Promoting Everyday Freedom Requires Rewriting the Rule Books

Americans are drowning in thousand-page rule books that stifle liberty.

By Donald Devine, AMERICAN SPECTATOR                               29 March 2024

Philip K. Howard speaks on fixing broken government in 2011 (Long Now Foundation/YouTube)

What would you think about a Washington insider who was a partner in a big D.C. lobbyist law firm called Covington & Burling, the founder of a self-identified “nonpartisan” advocacy group called Common Good, and was a self-described “radical centrist,” whose main goal was to reform government administration to make it more effective?

Your first impression would probably be wrong.

This important author and activist has been moving right over the years and has won awards from conservative organizations. With his most recent book Everyday Freedom, Philip K. Howard has not only fully arrived on the Right, but in a few pages, he has put it all together in a book everyone can understand, learn from, and enjoy. (READ MORE: No One Is Safe: Payday Lenders’ Shady Practices Make Identity Theft Easy)

Writing from an unambiguously conservative perspective, he says: “I now see that the greater danger is not ineffective government but the corrosion of American culture.” The real problem is that big government bureaucracy has made it so that people “no longer have the freedom to take responsibility in their daily choices.” At this stage of bureaucratism, Howard now argues, average Americans’ “everyday freedom” requires “not so much reform but a complete change in direction.”

Thousand-Page Rule Books Drown Everyday Freedom

Howard bases much of his thinking about this loss of freedom for everyday citizens on the ideas of Nobel Laureate F.A. Hayek, Alexis de Tocqueville’s observations of American culture and community, and philosopher Michael Polanyi’s methodology. It is what Ronald Reagan called a fusionist synthesis (not Howard’s term) representing the ideals that made Western civilization work.

Howard finds that progressivism abandoned free markets early in favor of centralized government power and expertise to advance a welfare state, but it was not fully realized until the 1960s. Then, in the name of civil rights, “with the best of intentions,” its supporters created a legal system full of red tape and processes that “made people squirm through the eye of a legal needle” to achieve its goals. That system became so pervasive and complex that the average citizen lost any sense of traditional order and individual responsibility.

As Tocqueville had feared, centralized bureaucratic government tends to reach into all the “minor things of life,” which does not promote resistance but wears down on the mind’s unconscious self until, as Tocqueville predicted, “they are led to surrender the exercise of their own will.” The only option allowed is to follow the new administrative state into a legal and social order with no “wiggle room for bias, unfairness or error.” (READ MORE: The Best Kind of Hippie: A Classy One)

As a lawyer, Howard is especially knowledgeable about the change in legal mechanisms since the 1960s “rights revolution,” when government and society required one to prove innocence rather than being adjudged “not guilty.” As a result: 1) Law changed from general prescriptions to “one correct way” buried in thousand-page rule books on how to do pretty much everything; 2) Legal process rules were required to prove everything beforehand, to answer every possible question before taking action with resulting real-world delay for years to get it all correct; and 3) this impossibility of considering all beforehand encouraged lawsuits after the fact when some aspect of the plan aggrieved someone’s sense of their own liberty sued for neglecting some perhaps minor procedural aspect of the law.

Howard agrees with Hayek that real liberty is impossible without law, rights are subsequent to law, and, as a result, some level of government legal power is required for freedom. The failure of post-60s law is that it “puts tight legal controls on daily choices to prevent people with responsibility from making bad choices.” It proscribes one correct way to do things. But there is rarely one correct way and forcing authorities to adhere to one regardless of whether it fits is a main reason why the present system does not work.

Quoting John Locke, Howard notes that “the end of law is not to restrain but to preserve and enlarge freedom.” The rule of law must provide a standard that reduces social destruction enough to allow free trading and social order. Even today’s letter of the law is “too detailed, too cold and formal.” Good law should only forbid “unreasonable acts,” should only set broad principles not detailed rules, and have clear lines of authority to interpret and enforce them.

Authorities need the power to act under these rules, even judges — of whom Howard thinks of perhaps too highly — should not be held to narrow rule-following. Other officials do need enough power to solve problems like the recent Philadelphia interstate highway, which was repaired in record time using common sense and suspending many bureaucratic rules. He concludes that public trust can be restored only if public and private institutions are allowed to act reasonably.

Redo the Rule Books

The level of government matters. The Constitution provides national government limited power and institutions for specific responsibilities. Over the years, national power has grown well beyond what the Founders envisioned. Howard says one major result is that the “outsourcing of social services to distant government bureaucracies” has put the social order “on life support.” Tocqueville’s intermediate institutions have “largely been supplanted” and weakened by big government bureaucracies. National and state income support may be helpful but only if it comes without “harsh” rules that do not allow local agencies, churches, and charities to exercise their more humane personal administration. (WATCH: The Spectacle Ep. 87: Conservatives Think Power Is Icky)

A “complete change in direction” requires a dramatic response that would match the Progressive one that provoked the present crisis. Howard even presents a “practical mechanism” to achieve it. Congress would create “independent recodification commissions,” where the “structure built since the 1960s must be abandoned, not amended, and, area by area, replaced by a framework activated by human responsibility.” My experience is that such commissions would be staffed by insiders favoring the status quo; so perhaps Congress itself should run the whole process, whatever its faults, hopefully in contact with a President who legally would have to sign any proposed law.

Howard concludes with Hayek that “the rule of law is effective … only insofar as it is part of the moral tradition of the community.” That is what Howard presents in his vision of the American experience and what an informed people would need to do to sustain it. To make this possible, they will need Howard’s book. It is only 84 pages long, easy to read, affordable, and required if America is to recover its everyday freedom.

Donald Devine is a senior scholar at the Fund for American Studies in Washington, D.C. He served as President Ronald Reagan’s civil service director during his first term in office. A former professor, he is the author of 11 books, including his most recent, The Enduring Tension: Capitalism and the Moral Order, and Ronald Reagan’s Enduring Principles and is a frequent contributor to The American Spectator.