In January 2014, a lifelong District of Columbia parks employee, Medric Mills, collapsed while walking with his grown daughter. They were across the street from a fire station, close enough for his daughter to yell for help. Mills was lying on the sidewalk, dying, right in front of people trained to save him. But they refused to cross the street to help because, they told bystanders, the rules required them instead to call 911. By the time the ambulance arrived, over 10 minutes later, it was too late—Mills died soon after arriving at the hospital.
This is how many public safety officers are trained nowadays. In 2011, firemen in Alameda County refused to rescue a suicidal man who had swum out to sea because they hadn’t yet been re-certified for “land-based water rescues.” Therefore, they explained to passers-by, it would be illegal for them to try to save the man’s life. Later that day, when the fire chief was asked by a reporter what he would have done if it had been a drowning child, he said, “Well, if I was off duty I would know what I would do, but I think you’re asking me my on-duty response and I would have to stay within our policies and procedures because that’s what’s required by our department to do.”
Law is essential to freedom because it safeguards citizens against misconduct and abuse. By drawing boundaries against wrongful conduct, law provides a protective zone of freedom within those boundaries. Companies can’t pollute; businesses can’t cheat; people must honor contracts. On this open field of freedom, people can act spontaneously without undue defensiveness
Modern law goes a giant step backwards—it often bars people from doing what’s right. Law’s proper role is now seen as instructing people how to make daily choices. Instead of providing the framework for freedom, law has replaced it, creating a legal minefield rather than an open field for free choice.
We see it every day. Teachers are told never to put an arm around a crying child. Principals are required to suspend students who did nothing wrong, such as the seventh-grader who had “possession” of a pill for one second before immediately rejecting the supposed gift. Employers don’t give job recommendations. Children are barred from playing tag. Doctors are prohibited from doing what a patient needs by rigid practice guidelines. Social workers can’t rescue a child from a dangerous home because of mandatory waiting times. Workers escaping the Deepwater Horizon explosion couldn’t cut loose the lifeboat and nearly died because of a rule that prohibited them from carrying a knife.
Since the 1960s, generations of lawmakers have steadily added more laws and rules—all in the name of making sure things are done correctly. Each alone seems logical in the abstract. Wouldn’t it be better if public safety officers were trained for land-based rescue?
The granularity of regulation is all-encompassing. Nursing homes, for example, must store food “not less than 15 cm above the floor,” provide “.09 recreational personnel per resident,” and comply with a thousand other rules that prescribe meal times, table cutlery, cooking protocols, and anything else regulators can think of. Schools have volumes of rules. Want to use a wooden ladder at work? Consult six pages on federal wooden ladder regulations.
Every year the rulebooks get thicker. After all, writing regulations is what many regulators do. Did something go wrong? Write a rule. Did someone find a loophole? Clarify it with another rule. Is there an ambiguity? Write a regulation. Lawmaking by legislatures is also a one-way ratchet—Legislators get credit for passing laws, not pruning them. Should unlicensed people be able to give manicures? Pass a law.
Law is good, we assume, so more law is better. The theory is that humans make mistakes and disagree, and therefore it’s good to have rules. Our dream society lies just over the horizon, once lawmakers and regulators figure out how to make the intricate pieces fit together.
In our headlong quest for a legally perfect society, we don’t take the time to take stock of what‘s been created so far. But pause for a second, and look back at what these generations of regulators and lawmakers have created. What you see is a massive, well-intentioned, legal junk pile. It’s called the law of the land. But it looks like it was created by crazed person with obsessive-compulsive behavior. One by one, most regulations seem plausible, but, together, they are incoherent—with 82 separate teacher-training programs, 56 financial literacy programs, 20 programs on homelessness, and so forth. It’s basically central planning without much planning—rigid central dictates that no bothers to coordinate.
It weighs heavy on the society that creates it. Day by day, it drives people to distraction by diverting energy to mindless legal compliance. All these rules have an opportunity cost; complying with immaterial rules uses up the discretionary time and energy of doctors, teachers, social workers, and managers of all sorts. It is often counterproductive. Studies of nursing homes, for example, show that quality suffers when employees and inspectors alike go through the day with their noses in rulebooks, not focusing on what’s actually going on around them. Overbearing regulations prevent people from doing their jobs.
But inefficiency and ineffectiveness are not its only evils. This obsession with rules is creating an amoral culture. We have reached a tipping point in the culture where Americans are now trained to look to the rules instead of their own judgment. Instead of asking “What is the right thing to do?” we ask, “What does the rule require?”
In 2007, at Jamaica high school in Queens, teachers started calling 911 to get police to help them deal with disorderly students. This didn’t look good in annual metrics on school safety, so the school imposed a rule that teachers could no longer call 911 until first getting approval from the principal’s office. When Mariya Fatima, a ninth grader, had a stroke, the teacher dutifully complied and refused to call 911 until she could locate someone to approve it. The child almost died from the delay of an hour in seeking help.
