The Rule of Law – Part 10
The growth in legal complexity.
In this essay, we’ll explore the exponential growth of complexity in the law, and its adverse effects on individual liberty, using Supreme Court Justice Neil Gorsuch’s book Over Ruled: The Human Toll of Too Much Law.
Gorsuch begins his book with what should be a famous quote of James Madison’s:
At the dawn of our republic, James Madison contemplated the dangers to individual freedom, equal treatment of persons, and respect for law itself when a nation’s laws are allowed to grow “so voluminous that they cannot be read, or so incoherent that they cannot be understood ... or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”
Madison’s full quote, included in Federalist Paper No. 62, reads:
It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?
As Madison and Gorsuch point out, the rule of law ceases to be a rule when laws become “so voluminous that they cannot be read, or so incoherent that they cannot be understood.” To what extent do we live in such a world today, where law is so confusing that, for all practical purposes, it becomes arbitrary?
As Gorsuch writes:
The truth is, something’s happening in our country. Law is multiplying, and its demands are growing increasingly complex. So much so that ordinary people are often caught by surprise, and even seasoned lawyers, lawmakers, and (yes) judges sometimes struggle to make sense of it all. Of course, our country has always been a nation of laws. As children, we learn about the Boston Tea Party, how colonists objected to unjust laws announced by a capricious king, and how our founders chafed at taxation without representation. But we sometimes forget that they demanded laws, too. When the thirteen colonies decided to part ways with Great Britain, they detailed their reasons in the Declaration of Independence. High on the colonists’ list of grievances was King George III’s refusal to assent to laws proposed by colonial assemblies. When it came time to draft the Constitution, the founders paid special attention to lawmaking as well. They didn’t start by addressing how to elect our president or who would lead troops into battle in times of war. They didn’t even begin by recording the freedoms we treasure, like the right to be free from unreasonable searches, to speak freely, and to live out our religious beliefs in peace. Instead, in Article I they established Congress and proceeded to outline detailed procedures for how our national government was to make new laws … As the political theorist Hannah Arendt put it, “law is much more important in this country than in any other,” because Americans are “united neither by heritage, nor by memory, nor by soil, nor by language, nor by the same place of origin.” What unites us is a common commitment to self-governance under a Constitution the people themselves have approved. “In America,” as Thomas Paine wrote, only “the law is king.”
Not all laws apply to everyone, of course, but the massive increase in legal complexity impacts everyone, both directly and through its effects on everyone involved in the provision of the goods and services we use. As Gorsuch chronicles:
At the most basic level, law in our country has simply exploded. Think Congress is wracked by an inability to pass legislation? Less than a hundred years ago, all of the federal government’s statutes fit into a single volume. By 2018, the U.S. Code encompassed 54 volumes and approximately 60,000 pages. Over the last decade, Congress has adopted an average of 344 new pieces of legislation each session. That amounts to about 2 to 3 million words of new federal law each year. Even the length of bills has grown—from an average of around 2 pages in the 1950s to 18 today. That’s just the average. Nowadays, it’s not unusual for new laws to span hundreds of pages. The No Child Left Behind Act of 2001 ran more than 600 pages, the Patient Protection and Affordable Care Act almost a 1,000 pages, and the Consolidated Appropriations Act, 2021—which included a covid-19 relief package—more than 5,000 pages. About the last one, the chairman of the House Rules Committee quipped that “if we provide[d] everyone a paper copy we would have to destroy an entire forest.” … [T]hese figures from Congress only begin to tell the story. Federal agencies have been busy, too. They write new rules and regulations implementing or interpreting Congress’s laws. Many bear the force of law … [A]gencies now publish their proposals and final rules in the Federal Register; their final regulations can also be found in the Code of Federal Regulations. When the Federal Register started in 1936, it was 16 pages long. In recent years, that publication has grown by an average of more than 70,000 pages annually. Meanwhile, by 2021 the Code of Federal Regulations spanned about 200 volumes and over 188,000 pages.
