Okay, so people like this sidebar thing. I can’t promise I’ll do it every week, and this one really is just a repurposing of stuff I’ve written before (mostly in Suicide of the West), but just like $3.5 trillion in new spending, it don’t cost nothing! So herewith, a quick disquisition on law stuff.
There’s a story—possibly apocryphal—about Dwight Eisenhower when he was the president of Columbia University. As the campus was expanding, the school needed to lay down some new sidewalks. One group of planners and architects insisted that the sidewalks be laid out this way. Another group said they must go that way. Both camps believed reason was on their side of the dispute. “Legend has it,” writes Kevin Williamson, “that Eisenhower solved the problem by ordering that the sidewalks not be laid down at all for a year: The students would trample paths in the grass, and the builders would then pave over where the students were actually walking. Neither of the plans that had been advocated matched what the students actually did when left to their own devices.”
“There are two radically different ways of looking at the world embedded in that story,” he continues. “Are our institutions here to tell us where to go, or are they here to help smooth the way for us as we pursue our own ends, going our own ways?”
For a certain tribe of libertarians, this is how all laws should be made. We should discover through trial and error what the best policy is, and make it the law only when absolutely necessary. The “absolutely necessary” part is essential because the necessity is discovered when different parties have a dispute that needs to be adjudicated by the state, specifically a judge. My friend Daniel Hannan makes the case that this common law approach is one of the things that led to the English inventing liberty. I think he sometimes overstates that case, but the case he makes is strong nonetheless.