Gorsuch and the Left’s Tendency to Overcriminalize

Gorsuch and the Left’s Tendency to Overcriminalize
Gorsuch and the Left’s Tendency to Overcriminalize

In the face of too many laws, he calls for fairness and due process.


What does the ongoing debate about the role of legislative history in judging have to do with overcriminalization? Just ask President Trump’s SCOTUS nominee, Judge Neil Gorsuch, who was able — on the fly – to articulate brilliantly the interplay between these two issues. In the process, he displayed both his legal acumen and his regard for the principles of individual liberty.

On the third day of his confirmation hearings, in an exchange with Senator John Cornyn (R., Texas), Judge Gorsuch was asked to comment on the late Justice Scalia’s outspoken opposition to the use of legislative history in judging. Here’s what he said in relevant part:

There are some due-process and fair-notice considerations in this area that I take seriously. . . . Generally speaking, ignorance of the law is no excuse. We assume that it is reasonable for the people to be on notice of all 5,000 criminal laws that this body has passed. Is it also reasonable to expect them to know all the floor statements that have been issued about the law?. . . . These aren’t idle considerations, because, more often than not, we’re talking about a criminal statute. . . . And I have concerns about relying on things that are not law and charging people with notice of things that are not law as a basis for putting them in federal prison.

As a self-described originalist who writes about overcriminalization, I find that my enthusiasm about Gorsuch’s nomination just grew tenfold. Leaving aside the usual argument that legislative history is not law and therefore has little to no place in courtrooms, Judge Gorsuch makes a brilliant point. As he has pointed out on more than one occasion, there are about 5,000 federal criminal statutes. And, as my colleagues and I have pointed out, there are another 300,000 or so criminally enforceable federal regulations. Even in a world where citizens didn’t also have to comply with state and local laws, it would be patently unfair to expect anyone to be familiar with even half of what constitutes a federal crime in America. While not legally operative, the fact of the matter is that ignorance of the law is now the rule.

The law’s legitimacy depends on fair notice — something about which Judge Gorsuch has displayed a heightened awareness. Indeed, the injustice involved in imprisoning someone for breaking a rule he had no reason to know existed is obvious — which prompts the question of why the adage that ignorance of the law is no excuse is still persuasive in courtrooms. The phrase comes from a time during which the law was both intuitive and consumable by those governed by it. Two hundred years ago, criminal behavior was that which was intuitively wrong: murder, robbery, rape, trespass, fraud, etc. But the law has grown expansive and complicated to the point that legal scholars have posited that, on average, Americans unknowingly commit three federal felonies per day. Those complications explain how a Florida fisherman, John Yates, was convicted under the Sarbanes-Oxley Act, a 2002 statute passed in the wake of the Enron scandal, for allegedly throwing fish back into the sea before authorities could measure them. While Yates’s conviction was eventually overturned in a 5–4 decision by the Supreme Court, it illustrates both how confusing the criminal law can be, and how counterintuitively it is sometimes enforced.

Judge Gorsuch has a heightened awareness of the need for fair notice in the law.

Over time, there have been developments in the law to address the liberty concerns inherent in a system in which so much ordinary conduct (walking a dog on a leash longer than six feet in certain parks, for example) has been criminalized. There is the rule of lenity, which holds that courts should give criminal defendants the benefit of ambiguities in the laws under which they’re charged. There is also the general practice of requiring prosecutors to show criminal intent, which the Left has actually come out against codifying in federal law. Despite these modest protections, many of us would argue that judges (particularly those on the left) have given too much deference to the state in some matters of criminal law, leaving individual defendants like Lawrence Lewis (who was convicted of violating an EPA regulation) vulnerable to imprisonment for the violation of obscure rules buried in tens of thousands of pages of regulations criminalized by obscure statutes buried in tens of thousands of pages of legislation. That deference issue has reared its head during this week’s confirmation hearings, during which Senate Democrats, including Dianne Feinstein (D., Calif.), have expressed concern about Gorsuch’s position on the doctrine of Chevron deference (which requires courts to defer to federal regulators, who create thousands of criminally enforceable rules), as well as about whether he believes legislative history is persuasive on questions of statutory interpretation.

By giving so much weight to legislative history, the Left imposes the additional responsibility on citizens to become familiar with everything from the floor statements of lawmakers to documents entered into the legislative record — on top of the preexisting (and unreasonable) demand that we all familiarize ourselves with the entire body of criminally enforceable statutes and regulations that even trained lawyers (including yours truly) have a hard time understanding. That seems to fly in the face of the collective concern Senate Democrats have expressed for the “little guy” throughout the course of Gorsuch’s confirmation hearings.

So three cheers for Judge Gorsuch. I look forward to having a justice on the Court who has such high regard for due process, and an awareness of how problematic overcriminalization is.

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