But those numbers only calculate the tip of the iceberg, as many more governmental commands through memoranda fill people’s legal inboxes:
Even these numbers do not come close to capturing all of the federal government’s activity. Today, agencies don’t just promulgate rules and regulations. They also issue informal “guidance documents” that ostensibly clarify existing regulations but in practice often “carry the implicit threat of enforcement action if the regulated public does not comply.” In a recent ten-year span, federal agencies issued about 13,000 guidance documents. Sometimes these documents appear in the Federal Register; sometimes they don’t. Sometimes they are hard to find anywhere … [A] few years ago the Office of Management and Budget asked agencies to make their guidance available on searchable online databases. But some agencies resisted. Why? By some accounts, they simply had no idea where to find all of their own guidance.36 Ultimately, officials abandoned the idea.
Another large chunk of the legal iceberg consists of hundreds of years of judicial decisions, which also have the force of law:
Judicial decisions, as well, contain vital information about how all our laws and rules operate. Today, most of these decisions can be found on searchable electronic databases, but some come with high subscription fees. If you can’t afford those, you may have to consult a library. Good luck finding what you need there: reported federal decisions now fill more than 5,000 volumes. Each volume clocks in at about 1,000 pages, for a total of more than 5 million pages.
We’ve long passed the time when all these laws may have reflected common sense and popular intuition. As Gorsuch writes:
As you might imagine, much in this growing mountain of law isn’t exactly intuitive, either. Did you know that it’s a federal crime to enter a post office while intoxicated? Or to sell a mattress without a warning label? And if you’re a budding pasta entrepreneur, take note: by federal decree, macaroni must have a diameter between .11 and .27 inches, while vermicelli must not be more than .06 inches in diameter. Both may contain egg whites— but those egg whites cannot constitute more than two percent of the weight of the finished product. If officials in the federal government have been busy, it’s not as if their counterparts at the state and local levels have been idle … In 2010, The New York Times reported on the regulatory hurdles associated with opening a new restaurant in the city. It found that an individual “may have to contend with as many as 11 city agencies, often with conflicting requirements; secure 30 permits, registrations, licenses and certificates; and pass 23 inspections.” And that’s not even counting what it takes to secure a liquor license.
The ranks of lawyers have grown in lockstep, as lawyers encourage more regulation since disputes regarding legal compliance increase their own business:
To appreciate the growth of our law at all levels, consider the lawyers. In recent years, the legal profession has proven a booming business. Between 1900 and 2021, the number of lawyers in the United States grew by 1,060 percent, while the population grew by about a third that rate. Since 1950, the number of law schools approved by the American Bar Association has nearly doubled. The number of lawyers in Washington, D.C.? That stands at about one for every 25 residents. With the growth of law and its complexity, lawyers’ salaries have had no trouble keeping pace, either. Equity partners in some of the nation’s largest law firms now make on average over $1 million a year. Demand for legal services is so great that most Americans today cannot afford even desperately needed legal advice.
Some may wonder why recent efforts to downsize the federal government have relied on algorithms and code searches rather than an individualized analysis of federal programs and personnel. Part of the answer:
Our legal institutions have become so complicated and so numerous that even federal agencies cannot agree on how many federal agencies exist. A few years ago, an opinion writer in Forbes pointed out that the Administrative Conference of the United States lists 115 agencies in the appendix of its Sourcebook of United States Executive Agencies. But the publication also cautions that there is “no authoritative list of government agencies.” Meanwhile, the United States Government Manual and USA.gov maintain different and competing lists. And both of these lists differ in turn from the list kept by the Federal Register. That last publication appears to peg the number of federal agencies at 436.
