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Have you committed a felony yet? Probably so.
By George F. Will
Supreme Court Justice Neil M. Gorsuch’s new book, which slays a cliché, should disturb prudent citizens. His readers will never again say ignorance of the law is no excuse for breaking it. If prosecutors had the inclination, most Americans could be convicted of felonies.
In “Over Ruled: The Human Toll of Too Much Law,” Gorsuch, with his co-author, Janie Nitze, notes that the Roman emperor Caligula posted new laws on columns so high, and written in a hand so small, that people could not read them, and hence lived in dread of committing criminal infractions. Gorsuch is too judicious to say so, but an ideological tendency is primarily responsible for the resemblance between Caligula’s Rome and this Republic. That tendency is progressivism.
Less than a century ago, Gorsuch notes, a single volume contained all federal statutes. By 2018, they filled 54 volumes — about 60,000 pages. In the past 10 years, Congress has enacted about 2 million to 3 million words of law each year. The average length of a bill is nine times what it was in the 1950s. Agencies publish their proposals and final rules in the Federal Register, which began at 16 pages in 1936, and now expands by an average of more than 70,000 pages annually. By 2021, the Code of Federal Regulations filled about 200 volumes. And in a recent 10-year span, federal agencies churned out approximately 13,000 guidance documents.
Ignorance of the law is no excuse? It is inevitable. Recently, Congress has added an average of 56 new federal crimes every year. Some scholars say — no one really knows — there are more than 5,000 federal statutory crimes. And at least 300,000 federal agency regulations — none written by Congress — carry criminal sanctions.
Of the many illustrative episodes Gorsuch recounts, even the ludicrous are sinister. After a children’s show at a Missouri library, a magician was accosted by an Agriculture Department official who demanded, “Show me your license.” For what? For using a three-pound bunny in his act. Decades ago, Congress had passed a law requiring dealers of certain animals for research to have federal licenses, then amended the law to require licenses for animal “exhibitors,” such as “carnivals, circuses, and zoos.”
The magician’s license imposed obligations: surprise inspections of his home, the requirement to notify the government of his out-of-town itineraries and contingency plans for hypothetical disasters that might endanger his bunny. A federal bureaucrat said his travel cage needed a sticker pointing up to indicate how to carry it. The magician said perhaps the handle on top sufficed. No, the bureaucrat said, and the government sent him 200 stickers pointing up.
In October 2003, pistol-packing federal agents dressed in black body armor poured from three pickup trucks to place a 67-year-old Georgia man in handcuffs and leg shackles for the alleged crime of importing orchids without proper documentation. Criminal law no longer enforces, in Gorsuch’s words, “a relatively small number of pretty intuitive and widely accepted norms.”
Increasingly, it expresses progressivism’s incontinent itch to boss people around, and a nasty thirst to punish deviations from ever-more-minute strictures promulgated by experts whose expertise supposedly encompasses how everyone else should live. As a result, Gorsuch says, a legal scholar estimates that “70 percent of adult Americans today have committed an imprisonable offense — many, maybe most, without even knowing it.”
Such conformity-enforcing progressivism encourages vindictive meanness. Until a unanimous Supreme Court swatted it down, Philadelphia, displeased with Catholic Social Services’ refusal to place children in foster care with same-sex couples, blocked children reentering foster care from reuniting with siblings who were with CSS families.
Progressives think progress depends upon (that is, they sometimes define progress as) the concentration of power as high as possible in government’s regulatory apparatus. Hence, between 1960 and 2019, the 900 percent increase in federal grants to states — from $70 billion (adjusted for inflation) to $700 billion — came with strings, resembling chains, attached.
James Madison foresaw our current condition, in which laws are “so voluminous that they cannot be read, or so incoherent that they cannot be understood,” and “undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.” Hence, Madison’s paradox: The multiplication of laws undermines the rule of law. “Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”
What we have become is unbecoming of a free people. Caligula’s ghost is grinning.
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