Legalism Threatens Our Rule of Law
Associate Justice Neil Gorsuch is a rarity of a judge, and not only because he is principled, learned, and seven years an incumbent of the Supreme Court of the United States. He is also literate, funny, and imaginative—which is unusual, especially for a black-robed power. And he has written another book to prove it.
Over Ruled: The Human Toll of Too Much Law, by Justice Gorsuch and his former clerk, Janie Nitze, is grim and humorous, disturbing and reassuring—and above all, informative. The authors paint a picture of the morass of law in contemporary America. The book’s theme is simple: There are too many rules. Proving this, Gorsuch tells stories, explains law and judicial opinions, relates facts and statistics, quotes the Founders, he parses out political philosophy. He does all this with the clarity available only to those who have mastered not merely facts and theories, but also narration.
Justice requires stories. Right and wrong depend upon them. What, but a narrative arc, distinguishes an act of violence upon one’s enemy in battle from the same act against one’s next-door neighbor? Trial courts employ juries not merely to determine facts but to determine plots. Did you do it? Did you do it on purpose? Where and when and why did you do it? What did the other guy do? How much harm was done? Particulars matter, and the law must recognize them.
The stories in the book are its heart. Pulsing through them is the thesis that a leviathan regulatory state is right now feasting—sometimes brainlessly, with no malicious actor except a tangle of asinine rules—on citizens who once thought they were free. These citizens are the protagonists of Over Ruled. Their stories are tragic. Like all great tragedies, they strike fear and pity into their hearers, command their attention, and invite a response.
Consider the first story’s misadventured hero, a fisherman named John who works off the coast of Florida. Getting on in their 50s, John and his wife are casting their nets (so to speak) to support their grandchildren. One day a state official who has been deputized by federal authorities boards John’s boat and takes a tape measure to John’s 2,000-pound catch. The official counts 72 red grouper under the 20-inch minimum. He cites John and orders him to transport the offending fish back to shore. There, the official lays out the contraband fish on the dock, remeasures, and recounts them—this time finding only 69. This proves to be a grave sin.
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