VERNON, Conn.
Philip K. Howard’s powers of concision are remarkable. In a very readable Yale Law Journal piece, “From Progressivism to Paralysis,” Howard, founder of the nonprofit and nonpartisan reform group Common Good (commongood.org), 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 unimpeded 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 economics 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’’ in terms of the current American political parlance. For that matter, 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 William F. Buckley Jr.’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 the 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.
Don Pesci is a Vernon-based columnist.
