How Many Laws Did You Break Today?
When the Washington Free Beacon asked me to review Over Ruled, I was honored, intrigued, and amused. Honored because this was Justice Neil Gorsuch’s latest work that’s not printed in U.S. Reports, the official publisher of Supreme Court opinions. Intrigued because he, along with his sometime coauthor and former clerk Janie Nitze (an accomplished lawyer in her own right) were arguing that our rule of law was suffering because we had not just too many laws—that ground has been well-trod, not least by my former colleague Walter Olson, who founded and for over 20 years ran the first-ever legal blog, Overlawyered—but too much law.
And amused because I myself have a book coming out called Lawless, which chronicles the illiberal takeover of legal education, with the danger that foretells for the future gatekeepers of our legal and political institutions. (It’s an irony that’s really two sides of the same coin, because too much law leads to arbitrary governance—as Gorsuch and Nitze put it, "the rule of law does not mean the rule by law.") Not only that, but my book and Over Ruled share the same publisher, editors, and even literary agent.
With that disclosure out of the way, we can get to what I promise will be the only block quote of this review, because it really encapsulates the authors’ project:
Some law is surely essential to our nation’s flourishing and our well-being as individuals. But what happens to rule-of-law values when we demand ever more from the law, when we insist on national rules before considering local solutions, and when we permit unelected officials to make more of the rules that govern us? What happens to our individual freedoms and to our aspirations for equal treatment under law? And what happens to our respect for law itself? Put another way: What rule-of-law values do we place at risk when we forget why the Constitution left so much authority to state and local authorities, why it sought to make lawmaking so hard, and why it insisted on vesting the lawmaking function in elected representatives accountable to the people in regular elections?
Gorsuch and Nitze illustrate those rhetorical questions with stories that involve a fisherman caught in Sarbanes-Oxley’s net and a magician pulling endless red tape out of a hat; monks facing the business death penalty for selling unlicensed caskets and Amish communities woven out for selling unlicensed baskets; people near a Superfund site who weren’t allowed to clean up their own land and regulators who got their fingers all over Ernest Hemingway’s six-toed cats!
All of these meticulously researched stories—chock-full of personal interviews—show that, even as we glory in "law’s empire" and hold up John Adams’s maxim of "a government of laws, not of men," there can be such a thing as too many laws. Indeed, long before our current bouts with inflation caused by overspending, America began suffering from an inflation that had little to do with economics. That’s legislative inflation, an excess of lawmaking leading to positive declarations and regulations where social norms would otherwise be sufficient. Unfortunately, the iron laws of economics hold in political science, and legislative inflation leads to a devaluation of the law.
As Gorsuch and Nitze exposit, the rule of law means something different than having laws to cover every contingency of human affairs. "Adolf Hitler blanketed Germany with laws—many secret and unknowable except to those in the Führer’s favor." The Soviet Union also celebrated many laws, as well as a constitution where all people were guaranteed food, shelter, health care, environmental protection, and even paid vacation. But these legal regimes were both shams, and subject to the rulers’ caprice: Lavrentiy Beria, the head of Josef Stalin’s secret police, famously said, "Show me the man and I’ll show you the crime."
Over Ruled pithily describes true rule of law as requiring "laws that are publicly declared, knowable to ordinary people, and stable." To flesh this out a bit, the rule of law is a principle of governance whereby all people and institutions—including the government—are accountable to laws, not personal authority. These laws have to be publicly passed by a representative body; enforced equally through robust legal processes by enforcement organs that themselves follow the law; and reviewed, interpreted, and applied by an independent judiciary.
In other words, the rule of law exists when people are secure in their persons and property; the state is itself bound by the law and doesn’t act arbitrarily; and everyone can rely on legal institutions and the content of the law to plan their personal and business affairs.
