Constitutional Law’s Tyranny of Complexity
What all of these well-intentioned efforts have created is a labyrinth of a convoluted “constitutional law” that has nothing to do with the written text of the Constitution. Rather, it keeps score of all the ways in which courts have let Congress get away with violating the plain text of the Constitution. Those folks without specialized training in the legalese of “constitutional law” will find their plainspoken objection to a violation of the Constitution greeted with babbling legalese.
Fans of this redefinition of the Constitution claim the Constitution is a living document that changes to suit the times. While this may sound very progressive, it’s scary when you consider the purpose of the Constitution is to set boundaries for the government to protect the freedoms of the people.
The Constitution is like a wall. Who wants a living wall surrounding their home? One day, the wall protects your house, another it expands into the neighbor’s yard, and on yet another day it contracts and breaks through the wall of your extra bedroom. It sounds like a low-grade horror film, but it’s the reality of our constitutional law.
Complexity and uncertainty are the enemy of liberty. Those who play with the boundaries to make it so no one but the “experts” can understand what’s going on are akin to the clerics of the Middle Ages, who kept the Bible out of the mother tongue, so it could not be understood by the common man. Working to create incomprehensibility out of plainness in order to make yourself powerful goes back thousands of years. It was Christ who said to the scholars of his day, “Woe to you lawyers! For you have taken away the key of knowledge.” (Luke 11:52a)
The key of knowledge has been taken away under this current speaker as bills are rushed to the floor with reckless abandon, with members herded to vote without even knowing what they’re voting on. Rep. John Conyers (D-MI) and Senator Tom Carper (D-DE) scoffed at the idea of reading the bill and knowing what’s in it. Most disturbing about this is that Carper’s committee wrote one of the Senate bills.
Democrats complain that provisions being touted by opponents are misunderstood or, less charitably, misrepresented by opponents. I have to chuckle when people who haven’t read something criticize others for mischaracterizing it. If the bill has been misunderstood, it’s because it was not written to be understood.
Unlike the writers of the 2,000-page monstrosity making its way through Congress, the writers of our Constitution wanted to be understood. So the answer to the question asked of Senator Nelson as to whether individual mandates are constitutional is “no.” But then again, most of what Congress does is unconstitutional.
The danger to our republic is clear. If we don’t stop rewriting our basic law into gobbledygook that the average person can’t understand, let alone respond to, we face a dark Orwellian future. Like at the end of Animal Farm, we’ll discover that “all animals are equal, but some are more equal than others.” The bulwark that once protected our liberties will become our prison wall.
The American constitutional order is failing because an overwhelming majority of the politically active have rejected the core premise of constitutionalism: that constitutionally specified processes, and those processes alone, determine what governmental action is and is not legitimate. Consider Election 2000. Consider the use of the courts to “interpret” the Constitution diametrically away from its obvious meaning, without recourse to the amendment provisions. And consider that our legislators are now largely candid about the unconstitutionality of just about everything they do.
In effect, there is no longer a Supreme Law of the Land. We have completed the transition from a republic to a pure majoritarian democracy…albeit the majority that matters is the one in office at any moment.
Dark future? America faces a very dark present.
Mr. Graham:
Very well done. I to read the Constitution when I was young but I have recently been re-reading both the document and a great deal of legal analysis of how it has been interpreted over the years. While I have been a great admirer of the work of the founding fathers I do believe that they misjudged human behavior in some regards. The fathers were sceptical of the fundamental goodness of human behavior especially with regards to group behavior. That was one reason why they chose not to form a true democracy even though they had plentiful examples of it in practice in the New England Town Hall traditions. However even John Adams was quick to note that a pure democracy at the federal level was not only unworkable but undesireable. He as most of the founders recognized noted that a pure democracy could quickly descend into mob rule – which was just the tryanny of the majority over the minority.
The solution was a carefully crafted document with checks and balances to offset the potential for the over exercising of power. The document not only limited the scope and powers of the federal government but also made it difficult to exercise the powers it was given by creating three different levels of governing to keep the federal government within the boundaries of the document. However that carefully crafted balance of powers began to be eroded with the so called “progressive” movement with first the amendment to allow the income tax (a far greater source of revenue to fund government’s appetite that what the Constitution allowed) and then the 17th amendment that allowed for the popular election of senators. We are taught to think of the 17th amendment as democracy in action (as much as we are actually taught anything about our Constitution in our public schools) but the real reason for this change was to diminish the influence of the states over the actions of the federal government. With this change we subordinated the states to the power of the federal government something the founders had great concerns. With this change the federal government could now begin to usurp to role of the states and force conformity to the dictates of the federal government.
