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I recently read Philip K Howard’s The Death of Common Sense: How Law is Suffocating America. It is an infuriating look at how politicians have legislated responsibility and judgement out of consideration when coming up with ever more exact, non-sensical laws. Even Mother Teresa could not get a break from our bureaucratic nightmare:

In the winter of 1988, Mother Teresa’s nuns of the Missionaries of Charity walked through the snow in New York’s South Bronx in their saris and sandals looking for abandoned buildings to convert into homeless shelters. They found two, which New York offered them at $1 each. The nuns set aside $670,000 for the reconstruction, then, for a year-and-a-half, they went from hearing room to hearing room seeking approval for the project.

Providence, however, was no match for law. New York’s building code requires a lift in all new or renovated multiple-storey buildings of his type. Installing a lift would add upwards of $130,000 to the cost. Mother Teresa didn’t want to devote that much money to something that wouldn’t really help the poor. But the nuns were told the law couldn’t be waived even if a lift made no sense.

The plan for the shelter was abandoned. In a polite letter to the city, the nuns noted that the episode “served to educate us about the law and its many complexities.”

What the law required offends common sense. After all, there are probably over 100,000 walk-up blocks of flats in New York. But the law, aspiring to the perfect abode, dictates a model home or no home.

The book is full of examples like this one, each one showing exactly how critical thinking and common sense have been regulated out of laws in favour of precision. And, as Howard puts it, the more precise the rule, the less sensible the law.

America’s modern legal system has achieved the worst of all worlds: a system of regulation that goes too far —while it also does too little. A number of years ago, two workers were asphyxiated in a Kansas meat-packing plant while checking on a giant vat of animal blood. OSHA did virtually nothing. Stretched thin giving out citations for improper railing height, OSHA re-inspected a plant that had admittedly “deplorable” conditions only once in eight years.

Then three more workers died —at the same plant. The government response? A nationwide rule requiring atmospheric testing devices in confined work spaces, though many of them have had no previous problems. Most such legal dictates are stacked on top of the prior year’s laws and rules, the result is a mammoth legal edifice: federal statutes and rules now total about 100 million words. The US Federal Register, a daily report of new and proposed regulations, increased from l5,000 pages in the final year of John Kennedy’s presidency in 1963 to over 68,000 pages in the second year of Bill Clinton’s.

The second chapter of Howard’s book is entitled The Buck Never Stops. This phrase is what came to mind as soon as I heard all of the responsibility-dodging going on in Louisiana in the wake of Hurricane Katrina’s destruction. And it would make the perfect title for this interview with the mayor of New Orleans, Ray Nagin, in which he expresses his frustration at the lack of action taken by authorities at all levels, and their failure to give him any power to act now. Some bites from Nagin’s outburst:

Now, I will tell you this — and I give the president some credit on this — he sent one John Wayne dude down here that can get some stuff done, and his name is [Lt.] Gen. [Russel] Honore. And he came off the doggone chopper, and he started cussing and people started moving. And he’s getting some stuff done. They ought to give that guy — if they don’t want to give it to me, give him full authority to get the job done, and we can save some people.

…[D]id the tsunami victims request? Did it go through a formal process to request?

…But we authorized $8 billion to go to Iraq lickety-quick. After 9/11, we gave the president unprecedented powers lickety-quick to take care of New York and other places.

Now, you mean to tell me that a place where most of your oil is coming through, a place that is so unique when you mention New Orleans anywhere around the world, everybody’s eyes light up — you mean to tell me that a place where you probably have thousands of people that have died and thousands more that are dying every day, that we can’t figure out a way to authorize the resources that we need? Come on, man.

The emphasis on process is mine. By using this word, Nagin has pinpointed the problem with American law. Sure, we need due process in our justice system, and in other areas where we do not wish the government to use (blatant) coercion against its citizens. But there are other instances – fixing a leak in a levee on an urgent basis, for instance – in which procedure more often than not gets in the way of a sensible result. In Howard’s words:

[M]odern process barely distinguishes among the vast range of government acts, and has thrown its cloak over every decision. Ordinary decisions are subject to rigid formalities taken as seriously as the due process protection in a criminal trial. The actual goals of government are treated like a distant vision, displaced by an almost religious preoccupation with procedural conformity.

…Individual initiative in government has shriveled up and lies dormant. Process has, indeed, rendered initiative unlawful…Irregularities are dangerous, someone might argue; these procedures serve important practical purposes, like preventing fraud and getting the best price, and it would be unwise to permit exceptions. But serving practicality, as anyone within ten miles of a government contract knows, is the last thing these procedures do. Their inefficiency…is legendary. Fraud, notwithstanding all the procedural layers, happens all the time.

…Orthodoxy, not practicality, is the foundation of process. Its demons are corruption and favoritism, but the creed of this orthodoxy is a perfect uniformity. Only if all things are done the same way can government be fair. Sameness, everywhere for everybody, is the operating instruction of modern government…But concepts like equality and consistency are absolute; they have no logical stopping point; there is no place where they say, “Oh, I certainly didn’t mean that a broken lawnmower should be treated as a federal case,” or, “The Chicago commissioner shouldn’t worry about bidding procedures with the river only a few feet above the leak.”

Where do you draw the line? No one wants to take that risk, so the line is never drawn. Shuffling to the rhythms of process, answering any potential complaint with one more procedure, becomes what government does.

I may be preaching to the choir here, but surely most of us have a strong sense of the government’s ineffectiveness, do we not? Which is why I find it so strange and irritating that so many people in Louisiana believed that the state would save them. It would be a nice thing to believe, a comforting thing to believe, but when push comes to shove, do you really believe that this group of responsibility-dodging, procedure-obsessed egotists would save you? Would you entrust them with your life, the lives of your family, your home? Only cognitive dissonance would allow for such a positive conclusion.

At some point, the wishful thinking of those in danger should have disappeared in favour of reason. For many, it did. For too many others, it did not. If anything positive is to come out of this tragedy, I hope it is a wide awakening across America and other countries that the state is not your friend.

Cross-posted to JackieDanicki.com