01/26/09 - Online.WSJ.com by Philip K. Howard
We are only free if we can act in reasonable ways in life without the risk of being caught by this or that technicality.
[edited] Americans don't feel free to reach inside themselves and make a difference. The growth of litigation and regulation has injected a paralyzing uncertainty into everyday choices. There are warnings and legal risks all around us. The modern credo is not "Yes We Can" but "No You Can't."
Those who deal with the public are the most discouraged. Most doctors advise their children not to go into medicine. Government service is seen as a bureaucratic morass, not a noble calling. Make a difference? You can't even show basic human kindness for fear of legal action. Teachers across America are instructed never to put an arm around a crying child.
The idea of freedom as personal power is pushed aside by the rights of whoever might disagree. Daily life in America has been transformed. Ordinary choices are paralyzed by legal self-consciousness. Did you check the rules? Who will be responsible if there's an accident? A pediatrician noted "I don't deal with patients the same way any more. I wouldn't want to say something off the cuff that might be used against me."
The flaw and the cure lie in our conception of freedom as only political freedom. We're certainly free to live and work where we want, and to pull the lever in the ballot box. But freedom should also include the power of personal conviction and the authority to use your common sense. Alexis de Tocqueville: "Freedom is less necessary in great things than in little ones. Subjection in minor affairs does not drive men to resistance, but it crosses them at every turn, until they are led to sacrifice their own will. Their spirit is gradually broken and their character is drained of strength."
Law must affirmatively define an area free from legal interference. Philosopher Isaiah Berlin noted that law must provide frontiers that are not arbitrary limits, within which men should be inviolable.