Paine Killers

The Death of Common Sense: How Law Is Suffocating America, by Philip K. Howard, New York: Random House, 202 pages, $18.00

Thomas Paine's famous tract Common Sense helped ignite our original revolt against arbitrary rule. Comes now Philip Howard's The Death of Common Sense to add fresh fuel to the contemporary revolt against arbitrary rules. But recalling Tom Paine's understanding of what common sense about government entailed allows us to see that Howard's title is both apposite and ironic.

Like Paine's slender tract in 1776, Howard's book has struck a national nerve, soaring on the best-seller list, landing its author on Oprah (to debate the now-infamous McDonald's hot coffee case), and sending politicians from both parties scrambling to enlist Howard to their side. Bob Dole has had Howard in for a chat, and President Clinton got Howard to accompany him to a photo-op on cutting government red tape.

The Death of Common Sense is not recommended for people with high blood pressure or insomnia. It's loaded with splendid examples of regulatory and legal stupidity, and contains a blood-boiling outrage every few pages. Howard hits more targets than a gunman with an Uzi, all of them deserving. He blasts the Occupational Safety and Health Administration, local building restrictions, the Federal Aviation Authority, the Environmental Protection Agency, the State Department, and local health regulators. And that's just in the first 20 pages. My favorite bon mot is his tongue-in-cheek suggestion that we establish a bureaucracy to make life miserable for other bureaucrats, to be called the Bureau of Accusations, Stings, and Humiliations, or BASH.

Beyond his barbs at the Endangered Species Act, the Americans with Disabilities Act, tort litigation in general, and a host of other targets, Howard also makes clear how the nature of individual rights has been distorted by the contemporary rights industry. Rights, Howard reminds again, are rights against the law, not positive goods that government is obligated to provide for any and all claimants.

Others have made this point more analytically and philosophically, but Howard's anecdotal approach certainly makes it more vivid, which helps explain the book's great success, and great value. The "rights-as-claims" mentality easily blends into a scam, as Howard illustrates with the example of an out-of-service New York City transit bus hit by a garbage truck. Even though the bus was out of service and empty, 18 people claiming to be riders filed suit for injuries. Such scams often succeed, because of the perverse calculus of the lawsuit settlement game.

Howard quotes from Hayek's The Constitution of Liberty, and even from Reason's own Tom Hazlett. He offers some judgments of genuine aphoristic quality, such as: "Government accomplishes virtually nothing of what it sets out to do. It can barely fire an employee who doesn't show up for work." Or this: "Modern law has not protected us from stupidity and caprice, but has made stupidity and caprice dominant features of our society." Or, in a slightly softer vein: "Law must not promise to purge people's souls. It cannot. Law can set up the conditions for interaction and work toward changes over time. When it tries to do more, it only drives us further apart."

But Howard's prescription undermines the force of the book, and reveals that he hasn't quite gotten to the heart of the matter of what common sense ought to entail. He thinks the problem is that bureaucratic rule has squeezed out human judgment and good sense by limiting discretion and reducing choice through cumbersome decision-making processes. Hence, Howard says, "Relaxing a little and letting regulators use their judgment is the only way to liberate our judgment."

Howard isn't wrong in his analysis of why bureaucratic rule doesn't work; trying to anticipate every possible contingency through a rule that will avoid partial or arbitrary treatment is a sure prescription for gridlock and inefficiency. But his remedy doesn't succeed in resurrecting real common sense about the matter: Once the premise of the regulatory state is accepted, we are destined to end up with the outrages of bureaucratic rule, no matter how wise and benign the administrators, and no matter how much discretion is allowed to mitigate the worst outrages. (In fact, allowing true discretion to bureaucrats is arguably worse than what we have now; aside from outright caprice, administrators will be hard pressed to avoid political favoritism. Even short of this problem, widening discretion might be an invitation for the further aggrandizement of the role of "experts" in managing society.)

For example, one of Howard's many attacks on OSHA involves a rule requiring that a dust mask have a close fit against the face, which caused an OSHA inspector to require that an Amish employee at a brick factory shave his beard regardless of the fact that the dust hazard in the factory was minimal. The employee quit rather than violate his religious scruples. It's true that allowing a regulator's discretion to override the particular rule would permit a sensible solution in this case. But if we really believe in common sense, we should conclude that we are able to rule ourselves in our private lives and enterprises without any OSHA at all. That's what the original "common sense" about self-government taught.

The common sense problem with the modern regulatory state is that it is based on the premise that "needs" are limitless, and therefore the growth and reach of the state is limitless: No problem or need is regarded as beyond the reach of the law, and an expert bureaucracy to execute the law. Howard comes close to recognizing that in many places in his book, but he shies away from making the categorical judgment that his argument invites; he never issues a Tom Paine-like clarion call to abolish the regulatory form of rule altogether, which is the only common sense solution that will suffice.

That said, The Death of Common Sense is a welcome book. It is another sign that government is falling into general disfavor. Such attacks help the cause of liberty, even if they don't offer a completely clear prescription for its restoration.

Contributing Editor Steven Hayward is research and editorial director for the Pacific Research Institute, a San Francisco-based think tank.