The “rule of law” sits high on the altar of American culture as a core national value. Law in America is as pure as law can be—impartial, precise, and therefore unquestioned, like the 10 Commandments. The mandarins of law debate fine points such as judicial deference but almost never ask doctors, teachers, employers, or civic leaders whether law supports or hinders them.
But Americans in their everyday activities see a different reality. Law is so dense that it is unknowable, and so complex that even large companies with huge legal staffs can’t comply—more like the 10 Million Commandments. Instead of protecting against abuse, law has become tangles of tripwires that are gamed for selfish purposes. Instead of enhancing freedom, law causes Americans to be fearful and defensive.
The stark discrepancy between legal orthodoxy and legal dysfunction is why the new book by Supreme Court Justice Neil Gorsuch and Janie Nitze is so important. In Over Ruled: The Human Toll of Too Much Law, Gorsuch and Nitze make a long-overdue announcement—The legal emperor has no clothes.
Starting in the 1960s, the rule of law was transformed into an instruction manual. Instead of defining an open field of freedom, law replaced freedom. A small-town magician giving magic shows for children in local libraries with a pet bunny must now comply with the same rules as a circus, including getting a federal license, informing the agency in advance if the bunny travels, and developing a 28-page “disaster relief plan.” The magician got off easy compared to the family orchard in upstate New York, which keeps 13 clipboards to keep track of some 5,000 regulations. Too much law, as Gorsuch and Nitze described, has a similar effect as no law. People in power can exercise arbitrary power, as highlighted in their book:
—A fisherman scrapping out a living was convicted under the Sarbanes-Oxley Act—a financial records law—for misplacing three out of 72 marginally undersized fish. Eight years later, the Supreme Court reversed his conviction, but by then he had lost his income, his home, and years of health.
—When tech wunderkind Aaron Swartz hacked into an academic library and purloined articles from the 1940s without paying, prosecutors offered a plea bargain of several months in jail. When he refused, prosecutors increased the charges so that he might spend half a life behind bars. He later died by suicide.
The abuses of power in both these cases also reveals a philosophical abscess of modern law—the assumption that law should be enforced automatically, as if it were a software program, without application of human values. That’s why there’s a sense of pervasive unfairness.
“Justice … is a concept by far more subtle and indefinite,” former Supreme Court Justice Benjamin Cardozo noted, “than any that is yielded by mere obedience to a rule.”
Law’s quest for universal uniformity is crowding out our freedom to do things differently, or live our values. A Catholic foster child agency with a century of successful placements of needy children was cut-off from public referrals because its religious beliefs prevented it from working with gay married couples.
In Over Ruled, Gorsuch and Nitze focus on how too much law enables abuses of authority. But replacing human responsibility with legal compliance also causes endemic failures in schools and other public activities. It’s the American version of central planning. Aides in nursing homes focus on paperwork instead of what elderly residents need. Employers don’t give job references and candid reviews for fear of a lawsuit. Schools and public agencies are largely unmanageable. Gold-plated building codes make “affordable housing” unaffordable. Getting a permit for a transmission line to Midwest wind farms can take a decade or longer.
For understandable reasons, Justice Gorsuch does not step over the line of separated powers to tell Congress and the president how to fix all this law. But it is not hard to glean the foundational principles that Justice Gorsuch believes should guide reform:
—Law must be knowable, not a trap for the unwary. This requires realigning law with intuitive norms of right and wrong conduct.
—Regulation should focus on avoiding public harms, not imposing one-size-fits-all uniformity on social activities.
—Legal enforcement must be proportional to the harm, not applied arbitrarily to ruin people for foot faults. Officials who abuse their power must be accountable.
—De-regulation is appropriate where law is not protecting any realistic public harm—such as requiring months of training to be licensed as a barber or hairdresser. But most regulatory micromanagement is cured not by deregulation but by simplification—replacing red tape with human responsibility and accountability.
Over Ruled is a powerful indictment by a sitting Supreme Court justice of a modern legal system that resembles a jungle instead of a framework for freedom. The message is loud and clear—American law is overdue for a spring cleaning.
Philip K. Howard is an author, attorney, and chair of Common Good. His new book is Everyday Freedom.
The views expressed in this article are the writer’s own.
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