The Honorable Neil M. Gorsuch, associate justice of the U.S. Supreme Court and NCC honorary co-chair, and his co-author and former law clerk Janie Nitze, join for an America’s Town Hall program in celebration of Constitution Day 2024 and the release of their latest book, Over Ruled: The Human Toll of Too Much Law. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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Neil M. Gorsuch is an Associate Justice of the United States Supreme Court. His previous book, A Republic, If You Can Keep It, was a New York Times bestseller and won the 2022 Burton Award for Book of the Year in Law. His new book (with Janie Nitze) is Over Ruled: The Human Toll of Too Much Law. He serves as Honorary Chairman of the National Constitution Center.
Janie Nitze is a former board member of the Privacy and Civil Liberties Oversight Board. Previously, she was a law clerk to Justices Neil M. Gorsuch and Sonia Sotomayor of the Supreme Court of the United States. She also served as an attorney with the Office of Legal Counsel in the Department of Justice. Her new book (with Neil M. Gorsuch) is Over Ruled: The Human Toll of Too Much Law.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- National Constitution Center: Constitution 101 with Khan Academy
- Neil M. Gorsuch and Janie Nitze, Over Ruled: The Human Toll of Too Much Law (2024)
- National Constitution Center Classroom resources: Federalism
- National Constitution Center Classroom resources: Federalism and the Separation of Powers
Excerpt from Interview: Justice Neil Gorsuch discusses his concern over laws unfairly harming ordinary Americans, sharing examples from his judicial experience.
Honorable Neil M. Gorsuch: Well, I love our Constitution, and I know you do, and that's why you're here. And thank you for coming out tonight. This is not exactly everybody's idea of a date night, but it apparently is some of yours. So thank you. I've been a judge for 18 years or something like that, and I had just come to see too many cases where ordinary Americans are just trying to go about living their lives, secure the blessings of liberty for themselves and their families, trying to hurt no one, who've just been caught up in ways that you can't even imagine without really appreciating the depths of their stories in laws that they didn't foresee, couldn't have foreseen in many cases, and their lives were just ruined.
And whether it's a veteran who's seeking benefits for his disability, who follows the letter of the law to a T, but it turns out there's a regulation that everyone concedes is inconsistent with the law. He doesn't follow that, and he's still denied disability benefits. Whether it's an immigrant to this country who follows not just the law, but the judicial precedent about the law, and then is told by an agency later that now that doesn't count, we disagree with the judicial precedent, ignore it, and now you have to start all over again and spend 10 years out of the country when you have four children here in the United States. Or whether it's a company, small home healthcare company in Kansas. I used to sit on the Tenth Circuit in the western United States.
It's accused of Medicare fraud. Well, that's a big deal, and I take that very seriously, and that can ruin your business. That can kind of be it. And it turns out that they followed all, not just the statute, but all the regulations under the statute perfectly, the ones that were in effect at the time they provided the services and were being accused of violating regulations that were enacted or adopted only later. And it takes six years of litigation before the case makes it all the way up to my court and people figure that out. The agency is so confused by the number of regulations that it produces that it just got mixed up. And I just saw too many of those cases, too, too many of those cases. And I thought it was time for me to explore what's going on with our law and whether maybe we need to think about some of the changes that have happened in our law in our lifetime. And that's why we sat down to write the book.
Excerpt from Interview: Justice Neil Gorsuch warns against centralizing lawmaking, citing Buck v. Bell as an example of harmful federal decisions.
Honorable Neil M. Gorsuch: Well, everybody knows the story of Buck versus Bell, or if you don't, you'll read it in the book. But if you care to. The point of that chapter though is, we start looking at, okay, how has this happened? What exactly has happened? And there are two moves that I think in general the book describes. The first is the movement of a lot of our legislative authority, our lawmaking, from the local level. Where you can participate, there are thousands upon thousands, I can't remember how many, tens of thousands of elected jobs in this country.
Over 50,000. And you can volunteer and you can participate. Our lawmaking used to be primarily at the state level, and it has really moved up to the federal level. And then the other piece we document is how it's changed within the federal level, and I'm sure we'll get to that. Now, the move from the states to the federal government in our lawmaking has certain virtues. Uniformity, good. Good. Everybody knows what the rule is and they can cross states. And that actually facilitates commerce too. Race to the bottom, you prevent races to the bottom by states. You get rid of discriminatory and inappropriate laws that are popular maybe in one section of the country or another. So there's a lot of good things about nationalization, but is there a cost when you take things away from people? Possibly. Possibly. And the story of Carrie Buck, just in brief, is that story. There was in the early part of the last century, a move toward eugenics and a belief that it was okay to sterilize people who were considered in that time as feeble-minded. And Carrie Buck was one such person.
That never really took off in America the way it did later in Nazi Germany. It happened in some states, but not in others. Others recognized this is not a place we should be. And even in the states where it took off, it often got rejected by governors who vetoed the legislation or by judges in state courts who stopped it under state constitutional law and said no. Okay. Then Carrie Buck was a test case, as it turns out, out of Virginia by those who promoted sterilization. They thought they were losing badly in the states and they had to fight 50 battles. So maybe they could win one that would rule them all. And they took that to the Supreme Court of the United States where Oliver Wendell Holmes, one of our most famous jurists, wrote an opinion saying, among other things, that three generations of imbeciles is enough. And that reignited the move toward sterilization and eugenics in this country. And many more people died and were sterilized as a result. Okay? So it's a story about being careful what you move to the federal level. Maybe there's some virtue in our laboratories of experiment, as Justice Brandeis called our states.
Maybe you can stop things or start good ideas. We talk about good ideas, too, that come out of the state level and percolate up. And you don't wanna destroy federalism. You just wanna make sure, again, you have the right balance between the two. You don't wanna destroy the federal government, you need both. Madison knew this. It's that tension that improves our thinking. It's ambition against ambition. But when there's one person or one group that answers for everybody, you sometimes get good answers and you sometimes get very bad answers, like you did in Buck versus Bell. The good news is because it was never purely a federal issue, we never did what Nazi Germany did. There is a single powerful state and one decider. And of course, their record on eugenics was far, far worse than ours. So if there's a silver lining in Carrie Buck's story, it's that. Not much of one, but there it is.
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