Use Your Judgment
I have a new book, out this week, Saving Can-Do: How to Revive the Spirit of America. One reason America is fraying, I argue, is because of a root flaw in post-1960s law: the idea that law should make or validate correct choices. Law is everywhere—in thick rulebooks, years-long procedures, self-interested people pounding the table for their alleged rights ….
America’s energy comes from individual ownership of choices and values—not tiptoeing through the day with a little lawyer on our shoulders. The proper role of law is to define the scope of free choice by setting outer boundaries—no crime, no pollution, and so forth—not by extruding daily choices through the eye of a legal needle. Law is supposed to protect freedom, not replace freedom.
Nothing much works as it should in American public life because Americans aren’t free to act on their best judgment. Human judgment has an irreducible quality. Everyone knows who the poor teachers are, but how does a school principal prove it? “Subjective” judgment is not the enemy of freedom, but the essence of freedom. Protecting against poor choices in a free society similarly requires empowering judgment—for example, oversight by supervisory officials.
Governing without human judgment is like wearing a blindfold. Preventing American citizens from acting on their values is a formula for growing polarization and extremism.
Devising a cure is not the challenge—basically, to restore the human responsibility framework that the Framers created:
Modernizing America’s infrastructure requires giving environmental officials the authority to make tradeoff judgments.
Reviving energetic school cultures requires giving back principals and teachers their ownership of the classroom and the school.
Alleviating populist resentment requires getting law out of most human interactions. Let people be themselves, accountable to each other not through an exhausting legal gauntlet.
The challenge is inertia. The current legal system is accepted as a state of nature. “The difficulty lies, not in the new ideas,” as John Maynard Keynes put it, “but in escaping from the old ones.” A massive red tape state has been built in the last 50 years—at this point, comprising over 150 million words of binding federal law and regulation. Pruning this jungle won’t work, because what’s left is still mandatory. Did you complete the mandatory study of historic buildings?
Transitioning from the red tape state to a simpler responsibility framework will require broad public support—not unlike, say, the social consensus that allowed the Progressive movement to dislodge the legal philosophy of laissez-faire. Americans must come to see legal micromanagement as an affront to their freedom.
It's hard to see another cure. The current governing framework has no clothes. It fails in almost everything it does. Common sense is nowhere because it’s illegal. Americans are pitted against each other because they don’t feel free to be themselves. Americans are right to loathe Washington, but the cure is not mainly to change what it strives to do, but to replace its operating system—to empower human responsibility.
Our plan is to engage leading citizens to call for system overhaul. I’ll be doing public events around the country with some of America’s most respected citizens and thinkers—with George Will and AEI in Washington, with a prominent industrialist in Cleveland, with Joe Klein and Manhattan Institute in New York, and others.
Let us know if you’d like to help. America under its current legal system is headed nowhere good. We need to take back the freedom to use our judgment.
– Philip
The New Yorker published an essay by Joshua Rothman about Saving Can-Doand Barry Lam’s Fewer Rules, Better People, focusing on how too many rules are counterproductive.
Author and commentator Jonathan Leaf reviewed Saving Can-Do for his Substack, writing: “[Howard’s] proposals are specific and practicable. This is an important book.”
The book was also excerpted in The New York Sun and cited by Steve Forbes in this essay on education.
I discussed Saving Can-Do and government reform with James-Christian Blockwood on the National Academy of Public Administration’s Management Matters podcast.
Common Good’s work on infrastructure was highlighted in the Reason Foundation’s transportation newsletter.
Upcoming appearances:
On September 30, I’ll participate in an AEI forum on how to attract top talent to the federal workforce.
On October 3, I’ll participate in a lunch discussion with Jennifer Pahlka and Santi Ruiz
titled “Reviving the Spirit of American Government” at The C. Boyden Gray Center’s annual fall conference.On October 8, I’ll discuss Saving Can-Do at AEI with George Will and Philip Wallach.