All Commentary
Sunday, October 1, 1995

The Death of Common Sense: How Law Is Suffocating America

The Solution to the Abuses of Government Is Less Government


It is rare that a book should carry in its title a double entendre so embarrassing to the author. Howard intends to say that common sense has died in the morass of modern law and legal regulation, which he finds wasteful, counterproductive, and laughably ineffective. “Modern law has not protected us from stupidity and caprice,” he says, “but has made stupidity and caprice dominant features of our society.” The book lays bare regulation’s ugly underbelly, with case after case of silly governmental action angrily recounted by the author.

So what should we do about it? Here the reader is treated to a second death of common sense: Mr. Howard’s. He just can’t bring himself to see that the solution to the abuses of government is less government.

The opening case nicely illustrates his hangup. Mother Teresa’s Missionaries of Charity wanted to reconstruct a burned-out building in New York City to make it into a homeless shelter. They didn’t want, and would refuse to use, an elevator, but city regulations insisted they spend the extra $100,000 to put one in anyway. As a result of the impasse, the nuns gave up on the project. Howard is appalled by this outcome. “There are probably 1 million buildings in New York without elevators. Homeless people would love to live in almost any one of these.”

What’s the way to prevent this kind of regulatory absurdity? The common sense reply is: get government out of deciding things like who must have an elevator. How could a government agency ever have the wisdom and sensitivity to know, for scores of thousands of different buildings every year, when an elevator was appropriate and when not? Let owners, architects, builders, and tenants figure it out.

This answer never occurs to Howard, not in this case and not in connection with the dozens of other regulation horror stories he presents. He’s a man of the left, it appears, with the old New Dealer’s deep, unexamined faith in government. He believes it should manage everything: schools, medicine, businesses, environment, safety, housing, zoning. Anyone who suggests government is overextended, he says in an impatient aside, is guilty of “dreaming of an agrarian republic.” Howard is the first to agree that all this massive regulation has gone painfully wrong, but that doesn’t mean that the idea of big government is flawed; it’s just been carried out incorrectly.

What’s the right way to do it, then? How do we avoid dehumanizing red tape, bureaucracy, and litigation, and still give government the power to regulate everything in sight? Howard doesn’t stress his answer, but it clearly lurks in his pages: we give government officials arbitrary power to regulate as they see fit. “When we demand that the welfare state address difficult human problems like poverty and homelessness, and ordinary ones like education, we must allow the humans doing the job to operate appropriately.”

To Howard’s way of thinking, bureaucrats should be free to use their own judgment in deciding who has to have an elevator, let us say. When Mother Teresa comes by, he assumes they would let her off the hook. But Howard doesn’t seem to worry about the negative side of this arbitrary power. What happens when someone rubs an official the wrong way and is ordered to put an elevator in his dog’s house? He can’t be permitted to complain to anyone. If the courts hear the case, that would restart the litigation engine Howard so deplores. Appealing to a councilman or congressman would lead to the massive legislation he has spent his book criticizing. So taxation with representation must go by the board. Obviously, Howard hasn’t thought through his idea “to let bureaucrats loose without precise instructions.”

Judging from this book’s great popularity, there are lots of people these days in the same boat with Howard: they hate how government works but they still believe in it. It hasn’t yet dawned on them that government is based on force, and that no matter how you slice it, force is a defective foundation for social reform.