The two major failings in the original document that I see were the result of the founders assuming that future generations would share the same values and beliefs as they did. As a result they did not see the need to limit the tenure of both the judiciary or the elected representatives nor the president. They assumed that by their design those seeking office would hold the high moral character and commitment to liberty that they held as they went about the business of turning these colonies into a country founded on the principle that government derives its legitimacy from the consent of the governed. The founders did not foresee that professional politicans would use government to advance their own thrist for power. Nor did they envision that these professional politicans would subvert the separation of powers by selecting judges with lifetime tenure who would uphold the rule of these professional politicians over the people – by selectively interpreting those sections of the Constitution to expand the political classes power over the people while ignoring the clear language of limits that the Constitution demanded.
If I could rewrite the constitution the only changes I would make are to establish fixed limits of service for any member of the government (executive, legislative and judiciary) and for the direct election of judges as is practiced by many states. That would truly make this government accountable to the people.
Great article. I hope PJM will explore the “legal plague” in all its aspects.
Dems are crying about “social injustice” all the time: “Some people have money and some have not and some succeed and some do not (and it is injust in itself, o.c.)”
But they themselves have built one of the most LEGALLY INJUST systems the West has known. Democrats are correctly called THE PARTY OF LAWYERS. Why debate honestly or compete honestly? Become a lawyer and screw the system any way you like. As a result we have one of the greatest injustices in America go almost totally unnoticed:
NO MATTER HOW RIGHT YOU ARE, IF YOUR OPPONENT HAS MORE MONEY THAN YOU DO, YOU’LL LOSE, simply because he’ll appeal and re-appeal and re-re-appeal. And he’ll go to the next judicial level, and to the next etc, until you’ll run out of money. And this LEGAL INJUSTICE was created by the Dems, “champions of all sorts of justice”.
And the Dems try to put their BIASED guys on the upper levels of the system, up to the Supreme Court. That’s why the “legislation from the bench” is so damaging: judges don’t INTERPRET the law anymore, they CREATE it. People nobody elected write the law for America. The libtardian law, o.c.
The attempt to make the law (any law!) incomprehensible for ordinary people is part of this “legal takeover”. The less we understand the law, the more we need THEM, depend on THEIR interpretation and THEIR decisions in OUR cases.
Just like with the Climategate, we need a LAWGATE. The same “peer review” scam happenes in the juridical magazines. Remember the attempt to dominate the discussion on the Second Ammendement, when a bunch of “scholars” systematically wrote articles in official magazines on “how Second Ammendment doesn’t mean individuals have a right to guns”? The same scheme as in the climate fraud. Fortunately, NRA discovered it, but the libs won’t stop, will they?
So, dear PJM, don’t stop either. Discuss the legal injustice in all its forms. Expose what the libs / dems do with the law behind our back. Good luck.
And please, let’s talk about STANDING, another libtardian tool to screw the rights of Americans.
NO MATTER WHAT RIGHTS YOU HAVE, if a court decides you have no standing, you can shove your rights up …
NO MATTER WHAT THE CONSTITUTION SAYS, IF NOBODY HAS STANDING, THERE IS NO MECHANISM TO PROTECT THE CONSTITUTIONAL GIVEN RIGHTS.
You may say whatever you want about Birthers, but the real scandal here is that Americans have the right to a constitutional president, but NOBODY SEEMS TO HAVE THE RIGHT TO PROVE his / her constitutionality: NO STANDING.
At the same time if your neighbour pollutes the environment, you can sue him (at least in some states). So, when it comes to liberal causes, any person on the street may suddenly have STANDING against you.
How many persons had STANDING in their attempts to sue Sarah Palin for what she wears? Incredible.
So, people have some rights, and there is a mechanism to protect those rights, but the LIBTARDIAN LEGAL MACHINE DECIDES WHETHER YOU HAVE A RIGHT TO YOUR RIGHTS (aka. standing) OR NOT: “You’ve got the right, but you have no right to get it”. Disgusting.
#1 Porretto
Perfectly said.
The cat’s cradle of cross referenced legislation AND law-enforced agency regulations make all laws by Congress uninterpretable by citizenry.
But ‘law enforcers’, including your neighbor, can assemble pieces as needed to create whatever they want with which to pistol whip you.
