Recent times have been hard on those of us who dreamed of trusting farsighted and benevolent leaders dedicated to high-minded ideals. Not only is Communism dead, but Americans have learned more than they ever wanted to know about the foibles of their own high officials. This loss of trust has special meaning for me. I was reared not only to trust our idealistic leaders but to aspire to join their ranks. Early success and experience have disabused me.
I drank in idealism—of the social-democratic sort—from tales my father told me. When I was three he had just returned from World War II; bedtime after bedtime, for time out of mind, he sat and spun a story. In it, my parents and I were marooned on a tropical island shaped like a heart. In this benign wilderness, we made a comfortable home we called Friendly Heart Island. Friends and family from real life washed ashore for joyous reunions. For me, the story represented an adventure made safe, with me as the hero. But for my father, it was a script, written by him, for the world as one big happy family. That was the ultimate ideal.
When I was a few years older, my father told me a darker story—of how he and my grandfather had been cheated out of their rightful place in the world. As a student and young socialist in Chicago at the dawn of the 20th century, Grandfather Schoenbrod had worked his way through law school by making cigars with a small group of other students and young socialists: one would read aloud from a textbook while the others listened and rolled tobacco. Their hope was that, sooner rather than later, people would see how the individual pursuit of private advantage led to inhumane results. They would then cede power to enlightened men, who would run the world as good parents run a home, lovingly but with complete authority. Why complete authority? Because, if responsibility resided in officials checked by voters, selfishness and shortsightedness would inevitably return.
After receiving his law degree, Grandfather Schoenbrod ran for judge on the socialist-party ticket and of course lost. In his practice, he shared an office with Clarence Darrow for a while, but his specialty was real-estate law and, like many leftist lawyers, he made a lot of money. These good times came to a sudden end when a friend and partner forged his signature on a contract, producing a ruinous loss. Only after grandfather ratified the signature—the “brother” begged to be saved from jail because his wife was with child—and gave away his fortune to cover the loss did he discover that the pregnancy was a lie. His money was gone, the Great Depression set in, and his law practice dried up.
My father, then in his teens, was the one hurt most of all. There were no funds to help him with college. Although he tried to work his way through, a leg injury that calcified into a crippling condition kept him bedridden for a year and forced him to drop out. When he could walk again, he found himself on the New Deal’s payroll of last resort, the Works Progress Administration, cleaning bricks one by one with a hammer. As the economy picked up at the end of the 1930’s, he got a real job, married, and fathered a child, me, in 1942.
Come the war, my father, whose job exempted him from the draft, enlisted anyway: he wanted not only to fight fascism but to surmount his lack of a college education by becoming an officer. But his hopes came to naught. Trained to run a locomotive, Private Schoenbrod pulled a hospital train from the Normandy invasion in 1944 to the liberation of Buchenwald in 1945.
Wounded in spirit, and in the flesh by a German bomb, he returned bearing neither high rank nor evidence of a just world, bitter at the riches accumulated in the meantime by those who had stayed home. His new dream was to return to Paris to become a writer. Instead, to save enough cash for my college education, he remained in Chicago to compose advertising copy. That way, I would have the opportunities that fate and the selfishness of others had denied him.
Perhaps that was not the whole story, but it was the story I heard. My father’s dreams for me are captured in a poem he wrote in France toward the end of the war. Entitled “A Message to Our Son on His Third Birthday,” it begins:
Out of the past, from our bones, from our blood,
From our love, you emerged,
Our challenge against time,
Our glove flung into the face of death.
You and your children shall fulfill our
You and your children shall live our
In you we shall always exist and never die.
The destiny and the dreams to which my father alluded were not of the material sort. The poem asks, “What do we bequeath you as your heritage over and beyond the cash and the concrete?” The answer includes a keen appreciation of the pleasures of life but also “our sense of justice and compassion/And the hatred of intolerance and greed.”
In our family story, as in the covenant between Abraham and the Lord in Genesis, the younger generation was granted not a choice but a privilege, and one that implied a debt. In my case, the debt was to be redeemed by taking on and passing along the family ideals. That included showing what one of the Schoenbrods, given a fair chance, could do. I would set the record straight by becoming a member of that idealistic elite whose mission was to pursue justice and compassion and to undo intolerance and greed.
