Philip K. Howard : Are Americans free to do what’s right and sensible?
Today, the answer is no, because America finds itself in legal gridlock.
Look at American culture. Something basic is missing. Americans know it. Nothing much works as it should. Simple daily choices seem fraught with peril. In the workplace, we walk on eggshells. Big projects—say, modernizing infrastructure—get stalled in years of review. Endemic social problems such as homelessness become, well, more endemic. Oh, there goes San Francisco. Doing what’s right is not on the table. Who’s to say what’s right? Extremism grows.
Powerlessness has become a defining feature of modern society. Americans at all levels of responsibility feel powerless to do what they think is needed. The culture wars, sociologist James Davison Hunter explains, stem from institutional impotence: A “growing majority of Americans believe that their government cannot be trusted, that its leaders . . . are incompetent and self-interested, and that as citizens, they personally have little power to influence the . . . institutions or circumstances that shape their lives.” Feeling fragile, and buffeted by forces beyond our control, many Americans retreat to online groups defined by identity and by distrust of the other side as “a threat to [our] existence.”
It’s hard to identify what’s wrong amid the clamor and conflict in modern society. But a clue can be found in remembering what makes us proud. America is where people roll up our sleeves and get it done. The ability to do things in our own ways activates the values for which America is well-known: self-reliance, pragmatism, and loyalty to the greater good—what Alexis de Tocqueville called “self-interest, rightly understood.” For most of American history, the power and imperative to own your actions and solutions—the concept of individual responsibility—was implicit in the idea of freedom.
Americans didn’t abandon our belief in individual responsibility. It was taken away from us by a post- 1960s legal framework that, with the best of intentions, made people squirm through the eye of a legal needle before taking responsibility. Individual responsibility to a broader group, for example, was dislodged by a new concept of individual rights focused on what’s best for one person or constituency. The can-do culture became the can’t-do culture. At every level of responsibility, Americans have lost the authority to do what they think is sensible. The teacher in the classroom, the principal in a school, the nurse in the hospital, the official in Washington, the parent on the field trip, the head of the local charity or church . . . all have their hands tied by real or feared legal constraints.
The cure is not mainly new policies, but new legal operating structures that re-empower Americans in their everyday choices. People must have “everyday freedom,” by which I mean the individual authority, at every level of society and every level of responsibility, to draw on their skills, intuitions, and values when confronting daily challenges. They must own their actions. It is this ownership of choices that gives freedom its power and makes it the source of pride. That’s how things get done sensibly and fairly.
In a crowded society, individual freedom also requires a framework for mutual trust. Here as well, everyday freedom is key to rebuilding a hierarchy of authority to protect against antisocial behavior. Restoring the authority to use judgment when applying law is as important for a judge and a public official as for a citizen. Our liberty requires judges and officials to assert norms of reasonableness. Otherwise, self-interested people will use law to claim almost anything.
“Freedom” is used in many ways, often to support contradictory positions and policies. “Everyday freedom” is not directed at policy goals but is a philosophy of implementation and interaction. Letting people use their judgment when fulfilling responsibilities should be a goal of both progressives and conservatives. It’s the only way to deliver good government. By empowering individuals to do what they think is sensible and right, it’s also the only way to pull America out of the downward spiral of worsening failure, distrust, and alienation.
Instead of purging authority to prevent abuse, a framework for freedom rebuilds clear lines of authority to make common choices, and to oversee those choices. Unless the teacher has authority to maintain order in the classroom, the students aren’t free to learn. Unless the official has authority to give a permit, infrastructure isn’t built. Unless the university president has authority to enforce standards of civil discourse, there’s no free speech. Unless the judge has authority to dismiss unreasonable claims, everyone will continue to walk on eggshells in the workplace and in society.
The litmus test for a free society is this: Are Americans free to do what’s right and sensible? Today, the answer is no, because America finds itself in legal gridlock. That’s why America must scrap the red tape state, and restore a governing framework built on the solid foundation of individual responsibility and accountability.
Philip K. Howard is the author of “Everyday Freedom: Designing the Framework for a Flourishing Society,” from which this is excerpted.