1. Here are the text and video of a beautiful speech by Supreme Court nominee Neil Gorsuch last April, titled “Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia.” In that speech, Gorsuch celebrates and embraces Justice Scalia’s understanding of the judicial role and his originalist methodology. An excerpt:
[P]erhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.
Without question, the discipline of writing the law down, codifying it, advances the rule of law’s interest in fair notice. But today we have about 5000 federal criminal statutes on the books, most added in the last few decades. And the spigot keeps pouring, with hundreds of new statutory crimes inked every few years. Neither does that begin to count the thousands of additional regulatory crimes buried in the federal register. There are so many crimes cowled in the numbing fine print of those pages that scholars actually debate their number.
When he led the Senate Judiciary Committee, Joe Biden worried that we have assumed a tendency to “federalize everything that walks, talks, and moves.” Maybe we should say hoots, too, because it’s now a federal crime to misuse the likeness of Woodsy the Owl or his immortal words, “Give a Hoot, Don’t Pollute.” Businessmen who import lobster tails in plastic bags rather than cardboard boxes can be brought up on charges. Mattress sellers who remove that little tag: yes, they’re probably federal criminals too. Whether because of public choice problems or otherwise, there appears to be a ratchet clicking away relentlessly, always in the direction of more—never fewer—federal criminal laws.
Some reply that the growing number of federal crimes isn’t out of proportion to our growing population. Others suggest the recent proliferation of federal criminal laws might be mitigated by allowing the mistake of law defense to be more widely asserted. Others still suggest prosecutorial discretion can help with the problem.
But however that may be, isn’t there still a troubling irony lurking here? Without written laws, we lack fair notice of the rules we must obey. But with too many written laws, don’t we invite a new kind of fair notice problem? And what happens to individual freedom and equality—and to our very conception of law itself—when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?
The sort of excesses of executive authority invited by too few written laws helped lead to the rebellion against King John and the sealing of the Magna Carta—one of the great advances in the rule of law. But history bears warnings that too much and too much inaccessible law can lead to executive excess as well. Caligula sought to protect his authority by publishing the law in a hand so small and posted so high no one could be sure what was and wasn’t forbidden. (No doubt, all the better to keep everyone on their toes. Sorry .…) In Federalist 62, Madison warned that when laws become just a paper blizzard citizens are left unable to know what the law is and cannot con- form their conduct to it. It is an irony of the law that either too much or too little can impair liberty. Our aim here has to be for a golden mean. And it may be worth asking how far we might have strayed from it.