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The Death of Common Sense

Once upon a time, a wise king ruled a wondrous land called NewDeal. He wielded power with efficiency and cut through wasteful red tape by giving all of his workers the discretion to make decisions without fearing for their jobs. Then along came a bad man with a black moustache who said that people in wheel-chairs deserve access to public buildings. The evil lawyer filed a lawsuit, and the Supreme Court ruled that legal process was as important as efficiency, and King Roosevelt’s NewDeal turned to brass, all of its buildings and all its people forever frozen in legal limbo. Nothing could be built; nothing accomplished; and government employees feared for their jobs and refused to make decisions and the trains no longer ran on time.

Howard, a lawyer himself and a government employee in charge of assisting New York City’s development projects, blames the loss of his Camelot on a modern obsession with “absolutist reason” chiefly implemented by the chief culprit of his tale—the federal Administrative Procedure Act. His book is a long screed against what he calls “process,” which he insists undermined or halted many superior construction projects in New York. Howard makes many good points. He legitimately observes that “the law is perfectly clear, but impossible to know,” due to its complexity and the fact that no one is empowered to act without being second-guessed and approved. He correctly repudiates the “illusion of perfectibility,” which he accuses tort lawyers of seeking to enforce. Our legal system has in many ways become “regulatory incarceration.” And the law does enforce conformity and “the norm,” suppressing diversity and innovation. But that is its nature. The obsession with personal legal rights that he blames for this predicament did not begin in the 1950’s and 1960’s, as Howard believes, transforming a pursuit of strict equality into “a government subsidy with a blank check.” Rather these rights are implicit in the ideas of the Enlightenment and flow naturally from the initial concepts of equality of opportunity to the modern notion of equality of result for the simple reason that people are not born equal and therefore equal opportunity is an illusion.

Howard may as well have titled his book “Attack of the Wheel-chairs.” For, like many doctrinaire conservatives, his exemplars of evil are the disabled, and especially disabled children, who are “lording it over” the rest of us, no doubt to the surprise of the average reader. “The disabled lobby is waging warfare against every other citizen,” he wails. It is they who bring building projects to a halt. Mothers of disabled children are bankrupting schools with their unreasonable demands, he continues, implying that it is a waste of space to allow a crippled child into a class-room. What Howard omits to mention, however, is that the parents of crippled children are not only required by law to bring their kids to school, but pay the same taxes as everyone else to support those schools. In Howard’s world, however, the unreasonable mother is to blame. And, amazingly, there is no recognition of the fact that a few parking spaces and elevators is all that most disabled have in this life, bread crumbs tossed at them to relieve society’s guilt, while they continue to be stone-walled in terms of employment, education, and social acceptance.

Similarly, although he repeats the common canard that medical doctors are on the verge of abandoning their profession due to tort lawsuits, he cannot cite a single instance of this having actually occurred. This reviewer has met dozens of ex-teachers, ex-accountants, ex-professionals of all stripes, even ex-lawyers – but never an ex-doctor. Or even a poor one. Until then, Mr. Howard, please dispense with the tired “lawyers are driving doctors out of business” myth, which is somehow always dragged out as the second installment of “the disabled are ruining the country” argument. He calls the disabled lobby “potent” for passing the ADA, but the ADA was mere window-dressing, quickly gutted by the Supreme Court and rendered meaningless and largely unenforceable. When the majority of Congress is in wheel-chairs, that will be time when the disabled are “lording it over the rest of us.” Not before.

In line with these views, Howard condemns wide streets, elevator regulations, and anti-single-room occupancy codes. But wide streets are safe streets; elevators are not merely convenient but essential to allowing the elderly and the disabled to live independently; and no one wants a return to crowded tenements that formerly acted as magnets for crime and disease in every city in the U.S. Do these drive up the cost of housing? Certainly. But the alternative is more crime, hospitals, and prisons, which drive up the cost of everything. Just as the alternative to legal process, which, after all, derives not from the APA but from the Fifth and Fourteenth Amendments to the U.S. Constitution, may not be greater efficiency, but greater poverty, disease, and gulags.

Why is it that extremists of both Left and Right, even while unable to agree on anything else, always seem to agree that the guy in the wheel-chair is to blame for all of society’s woes? From the Right: the disabled are an inconvenience, disrupting society and unjustly forcing “normal” people to change to selfishly suit themselves, instead of dying for having lost the struggle for existence. From the Left: the inability to engage in “honest labor” makes the guy in the wheel-chair lazy and evil and by definition a parasite and capitalist.

Finally, as for government employees being “risk-averse” and fearing lawsuits—what could be more laughable? Years of this reviewer’s experience have shown the typical government employee to be abusive, capricious, contemptuous, arbitrary, and utterly unconcerned with whether they are overstepping legal bounds or whether they may get sued, secure in the knowledge that they cannot be fired, no matter what. They break the law with joyful impunity and laughingly defy the public to do anything about it. With the most powerful and influential law firms defending government agencies, their confidence is well-placed. I’ve seen teachers force left-handed students to write with their right-hands, shout at them and give them F’s, then receive a raise for doing such a fine job. If the APA did not exist, it would have to be invented to halt such abuse. If government burocrats had unbridled discretion, nothing at all would be built, for anyone. Instead of “The Death of Common Sense,” perhaps this book should be called “The Triumph of Common Prejudice.” —SiriusReviews.com.

Sirius Reviews

The Death of Common Sense, 1.0 out of 5 based on 1 rating
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