The Death of Common Sense/Review, J. Colannino

"The Death of Common Sense" is Howard's classic text (1994).  It is prescient in its approach, predicting the health care legislation of 2010 by many years.  Howard argues that common sense has died, sacrificed on the altar of prescriptive legislation.  That is, once upon a time, common law with its general principles reigned supreme.  For example, the general principle that property belongs to an owner means that others are forbidden to harm it.  This is the ultimate basis of environmental law.  The problem as Howard sees it is that this general approach has been legislated out of existence by statutes that are prescriptive ad nauseam, including many arcane rules of procedure.  For example, Amoco spent many millions dollars attempting to capture an insignificant amount of benzene at the pipe while much larger emissions were not allowed to be touched, both to the dismay of Amoco, the public, and presumably some regulators.  If the general principle of reducing benzene to its lowest practical level were followed, the cost would have been reduced and the emissions abated -- both by an order of magnitude.  However, the law was so prescriptive that neither regulators nor the regulated were allowed to do the right thing. 

Since 1994, things have only gotten worse.  As an environmental professional, I see this in spades in environmental law today.  Regulators simply will not confine themselves to telling the regulated *WHAT* they must accomplish, but *HOW* they must accomplish it.  That is a recipe for disaster because no amount of planning can anticipate every scenario.

The bigger problem, according to Howard, is that accountability is emasculated.  The regulator is not accountable for using common sense because the statute disallows it.  The legislator is not accountable because he has delegated regulation to the executive branch.  The result is a perfect storm: elected officials are unaccountable, regulatory executives are unaccountable, and the regulated spend wasteful amounts of money without addressing the actual problems.  Just look at the complicated one-size-fits-all codes put out by OSHA, the EPA, the IRS, and every other agency that cost too much and accomplish too little. 

Up to this point, I agree with Howard.  However, in the closing chapter, he misses the larger issue.  The reason accountability has been jettisoned is because the legislative branch has unconstitutionally granted legislative powers to the executive branch.  This is a clear violation of the separation of powers.  Legislators are given the enormous privilege and awesome responsibility of making law because they are the only branch of government elected by the people.  The only responsibility and required duty granted by the Constitution to the executive branch is to execute and defend the laws passed by the legislature.  This sacred obligation has been violated willy-nilly in both directions: not only has the executive branch usurped legislative powers, it also has refused to execute the will of the legislature.  These are impeachable offenses, yet they are happening at all levels of government with barely a notice.  As an example, consider the defense of traditional marriage (e.g., Proposition 8 in California and DOMA at the federal level).  The point is not whether one agrees with the law -- bad law and bad legislators can be remedied by the people at election time -- the point is that respective executive branches are refusing to execute the will of the people by failing to execute or defend established law duly enacted by the people's representatives.  This is a recipe for disaster, and the cake is just about baked.

Because Howard misses the forest for the trees, his final chapter "Releasing Ourselves" offers anemic and milquetoast "remedies." If only we would return to principles rather than prescription, Howard feels we would be safe.  But this is tantamount to tautology: yes, the problem will be fixed once the problem is fixed; the larger issue is that there is no way under the current system to return to principles.  The legislature has endowed the executive branch with prescription in lieu of principle; until they take it away, we shall continue to reap what we have sown.  Remember that the legislative branch is the final constituted power.  They alone have the power to abolish agencies and repeal laws -- from the IRS to the U.S. Constitution itself -- nothing is beyond their reach including the executive and judicial branches.  Yet, the legislature has one master -- the people themselves.  We ultimately bear the full blame of our fate befallen.  Perhaps history will record 2010 as the beginning of a great awakening of the American people, or perhaps not.  Time will tell.

The book is organized into four chapters: I. The Death of Common Sense; II. The Buck Never Stops; III. A Nation of Enemies; IV. Releasing Ourselves.  Long a classic text, I recommend this book for many reasons, foremost among them, Howard's book and its contained examples remain a classic proof text and a cogent testimonial to an executive branch run amok.