’Over Ruled’: Who Guards The Guardians?

Authored by John Maxwell Hamilton via RealClearPolitics,

“Quis custodiet ipsos custodes?” – Who guards the guardians? – is an old question that began as amusing repartee and has bedeviled democratic government from the beginning of its formation.

The phrase originated with the Roman satirical poet Juvenal, who was presented with the idea that wives should be chained to keep them faithful. Fine, the poet replied, but who will guard husbands?

The question for democracy lies at the heart of a new book by Supreme Court Justice Neil Gorsuch, “Over Ruled: The Human Toll of Too Much Law.” Too many laws and regulations administered by unaccountable government officials, he writes, have “swallowed up ordinary people.”

Gorsuch, with help from his former law clerk Janie Nitze, makes his case in a series of parables. They feature individual Americans who have been victimized by government laws that they did not know existed and that should not have been written in the first place. The courts in many stories are too aggressive in adjudicating cases that should have been considered minor infractions, at best.

In one such story, an agent from the U.S. Department of Agriculture informed a young magician, Marty Hahne, that he needed a license for using his rabbit in the act he had just performed at a local library. Hahne subsequently learned he also needed an evacuation plan for the animal in case of a hurricane or some other disaster. This requirement originated in a federal statute, the Animal Welfare Act, which regulates the treatment of dogs, cats, rabbits, and other animals for research, teaching, testing, and exhibition. Congressional lawmakers called on the USDA to apply the law to such venues as “carnivals, circuses, and zoos.” USDA regulators interpreted those exhibitions to include magic shows.

In other stories of misplaced rules and courts run amuck, people’s lives are more than inconvenienced. They are ruined. Gorsuch believes these stories show that a surfeit of laws is sucking the life out of democracy.

“Over Ruled” will be catnip for readers who fear the so-called deep state is out to subvert democracy. It also is convenient for Donald Trump, who, if elected, promises to “drain the swamp” by firing career civil servants and installing his own unelected supporters in their place.

But Gorsuch’s book should be taken seriously, both for its strengths and weaknesses. He certainly makes a valid point that the number of laws and regulations has exploded in recent years. The first federal criminal statute, written when the Republic was established, contained fewer than fifty crimes. Now the total number is, by some counts, 5,000. In the process, Congress has delegated powers to executive department agencies to write administrative laws and rules as well as apprehend suspects and judge them.

Having made the case for the problem, however, Gorsuch does not dig into the complexity of implementing workable solutions. He acknowledges that our society is much more complicated than it was at the nation’s founding, and therefore we need more measures to protect citizens. He does not tell us how we sort the good from the bad or how we regulate the regulators.

Perhaps most damaging to his argument, “Over Ruled” does not provide readers with the context needed to understand the longstanding tension between government by the people and the need for expert mediation on social, economic, and political problems.

Gorsuch, who believes judging involves close adherence to the original intent of the Constitution, takes us back to an earlier era that he characterizes as local people solving local problems. He considers this a good time for “ordinary Americans.” What he fails to say, however, is the Founding Fathers were elitists who doubted that ordinary white, male citizens, not to mention minorities and women, were up to the task of making good government decisions.

Gorsuch liberally quotes James Madison about the evils of too much law. But equally important, Madison and others hoped that elections would put the “best” in office. Only members of the House of Representatives were directly elected. Under the original Constitution, senators were elected by state legislatures. The Electoral College can “elect” a presidential candidate who did not win the popular vote – something that has happened already twice this century.

Thomas Jefferson, among many others, promoted national education schemes to create “a natural aristocracy” – what we would today call civil servants – to manage government. What Jefferson vaguely foresaw has come to pass, whether it is experts monitoring environmental degradation and food purity or ferreting out unfair trade practices.

This reliance on experts – people who have the training to determine facts – has not gone uncontested. It fueled populism in the United States in the late 19th century as well as today. Disaffected citizens feel government is not taking them into account and that the bureaucracy is an untethered fourth branch of government, a phrase Gorsuch used frequently. This mentality has given resonance to Donald Trump’s message that his intuitive common-sense ideas about interest rates are more sound than Federal Reserve System economists who have studied monetary policy all their lives.

