Samizdata

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

Tyler Cowen over at his Marginal Revolution blog lists out a load of articles about the case for privatising stuff like flood defence, and critiques of U.S. Federal efforts in that direction. He personally believes that flood defence, spectacularly breached in New Orleans, is a proper function of the state. But being the fine scholar and liberal writer he is, gives a comprehensive roll of reasons for thinking these things could be done better out of the State’s hands.

Flood defence can be presented as one of those classic “public goods” that cannot arise via the Invisible Hand of the market. Is that really the case, though? It seems to me that if the full, insurance-related costs of living in a flood zone were presented to the people either living or looking to live there, it might either encourage a lot of flood-related civil engineering defence, or for that matter discourage locating in such areas in the first place.

Anyway, hindsight is very easy, especially if you are thousands of miles away. In the meantime, I urge folk to look at the many examples of voluntary compassion flagged up by Glenn Reynolds.

Whilst the after-effects of Hurricane Katrina will take weeks to unfold, the ‘experts’ flocked to the disaster. They squawked the usual litany of ‘climate change’ and oiloholic armageddon, overjoyed that they now had a ready-made disaster to cite as evidence. And, of course, such relish could not be served without the knowledge that their moral certainty had been strengthened by the dead Americans; corpses that will serve as an additional accusation in the long list of crimes attributed to President George Bush.

James Glassman, over at TCS, quotes some of the “environmental extremists” who wrote before they thought.

But that doesn’t stop an enviro-predator like Robert F. Kennedy Jr. from writing on the Huffingtonpost website: “Now we are all learning what it’s like to reap the whirlwind of fossil fuel dependence which Barbour and his cronies have encouraged. Our destructive addiction has given us a catastrophic war in the Middle East and – now — Katrina is giving our nation a glimpse of the climate chaos we are bequeathing our children.”

Or consider Jurgen Tritten, Germany’s environmental minister, in an op-ed in the Frankfurter Rundschau. He wrote (according to a translation prepared for me): “By neglecting environmental protection, America’s president shuts his eyes to the economic and human damage that natural catastrophes like Katrina inflect on his country and the world’s economy.”

The bright side of Katrina, concludes Tritten, is that it will force President Bush to face facts. “When reason finally pays a visit to climate-polluter headquarters, the international community has to be prepared to hand America a worked-out proposal for the future of international climate protection.”

He goes on, “There is only one possible route of action. Greenhouse gases have to be radically reduced, and it has to happen worldwide.” In other words, thanks to Katrina, we’ll finally get Kyoto enforced. (He might start at home, by the way. Europe is not anywhere close to reducing CO2 to Kyoto standards. In fact, the U.S. is doing much better than many Kyoto ratifiers.)

Tritten is unrepentant about his article.

Yet, despite the uproar he has caused, Trittin remains unrepentant. On Wednesday, his spokesman Michael Schroeren even said that he “can’t understand … at all” why Americans are upset. Trittin’s comments “are true and he wrote what he meant.”

Perhaps he would understand if he had to hand out food parcels to the homeless or dig out corpses from the mud. But we know one universal truth about politicians from the European Union: they never dirty their hands because of their pristine ideals.

Reports about Hurricane Katrina make for grim reading. Not just the immediate human and physical toll, which is the worst of all. Also worrying must be the financial impact, both in terms of the likely huge insurance payouts and the rising price of oil – although high oil prices may eventually trigger a supply response, if the market works as it should.

More than 90 percent of the Gulf of Mexico oil production has been shut down and for how long, is as yet unclear. Crude oil is now over $70 a barrel and could even march higher, particularly if another hurricane takes hold, or if political and military affairs take another bad turn in the Middle East, or for that matter other places such as Nigeria and Indonesia. The black stuff is getting ever more expensive and of course, makes a mockery of the sort of anti-SUV posturing of the sort I mentioned a few days ago here. As the price rises, people will not change their motoring habits to please non-drivers like Andrew Sullivan, but because it makes plain common sense. Alternative energy sources, even those once branded too offbeat, starting to attract more venture capital and support.

Britain’s Channel 4 news had an item on the hurricane in which the general gist of the commentary went like this, to paraphrase a bit: “Is America getting the payback in weather for being the world’s largest carbon polluter?” The broadcasters may mean well but it came across as almost gloating in tone. I hope that was not the intention.

The bureaucratic mind at work, from the WSJ Political Diary:

“Before deploying from Savannah, Georgia to Iraq by a chartered airliner, the troops of the 48th Brigade Combat Team, a National Guard unit, had to go through the same security checks as any other passengers. Lt. Col. John King, the unit’s commander, told his 280 fellow soldiers that FAA anti-hijacking regulations require passengers to surrender pocket knives, nose hair scissors and cigarette lighters. ‘If you have any of those things,’ he said, almost apologetically, ‘put them in this box now.’ The troops were, however, allowed to keep hold of their assault rifles, body armour, helmets, pistols, bayonets and combat shotguns” — reported in the Air Finance Journal.

Attempts to use the Kelo ’eminent domain’ ruling to take property in New Hampshire from US Supreme Court Justice David Souter have now been extended to trying to do the same to Supreme Court Justice Stephen Breyer.

This is splendid but maybe it would be good to extend this to Senators and Congressmen and particularly much lower level local politicians who collude with property developers. Some of these people often have property outside the jurisdiction they live in (and thus maybe be vulnerable to politically or personally motivated grudges from other elected representatives).

The important thing is to make as many members of the political class uneasy that they could be targeted. What is sauce for the goose is sauce for the gander.