Freeman

ARTICLE

The Age of the Technicality

MARCH 01, 1976 by CLARENCE B. CARSON

Dr. Carson has written and taught extensively, specializing in American intellectual history. His most recent book, The Rebirth of Liberty (1973), covers the founding of the American Republic from 1760 to 1800.

T. S. ELIOT said on one occasion that our civilization would end not with a bang but with a whimper. This was not so much a prediction or prophecy as it was a pithy commentary on a prominent characteristic of our era. But if it be taken as prediction, there is something lacking in it. It does not tell us how the end is likely to come, does not fill in any of the details of the coming anemic apocalypse. There is now mounting evidence, however, of how at least American civilization may end. It may come about in some such fashion as this.

At some time in the not too distant future the American productive machinery could grind to a creaking halt, be still and remain silent. There would be no farmers in the field, planting, tilling, or harvesting, no workers in the mills, mines, or factories, no clerks in the stores, service stations, or banks, no policemen on the beat, no ball players in the arenas, no soldiers at drill, nor anyone anywhere doing anything that could be described as productive. Where would they be? What would be occupying their time? How could this have happened?

Let the answers to these questions wait a bit, and let us examine some clues as to what could bring about such a state of affairs. The following are excerpts from items which appeared on the pages of a single edition of a morning newspaper, the Atlanta Constitution, November 25, 1975.

Item One: A former secretary to Fulton County Commission Vice Chairman testified during a hearing on the appeal of her firing Monday that she had "intimate relations" with the commissioner.

The three-member Fulton County personnel board is expected to decide Tuesday whether the secretary will be reinstated.

Item Two: The DeKalb County school system has come into compliance with federal law by no longer forcing married or pregnant students to participate in a special educational program, a school administrator announced Monday.

That law, Title IX of the Educational Amendments of 1972, states that female students cannot be discriminated against for any reason…

He also denied that a recent complaint from the husband of a former Towers High School student caused the school system to hurry the policy change.

"We had almost come to a conclusion," he said, when a man identified by school officials as Bill MacArthur received some publicity and threatened to file suit. MacArthur alleged his wife was being discriminated against when she was forced to leave Towers and attend open campus.

Item Three: A group of determined Washington Redskins fans who are also lawyers filed a suit Monday against the National Football League stemming from the controversial Mel Gray touchdown reception.

The group is asking U. S. District Court Judge George L. Hart to issue a temporary restraining order preventing any scheduling of playoff games until the court makes a ruling on a controversial call that went against the Redskins in Washington’s overtime loss to St. Louis two Sundays ago.

According to one of the complainants, George Morse, the suit asks Hart to either have the teams finish the game from the point just prior to the controversial St. Louis touchdown pass, or to call the game "no contest" and figure precentage points in the standings as if it were a tie.

Item Four (a quotation from a prison warden): "It seems like we never get a final conviction on anything any more. After all appeals are exhausted arising out of the original trial, we go into the habeas corpus process all over again. I have an administrative assistant who is in court today. His job was set up to assist me, but he spends 95 per cent of his time in court on habeas corpus hearings. . . ."

Item Five: The Atlanta chapter of the American Institute of Architects (AIA) is peeved that Mayor Maynard Jackson has not replied in two weeks to its recommendations on minority participation in city architectural projects.

In October Jackson requested formation of an AIA liaison committee to make such recommendations, chapter President M. Garland Reynolds said Monday….

The AIA spent several weeks meeting with other groups in coming up with its recommendations, Reynolds said.

Reynolds’ Nov. 10 letter to the mayor was prompted by Jackson’s insistence earlier this year that minorities be given a part of the contract for architectural and engineering work for the planned expansion of Hartsfield International Airport.

Item Six: (involves promotions of police officers in the City of Atlanta, the oral examination used, the Fraternal Order of Police (FOP), and the Afro-American Patrolman’s League.): Complaints against the new exam centered on the nebulous nature of the orals, which included 10 questions based on hypothetical situations. The judgment of good and bad answers was left to the interview boards. Both for sergeant and captain the boards were made up of two white and two black superior officers, plus an attorney. . . . A variety of attorneys was used, and most of them were black.