I followed my father’s script without knowing it existed, let alone recognizing how it changed as his socialism mellowed into Adlai Stevenson-type liberalism. I had made it to Yale College in the early 1960’s when John F. Kennedy entered the White House. Heeding the call of that knight in tailored armor, I set out to position myself for public service. I got a succession of summer jobs with Senator and then Vice President Hubert H. Humphrey, and then, thinking that a fellowship to Oxford would be a useful credential, I shaped my college activities to be selected.
After Oxford, I was at Yale Law School when Humphrey received the Democratic nomination for President. I was asked to join the campaign staff—if he won, this would have given me an inside track to a White House job—but I declined because Humphrey had not satisfied the requirements of my conscience by renouncing the Vietnam war. I took a clerkship instead with Judge Spottswood Robinson, who in 1954, in tandem with Thurgood Marshall and others, had argued Brown v. Board of Education. Next came a job with the restoration project established by Robert F. Kennedy in the black neighborhood of Bedford-Stuyvesant in Brooklyn. I was visiting all the stations of the liberal cross.
Living in Brooklyn, active in “Reform” Democratic politics, I found myself in a newly drawn state senate district perfectly suited to a candidate of my stripe. The reform leaders gave me the nod. I was in my late twenties, a cinch to get elected, and I believed I could quickly rise from there to national office. Others thought so, too, and volunteered to run my campaign. But with the machinery nearly in place, I began to ask myself if I really wanted a career as a politician, a field in which success depended on saying what went down well and glad-handing day and night. I told my supporters thanks but no thanks, and withdrew.
Instead, I joined a group of ardent young attorneys who, in the afterglow of the first Earth Day, were launching the Natural Resources Defense Council (NRDC), a nonprofit legal group dedicated to making the most of the nation’s newly enacted environmental statutes. I decided to specialize in helping the poor and the weak, just as my father and grandfather would have wanted. My first case, filed in 1972, was to protect children from lead in gasoline. For the rest of the decade, I mobilized and led the environmental forces in this cause.
It was the campaign against lead that shattered my smugness, but only in the end. At first I had no doubt that I was heading an ennobling crusade. In the 1960’s, physicians had discovered that lead was killing thousands of young children and permanently crippling the brains of many more. Although initially the finger pointed to the lead put into house paint before 1950, suspicion soon turned to gasoline additives. The dust of city streets was as rich in lead as lead ore, and the toddlers most exposed to that dust lived in poor urban neighborhoods. But the wealthy, too, including the people who swelled the early environmental movement, had cause to worry about their children. “GET THE LEAD OUT,” the bumper stickers were soon demanding.
Pushed by popular demand, Congress passed the Clean Air Act in 1970 with hardly a dissenting vote, and President Nixon signed it with great fanfare. But the statute took no concrete action to curb lead as a health hazard. All it did was to erect an abstract ideal—healthy air—and delegate responsibility for realizing that ideal to the newly created Environmental Protection Agency (EPA). The agency was ordered to follow a statutorily prescribed process designed to protect health from a number of dangerous pollutants by a certain deadline. The deadline for lead was January 1976. Should EPA falter in doing its duty, any citizen could bring suit in federal court. At NRDC, we were set up to do just that.
Here was government the way an elitist like me thought it ought to be. Experts were empowered to achieve an ideal, and I was empowered to make sure they did.
By 1972, when I joined NRDC, EPA had yet to start the statutory process to protect health from lead. I won victory after victory against the agency in the courts and in the various scientific tribunals established by the statute. But I did not get the lead out. By the 1976 deadline, EPAs deliberations had yet to produce any reduction in emissions.
The problem, I reasoned at the time, was that the Republicans held the White House. But when the Democrats took control in 1977, EPA still dragged its feet. The lead industry and the gasoline refiners had made it worthwhile for members of Congress, including the liberal Democrats who sponsored the Clean Air Act, to pressure the administration to go slowly. These legislators paid no political price for their delaying tactics because the pressure was applied behind the scenes, not by open votes in Congress.
In the meantime, studies were suggesting that the lead levels in even the average child in New York City in the 1970’s were causing a measurable, though small, loss in IQ. Other studies suggested that some children absorbed far more lead from gasoline than the average, enough to bring on death or severe brain damage. With the stakes so high, it seemed I should try harder, do more. Like my father, I had gone to war, or so it felt. Unlike him, I had achieved high office, with media exposure to match. But although I was covered with a kind of glory, I had not produced justice. I left NRDC in 1979 after seven years, a biblical span of labor.
