Associate Justice Neil Gorsuch is a rarity of a judge, and not only because he is principled, learned, and seven years an incumbent of the Supreme Court of the United States. He is also literate, funny, and imaginative—which is unusual, especially for a black-robed power. And he has written another book to prove it.

　　Over Ruled: The Human Toll of Too Much Law, by Justice Gorsuch and his former clerk, Janie Nitze, is grim and humorous, disturbing and reassuring—and above all, informative. The authors paint a picture of the morass of law in contemporary America. The book’s theme is simple: There are too many rules. Proving this, Gorsuch tells stories, explains law and judicial opinions, relates facts and statistics, quotes the Founders, he parses out political philosophy. He does all this with the clarity available only to those who have mastered not merely facts and theories, but also narration.

　　Justice requires stories. Right and wrong depend upon them. What, but a narrative arc, distinguishes an act of violence upon one’s enemy in battle from the same act against one’s next-door neighbor? Trial courts employ juries not merely to determine facts but to determine plots. Did you do it? Did you do it on purpose? Where and when and why did you do it? What did the other guy do? How much harm was done? Particulars matter, and the law must recognize them.

　　The stories in the book are its heart. Pulsing through them is the thesis that a leviathan regulatory state is right now feasting—sometimes brainlessly, with no malicious actor except a tangle of asinine rules—on citizens who once thought they were free. These citizens are the protagonists of Over Ruled. Their stories are tragic. Like all great tragedies, they strike fear and pity into their hearers, command their attention, and invite a response.

　　Consider the first story’s misadventured hero, a fisherman named John who works off the coast of Florida. Getting on in their 50s, John and his wife are casting their nets (so to speak) to support their grandchildren. One day a state official who has been deputized by federal authorities boards John’s boat and takes a tape measure to John’s 2,000-pound catch. The official counts 72 red grouper under the 20-inch minimum. He cites John and orders him to transport the offending fish back to shore. There, the official lays out the contraband fish on the dock, remeasures, and recounts them—this time finding only 69. This proves to be a grave sin.

　　Three years later, the feds prosecuted John for destruction of a “tangible object” with “the intent to impede, obstruct, or influence a federal investigation.” He is charged not for catching 72 fish under the 20-inch minimum, but for allegedly disappearing three fish. Each of the contraband fish was over 18 inches, which means that John is on the hook for less than six inches of fish, maybe six pounds out of 2,000. The legislation John has allegedly broken is the Sarbanes-Oxley Act, which President George W. Bush signed into law in 2002 after Enron collapsed. The law concerns financial crimes, such as the shredding of incriminating documents by Enron’s accountants—and, apparently, such as losing track of less than a foot of grouper.

　　John the fisherman refuses a plea bargain, loses his business, spends 30 days in jail over Christmas, and appeals all the way to the Supreme Court of the United States. In a miracle, the justices hear his case. John is exonerated by one vote (before Gorsuch is on the court), but he does not get his money or his life back.

　　Note well, gentle reader: If you lose to the feds, your liberty is taken and your life is broken. If you win, you save a little dignity even if you lose everything else.

　　Too many laws, even good ones, make bad law. We need not merely good regulation but less regulation.

　　Over Ruled is replete with harrowing, true tales like this one. It also explains how laws and prosecutions have grown in number and size, like metastasizing tumors. Today most of our “laws” (or rules and regulations with the full force and effect of law) come from administrative agencies that work like somnambulant beavers; half asleep, but numerous enough in their swarms to dam up the flow of society. The authors document that such laws and the agencies that make them are uncounted, or at least that their number is controversial, even among defenders of this regulatory swamp. 

　　A bitter irony emerges: The sheer quantity of the laws and prosecutions negates the rule of law. Gorsuch quotes Publius: “If the laws be 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”—then justice is dead. In other words, if citizens cannot know the law, they cannot obey it. Conversely, those who enforce the law may do what they please, and they will get used to it.