The issue of using more than one attorney on each board is part of the basis for a legal challenge of the new exam as that challenge is being prepared for court filing by attorneys for the FOP. The lawyers contend the city ordinance authorizing promotional testing specifies that one lawyer be used, rather than a succession of lawyers, so that each candidate is interviewed by the same board.

Item Seven: MARTA [Metropolitan Atlanta Rapid Transit Authority] is opposing an application before the Georgia Public Service Commission (PSC) to establish a van service in the metropolitan Atlanta area.

The rapid transit authority opposes such service because it could increase competition in the lucrative charter bus market. . . .

MARTA also objects to the application . . . because under federal rapid transit funding laws, MARTA could be required to purchase the private company if the company could prove that MARTA’s tax-supported transit operation competed unfairly.

Item Eight: Inmates who seized five guards as hostages and holed up in five cell blocks at a city prison on an island in the East River released the three remaining hostages Monday on the promise they would not be prosecuted.

The promise of amnesty so angered the guards at the Rikers Island jail that about 300 of them immediately stormed off the job. . . .

Finally, a spokesman for mayor Abraham Beame said the guards agreed to go back to work when Beame promised to meet Tuesday afternoon with Harold Taylor, president of the guards’ Benevolent Association, on the matter.

There were other items in the same paper that might have been quoted. One described a malpractice suit in Augusta, Georgia which had been one of the longest in Georgia history. Another told how a local government budget was discarded because the responsibility for preparing the budget had been shifted to another official. But enough examples have been given to show a general trend, of sorts.

Common Characteristics

There are some common threads running through all these incidents. One is that they all involve government at one level or another and in one way or another. A second is that all of them involve some sort of proceeding: a report of a liaison committee, a lawsuit, a habeas corpus hearing, a school board ruling, a Personnel Board investigation, an application before the Public Service Commission, and a conference between a mayor and a representative of prison guards.

Above all, however, they all involve one or more technicalities: whether a football player held a pass long enough for it to be a completion, the claim of a secretary that she had "intimate relations" with a commissioner which led to her firing, opposition to a local van service because of the intricacies of a Federal rule, whether there should have been only one attorney sitting in on all the tests or several, the endless appeals made by those who have been convicted and sent to prison, whether married students should be sent to a special campus, and so on.

According to many who make such characterizations, we live in an age of technology. There is no gainsaying that this view has much to support it. If technology be understood to include the mechanical and electronic devices by which we sort, sift, stuff, open, move, inspect, light, heat, cool, start, stop, weigh, measure, pour, record, and perform the myriad acts which can be done in this fashion then our age is certainly in some respects a technological one. Such characterizations, of course, always vie with others which may be equally apt, such as, the age of steel, the age of electricity, the age of antibiotics, and so on.

However appropriate any or all of these may be, we have moved unwittingly into a new age, the Age of the Technicality. The signs abound that more and more ruling bodies are spending more and more of their time and that of the citizenry in applying these technicalities to the warp and woof of our lives. It may not happen that way, but it looks as if it could. At some time in the future the whole adult population of the country and most of the children could be tied up in hearings, consultations, conferences, lawsuits, proceedings, and what not before courts, commissions, boards, bureaus, agencies, and the like, brought by ten million whimperers based upon technicalities.

What is more likely, if the trend continues, is that more and more of the population will have more and more of their energies dissipated in these undertakings to the point that the necessary useful work is no longer performed. The whimper with which American civilization may end will be that of the-one-too-many complainants, the straw that breaks the camel’s back.

At any rate, we are certainly in the midst of an age of technicalities. Anyone who doubts this should examine the evidence around him with more care. As this piece was being written, the mail brought an excellent example of such technicalities, a "Statement of Fair Credit Billing Rights," as presented by Sears, Roebuck and Company. Since anyone who has a credit card probably received one of these, it may be useful only to present excerpts and highlights from this wondrous set of instructions:

The Federal Truth in Lending Act requires prompt correction of billing mistakes.

1)     If you want to preserve your rights under the Act, here’s what to do if you think your bill is wrong or if you need more information about an item on your bill:

a)     Do not write on the bill. On a separate sheet of paper write (you may telephone your inquiry but doing so will not preserve your rights under this law) the following:

i)        Your name and account number.

ii)      A description of the error and an explanation (to the extent you can explain) why you believe it is an error. . . .

iii)     The dollar amount of the suspected error. . . .

b)     Send your billing error notice to the address on your bill. . . .

i)        Mail it as soon as you can, but in any case, early enough to reach Sears within 60 days after the bill was mailed to you.