Three trends have threatened the rule of law in America: (1) the growth of government—the authors note that the Eisenhower Executive Office Building once housed the State, Navy, and War departments but now can’t even hold all the White House staff, and that three million civilians work for the federal government; (2) the growth of federal laws—such that lobbying the federal government has grown from $40 million to $4 billion in the last half-century; and (3) a bureaucratic explosion—such that in 2015, for example, Congress adopted 100 laws but federal agencies issued 3,242 final rules and 2,285 proposed rules. On the latter point, Gorsuch and Nitze describe a Pacific Legal Foundation report finding that "71 percent of the nearly 3,000 rules issued by the Department of Health and Human Services between 2001 and 2017 were issued by lower-level officials rather than Senate-confirmed agency leaders; at the Food and Drug Administration the figure was 98 percent."
People’s lives have been turned upside down by a centralization and expansion of government that ultimately can’t keep track of what it’s doing across its range of regulatory machinery. Over Ruled presents detail upon detail of ordinary citizens ensnared in nonsensical regulatory webs that in practice are little different from capriciously applied secret laws, just without the late-night knock on the door leading to a basement torture chamber. Not because the regulators and their enforcement agents are sadistic or power-hungry—though public choice theory makes clear the incentives to increase authority and budgets—but because the governing apparatus has grown too unwieldy. The deep state doesn’t know what the deeper state is doing!
And that’s before we even get to criminal law. As civil libertarian lawyer Harvey Silverglate famously posited, the average American commits three felonies a day. Gorsuch and Nitze have a chapter on such overcriminalization.
It’s ultimately Congress that’s the aggressor, both daring the courts to strike down major pieces of legislation and passing broad laws that leave it to the bureaucracy to produce the legal rules by which people live their daily lives. Former senator Ben Sasse gave a neat summary of this dynamic at Brett Kavanaugh’s confirmation hearings: Congress doesn’t do its work so it can pass the buck to faceless civil servants, and to a court system that has to determine whether whatever the alphabet agencies devise is within spitting distance of what the law allows. What’s supposed to be the most democratically accountable branch has been punting its responsibilities and avoiding hard political choices since long before the current polarization.
At a time of record-low institutional trust, citizens of all political views have thus become fed up with a situation whereby nothing changes regardless of which party is elected. Washington has become a perpetual-motion machine, with courts as the only actors who can throw in a monkey wrench. That’s why there are more protests in front of the Supreme Court than across the street at the Capitol.
This rule by experts, whereby society’s grand political problems have all been sorted out such that all that’s left is technocratic administration, would make Woodrow Wilson smile. Not that we weren’t warned, or that this is something recent that can be traced to 9/11, Barack Obama’s pen-and-phone governance, or Donald Trump’s trip down the golden escalator. Way back during the government expansion under Franklin D. Roosevelt, an American Bar Association committee chaired by former Harvard Law School dean Roscoe Pound cautioned that "the idea of checks and balances is inseparable from a well-ordered society" and that "it is a mistake to think it an obsolete idea of the seventeenth and eighteenth centuries … something belonging only to a past era of small simple things." Even New Dealers would blanch at the administrative abuses we’ve seen, culminating in the scientific authoritarianism—but not actually based on science—of the COVID pandemic.
Returning to first principles, and pace my old professor Richard Epstein, the complex challenges of a modern world demand the simplest legal rules possible, not one where every aspect of society is spelled out. To paraphrase James Madison, whose spirit infuses this book: If men were angels, we wouldn’t need laws. If angels ruled over men, the laws would be perfect, and perfectly enforced. Since neither is the case, we had better make damn sure the laws we have are the laws we need.
Still, Justice Gorsuch is optimistic—he joins his colleague Justice Kavanaugh in living on the sunrise side of the mountain. Over Ruled acknowledges that rule-of-law problems with government powers, competing rights, and other issues will not be resolved quickly or easily. But he has faith in America and Americans.
Over Ruled: The Human Toll of Too Much Law
by Neil Gorsuch and Janie Nitze
Harper, 304 pp., $32
Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court and the forthcoming Lawless: The Miseducation of America’s Elites. He also writes the Shapiro’s Gavel newsletter on Substack.
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