How could it be that government by elite had failed so miserably? Seeking detachment and time to reflect, I joined the faculty of New York University Law School, intending to think through a way of keeping legislators from interfering with the experts to whom they delegated authority. But I soon concluded that any such scheme would have things backward. It is proper in a representative democracy for people vexed by an agency to appeal to their representatives, and for the representatives to react by lobbying the agency. The real question was, how could the representatives themselves be made to bear responsibility?
Only then did it slowly dawn on me that the Constitution already provided the answer. It contemplates that the laws—that is, the rules of conduct—be made in statutes enacted by the legislators themselves. But the Clean Air Act, like most other regulatory statutes, had empowered an agency to make the laws by regulation. The difference was critical.
As it happens, Congress actually did pass a law in 1970 requiring auto manufacturers to make new cars that would emit 90-percent less of certain pollutants. Although lead was not among them, manufacturers seeking to comply with the law might have to equip cars with pollution-control devices that would not work with leaded gas. If so, EPA was directed to require refiners to provide lead-free gasoline.
The legislators could not, and did not, tell voters in 1970 that this provision would get the lead out. (Even after lead-free gas came to be required, cleaner cars would not become available until 1975; in that year, about 100 million older cars were still burning leaded gasoline, and would continue to do so well into the 1980’s.) And in any case, the legislators were unwilling to ban all lead in all gasoline. The price at the pump would have jumped a few cents—which would have been noticeable back then when gas prices were lower and more stable—and the legislators would have gotten the blame. In other words, the obstacle to satisfying the people’s demand to get the lead out was that the people also wanted cheap gasoline. To escape from that predicament, Congress resorted to delegation.
But what if delegation had not been an option? In all likelihood, Congress would then have enacted a law removing most of the lead from gasoline before the mid-1970’s: an obvious and sensible compromise that would have eliminated much of the health threat for only a tiny increase in the price at the pump. But instead of enacting such a law, which would have been good for the American people, the legislators—thanks to delegation—enacted a law that was perfect for themselves, with the consequence that the bulk of the lead was left in gasoline for many additional years and millions of children were harmed. It was only in the mid-1980’s that EPA got really tough on lead. By then, most of the old cars using leaded gasoline had been junked. The experts “solved” the problem after it had gone away.
As the professor that I had become, I might have rationalized away this particular governmental failure as an anomaly. But by then I had come within the gravitational pull of a perspective far different from the elitist one in which I had been reared and educated. The conventional argument for delegating is that our laws should be based on scientific expertise. But “science” hardly ever settles policy disputes, and EPA’s actions were and are, in the end, motivated by politics. Another conventional argument for delegating is that Congress lacks the time to consider all the laws that the national government imposes. But the national government imposes so many laws only because of delegation and its close cousin, unfunded mandates.
When legislators themselves enact the laws, they must take responsibility for the rights granted and the duties imposed. When, by contrast, they empower an agency to enact the laws in pursuit of some high-minded ideal, the actual rights and duties come under the agency’s letterhead. That way, the legislators get to take credit for the promised benefits, which they paint in the rosiest of hues, while shifting to the agency, or to the states, the blame for disappointments and costs. The scope of regulatory government inevitably expands, simultaneously becoming ever more distant from the machinery of popular complaint and redress.
At the time, this new way of seeing things infuriated and frightened me. I had been brought up to believe that if I worked hard and rose to power, I could use that power in a noble cause while filling my own heart to overflowing. Now I knew that I had participated in a sham. The heroic role I had assumed—defending the people’s supposed right to healthy air—only lent credence to the representatives’ claims to have bestowed that right. But what about the palpable harm done by the failure of those same representatives to see that their promise was fulfilled by the experts to whom they had deferred? A prop had been kicked out from under my sense of identity.
Worse yet, I felt repelled by my own heresy. To support transferring power and responsibility from experts in the executive branch to politicians in Congress—the position I had now come to believe in—seemed like rooting against Jimmy Stewart in Mr. Smith Goes to Washington. (Though a Senator himself, Mr. Smith finds the legislature riddled with greed and corruption, while idealism resides in the executive.) And some of my new academic colleagues were also unhappy with my views. They thought they had hired a conventional liberal like themselves, only to find on their hands a heretic who had yet to convince himself fully of his own heresy. The dean told me my scholarship was not good enough because it reached an unreasonable conclusion—that delegation should be stopped—and in my fourth year at NYU the school let me know that I would be wise to resign.
