Last week I met with one of my heroes, John Whitehead--veteran of D-Day, former Deputy Secretary of State, former co-head of Goldman Sachs, a leader of civic and cultural communities in New York, and universally admired for his integrity, wisdom, and grace. (See Peggy Noonan's July 2008 Wall Street Journal column.) John is a supporter of Common Good, the legal reform nonprofit that I chair, and was also indispensable, when he was Chairman of the Lower Manhattan Development Corporation, in supporting the Tribute in Light memorial which I helped organize.
Our 75 minute discussion was far-reaching. John is worried about the fiscal stability of our country, and thinks there's a real risk that investors may stop buying Treasury bonds. He sees a country that lacks the political will to balance the budget because no one is willing to eliminate or adjust outdated and unaffordable programs (see my June 22nd post). Subsidies and entitlements pile up over the decades until there's no money left to meet new needs. He fears growing deficits will precipitate a crisis.
The discussion then turned to the strategy for Common Good. We have a number of concrete initiatives that have gained traction among leaders in different fields, and he seemed encouraged that President Obama had written a letter to Congress specifically mentioning our proposal to create special health courts (developed jointly with the Harvard School of Public Health, with support from the Robert Wood Johnson Foundation). Only when doctors trust justice to distinguish between good care and bad care will we have a chance of saving the $100-$200 billion per year that is wasted in defensive medicine.
But I've come to believe that concrete reforms in this or that area, while providing beacons for a new approach, aren't sufficient in themselves. We could spend several lifetimes trying to prune the jungle of law and entitlements that have overgrown our society. The bigger problem, I suggested to John, was that America has lost sight of the core principle of freedom--the power of each individual, at every level of responsibility, to make choices that adapt to current goals and circumstances. Law has wrapped around every social interaction. Doctors go through the day thinking about self-protection from lawsuits. (See my July 2009 Washington Post op-ed.) Teachers have lost control of the classroom because of the application of legal due process to ordinary disciplinary choices. (See my March 25th Wall Street Journal op-ed.) Governors and mayors are unable to balance budgets because of promises made by their predecessors. (See former Los Angeles Mayor Richard Riordan's May 5thWall Street Journal op-ed.) Americans feel powerless to affect the world around them. (See recent survey results from the Pew Research Center.) The can-do society has become the no-can-do society.
The only way out of this rut, I think, is a popular movement to overhaul law and government to revive a time-honored operational principle--individual responsibility. Schools cannot be expected to succeed if teachers don't have authority to maintain order. Healthcare costs will never be contained until both patients and doctors have responsibility to be prudent in their use of healthcare resources. Government will be unable to act prudently until legal stables are cleaned out so officials can make fresh choices to, say, balance the budget. Accountability will be nonexistent until choices, public and private, are linked to identifiable individuals. Nothing works unless individuals take responsibility to make it work.
America needs to change its operating system, I suggested, to revive responsibility. John resisted the idea that Common Good should get in the philosophy business. Better to stick to the specific reforms, he advised. Once you succeed with one reform, such as reliable health courts, people will see that there is a path out of the legal jungle. It is hopeless to try to change Washington, he noted. Philosophy is too abstract, and has little chance to move the masses.
I agreed that it was important to succeed at specific reforms. But one reform, or even a bucketful, will not inspire Washington to change the way it works. There are too many interests clinging to the way it works. The current system will inevitably fail, I argued, for the same reasons that John mentioned at the beginning of our chat. America will no longer be able to meet its obligations--just as the states of California and New York, like Greece, are unable to reform old programs. The branch will eventually break. Big reforms happen all at once, not gradually, as with the fall of the Iron Curtain. (See Professor Bryan Jones's Agendas and Instability in American Politics.) Building a movement to revive individual responsibility may not itself cause the break. But it provides a place for the branch to land, and a head start towards a responsible new philosophy for governing.
The Tea Party sees the faults of modern government, and is jumping up and down on the branch trying to make it break. But I can't find a coherent operating philosophy there. Lower taxes is not a solution but an aspiration that is never achievable without overhaul. The Tea Party, as best I can make out, would continue to put legal shackles on judges and government officials. But this would just perpetuate the status quo. Humans must be given freedom to take responsibility--this is as true for a judge as for a teacher. If the judge can't throw out extreme claims, then the rest of us will continue to go through the day looking over our shoulders.
I don't know if I convinced John Whitehead. But he acknowledged the point that incrementalism by itself does not offer a coherent new approach to government, and that sooner or later something big will happen. I convinced myself, however. Modern law has made everyone powerless and government a champion of the status quo. It's hard to see any way forward except a new approach to law and government that re-empowers people to grab hold of problems and put their hands to work to solve the challenges of our time.