Letting Leaders Lead

Americans have lost confidence in America. It’s not hard to see why. Broken schools, unaffordable health care, homelessness, decrepit infrastructure, and student mobs at universities readily come to mind. 

The last three presidents have come to office promising “change we can believe in,” to “drain the swamp,” or to “build back better,” but government institutions seem beyond their control. 

Pundits blame political polarization. But most public failures have little to do with policy or politics: They’re failures of execution.

Nothing much works because the people supposedly in charge are no longer in charge. America is suffering from a failure of democratic authority. America’s governing systems were rebuilt after the 1960s based on a “massive redefinition of freedom,” historian Eric Foner found, as “a rejection of all authority.” The goal was to avoid unfairness or bias. The effect was to paralyze government and, paradoxically, to corrode individual freedom. 

Big change is in the air. You can practically feel the ground shaking. But where’s the vision? 

My view is that the solution is basic, indeed, a founding principle of our constitutional structure. Give back to officials and others the freedom to take responsibility in their own ways. America’s can-do culture is an individualistic approach to implementation. Let Americans roll up their sleeves and start making choices—schools will be fixed, homeless will be housed, infrastructure will be modernized, and universities will protect free speech. 

Re-empowering Americans to take responsibility is hardly radical. But the post-1960s governing framework is designed to avoid unfairness by disempowering human choice. It must be replaced by a new framework, more like the Constitution, that is activated by human responsibility. 

How Modern Law Corrodes Freedom

Three new legal mechanisms were devised after the 1960s to make officials demonstrate the correctness of their choices: Detailed rulebooks would not only set out the regulatory goal—say, a safe workplace—but specify in thousands of rules precisely how to achieve it; mandatory processes were required for officials to demonstrate correctness of, say, a personnel or permitting decision; and any aggrieved person had the individual right to challenge decisions. Rights against what? Against decisions by people in authority. 

At every level of responsibility, officials, teachers, and others are disempowered from acting on their best judgment. Teachers lack authority to maintain order and principals lack authority to remove ineffective teachers. Public managers have been stripped of critical management tools of accountability and resource allocation, environmental officials lack authority to give permits on a timely basis, and procurement officers lack authority to negotiate sensible contracts. 

Disempowerment of people with responsibility ripples downward into the daily choices of citizens. In any society or organization, common choices must be made—allocating resources, resolving disputes, maintaining standards of performance, holding people accountable, and so forth. Take away those choices by people in authority, and daily interactions are paralyzed by uncertainty and dispute.  

There is a concentric quality to freedom in social organizations. Your freedom to use common sense is dependent upon supervisors and officials having the freedom to use their common sense: 

• If teachers don’t have authority to maintain order, the resulting disruption will deprive students of their freedom to learn. 
• If supervisors lack authority to enforce standards of excellence, employees will soon find themselves shackled to bureaucratic rules dictating how to do their work, and condemned to a lackluster work culture without energy or pride. 
• If inspectors lack authority to focus on the goals of regulation, businesses will soon find themselves with multiple violations of technical requirements that matter to no one. 
• If hospital administrators must comply with dense bureaucratic and reimbursement rules, doctors and nurses will waste half their days in desk work and suffer burnout. 
• If university presidents and deans don’t enforce norms of civil discourse, professors and students lose their freedom to say what they really think. 

Freedom and authority are two sides of the same coin. Freedom doesn’t exist except within a framework of norms that are maintained by officials, judges, managers, and others with authority. Conversely, authority in a democratic society is just the freedom to fulfill a responsibility, and is forfeited when the responsible person fails. 

Rethinking the Role of Authority

Authority and freedom are mistakenly assumed to be opposite ends of a spectrum. It’s one or the other, a zero-sum game; the more authority, the less freedom. This is why conservative experts such as Friedrich Hayek, echoing Voltaire, thought that official authority had to be strictly delineated: “Government in all its actions [should be] bound by rules fixed and announced beforehand.” 

Authority conjures up nightmares of a society-wide drill instructor. But the way authority works in law, and the way it works for daily choices in most healthy organizations, is more like a security guard at the door: protecting against misconduct and other failures, not dictating daily choices. 

Individual freedom exists only within a framework of legal authority. Law enhances freedom because legal authority enables people to go through the day without undue fears of crime, pollution, and unsafe products. Law is like a fence around a corral, protecting against misconduct while also preserving an open zone of freedom—“frontiers, not artificially drawn,” as Isaiah Berlin put it, “within which men should be inviolable.” 