Never before had I suffered a setback in my career, and I was mortified at being cashiered from the elite. How far would I fall? Would I, like Grandfather Schoenbrod, end up in a law office waiting for the phone to ring? Fortunately, I got an offer from New York Law School. It was lower than NYU in the pecking order, but the discernible difference in the students was not their intelligence but their socioeconomic class. Most of them were children of ordinary people, and many of them, like my own grandparents, were the children of immigrants. Here was a good place to try to work out the implications of my apostasy.
Funnily enough, I began to find the seeds of a resolution in memories of my own family—in this case, on my mother’s rather than on my father’s side. Although both my grandfathers were born in 1883 and were reared in Chicago by Jewish families recently immigrated from Eastern Europe, my mother’s father’s family was less prosperous and less intellectual. Grandfather Marschak, as a boy, had frequented Hull House, which Jane Addams opened when he was six and where she had exposed poor immigrants to middle-class aspirations and attempted to inculcate the sense of responsibility required to achieve them. In his early teens, he was taken out of school and put to work in the family’s little hardware store. With his help, and ultimately under his direction, the store turned from hardware to furniture and grew large.
Grandfather Marschak was a father to me while my own father was at war. When he returned, the political schism in the family came out in a running debate in the living room of our modest apartment. My father spoke for the socialist side: from each according to his ability, to each according to his needs. Grandfather Marschak responded that it was against human nature for people to work hard if the fruits of their labor went to strangers. Father countered that a socialist government would change people so that they would share with others as readily as they shared with brothers. Grandfather objected that human nature could not be changed. On that point, they reached an impasse.
If these were the constants in the debate, what changed from Sunday to Sunday were the anecdotes and quotations invoked by the debaters. One of those quotations turned up a half-century later in a dust-covered box of remembrances that my mother kept of her father. On a scrap of paper he had penciled in his largely unschooled hand a quotation from Thomas Jefferson: “We both consider the people as our children and love them with parental affection, but you love them as infants whom you are afraid to trust without nurses—and I as adults whom I freely leave to self-government.”1
Grandfather Marschak died when I was fifteen, and I, growing up in my father’s house, was reared to be one of the “nurses.” But I now understood that, for Grandfather Marschak, self-government, or government “by the people”—he also knew Lincoln’s Gettysburg Address by heart, and had recited it to me often while my father was at war—was not just a pretty figure of political speech. Jane Addams had taught him that the lower classes had no lesser capacity for leadership than their supposed betters. For him, every individual was entitled to the dignity of his own values and must accept responsibility for the consequences of his own actions. By this light, elitists had no right to try to impose their ideals by fiat in the name of improving human nature. To the contrary, high officials should be accountable to ordinary people with their ordinary human natures.
Now that I am old enough to be a grandfather myself, I see that this story is not peculiar to me and my family, but is a story of our society. The 20th century dawned with a burst of hope that, thanks to science and progress, an expert elite would lead humanity toward high-minded ends. A new class of Americans arose: the executives who ran businesses, the heads of bureaus in Washington who oversaw them, the top professors at the top universities who trained them, and the nationally-oriented journalists who informed them. This new elite set out to redesign government to enable its kind of people—reasonable, objective, idealistic, professional—to rule over society without much accountability to voters. Power was transferred from states and cities to Washington and, within Washington, from elected legislators to appointed experts and judges. By the time the New Dealers, socialists, environmentalists, and others came along, the ground had already been laid for government by experts insulated from electoral politics.
But the elite idea that ordinary people are too unreasonable and unobjective mixes up the role of the representative and the role of the voter in an indirect democracy. Our form of government sets in motion a dialogue between elected lawmakers and the people who must live under their laws, a dialogue in which the people learn what is really possible and the lawmakers learn, sometimes painfully, and at the cost of their jobs, how the people feel about what they have done.
Good voters in an indirect democracy do not need to see other people’s points of view any more than a smart consumer needs to be capable of managing the national economy. What good voters need is to understand their own interest and to accept that sometimes the legislature will decide against them. An electorate made up of people with diverse interests and diverse ideals, even if none of them is objective or reasonable, will tend to pressure their representatives in reasonable directions.
By contrast, government the elite way is sure to be unreasonable—as well as centralizing, enlarging, manipulative, and unresponsive. That, to me, is the lesson of delegation, a lesson that goes far beyond the example of lead to the very basis and purpose of democratic governance. Forgive me, Grandfather Schoenbrod, but if we the people do not look out for ourselves, no one else will.
1 This is from a letter written in 1816 to Pierre Samuel du Pont de Nemours, a French aristocrat and the progenitor of one of America’s first industrial powerhouses.