A U.S. Supreme Court justice is warning Americans of the dangers of “too much law.”
Ahead of the publication of his new book, “Over Ruled: The Human Toll of Too Much Law,” Justice Neil Gorsuch discussed in an interview on Sunday how an “explosion” of new laws could severely limit Americans’ freedom.
“Some professors say that there are now so many federal laws on the books—crimes—that every American over the age of 18 commits one felony a day,” Gorsuch observed.
The justice explained that the number of federal crimes enumerated by law has roughly doubled since the 1970s. He noted, “That just counts what’s in the code, the U.S. code passed by Congress. That’s just the tip of the iceberg because federal agencies have been busy, too,” possibly alluding to the now-dismantled Chevron doctrine, which previously allowed federal agencies to interpret federal laws contrary to U.S. courts.
While the Chevron doctrine has been credited with allowing federal agencies to “overregulate” the actions of American citizens, Gorsuch also discussed the idea of conduct being “over-criminalized.”
He said, “On the one hand we need laws to keep us free and safe. On the other hand, if you have too many laws, you impair those same freedoms and our aspirations for equality, too, because who can deal with a world with so much law?”
He continued, “As a judge now for 18 years, I just came to see case after case in which ordinary Americans—just trying to live their lives, not hurt anybody, raise their families—who are just getting whacked by laws unexpectedly.”
Gorsuch recounted that the IRS has been giving out incorrect answers on its hotline for those who wish to avoid accidentally committing tax-related crimes.
When questioned on why employees were providing wrong answers “about a third of the time,” Gorsuch summarized the IRS’s response, “Well, the IRS code has just gotten so complex and there are so many new laws.” He added, “There’s been an explosion in our laws, and it’s new and it’s different and it’s in our lifetime.”
Addressing the cause of this “explosion in our laws,” Gorsuch laid emphasis upon the importance of trust between Americans.
“I have to trust you, you have to trust me. We may disagree—that’s the whole point of democracy is we vote. That’s the engine of democracy is disagreement,” he explained, continuing, “But when we lose our trust in one another, when we lose our trust in ourselves and our own judgement, where do we turn? We turn to the state, we turn to laws, we turn sometimes to people very distant from our own homes. Federalism gives way to nationalism.”
He added, “And instead of nationalism being our laws made in Congress, it’s often moved over to agencies with less responsiveness to the American people.”
When asked how the judiciary is meant to respond to “conflicts between the branches” of government, Gorsuch responded, “The answer is the Constitution, and if it’s in the Constitution and the other two branches are infringing on it—the right to exercise your religion, the right to bear arms, your right to speak freely—I am duty-bound, I took an oath to uphold the Constitution, and you win even though the government may not like it.” He continued, “When do I stay out? When the Constitution doesn’t say anything about the subject. That’s left for ‘We the people’ to decide in their democratic process’ and that’s most things in our daily lives, isn’t it?”
Gorsuch explained that, in order to solve the problems of over-regulation and over-criminalization, “we have to learn how to trust one another. Not everything needs to be solved by a distant government. Sometimes we should remember what Tocqueville talked about, working with one another,” he said, referring to the early 19th-century French author Alexis de Tocqueville, whose book “Democracy in America” was a critical observation of the then-fledgling United States.
Gorsuch continued, “That means listening as well as speaking. That means learning how to lose as well as win. That’s trusting [that] the person with whom you disagree loves this country every bit as much as you do.”
Gorsuch’s comments come as President Joe Biden pledges new “reforms” to the U.S. Supreme Court, including term limits for justices.
While Gorsuch refused to comment directly on a “political” move in the midst of election season, he did ask, “The independent judiciary … what does it mean to you as an American?”
He continued, “It means that when you’re unpopular you can get a fair hearing, under the law and under the Constitution. If you’re in the majority, you don’t need judges and juries to hear you and protect your rights—you’re popular.” He asked again, “Don’t you want a ferociously independent judge and a jury of your peers to make those decisions? Isn’t that your right as an American? And so I just say, ‘Be careful.’”
Originally published by The Washington Stand
