The Death of Common Sense.

• Author: Nagel, Robert F.

Do you want to know why the Republicans triumphed in the mid-term elections this past November? Why Rush Limbaugh and his dittoheads dominate the airwaves? Why people seem so exasperated and angry? Philip Howard has an answer that, while depressing in many respects, will nevertheless gladden the hearts of neoliberals everywhere.

Howard says that hyper-activist government at both the national and local levels is suffocating the people. It is assaulting their dignity and draining their spirit. But (here is the cheerful part) the problem with progressive government is technique rather than substance. Enlightened policies, like environmental protection or aiding the poor, are not deeply flawed. The problem is that we pursue those policies through the methods of law. It is legalism, Howard says, not big government, that is driving Americans mad.

And for a rich, street-level account of the absurdities of bureaucratic legalism and its offshoot, the rights explosion, you can hardly do better than this book. Illustrations crowd every page: safety rules that classify sand as hazardous and bricks as poisonous; sentencing "grids" that assign higher culpability if drugs are sold in sugar cubes rather than tissue papers; affirmative action regulations that turn every conversation into a potential lawsuit; and rights of all kinds--student rights that have undermined order in public schools; employee rights that have sent honest evaluations the way of the dinosaur; handicapped rights that have made ordinary civic improvements, like public bathrooms, into fantastically expensive ordeals. Like printing money, Howard says, distributing more and more rights has cheapened the underlying idal; rights are now seen as special group benefits instead of protections for core liberties.

Howard's gloomy criticisms of government bureaucracy and the rights-grab are not, of course, wholly original, but he conveys them vividly and concretely. Moreover, he emphasizes two under-appreciated points.

First, he persuasively links the excesses of modern government to the mentality of lawyers. Legal training tends to inculcate all the intellectual impulses that are running amok in modern government: the striving for certainty, uniformity, precision, neutrality, and comprehensiveness; the distrust of official discretion and raw politics; the faith in court-like procedures and centralized decision making; and the uncritical devotion to abstract doctrines and rights. The bureaucrats'...