Within an organization, such as a university or workplace, authority empowers individuals by setting common standards and goals needed for people to work together. Working for a good organization can be exhilarating—but only when people in charge have authority to make choices essential for coordination, fostering the mutual trust that all are rowing hard together. 

Authority can be abused, as with segregation, pollution, and other reckonings in the 1960s. The villain was bad values, and the change in America’s governing values was overdue. But reformers went a step further to avoid abuses by disempowering officials from ever acting on their judgment. Under post-1960s law, any choice that affects other people is extruded through the eye of a legal needle—a kind of universal precautionary principle against official decisions. Never again would there be abuses of authority because choices must comply with detailed rules, be proven correct in legal proceedings, and honor individual rights. Our system of government became a “vetocracy,” in the words of political scientist Francis Fukuyama. 

With its single-minded focus on any conceivable abuse, the 1960s governing system forgot about freedom. Daily choices became fraught with legal risk. “In their zeal to create social and economic conditions” for better freedom, Isaiah Berlin predicted, reformers “tend to forget freedom itself.” Government has become unmanageable. Free speech has disappeared on campus. Spontaneity has disappeared in the workplace. Law is everywhere. The headlong quest to prohibit future abuses of authority suffocates freedom much more than the occasional bad choice by someone in authority. The open field of freedom is more like a legal minefield. 

Nothing much can be fixed, including freedom itself, until the operating framework of law is replaced by one that re-empowers officials to do their jobs—For example, to fix broken schools. 

Re-empowering Authority for a Free Society

The authority needed to uphold freedom and to manage government can be defined this way: People need sufficient freedom to fulfill a responsibility. A teacher must be free to maintain order in the classroom without fear of being dragged into a legal hearing to prove that Johnny threw the desk. An environmental official must be free to decide which are the important effects to be studied; otherwise reviews are interminable, a process of no pebble left unturned. 

What’s radical is empowering officials to make judgments about the right thing to do. To the post-1960s mindset, there’s hardly any worse sin than to be “judgmental.” Replacing human judgment with legal compliance became proof of our moral probity. No one can accuse you of bias if you’re just following the rules. Political scientist Alan Wolfe found that America after the 1960s adopted “an eleventh commandment: Thou shalt not judge.”

Achievement is impossible without human judgment on the spot. Ninety percent of the choices needed to make things work, management theorist Chester Barnard noted, must be made at the point of implementation. This human cognition is formed in our unconscious from years of training, experience, and perceptions. While these choices can be judged by others, they can rarely be proved right or wrong. “Good expert judgment is generally of an intuitive nature,” psychologist Gerd Gigerenzer notes, and cannot be demonstrated by "after-the-fact justifications." Because circumstances always differ, morality too can never be preset. “Moral knowledge can never be knowable in advance,” philosopher Hans-Georg Gadamer noted.

In any organization, management theorist Peter Drucker observed, “there have to be people who make decisions . . . who are accountable for the organization’s mission, its spirit, its performance, its results.” These decisions are unavoidably subjective. Deciding who’s good at what, for example, is astonishingly complex. As psychologists Barry Schwartz and Kenneth Sharpe describe in their book Practical Wisdom (2010), achievement often hinges on “character traits like loyalty, self-control, courage, fairness, generosity, . . . friendliness, and truthfulness,” as well as “perseverance, integrity, open-mindedness, thoroughness, and kindness.” 

Judgments by officials and others can readily be second-guessed—as the Constitution provides checks and balances among different branches of government. But judgments on the sensible thing to do can rarely be proved correct by objective facts. Life is too complex. The judgments of fairness and practicality that government should aspire to can’t be dissected into component parts, like strands of DNA. 

Distrust is understandable when government is so dysfunctional. But disempowering human judgment is abdication, not a strategy for getting somewhere. Subjective judgment is not the enemy of freedom, but the essence of freedom. If officials can’t do what they think is right, as noted earlier, pretty soon no one can.

Re-empowering Human Responsibility

Giving people the authority to do their jobs is not a new management theory. Find any school, any department, any agency that delivers and you’ll find people who feel free to act on their best judgment. Think of anything you feel proud of, and it too will involve personal judgments of what best to do. 