THROW THE BUMS OUT! ALL OF THEM! Burn the US Code and start again.
Today’s lawyers are similar to the priests of Delphi as depicted in the movie “300″. They pretend to translate the wisdom of the oracle, but instead twist her words to fit their nefarious purposes.
Our Founders never intended for our legal system to become an industry. They understood that power was to be used only sparingly and with great care, lest those with dark hearts succumb to the temptation to abuse it. Today we cannot be sure that some innocent word or action won’t be taken the wrong way by someone who feels “offended” and may pursue some legal action against us that would never have been allowed in the past.
If you’ve reached a certain age, you’ve no doubt noticed the increasing inability of the court system to arrive at a firm and fixed legal remedy to anything. Appeals are neverending, as time renders many facts irretrievable or else tires the defendant to the point of exasperation. Make no mistake, this does not happen by accident. It’s done in the effort to increase billable hours, your liberal courts in action.
Today’s lawyers fail to recognize how their profession functions as a monetary leech on our economy. Law firms do not make money in the normal sense, they take it from others. Wealth is not created, it is redistributed. We see this mindset in action in every bill considered by Congress. Legislation is eagerly drafted by lawyers who do not or will not see that their efforts are a direct assault on a free market. They have no true inderstanding of how money works in the economy because they’ve never made their money any other way than to take it from others.
We owe it to ourselves and our society to actively curb the actions of our own legal system for our own benefit.
Ooops, number 6 above is really me accidentally using a sarcastic sock puppet from another site.
I somehow doubt Barack Obama would agree with what I wrote.
We are governed by a huge mass of ambiguous and contradictory law. This fact enables our rulers in the judiciary and the congress which selects them: a precedent is always available, whether one wishes to overturn or sustain.
A document whose meaning changes over time, is in fact, meaningless. A meaningless document can not delineate rights.
The Constitution is both short and written in very plain language for good reasons. The founders wanted EVERYBODY to understand it. It is writen so clearly that even today over 200 years later it is quite easy to grasp what they were talking about. If there are any remaining doubt about a particular issue, the Federalist Papers quickly will clear it up. Constitutional Law is simple, very simple. Anyone who says differently is selling something.
OK, so has almost EVERYTHING has gotten exponentially more complicated since the time of the Founders. A reasonably intelligent person of the time could understand the workings and principles behind just about every machine, mill, and process in the culture.
Given what has developed in science and technology since 1790, and the endless complexity of our staples and gadgets, is it reasonable to accept that our government, laws, and te processes surrounding them would remain as simple as they were then. John Adams and most of the rest were the lawyers. Go figure.
I need only look to how demonized constitutionalists are when they dare ask that the government confirm that obama does in fact meet the constitutional requirements set forth in the constitution…
To the leftwingers the constitution says what they want it to say when they want it to say it… as with all collectivists ideals the collectivist elites are the law and the highest law…nothing is above their god like ideology.
Just as Clemenceau opined that “War is too important a matter to be left to the military”.
Constitutional law and therefore the rights of the people are too important a matter to be left to the lawyers.
“You’ll be slapped (i.e., taxed) — and you’ll like it!!”
TO: Adam Graham, et al.
RE: ALL ‘Democracies’….
….commit ‘suicide’. And US has become a ‘democracy’ instead of a representative republic through bits and pieces of misjudgment over the last century.
Case(s) in point….
[1] The 17th Amendment to the Constitution of the United States what greatly diminished the power of the states with the popular election of US Senators.
[2] Reynolds v. Simms (SCOTUS 1964) where the Supreme Court destroyed the constitution of every state in the Union, less Nebraska, by turning their state senates into nothing more than an over-paid version of the state House of Representatives. Thusly destroying the balance of legislative power between metropolitan and rural areas. The same balance described, at the federal level, as The Great Compromise.
Regards,
Chuck(le)
[The road to Hell is paved with good intentions....by fools....]
TO: TruthTeller, et al.
RE: Get a Grip
The ‘fact’ of the matter is that our best colleges are TEACHING ‘lawyers’ that the Constitution is of no significance.
How do I say this?
Well…back in the early 90s, I attended a monthly ‘General Meeting’ of the Denver chapter of Mensa.
At this meeting, we had a speaker on Constitutional Law. She as a professor at Denver University.
During the course of her presentation, she said, “There are no such things as ‘Constitutional Rights’. There are only ‘textual rights’. If you change the ‘text’, you change the ‘right’.” Or words to that effect.
Getting the ‘picture’ here?
