How About We Start Vacation With An Essay?

I just (at 7:15 on Saturday morning) finished my first book of the vacation.

Don't worry, I was already halfway through it yesterday morning; I've only read 92 pages so far this vacation. I'm sure Will Charbonneau and Josh Hooker are already over 500.

No, I actually wanted to talk about this book, rather than the number of pages I have looked at so far. It's titled The Death of Common Sense: How Law Is Suffocating America, written by Phillip K. Howard and published in 1995. That's a bit scary, actually: because the problems he described when he wrote the book fifteen years ago are even worse now.

But you see, I have an opportunity, here. Because I'm a teacher, and I have an audience of people who are generally pretty bright and motivated and capable, and who therefore have the potential to make some kind of change, to begin some kind of movement. That would be you folks. So if you'll indulge me a little, I'd like to give you the gist of this book, and see if I can strike a chord with anyone, maybe start a few snowballs rolling downhill.

The premise of the book is that this country has, over the last fifty years or so, made a serious mistake in the way if handles the law and government regulations. We got the idea into our heads that the people in government who managed things, who inspected and regulated private industry, who doled out and supervised social services, were basically untrustworthy. They were incompetent, they were corrupt, they were biased in one way or another, and therefore, the decisions they made were unfair. So in the name of fairness, which is a perfectly honorable and valuable goal, we set about correcting the problem. The mistake we made was in how we tried to solve the problem, and it's a mistake we are still making today.

Now, the reasonable thing to do when you come across a corrupt government official would be to fire his cheatin' behind, and replace him with someone else. You can also go back and fix the problems he might have caused, by hiring a new contractor or by changing an unfair ruling, something like that -- though it's interesting to note that corruption doesn't always lead to a bad outcome, even if it might be an unfair one. For instance: let's suppose that, oh, say, Michael Kirby paid me off to get an A in the class. I happily take the bribe (please note that this is made-up stuff: I would never take a bribe, and Michael would never offer me anything more valuable than a CD of "Ice, Ice, Baby.") and give him the A, and Michael goes on to college and becomes a successful coach of the U.S. rugby team. Who exactly was hurt by this? Michael's A wouldn't affect anyone else's grade, and if he couldn't do the work on his own without the bribe, the A wouldn't do him much good, as at some future point, he would fail because of his own incompetence. Or he might become the 43rd President. Just kidding. Not really.

You could argue, I suppose, that everyone else's class rank would be skewed by one, and you would be right if you said this situation would be simply unfair to everyone who worked for his or her A, but: life is unfair. Grades are unfair. Students get sick, students get hurt, students get dragged along on extended family vacations that make them wish they were sick or hurt, and in all of those cases the students miss school and their grades might be lowered because of it, and it would be unfair. Take this little Winter Break reading challenge: any of my students with uncorrected vision problems, or dyslexia, will not be able to read as quickly as I, and so will not be able to earn the extra credit. That's not fair.

But that's the way it goes. At least, we used to think that way. And what we used to be able to do was: use our judgment, on a case-by-case basis, and try to adapt the circumstances to meet the needs of everyone. Let's say Cole drops a Mento in a two-liter of Diet Coke (Saw it on Mythbusters, of course) and the resultant foam jet sprays right in Will's eyes, blinding him for the rest of the vacation. I could, if I were trusted enough to make decisions, set up a special deal for Will, that would give him another two-week window to read as much as he could, and try to top my page total; I might have to give him three weeks, as he would be in school during that special time and would lose reading hours because of it. Seems reasonable, doesn't it? But it's against the rules, so according to our government, I can't do it.

The people of the United States decided that we didn't trust our government officials, our bureaucrats and regulators, to make decisions. We didn't think they could use common sense. So what we did was: we tried to write laws that were specific enough to handle every possible outcome, so that everything was planned out in advance and there was no room for anyone to mess with the system by making exceptions; no room for corrupt officials to take bribes, or prejudiced officials to discriminate.
Take the federal drug laws, for instance. We didn't like that one judge could give one drug smuggler six months and a fine, and another judge could give another smuggler twenty-five years in maximum security for the same crime. That seems unfair, and maybe the judges were corrupt or prejudiced. (Any reason why we couldn't find out if the judge were corrupt and fire him if he were? And overturn the decision? Anyway . . .) So our legislature created a grid that determines absolute sentencing for all federal drug offenses. You take the quantity of the drug in the person's possession, determined by weight, and cross-reference that with things like prior offenses, if the defendant had a gun or used it during the crime, that sort of stuff, and you get a definite sentence. Perfect, we thought: no way for a judge to screw it up, no way for anybody to get an unfair decision. Everyone gets exactly the same treatment, and no human error is involved.

Except it doesn't work that way. The point of this book I read is this: nobody can possibly predict all future scenarios well enough to know the right decisions to make in all cases. Nobody can deduce all possible factors in any given situation. And when you try to set everything down in advance, with iron-clad rules, when you take common sense and human judgment out of the mix, you get an unlimited number of unfair results and potential windows for corruption -- exactly the things we were trying to avoid by creating the strict laws in the first place.

For example: LSD is a liquid, which is infused into a solid medium -- usually small pieces of paper, or sugar cubes -- and then sold that way. The same quantity of the actual drug, carried by two dealers, can result in completely different prison sentences, if one dealer sold LSD in paper, and another sold LSD in sugar cubes. Because sugar cubes weigh more than paper.