2. Sears must acknowledge all letters pointing out possible errors within 30 days of receipt, unless we are able to correct your bill during that 30 days. Within 90 days after receiving your letter, we must either correct the error or explain why we believe the bill was correct….

3. After we have been notified, neither Sears nor an attorney nor a collection agency may send you collection letters or take other collection action with respect to the amount in dispute….

4. If it is determined that Sears had made a mistake on your bill, you will not have to pay any FINANCE

CHARGES on any disputed amount. If it turns out that we did not make an error, you may have to pay FINANCE CHARGES on the amount in dispute. .

5. If our explanation does not satisfy you and you notify us in writing within 10 days that you still refuse to pay the disputed amount, we may report you to credit bureaus. . . . But Sears must also report that you think you do not owe the money, and we must let you know to whom such reports were made. . . .

6. If Sears does not follow these rules, we are not allowed to collect the first $50 of the disputed amount and FINANCE CHARGES, even if the bill turns out to be correct…

7. This monstrosity is a technicalitarian’s (if I may coin a word) dream. It requires little imagination to guess the disputes that could arise over technicalities involved in these rules. For example, which period would be running at any given time: the 10 days, 30 days, 60 days, or 90 days? Who decides whether an explanation is adequate, or whether the customer or the creditor has complied with all the rules? Do Sundays and holidays count? Suppose the customer only owes $10 when the dispute arises but that he subsequently charges $40 more. Suppose the creditor has made a mistake, or has not followed the rules. What is the total amount to be allowed the customer under the$50 rule? The possibilities for contentions are almost unlimited. Even a Philadelphia lawyer would be able to work his way through such a maze only with the greatest difficulty.

The above is not an isolated instance of government intrusion into our lives with intricate technicalities. Nor does it contain the most obtuse examples of detailed rules which have to be followed. In fact, these rules are fairly simple compared with some that have been promulgated. In the last several years the federal government has initiated technicalities with more comprehensive application than ever before. Several new agencies have been set up, each of which promulgates rules for virtually every private undertaking in the country.

The OSHA

One of these is the Occupational Safety and Health Administration, authorized by act of Congress in late 1970. Its rules apply to virtually all businesses "affecting" interstate commerce, which nowadays means nearly all of them. By June 17, 1974, its "Safety and Health Standards" ran to 326 triple-columned 81/2 x 11 pages in a tiny print that will assure eyestrain to readers. A little examination of some of these "standards" will illustrate the lengths to which they have gone in establishing technicalities.

Here are the rules for "Ladders, Fixed" as they appear in a handbook which abridges them for general industry:

a.                   All fixed ladders shall be designed for a minimum concentrated live load of 200 pounds.

b.                   All rungs shall have a minimum diameter of 3/4 inch, if metal, or 11/s inches, if wood. They shall be a minimum of 16 inches in clear length and be spaced uniformly no more than 12 inches apart.

c.                   Metal ladders shall be painted or treated to resist corrosion or rusting when the location demands.

d.                   Cages, wells, or ladder safety devices for ladders affixed to towers, watertanks, or chimneys shall be provided on all ladders more than 20 feet long. Landing platforms shall be provided each 30 feet of length, except where no cage is provided, landing platforms shall be provided for every 20 feet of length.

e.                   Tops of cages on fixed ladders shall extend 42 inches above top of landing, unless other acceptable protection is provided, and the bottom of the cage shall be not less than 7 feet nor more than 8 feet above the base of the ladder.

f.                    Side rails shall extend 3½ feet above the landing.

The following are some rules for trenching:

(a) Banks more than 5 feet high shall be shored, laid back to a stable

slope, or some other equivalent means of protection shall be provided where employees may be exposed to moving ground or cave-ins. . . .

(b)                  Sides of trenches in unstable or soft material, 5 feet or more in depth, shall be shored, sheeted, braced, sloped, or otherwise supported by means of sufficient strength to protect the employees working with them. .. .

