarily dismiss pointless lawsuits. Needless to say, public-employee unions would be among the first institutions to go. Howard argues that they are unconstitutional anyway, an infringement of the power of the executive branch to hire and fire within limits of reasonable discretion.
And it is here that the chief problem with Howard’s book arises: Who would implement this massive mucking out of multiple Augean stables? Howard’s answer is: commissions, committees, and experts. A “commission” would abolish public unions. “[P]eriodic review commissions” would recommend changes in salary levels and work rules for public servants. “[R]ecodification commissions” would simplify the statutory system and get rid of outdated laws. A “special committee” would recommend guidelines for children’s play and autonomy. “[E]xpert health courts” would substitute for wasteful and expensive medical-malpractice litigation. Well! Perhaps Howard’s faith in the virtue, mental fortitude, and sheer numbers of the best and the brightest whom he would designate to staff all those commissions and committees is greater than my own, but I can’t help but wonder if they wouldn’t be the usual round of faded politicos, Ivy League superstars, and anointed public intellectuals. There would also be ideological controversy: Would Jordan Peterson be allowed on a commission? How about Ezekiel Emanuel of the Obamacare “death panels”? William F. Buckley’s chestnut about preferring to be governed by the first 2,000 names in the Boston telephone directory comes to mind.
That said, Try Common Sense is an engagingly written and never-dull aperçu that pinpoints with deadly accuracy in only a few pages so much that is wrong with the current American administrative state. It is also buttressed by copious endnotes and an impressive bibliography whose contents range from classic political theorists such as Aristotle, Locke, and de Tocqueville to such up-to-date offerings as J.D. Vance’s Hillbilly Elegy and Greg Lukianoff’s and Jonathan Haidt’s The Coddling of the American Mind. I have one last cavil, however. Perhaps because he felt disillusioned at the end of his service to Trump, perhaps because all self-described political centrists feel compelled to bash the current president, but suggesting that Trump is a “semi-totalitarian” characterized by “fear of the other,” seems off. If Trump actually were a semi-totalitarian instead of hemmed in by a somnolent-to-outright hostile Congress, he might make a good candidate for one of Howard’s hypothetical commissions. You may need a semi-totalitarian to drive a stake into the heart of those public-employee unions.