Growing regulations are stifling growth such that what used to take government and private industry years to do now takes decades:
In the 1930s, the Empire State Building—the tallest in the world at the time—took 410 days to build. A decade later, the Pentagon took 16 months. In the span of eight years during the Great Depression, President Franklin D. Roosevelt’s Works Progress Administration built some 4,000 new schools, 130 new hospitals, 29,000 new bridges, and 150 new airfields; laid 9,000 miles of storm drains and sewer lines; paved or repaired 280,000 miles of roads; and planted 24 million trees. Compare those feats to more recent ones. In 2022, an opinion piece in The Washington Post observed that it had taken Georgia almost $1 billion and twenty-one years—fourteen of which were spent overcoming “regulatory hurdles”—to deepen a channel in the Savannah River for container ships. No great engineering challenge was involved; the five-foot deepening project “essentially ... required moving muck.” Meanwhile, raising the roadway on a New Jersey bridge took five years, 20,000 pages of paperwork, and 47 permits from 19 agencies—even though the project used existing foundations.
And violating the regulations promulgated by regulatory agencies don’t just result in one’s having to pay fines. They come with criminal penalties as well:
Our administrative agencies don’t just turn out rules with civil penalties attached to them; every year, they generate more and more rules carrying criminal sanctions as well. How many? Here again, no one seems sure. But estimates suggest that at least 300,000 federal agency regulations carry criminal sanctions today … The truth is, we now have so many federal criminal laws covering so many things that one scholar suggests that “there is no one in the United States over the age of 18 who cannot be indicted for some federal crime.” In case you think that’s an exaggeration, he adds: “That is not an exaggeration.” … It’s a state of affairs that sometimes makes it hard not to wonder how far we have left to travel to a world described by Lavrentiy Beria, the chief of Joseph Stalin’s secret police, who was reputed to have bragged, “Show me the man and I’ll show you the crime.”
And law increasingly comes from the federal level:
Once, most of our law came from local and state authorities; now, federal law often dominates … [C]onsider that for most of our history, responsibility for educating the young and setting public school policy rested almost completely in the hands of parents and local and state officials. Until 1979, the federal government didn’t even have a cabinet-level Department of Education. Now that federal agency employs more than 4,000 people and has an annual budget of almost $70 billion. While it shares much of that money with states and local schools, often it does so on the condition that they comply with an ever-growing list of federal mandates … More than ever, we turn to the law to address any problem we perceive. More than ever, we are inclined to use national authorities to dictate a single answer for the whole country.
Americans have increasingly come to default to reliance on government structures rather than each other and private organizations for support. As Gorsuch writes:
[C]onsider what America looked like when Alexis de Tocqueville traveled the country in the 1830s. As the historian Niall Ferguson has observed, Tocqueville “marveled” at the way early Americans “preferred voluntary association to government regulation.” As Tocqueville himself recorded, “not only do they have commercial and industrial associations . . . they also have a thousand other kinds: religious, moral, grave, futile, very general and very particular, immense and very small; Americans use associations to give fetes, to found seminaries, to build inns, to raise churches, to distribute books ... [and] create hospitals, prisons, schools.” In short, Tocqueville concluded, “everywhere that, at the head of a new undertaking, you see the government in France and a great lord in England, count on it that you will perceive an association in the United States.” These days, many of those old civic bonds are fraying. In his book Bowling Alone, Robert Putnam reports that “both civic engagement and organizational involvement experienced marked declines during the second half of the twentieth century.” In recent years, those declines have “continued uninterrupted.” A few decades ago, over 70 percent of Americans were members of a church, synagogue, or mosque; today fewer than half are. The Elks, a fraternal order that boasts six presidents among its past members, has “struggled” in recent years “with [a] massive decline in membership.”
And as Americans rely on each other less, their trust in each other declines as well:
Accompanying this decline in civic association, we have experienced a profound decline in trust in one another. We are less inclined to respect or even tolerate different ideas about how to live, raise children, and pray. Increasingly, studies show, we consider those who disagree with our own political views to be “immoral” or “unintelligent.” … Rather than trust individuals to judge what is best for their own happiness, health, and safety, we have become increasingly comfortable doing what the “experts” tell us—and increasingly comfortable with forcing others to do the same.
In the next essay in this series, we’ll explore how the increase in federal law has led to a decrease in individual liberty.