(c)                  Sides of trenches in hard or compact soil, including embankments, shall be shored or otherwise supported when the trench is more than 5 feet in depth and 8 feet or more in length. In lieu of shoring. the sides of the trench above the 5-foot level may be sloped to preclude collapse, but shall not be steeper than a 1-foot rise to each ½-foot horizontal. When the outside diameter of a pipe is greater than 6 feet, a bench of 4-foot minimum shall be provided at the toe of the sloped portion.

Civil penalties for the violation of these and other such rules can run to as much as $1,000 per day for failure to comply after a citation has been issued. Criminal penalties can go as high as $20,000 fine and one year in prison.

An Equal Employment Opportunity Act was passed in 1972. It authorized an Equal Employment Opportunity Commission (EEOC) and prohibited discrimination on the basis of sex, color, religion, or national origin in their hiring practices by most employers of 15 or more persons. The Commission focused upon promoting "affirmative action," i.e., discrimination in favor of minorities and the "gentler" sex, and such things as advertising and testing. Their regulations on sex include some of their more tortured reasoning. For example:

(a)                  The Commission has determined that an employer’s rule which forbids or restricts the employment of married women and which is not applicable to married men is a discrimination based on sex prohibited by Title VII of the Civil Rights Act. It does not seem to us relevant that the rule is not directed against all females, but only against married females, for so long as sex is a factor in the application of the rule, such application involves a discrimination based on sex.

(b)                  It may be that under certain circumstances, such a rule could be justified within the meaning of Section 703 (e) (1) of Title VII. We express no opinion on this question at this time except to point out that sex as a bona fide occupational qualification must be justified in terms of the peculiar requirements of the particular job and not on the basis of a general principle such as the desirability of spreading work.

What follows is the Commission’s view of what can appear on a job application form as it may refer to sex:

A pre-employment inquiry may ask "Male, Female"; or "Mr., Mrs., Miss," provided that the inquiry is made in good faith for a non-discriminatory purpose. Any pre-employment inquiry in connection with prospective employment which expresses directly or indirectly any limitation, specification or discrimination as to sex shall be unlawful unless based upon a bona fide occupational qualification.

About the only "bona fide occupational qualification" based on sex which the Commission has recognized is in acting, where a male or female is being portrayed.

Environmental Protection

The Environmental Protection Agency (EPA) was set up in 1970 following a great hullabaloo about the environment. Its goal is to establish and maintain harmony between man and his environment, a rather tall order even for a government agency. To this end, according to an information sheet issued by it, "The Agency sets and maintains air and water pollution standards, regulates the sale and use of pesticides, sets standards for noise and ambient radiation, develops techniques and procedures for solid waste management, studies toxic substances, conducts research, and demonstrates new pollution control methods and technology." Since every act of man does, in some way, affect the environment, it is fairly safe to say that so long as it has the momentum behind it, this agency will spread its umbrella to cover more and more activities.

The Age of the Technicality, then, is upon us. Moderns have sometimes been amused by the tales of the intricate debates of scholars in the Late Middle Ages under the sway of scholasticism. But one wonders what a Duns Scotus (a medieval scholar whose name gave rise to the term "dunce" because of the meticulousness of his analyses) would think of our efforts to determine whether or not the reference to sex in an application form was made in good faith or not, at what point the decibel emission from some machine contributed significantly to noise pollution, what amount a bank over five feet should slope every 1/2-foot, and so on. Whether 10,000 angels could dance on the head of a pin might not have been a very good quest ion but whether 200,000,000 Americans can survive 10,000,000 regulations is.

The Age of the Technicality has been fostered, no doubt, by a number of trends and developments. We have been bent during the Modern Era toward precise quantification and the development of tools and instruments for doing it. Technology has spawned techniques for turning problems into technicalities. The courts have welcomed an ever larger number of cases which hinge on technicalities. There are many interested parties — such as technicians, scientists, lawyers, and bureaucrats — who benefit from the focus on technicalities. Above all, however, we have been thrust into the Age of the Technicality by the determination to use government to force us to do what some believe to be good and right. The result is the politicalization of life, and drastic decline in choice and freedom for the individual.

Forced to be Good?

It is no part of the purpose of this article to enter into the question of whether any of the objects sought by the myriad rules and regulations are good and desirable. There are many things it might be good for us to do.

It might be good if each of us attended church every Sunday. It might be good if we all had the same basic beliefs. It might be good if each of us had a balanced diet, exercised at regular intervals, and consumed only the blandest of food and drink.