Doing what’s right always requires human judgment. Rules can protect against bad things, but don’t have the capacity to make things happen fairly or sensibly. Management expert Chester Barnard thought that 90 percent of all accomplishment turned on making choices at the point of implementation. People always have to perceive the problems before them, including many unexpected nuances, and decide how to handle them.
Common sense is not a just a normative judgment about wisdom, but a structural feature of any functioning organization. For anything to work, including law itself, there must be ample room for individual responsibility. Law without human judgment is a degenerative disease—a rigid rule causes failure, spawning another rule which has unintended consequences, and so forth. Why had teachers at Jamaica High School resorted to overusing 911 for common classroom disruptions? A bevy of detailed rules—designed to protect against unfairness by teachers—had effectively removed teacher freedom to deal with adolescent misbehavior.
Senseless bureaucracy is part of what spawned the Tea Party. Just get government off our backs. But when conservatives get to power, they don’t seem to do much about it. That’s because they have attacked the goals of regulation—say, environmental protection—instead of the true villain: the mindless bureaucratic blob that leaves no room for people to use their common sense in daily decisions.
Political debate is almost entirely in the wrong dimension. Conservatives get nowhere by demanding “deregulation,” because liberals are correct that most Americans want clean water. But the rose-tinted glasses worn by liberals focus only on the virtues of the regulatory goals and don’t allow them to see the failures of regulatory implementation.
Government is broken. Every American knows it. But the reason it’s broken is disguised in the mountains of regulatory detail. The detail itself, not government’s goals, is what makes government fail. Dictating daily decisions is formula for failure. Don’t think for yourself. The rule will tell you what to do.
Law has been rebuilt in the last 50 years to be an instrument of control, not a framework for human responsibility. Ironically, this is the one precept on which liberals and conservatives agree. Conservatives distrust public officials and want to shackle them with detailed rules. Liberals distrust business and anyone with power—better to tell them exactly what to do. Bound together by mutual distrust, both sides end up lashing themselves to the mast of rigid law. Idiocies multiply in direct proportion to the accumulating legal rigidities. Fireman must call 911. Teachers must not call 911.
Our quest for better leaders—“Change we can believe in”— is wishful thinking. George Washington himself couldn’t run the country today, because accumulated law would prevent him from acting on his judgments about right and wrong.
The leadership needed in America today is not to run the country, but to rebuild it. The legal jungle must be bulldozed, and replaced by radically simpler framework of goals and principles. The goal is not de-regulation, but liberating human responsibility so American can meet its public goals without smothering our free society. This is a job for independent committees, like Bowles-Simpson, not a partisan slugfest. The simplified legal framework of goals and principles will require everyone, officials and citizens alike, always to ask: What is the right thing to do here? Disagreements will focus on right and wrong, not parsing of legal language.
The greatest danger is that no one wants responsibility. Americans have been conditioned to believe in rules. What if the nursing home operator skimps on food? What if the inspector demands Versailles? All of us can readily conjure up horror scenarios by the isolated person acting badly. But decisions are rarely made by one person in a bubble. They are made in a social setting, surrounded by lots of other people with various ways to resist bad decisions.
Americans are suffering from Stockholm Syndrome—having been subjected to mindless bureaucracy for several generations, we can’t imagine how freedom in daily choices could work. We’ve become sheep, not active owners of our own moral and practical choices. Rather than break a rule, we watch while someone dies. Tocqueville tried to warn us:
“I should be inclined to think freedom is less necessary in great things than in little ones… Subjection in minor affairs does not drive men to resistance, but it crosses them at every turn, till they are led to surrender the exercise of their own will. Thus their spirit is gradually broken and their character enervated.”
American greatness is built on a culture in which people wake up in the morning energized by the fact that they own their own choices. They are free to do things their way. They have the right to do what they think is right. Letting humans use their common sense is not an invitation to anarchy. It is freedom, and accountable both legally and socially to the free choices of others around them.
Today, doing what’s right is often unlawful. This is not because of bad leaders, or polarized politics, but because of a governing structure that is fatally flawed. Sending reformers into this vast regulatory jungle with pairs of shears is a fool’s errand. There’s no way to prune this vast tangle. It has grown from a rotten root—striving to replace human judgment with detailed dictates.
It’s time to confront the incoherence of our legal utopia. Yes, humans are fallible, and often make errors. But millions of rules result in perpetual error, and, as a terminal side effect, make leadership and accomplishment illegal. This system can’t be fixed.
That’s why, daunting as the prospect may be, America has no choice but to rebuild the legal framework of American government. Nothing will work sensibly, or fairly, until human responsibility is restored as the activating force for all public choices.