Everyday Freedom

Mid-20th century Supreme Court Justice John M. Harlan maintained that law represents “the balance which our nation, built upon the postulates of respect for the liberty of the individual, has struck between that liberty and the demands of an organized society.” In Everyday Freedom: Designing the Framework for a Flourishing Society, lawyer and New York Times bestselling author Philip K. Howard has written an eloquent and concise book about how to strike that balance better today: Since regulations are typically how government navigates and maintains that balance, Howard calls for a new legal framework to simplify regulations and empower individuals at all levels of society.

Regulations should not mandate what precise steps must be taken for completing most tasks, but rather, set general standards of conduct. For example, Australia has guided its nursing homes to foster a “homelike environment.” Applying similarly general principles, a teacher should be able to adjust the lesson plan to suit the particular students in a given classroom, and a police chief should be able to terminate a temperamental officer on staff, without elaborate procedural constraints. Howard defines this “everyday freedom” as the people’s “individual authority, at every level of society and every level of responsibility, to act as they feel appropriate, constrained only by the boundaries of law and by norms set by the employer or other institution.” Unlocking that freedom promises to restore American ingenuity and faith in a government that has suffered what Howard calls “system failure,” due to onerous and incomprehensible red tape.

Howard introduces his argument with an erudite discussion of human agency and its centrality to dignity and achievement for individuals. Citing authors from Alexis de Tocqueville to Daniel Kahneman, and influenced by the philosopher Michael Polanyi, Howard argues that the freedom to make decisions and respond spontaneously in a particular set of circumstances—in short, “to do what is needed”—undergirds progress. Those human judgments about what specific actions ought to be taken in a given moment are largely subjective and intuitive; they cannot be reduced to objective criteria.

Howard’s argument channels similar ones articulated by early 20th-century legal realists like Supreme Court Justice Oliver Wendell Holmes, Jr. In his famous speech “The Path of the Law,” Holmes accepted that when it comes to legal reasoning, “certainty is generally an illusion.” Nevertheless, the law’s ultimate dependence on “unconscious judgment” did not trouble Holmes, because “the law can ask no better justification than the deepest instincts of man.” Another legal realist, Supreme Court Justice Benjamin N. Cardozo, shared Howard’s abhorrence of societal risk aversion. Individuals ought to exercise their human responsibility: “The timorous may stay at home,” Cardozo thundered.

Like the legal realists, Howard aims to construct a “framework” of law that embodies social norms. The law should delineate the bounds of permissible conduct to build a “corral” that encloses a “field of freedom,” in which people can flourish. Howard’s framework has three legs: “outer boundaries against unreasonable acts;” “using broad principles, not detailed rules;” and “clear lines of authority to interpret and enforce these legal principles.” Those boundaries and principles should reflect widely held community norms, with detailed rules reserved for complicated and potentially catastrophic activities, like air travel. Elsewhere, a “hybrid” approach would be appropriate, with specific requirements like wearing a hardhat at a construction site supplementing general safety principles. In Howard’s telling, the three components of his framework have a “concentric” quality and reinforce one another. Since individuals’ freedom to exercise common sense relies on those in authority to do the same, officials are subject to review by their superiors, judges and, ultimately, at the ballot box.

Howard’s critiques of the present legal system will be familiar to admirers of his prior books. The crisp eighty-four pages of Everyday Freedom will also attract new readers who sense the foibles of our regulatory system, but for whom the subject might otherwise seem daunting. An accomplished lawyer, Howard is not a paleoconservative bent on destroying the modern regulatory state. Rather, he seeks to restore what Supreme Court Justice Felix Frankfurter called “deeply embedded traditional ways of conducting government,” by curbing regulatory excesses. For instance, Howard would not eliminate precise limits on dangerous pollutants, even as he would streamline environmental review procedures for proposed infrastructure. Crucially, he would disarm the individuals who wield legal rights as a “sword” to impede legitimate policy decisions. Because “[a] lawsuit is a tool of state power,” judges must serve as “gatekeepers” to narrow or dismiss excessive cases at the outset, such as a lawsuit brought for $54 million against a dry cleaner for losing a pair of pants. While critics could contend that this would infringe on the freedom of individuals bringing cases, to Howard, curbing causes of legal action would liberate the community by “removing the legal Sword of Damocles that hangs over daily choices in America.”

Everyday Freedom reprises debates on the role of individual rights that date to the founding era. As the historian Gordon Wood has shown, the Federalists initially argued that a bill of rights was superfluous, because the Constitution’s separation of powers structurally prevented government overreach. The enactment of the Bill of Rights was a political compromise to win the ratification of the Constitution. Accordingly, the Bill of Rights restated British common law rights instead of creating new ones. Only in the mid-20th century did the Supreme Court carry the Bill of Rights into the daily life of state law, as Howard observes. His view of individual rights hearkens to the Federalists’ traditions, without engaging in the historical speculations or hidebound textualism of some Originalists.

The brooding omnipresence behind Howard’s book is the challenge of how to implement his vision. Howard’s most practical, if sometimes contentious, prescription is a more active conception of the judicial role. Judges should “defend the boundaries of everyday freedom” by throwing out nuisance suits and narrowing standards for liability, emulating Justice Cardozo and other legal realists. In the near term, Howard recognizes that today’s polarized political parties are unlikely to adopt his program, because that would require them to recast the system that currently sustains them. Wholesale reforms would thus require “overwhelming public demand” from a social movement that, so far, has yet to coalesce.

The administrative reforms of Al Smith, the four-time governor of New York and 1928 Democratic presidential nominee, offer a concrete example of the type of movement that Howard envisions. “What people want is an honest accounting,” Smith proclaimed. “They want every dollar of public money to bring a dollar’s worth of public service.” He rationalized New York’s bureaucracy to reduce costs and expand services, even while cutting taxes. As Howard proposes, Smith worked with Republican leaders like Charles Evans Hughes to enact these common-sense reforms through bipartisan commissions. The avuncular manner and humble origins of this political “Happy Warrior” allowed him to win the people’s support for his dry but impactful program.

In Everyday Freedom, Philip Howard has provided the vision for refreshing our law and society. With providence and no small degree of intentionality, a political leader of Al Smith’s caliber can emerge to implement it. 

Theodore L. Leonhardt served as a research associate to former Secretary of State Henry Kissinger and is the co-author of Divine Fire: Groton School and the American Century (Martin & Lawrence Press, 2014).

Image: The Statue of Liberty rising out of a fog, Manhattan, New York. (Unsplash: Luke Stackpoole)