Readers who want a fuller exploration of the longstanding social and political tension that arises from depending on experts can turn to “Democracy and Truth” by historian Sophia Rosenfeld. Or readers may choose a new volume by Stephen Breyer. The recently retired justice is an expert on administrative law and helped Sen. Ted Kennedy deregulate the airline industry. His “Reading the Constitution: Why I Chose Pragmatism, Not Textualism” thoughtfully weighs the difficulty of balancing fealty to the Constitution with the needs of modern society.

The willingness to rely on common sense over expertise is not infinitely elastic. Most people prefer to go to trained doctors when they are ill rather than consult someone they pass on the street. Most people like some aspects of government expertise and intervention. They may, for instance, place a high value on fighting animal abuse, which is the motivation behind the well-intentioned (if misused) Animal Welfare Act. Various professions require training and education in order to acquire a license to practice; in addition to adding to their credibility, this restriction reduces competition. One of Gorsuch’s examples of overreaching administrative law concerns an African American woman who was “apprehended” for braiding hair in her salon without having attended cosmetology school.

In regard to preferences, it is worth noting that Justice Gorsuch has some of his own, namely enlarging the power of presidents beyond anything the Founders conceived. Insofar as administrative power is concerned, he and other conservatives believe that the president should have more control over quasi-independent agencies.

A recent Supreme Court decision raises concerns about maintaining the protections that administrative law provides. The court found that it was unconstitutional for the Securities Exchange Commission to levy fines against a financier whom they deemed to have violated antifraud and pro-transparency rules. The court said the SEC had to pursue its case in federal court. This dramatic switch in thinking by the Supreme Court could make it difficult – and in some cases impossible – for agencies to police offenders. As law professor David Cole has noted, “some agencies’ statutes do not authorize them to sue in federal court.” It is worth asking, do we want our already flooded courts to deal with all these issues, when more efficient ways exist to get the job done?

Gorsuch has not written a legal analysis so much as a stump speech. His examples are akin to those used by political leaders to give a human dimension to policies they are promoting. Many of the stories are trivial to the point of being frivolous.

Is it really worthwhile to dwell on a law, long ago passed by Virginia legislators, to outlaw hunting bears with dogs on Sundays? A few reform-minded states have wiped laws like these from the books. At the federal level, Gorsuch notes, President Obama directed agencies to “eliminate rules that don’t make sense.”

These steps are relatively easy. The difficult part Gorsuch leaves untouched. His cases are largely cartoons. They do not demonstrate how to balance the injustice growing out of a law with the legitimate concerns it is trying to address.

The solutions he offers sound like Fourth of July speeches. His call for more civic education, as valuable as that would be (see my RCP column on the subject), emphasizes school-age children spending more time reading the Constitution.

Gorsuch argues that the expansion of laws and regulations undermines the credibility of our legal institutions. “Everyone feels like a criminal,” he told the C-SPAN audience.

The growth in law-making is a problem, but it is questionable that most Americans feel like criminals. How can they feel like criminals if they don’t know about all the laws that exist, as Gorsuch insists is the case?

If the justice is worried that we are moving “from a world in which law is revered into one in which it generates disaffection and feeds distrust,” he could profitably focus on the Supreme Court’s unwillingness to police itself. Feeble ethical standards govern justices’ behavior, which is well known and heavily criticized.

The Supreme Court has enormous power. Justices are appointed, not elected, and may serve until they die. They are given their jobs because of their expertise in nuanced application of the law. For Gorsuch, who belongs to this powerful elite, one might expect a deeper exploration of the trade-offs between too much law and too few protections.

“Who guards the guardians” is a much more profound subject than Justice Gorsuch lets on.

John Maxwell Hamilton is an RCP columnist, a professor at the Manship School of Mass Communication, Louisiana State University, and an award-winning author of eight books, including “Manipulating the Masses: The Origins of Government Propaganda,” which won the Goldsmith Prize.