Re-empowering human judgment by officials allows government to work. Consider these examples:

• Al Gore’s Reinventing government initiative promoted a worker safety program that achieved better safety at lower cost. Companies with good safety training programs did not to have to worry about compliance with OSHA’s four-thousand-odd rules. 
• Australia replaced a thick rulebook for nursing homes with thirty-one general principles—such as having “a homelike environment.” Within a short period of time, nursing homes had markedly improved because, studies found, the employees now focused on residents’ needs instead of spending the day with their noses in rulebooks. 
• Operation Warp Speed, the public program that created Covid vaccines in less than nine months, succeeded because officials were free to use their judgment on where and how to place public monies. 
• When a section of I-95 collapsed in Philadelphia last year, the timeline for repair was almost a year. It re-opened twelve days later because Pennsylvania Governor Josh Shapiro and his transportation commissioner waived all procurement procedures and permitting processes. 

Re-empowering human authority will also enhance freedom:

• Schools can become oases of learning, responsive to the needs of students and their parents, only when principals have authority to maintain order and uphold standards of professionalism. 
• Doctors and nurses will no longer spend half the day filling out forms when the tangle of red tape for reimbursement and compliance is replaced by simpler frameworks activated by human judgment, and when fear of unjust lawsuits is alleviated by the authority of expert health courts. 
• Students at universities will be free to make the best of themselves only when university leadership asserts and enforces values for free speech and civil discourse; maintains standards of academic excellence; and defends curricula that, as former Harvard president Drew Faust put it, “transmits the heritage of millennia” and offers “learning that shapes the future.”

Restoring the everyday freedom of people to do their jobs has nothing to do with the partisan debate over deregulation versus more regulation. It’s a matter of liberating people to use their common sense in meeting their responsibilities. 

New leaders cannot alone do this. Area by area, dense rulebooks must be replaced by simpler frameworks, like the Constitution, that are activated by human responsibility. This reformation of American law would be historic. Just as the Progressive era abandoned the governing philosophy of laissez faire, restoring everyday freedom would replace the red tape state. Americans would have the freedom to do what’s right. Communities would take responsibility to do things in their own ways. Americans would be judged by how they do, not told how to do things. 

Breaking the Addiction

“The idea of law,” Yale Law Professor Grant Gilmore noted in 1977, has been “ridiculously oversold.” Law can’t save us from ourselves.

But people are “mightily addicted to rules,” Hume observed, and injecting more law is the standard response to alleviating the distrust that pervades society. The worse things work, the more distrust seems warranted, and the more law is piled on. Giving an official room to use judgment is unthinkable. What if people act like Robert Moses, the mid-century official who seized authority to bulldoze neighborhoods without any meaningful authorization? There’s a lot of room, however, between dictatorial power and public paralysis. Democratic authority is not anything goes. Authority is hemmed in by legal principles, overseen by officials up the hierarchy and ultimately by courts. 

Still, fear overwhelms reason. People yearn for clear law. But clear law is a myth. The regulatory goals of a safe workplace or a caring nursing home—not to mention a good school or hospital—are far too complex to oversee as a matter of rote compliance. Trying to cover every contingency with a rule is a bureaucratic black hole—each new ambiguity begets a new rule that begets a new ambiguity. Instead of legal boundaries supporting freedom, law is dizzyingly convoluted and incomprehensible. Instead of protecting against arbitrary authority, the impossibility of compliance gives regulators arbitrary power (Is your paperwork in order?).

Objective proof in a legal proceeding is even more unrealistic: How do you prove an employee has bad judgment or doesn’t cooperate with others? That’s why there’s near-zero accountability in the public sector. The new post-1960s legal framework inverted the idea of individual rights from a shield against state coercion into a sword for self-interest. Governing for the common good has been flipped into an exercise to mollify the lowest common denominator. 

In the utopian governing vision of the 1960s, government could be run like a software program, with civil servants tending the legal machinery without the need to assert values, make tradeoffs, or act on personal perceptions and instincts. This hands-free model would avoid any need for human judgment in governing. 

There’s no surer path to totalitarian authority. The aspiration for automatic government, purged of human judgment and fallibility, has created instead a massive traffic jam. Americans long for social order and freedom to do what they think best. They hate the stultifying rules and resent self-interested people and groups gaming the system. Wolfe found that Americans have “lost the distinction between right and wrong and desperately want it back.”

America is suffering from a crisis of human disempowerment. This is system failure, and what is required is a new system. The best option, and the only one consistent with democratic governance, is to re-empower the everyday freedom of Americans at all levels of society. Put people in charge, and America will start to work again. 

Philip K. Howard is founder of Common Good. This essay is adapted from his new book, Everyday Freedom: Designing the Framework for a Flourishing Society (2024, Rodin Books). 

Image: A school teacher with children. (Photo by Katerina Holmes from Pexels)