And what is America's answer to problems like this? Do we allow a judge to use reason to make exceptions to the rules? Of course not: we can't trust a judge to know the right thing to do. He might be corrupt or prejudiced! We create another rule to fix the hole in the first (I'm making this part up, by the way, but the sentencing grid and the sugar cube/paper example is reality): we require law enforcement to extract the LSD from whatever medium it was in so that we can weigh the drug by itself, and we sentence people that way. Except the process for extracting it is expensive, and destroys some of the drug, so the sentences are still not fair -- and police officers start letting LSD pushers go, since they know the conviction won't be strict enough and will require too much expense for the department. Or dealers start mixing LSD with something else, call it WTF, that is destroyed in the extraction process but gives the same drug high to users as pure LSD. And maybe WTF is a thousand times more harmful than simple LSD, causing people's eyeballs to melt. So we find out about WTF and mandate a new process to extract the WTF from LSD, and harsher sentences for people who deal WTF, and we produce new "Faces Of WTF" videos and show them to kids around the nation. But now the police can't afford to convict all of the dealers of WTF and LSD because of the cost of the extraction process, and some LSD dealers appeal their convictions based on the new laws that put harsher penalties on WTF, arguing that their simple LSD wasn't nearly as harmful, and now we have to pay for the court battles for all of them, as well, and soon our jails are full of WTF dealers -- while people on the streets are now using crack.

You see? This stuff goes on and on and on, with no possible end in sight. We keep thinking, if we can just make the law specific enough, and plan carefully enough, we can handle every possibility, and things will work like a well-oiled machine, without any human error or corruption. And every time we add more rules, we make the situation worse.

There's a lot more, and if you folks are interested, I'll get into it. But this is the point I wanted to make to you: you do not fix problems by setting down strict, unbendable rules, and you do not fix the problems in rules by adding more rules -- that's the definition of insanity, trying to do the same thing (add more specific rules) and hoping for a different result. We need to stop doing this, as a country. We need to stop thinking that a longer law is a better law. What's the current health bill up to? 2000 pages? Compare that to the Bill of Rights, which is the best and most important set of government rules we have. What is it, one page? Two? Think of the First Amendment, which reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." That one sentence, 45 words, defines and protects no less than four of our most important rights. And the Founding Fathers thought that might have been too specific, since the listing of individual rights that are protected from government abuse implies that there are other rights that the government can take away.

The First Amendment works because it simply describes a goal, and allows specific people to figure out how to reach the goal. The First Amendment relies on common sense. This is how democracy is supposed to work, and it is the reason for much of American success and prosperity: trial and error, and human judgment figuring out the error and creating a solution -- which we then try again, and again.

This is what we need to get back to. We are drowning in rules and regulations and red tape, and somehow, we are just not learning from our mistakes any more -- hmm, maybe because we have built a society founded on the idea that individual human judgment is untrustworthy? Look at the recession, which was started by people using poor judgment, or no judgment, but who were all entirely within the law. People found a way to exploit the law for their own benefit, and they did it -- and because they were within the law, they will not be punished. And if our government fixes the holes in the law that allowed people to abuse our economy so badly, all that will happen is the next generation will find new ways to screw everything up all over again.

What we need to do is stop relying on rules. We need to start forcing our government to rely on people's judgment. Look, corruption and prejudice are very bad things, but they are also pretty easy to remedy, so long as you can point out the corruption and remove the person responsible. But you can't fire a rule, and adding rules don't make the first rule better. We've got to start taking rules away, and asking people to make decisions again; then we hold the people responsible for the decisions they make.

That's what I want you all to start doing. Start taking away rules. Start thinking of your lives, our country, the world as a place that might be better off with fewer rules, and see if there are ways -- small ways -- that you can eliminate a few. Now, that doesn't mean anarchy, that everyone can do whatever they want; there should still be some regulation and control over people's behavior -- but it should be handled by people working together toward a goal, not by rules that set down exactly what should be done. You all know the problems with rules like that, because you deal with them all the time: these are the reason you have to take state tests, and pass them regardless of any unusual circumstances (Test anxiety? Problems using computer? Sick for a month during Sophomore Year?), in order to get a diploma. They are the reason you have to study mindless things, things you don't want to study and teachers don't want to teach -- because the rules say we have to. Like lockdown drill procedures, or grammar.

These specific, common-sense-free rules are the zero-tolerance policies the school has, that suspend one student for five days for carrying marijuana on campus, and suspend another student for five days for carrying Advil. I saw one of you pushing pills during the assembly -- you know who you are! -- and according to the rules, I should report that person, who would receive a suspension. But the pills were Advil, or something similar (Tylenol, aspirin, whatever), being handed to a friend, and I used my judgment, based on my knowledge of the student involved, and broke the rule by letting the person go. I think I did the right thing, and I am willing to take responsibility for my decision if I should turn out to be wrong -- maybe those were Oxy-Contin, or something, and I just didn't see the money change hands. I doubt it, but maybe. Now which do you think led to the better outcome, and protected the ideals of the school? The rule, or my judgment?

So there you go, and I'm sorry this was so long; I really need to work on my editing. Actually, now that I think about it, I suffer from the same mistaken idea: I think the more specific examples I give, and the more detailed my explanations are, the clearer my message is. Huh. Now I feel stupid. I should make a rule for myself.

No, wait. I'll just remember, and I ask you to do the same: common sense, not rules. I'll make the best decisions I can, and try to fix the ones I get wrong. I will rely on my mind to do my thinking for me, not the book of rules.

How does that sound?