　　I have seen the associate justice make this argument before. The one time I met Gorsuch, I praised him for writing one of the most eloquent opinions of our time. He repudiated the compliment, but I refuted him with evidence. I held up a page from his appellate court decision in United States v. Rentz. Here is a section of that page:

　　When I showed him the diagram above, the justice eased his modesty and smiled with pride, or so I thought. Then I told him this diagram was becoming famous at Hillsdale College, and he recovered his modesty: “Goodness, I hope it’s accurate.” It seems so to me. For those who have not seen a masterpiece like this since middle school (if then), the sentence Gorsuch diagrammed in federal court reads, “Any person who uses a firearm during and in relation to any crime of violence or drug trafficking crime shall be sentenced to a term of imprisonment.”

　　You see, then-Judge Gorsuch was trying to determine the meaning of a law. He was thinking that judges ought to do what the law says, an old and necessary practice now much in decline. Everyone knows, Gorsuch wrote in United States v. Rentz, that the law Mr. Rentz violated enhances the penalty for people who use or have guns while committing a crime. But, he continued, “the details are full of devils,” which is typically witty of him. In this case, if a man uses a gun while committing three crimes at once, is that three gun crimes, or one—is that five extra years, or fifteen? Gorsuch resolved the question using an exercise commonly imposed in school, back when school was good: He diagrammed a sentence from the law.

　　The exercise worked, for it allowed the judge to assess the law’s inventory of three sine non quas (“without which, nots,” “must haves”) of a just society ruled by the law: First, the laws must be identifiable by the people. Second, the laws must be knowable or easily discoverable. Third, the laws must be readily understood. The laws enforced and exposed in Over Ruled lack these attributes, and the citizens prosecuted under them have suffered dearly for it.

　　Despite the authors’ lucid prose, subtle wit, and careful creativity in telling and analyzing factual stories, I dare not call Over Ruled a fun read—except in the sense that Oedipus Rex and Macbeth are fun. Over Ruled is a book about American tragedy. In that tradition, Gorsuch and Nitze evoke pity, fear, and sadness—though not despair. Hope abides. But it starts with a sober-minded reckoning of the quagmire we have made of our power-drunk predilection for democratically-enacted laws and bureaucratically-imposed rules.

　　In an 1850 essay with which Gorsuch and Nitze are probably familiar, Frederic Bastiat wrote that when law exceeds its proper functions, it “has acted against its own purposes; it has destroyed its own aim; it has concentrated on abolishing the justice which it should have put in command and effacing the boundaries between various rights that its mission was to uphold.” Over Ruled demonstrates time and again how laws that have exceeded their proper function undermine the justice—and persecute the citizens—they supposedly were enacted to defend.

　　Gorsuch does not speculate in this book about the motives or mentality of the men and women who boarded John’s boat and hounded him for years; who denied his motion to delay his prison term so he could spend Christmas with his wife and grandchildren; who urged him to plead to a lesser charge of resisting an official, which he had not done. The moods of the law enforcers, while relevant, are incidental. When the laws themselves—by their quantity and indecipherability—elude understanding and compliance by well-meaning citizens, their enforcement portends injustice. Fair is foul and foul is fair. We should not deceive ourselves that such laws are weapons only in the hands of petty tyrants, whom we can avoid or rid ourselves of at the ballot box. The enforcer need not be Simon Legree of Uncle Tom’s Cabin for citizens to be ensnared and molested as criminals; a man can hang just as easily under Billy Budd’s kind, sympathetic, yet implacable Captain Vere.

　　Can the legal bog that mires so many Americans be drained, and if so, by whom? The courts cannot do it. By design, they are and ought to be too weak, lest they become masters that act outside the laws they exist to uphold. Ultimately, the burden of repealing bad laws and preventing worse laws (or any laws) from replacing them falls to the American people and to the states.

　　It was ever so. As early as 1835, Alexis de Tocqueville observed that “the laws of American democracy are often defective or incomplete; they may happen to violate acquired rights or to sanction dangerous ones: were they good, their frequency would still be a great evil.” In short, too many laws, even good ones, make bad law. We need not merely good regulation but less regulation.

　　We may regard the publication of Over Ruled as the first step toward cleaning up this mess; to explain the situation and urge us to understand it. Only then can the only people capable of fixing it do so. That would be we, the people of the United States, the people beset now on all sides by “swarms of officers” who “harass our people and eat out their substance.”

　　Once upon a time, Americans were formed as a people by their resistance to just such a swarm. Do they still have that in them? Justice Gorsuch hopes so, as do I.