Something broke in America around 1970. The persistence of Jim Crow had given the lie to America’s promise of equality under the law. The environmental movement burst onto the scene with a blistering indictment of the wanton destruction of the natural world, the befouling of the air and of waterways, and the indiscriminate use of DDT. Urban planners recklessly destroyed neighborhoods in the name of redevelopment and rammed highways through Black communities. Lies and half-truths served to justify sending tens of thousands of young men to their deaths in Vietnam.

Political leaders, both Republican and Democrat, were seen as compromised, captured by well-heeled insiders, powerful unions, and corporate interests. A new disenchantment took hold in elite circles—especially among the nation’s lawyers. That disenchantment fostered major doctrinal shifts in American law: an insistence on new procedures to discipline government action, a massive expansion of standing doctrine, and an intensification of judicial review. 

What emerged was a new and highly legalistic approach to governing the government. Orderly legal procedures were (and are) meant to elevate the implementation of government policy from an exercise of raw political power to the realm of principle and public spiritedness. They serve that goal well, up to a point. Procedural regularity really is indispensable to sound administration and the rule of law.

Over the past fifty years, however, the pattern has been to add ever-more procedures in response to ever-present (indeed, ever-increasing) anxiety about the government. This procedure fetish has systematically degraded state capacity at all levels of government—federal, state, and local. The United States once successfully prosecuted two world wars, built the national highway system, created Social Security and Medicare, and diverted enough water to support huge cities in western deserts. Today, we struggle with the basics. Our highly proceduralized legal regime is a big reason why.   

At the extreme, strict procedures are even a threat to democracy. The ubiquity of procedures in the United States reflects a deep distrust of government and a fear of what it might do. In this, procedures operate as insurance against the wrong sort of people getting elected. Rather than risk what tomorrow’s majority may bring, both sides of the political divide look to procedures to lock in the status quo. Better no change at all than change we dislike.

That is a very lawyerly instinct. By dint of temperament and training, lawyers tend to be cautious about change and suspicious of politics. They see the law as a guarantor of individual rights and a tool to keep the government in check. They worry much less about how the law can facilitate effective, nimble governance.

But indulging the lawyerly reflex in favor of procedures can be pathological, and not just because procedures can incapacitate government. Too many procedures also prevent democratic majorities from getting what they want. When the will of the people is consistently thwarted, procedures breed discontent. A feckless government isn’t worthy of trust. It’s worthy of contempt. That contempt then underwrites the appeal of strong-man politicians. As Alexander Hamilton argued at the Constitutional Convention: “Establish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators.” Here is Donald Trump in 2016: “I alone can fix it.”

The embrace of high legalism in the late 1960s and early 1970s was a reasonable response to the problems of the day. More than five decades later, continuing to orient American law around fears of a pathological government has itself become pathological—a cure worse than the disease. Making it easier for government to get stuff done does present risks. Greater capacity to do good also means greater capacity to do evil, and a more proactive government would surely do many things that the government really shouldn’t.

But incapacitating the American state is also risky. Consistently thwarting our collective aspirations is bad for the economy, bad for the public, and bad for democracy. The threats we face this century are profound, including climate change, a housing shortage, a surging China, and the advent of artificial general intelligence. We need effective government to meet those challenges. We do not have it.