It does not follow, of course, that if or because it would be good we should then turn to government to force everyone to do any or all of these things. It does follow, however, that if we turn to government to make us do what is good and right we shall have complex laws, intricate rules and regulations, bounteous litigation. Numerous hearings, expanding bureaus, and lives entangled in more and more technicalities. It follows that more and more of our time and energy will be devoted to enforcing and complying with and contesting these technicalities. There are deeper dimensions, as already implied, to these efforts to make people do good by law.

When we are compelled to do good by government, no virtue attaches to our doing it; it is only expedient for us to comply with the law. Not only does this reduce the moral dimensions of our lives but also compulsion breeds resentment and resistance which produces a perverse pleasure in evasion and in sabotaging the effort. A breach occurs between the governors and the governed, a breach which can widen into a gulf. A finicky government invites the contempt of the citizenry. A populace whimpering over violations of technicalities invites the contempt of each for all. The minute intrusions upon liberty tend to foster a contempt for life itself.

Can one, after all, imagine George Washington and his men suffering at Valley Forge in defense of our "Fair Credit Billing Rights"? If such had been their object, they might better have surrendered, retained the connection with England, and got the legislation a little sooner under the Labour government. The tyranny of technicalities is tyranny, but it is oh such petty tyranny that a man must grasp its whole impact before he sees it as worthy of his opposition.

Step by Step

We have fallen under this tyranny of technicalities bit by bit and step by step, though in recent years the pace of their imposition has increased rather rapidly. The method of those who have sought their imposition has been to focus upon some real or imagined problem, to propose its solution by way of some Federal program, to enact a law, and to set up some regulatory agency.

At first, such agencies usually dealt with some particular business: railroads, banks (the kind in which money is deposited), labor unions, and trusts. Over the years, more and more institutions and activities have come under such regulation, and now omnibus agencies — such as, EPA, OSHA, and EEOC — are being created.

Opposition to individual impositions has often been difficult to’ mount; the stated object often had broad appeal, and it is often precarious to oppose what is perceived to be good. The result has been that we have come into the Age of the Technicality so gradually that it would be difficult to determine when we arrived.

It is fairly clear, however, that the Age of the Technicality cannot be brought to an end either by opposing the creation of any more such agencies or by eliminating the abuses in the existing ones. There are already enough agencies with sufficient impetus to entangle us interminably in technicalities. It is not the abuses which pose the greatest threat but the resolute carrying out of what has been authorized. The effective level of opposition finally is at the level of principle.

Is Government the Right Tool?

The development needs to be grasped whole, its impact on the economy and on our lives seen for what it is, and opposition made to the attempt to force us to be good by law. Any other approach falls into debates over such things as whether or not women should have equal pay for the same work as men. That must not be the issue. The issue — regardless of rate of pay — is whether government is the proper instrument to impose it.

The issue may be brought into focus for us better if we imagine that the men who predominate in the legislature should decide that women should be paid, say, ten per cent less than men for the same work. But, it may be objected, that would be unjust. So it would, and so is a government decree that women should be paid the same. Government is in no position to determine the value of an employee; only an employer can do that, and justice requires that he pay an employee what he is worth to him. Those who are concerned about government preventing pollution need to understand that they are also talking about government authorizing some level of pollution. Virtually all the technicalities with which we are embroiled have to do with the conditions under which that which is prohibited is allowed, or that which is allowed is prohibited.

Protect the Individual to Do the Best He Can

The Age of the Technicality is not, itself, the age of safety and health. It is the age of the endless hearings, debate, and litigation over the degree of safety, health, and whatever. The principle on which it can be foreclosed is that government should attend to its tasks of protecting us from wrong and leave to us the business of doing good. When it does so, it will not need commissions, boards, agencies, and bureaus to interpret and impose myriad rules and regulations. These exist to permit what the legislature knows it should not prohibit but can discover no principle by which it can be allowed within the framework of law. That is reason enough for government not to be involved. The tyranny of the technicality will end when enough people realize that the legislation which has authorized it should be revoked. Until that happens, however, we should all hope that to some degree we live in an age of technology, for in the Age of the Technicality men will be increasingly too entangled in technicalities to do anything else much. Machines will have to do most of the work, if it is to be done. 

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March 1976

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