For Supreme Court Justice Neil Gorsuch, American law is more dysfunctional than ever. In their new book Over-governed: the human toll of too many lawsGorsuch and his co-author Janie Nitze tell story after story of ordinary Americans who found themselves trapped in regulatory nightmares, from a 62-year-old man jailed for unwittingly importing orchids without the proper documentation, to a race car driver from race convicted of a federal crime after accidentally veering into a protected wilderness during a near-fatal snowstorm. They conclude that there are too many laws with too high penalties and that they are passed by unaccountable federal bureaucrats who are too far removed from the people they regulate.

It’s hard to disagree with this assessment. As of 2018, the federal laws in the U.S. Code span 60,000 pages. The Federal Register, which contains federal regulations, has an additional 188,000 pages. Some estimate that it would take more than three years to read the Federal Register, let alone understand it. And these figures don’t take into account the thousands of informal guidance documents that may also have the force of law. When the Office of Management and Budget asked agencies to put their guidance documents online, they reportedly refused simply because they didn’t know where to find them all. They don’t even seem to agree on how many agencies there are.

On a human level, this means that if you want to operate an orchard, you better keep up to date with the more than 5,000 rules that apply. at the federal level only. If you are a small magician using your pet rabbit in your show, remember to comply with the convoluted federal licensing system for carnivals, circuses, zoos and solo acts. Federal employees also do not hesitate to go after violators. In the case of the snowmobiler who accidentally entered protected land during a snowstorm, the government spent about $1 million over several years just to collect a $75 fine.

If Justice Gorsuch’s goal is to convince readers that “the law in our country has simply exploded,” he succeeds. But among the horror stories of excessive legislation, there is another story that eludes him: that of judges who too often turn away when victims of excessive regulation seek refuge in the courts.

This story begins in the early 20th century, when the Supreme Court adopted a new deferential standard of review for evaluating economic regulations. The justices had previously looked seriously at all restrictions on people’s liberty to determine whether a challenged law violated a constitutional right. But in the 1930s, the court created the “rational basis test.” Under these lax standards of review, judges will uphold a law as long as the legislature could reasonably have concluded that it was a good idea.

In practice, the standard has proven almost ineffective. Judges rely on rote explanations of laws, even manifestly absurd ones, and justifications contradicted by the evidence. They are even allowed to come up with their own justifications for the laws if government lawyers can’t come up with anything themselves in court.

Of course, not all rights benefit from this poor treatment. Privileged constitutional rights – freedom of speech and freedom of religion, for example – are likely to be subject to “strict control” by a judge, which is very difficult for the government. But if you go to court arguing that a law restricts a disfavored right, like your right to earn a living in your chosen profession, you’re stuck in a country built on rationality.

Add to that the Supreme Court’s reliance on avoidance doctrines, which allow it to send cases out of court, and its practice of accepting fewer cases than ever, and it appears the justices are not judging enough. Like overzealous legislation, lack of zeal in adjudication has terrible effects on real people: recently a social worker was told she couldn’t start a child care business. children with special needs simply because the government thought there were enough businesses already; it also meant that a company that could have contributed to the early detection of colon cancer was kept out of the market by its competitors.

Justice Gorsuch endorsed what some call “judicial modesty.” He has frequently warned against judges overriding lawmakers’ policy decisions with their own personal preferences, especially in cases involving economic regulations. As a result, his book focuses on all the ways in which the legislature violates the rights of the Constitution. construction provisions, which is apparently more objective. For example, he worries about the amount of legislation that happens at the federal level rather than in states or localities. He also laments how Congress has ceded much of its legislative power to unaccountable executive agencies.

But in this supposed modesty, Gorsuch downplays the way excessive legislation can also violate people’s rights. Structural provisions are only one aspect of constitutional protections for individual liberty. Laws that follow proper procedures may nevertheless be unjust and unconstitutional in substance. And without judges to enforce these protections, the Constitution is worth the parchment it is written on.

What Too governed ignores the question: Would Americans be better off if we faced the same onerous regulations, albeit created by states? Would we be better off if the federal government’s regulatory details regarding ketchup, peanut butter, and vodka were transferred to localities? I don’t think so. And when lawmakers pass laws that follow required procedures but are otherwise unconstitutional, it is the duty of the judiciary to step in and strike down those laws.

The failure to appreciate the role of the judiciary in assessing the unconstitutionality of laws is reflected in Gorsuch’s description of Buck v. Bella 1927 case involving a woman who was forcibly sterilized after being deemed “feeble-minded.” Carrie Buck appealed her case to the Supreme Court, but lost on the grounds that sterilizing her was a boon to the public. According to Justice Gorsuch, before this decision, the popularity of eugenics was waning, but the court’s decision “spurred” the movement.

What does he think of all this? In short, it “is a reminder that raising an issue on the national stage carries risks, especially when one seeks to resolve it hastily and with certainty on the science of the moment.”

But it is worth asking whether Male proves quite the opposite: that the court plays an essential role in the defense of freedoms, and sometimes (but not always) East actually a good answer. In Buck’s case, the answer is that you can’t take away people’s rights based on vague claims about the “public good.” The lesson here is that the Supreme Court has failed and should do better, not that it should do nothing at all to decide constitutional disputes.

Gorsuch rightly argues that judges should not replace policy decisions with their own preferences. But deciding whether something violates a person’s constitutional right is not a political debate. It is a question of whether a law pursues a truly legitimate objective or whether it is rather a matter of pure favoritism. This requires examining whether a law actually achieves its purported purpose or whether it is instead an arbitrary or irrational exercise of power. And it requires that courts not only point the finger at overzealous bureaucrats, but also at judges in the mirror. Every branch has a job to do in our constitutional order.

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