Our nanny state and the loss of everyday freedom

Last week, I spent approximately three hours trying to help my teenage son apply for a learner’s permit. The time-suck began with the Department of Motor Vehicles website, which was prolix with rules and unclear about the process. I did my best to compile all sorts of evidence to prove that, yes, he is my son and, yes, we do live in Washington, D.C. 

I failed. On arrival at the DMV, a kindly civil servant explained that a U.S. passport was no proof of my son’s identity. Nor was the W-2 from his job acceptable as proof that he lived here — despite it having his name and address on it. Instead, the rules required we present his birth certificate (which doesn’t have his photograph or address) and different pieces of paper. He handed us three separate forms to fill out and invited us to return with the correct paperwork. 

To be sure, the DMV’s paperwork demands are not unique — they are the norm these days. Rules and policies come at us from every direction, as New York Times columnist David Brooks recently wrote.  

There are more than 60,000 pages of federal statutes and 186,000 pages of regulations explicating them. There also is an untold quantity of regulatory guidance that attempts to clarify what is licit, what is illicit and what must be done to engage in any number of activities, be it hunting, operating a day care center, running a farm or what have you. 

Which is to say nothing of the laws and regulations issued at the state, county and municipal level, and the various agency policies. Both public and private colleges and universities gush rules and policies. 

And speaking of the private sector, it too spews rules. When I took my daughter and some of her friends to an indoor climbing site, a liability waiver had to be completed for every child. When I turned on my cell phone recently, Samsung asked me to read and agree to its updated policies. Before I was allowed to visit my dentist, I had to review all the existing information on file to confirm its accuracy. Etc. 

How we got here is a complex and important question. Philip Howard’s new book, “Everyday Freedom: Designing the Framework for a Flourishing Society,” makes the case that partly the current state of affairs comes from a 1960s legal revolution. Expansive notions of rights and liabilities took hold in the courts, and filing lawsuits became an American pastime. Case law parsing right from wrong grew like kudzu and institutions began adopting rules to protect themselves against legal peril. 

But other factors certainly are at play. We have a lot more government than we used to, and with it comes more laws and regulations. Economic development also spawns more rules. A century ago, we did not have federal automobile safety regulations. Today we have those rules and rules for operating drones and myriad other technological wonders. 

To be sure, rules can bring plenty of benefits. Fifty years ago the Potomac River was toxic and fish and bird populations had plummeted. Today, the water is much cleaner and wildlife is plentiful, thanks in part to Environmental Protection Agency rules and mandates that curbed the dumping of sewage and pollution. 

Laws and rules, however, do come with costs. Plenty of scholarship has shown that rules can create economic distortions, and spawn unintended consequences and other mischiefs. The more rules we have, the more we need to pay lawyers and jurists to do what we wish to do and sort things out for us.  

A surfeit of rules can produce a “tragedy of the commons” effect, or “time tax,” wherein each of us loses more and more of our precious time responding to the endless institutions asking us to comply with rules. “Everyday Freedom” makes a persuasive case that an increasingly legalistic and rule-focused society is a less free society. Rules crowd out common sense, leaving us atomized and suspicious of one another. 

I worry the proliferation of rules may be stressing Americans out and fueling their rising distrust and anger at institutions generally.

Edward C. Banfield, the late, famed political scientist, observed that people for most of history were “held together chiefly by the nonlogical bounds of custom and tradition.” Only recently have the relations of individuals been “consciously and deliberately organized by the use of intelligence, and the rules of logic.” Banfield described this change in our lives as “a stupendous experiment” but warned that “nothing in history promises that it will succeed.” 

Hopefully, lots of people will read “Everyday Freedom” and think long and hard about modern life, laws and rules and where they fit in the good life in the 21st century. And along the way, maybe we can figure out ways to get by with fewer rules and a bit more goodwill. 

Kevin R. Kosar (@kevinrkosar) is a senior fellow at the American Enterprise Institute. He is the co-editor of “Congress Overwhelmed: Congressional Capacity and Prospects for Reform” (University of Chicago Press, 2020) and hosts the ”Understanding Congress” podcast.