Regards,
Chuck(le)
[Gird up your loins.....]
Nelson is either a liar or an idiot. He should somehow be forced to choose which one.
as far as the Constitution, we could fix almost EVERY unjust (unconstitutional) law, of which there are far too many to count by one simple change. they must apply equally to everybody.NO EXCEPTIONS. that would disqualify most of what has been passed the last 100 years.
And the process evidently began early. In a review of EMPIRE OF LIBERTY
A History of the Early Republic, 1789-1815
By Gordon S. Wood
NYT book reviewer Jay Winik writes:
As the South Carolinian David Ramsay put it, Americans “changed from subjects to citizens.” Throughout the 1790s the United States increasingly became filled with “ambitious middling men” — craftsmen and entrepreneurs like bakers and bricklayers, artisans and shopkeepers, goldsmiths and clock makers and teachers and tradesmen, all of whom clamored for a say in how they were governed, how they were to be addressed (“Mr.” and “Mrs.”), even how medical dissertations would be written (no longer in Latin).
Thus, in the fleeting time span of some two decades, a new era in democratic politics and culture transformed the nation, effectively creating a very different country from the one the founders had envisaged.
And then there was the next twenty years, and the next, and the next etc. Wood and the reviewer believe that the Founders were exceptional people…but things happened. Go figure.
The SCOTUS, COTUS and POTUS have compromised
the spirit and original intent of the U.S.
constitution. Yes, it happened slowly and
maliciously; with intent! Today, a legislators lie is mere “Compromise,” as We The People are betrayed. The seperation of powers appears non-existent; criminal compromisers our masters.
Defense attorney’s allow procedural law to facilitate the conviction of their clients. The
American prison industrial complex is the new GULAG. The Innocence Project has totally exonerated convicted innocents; some who served 20+ years. American citizens are unaware they could be the “Systems” next victim. Violating the constitution, intentionally, (legally) is a serious crime and real threat to citizens. The
words, “Give me liberty or give me death,” we must defend. USArmy soldier
Pelaut: # 5 (above) is correct. ” Burn the invented code.” Remind the elect that we the people are indeed their masters; and they our servants. We have a duty to recapture our
hijacked republic. Submitting to tyranny makes us complicit in betrayal of those who follow us.
We have no choice; our only nation has been stolen by those conspiratous criminals who depend on our apathy and dependence. We must regain our independence or submit to slavery. A return to strict constitutional intent must be our battle cry; along with, NO RETREAT! USArmy
soldier
Constitution? Hah! There isn’t even the Rule of Law in this country anymore. There aren’t any Rights anymore (except to having someone else pay your medical bills, of course). The decline started with Marbury and has only gotten steeper. It’s not correctible. The only options left are tyranny and (redacted).
From the Federalist #62, Alexander Hamilton or James Madison: http://thomas.loc.gov/home/histdox/fed_62.html
“The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. 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?”
This is part of a list of problems that Hamilton or Madison predicts will come from unreliable and complicated government policy. It reads like a list of the top problems of the US currently. The others are lack of respect internationally, a few connected capitalists becoming enormously rich at the expense of the many, general economic downturn, and lack of respect for the law. I highly recommend reading the whole section, which starts with “To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others.”
To: Chuck Pelto
RE: RE Get a grip
TO: TruthTeller, et al.
RE: Get a Grip
Constitutional law and therefore the rights of the people are too important a matter to be left to the lawyers. — TruthTeller
The ‘fact’ of the matter is that our best colleges are TEACHING ‘lawyers’ that the Constitution is of no significance.
How do I say this?
Well…back in the early 90s, I attended a monthly ‘General Meeting’ of the Denver chapter of Mensa.
At this meeting, we had a speaker on Constitutional Law. She as a professor at Denver University.
During the course of her presentation, she said, “There are no such things as ‘Constitutional Rights’. There are only ‘textual rights’. If you change the ‘text’, you change the ‘right’.” Or words to that effect.
Getting the ‘picture’ here?
Regards,
Chuck(le)
[Gird up your loins.....]
Please reread my comment.
To explain, Constitutional law and therefore the rights of the people are much too important, much TOO critical, MUCH TOO fundamental. That lawyers, the politico-legal industry, judges, ETC, CANNOT and MUST NOT be allowed to be the only arbiters or influences on the interpretation and implementation of our U.S. Constitution.
The populace MUST both understand and protect the rights that GOD gave every human being. That WE the American people are allowing the politico-legal industry grand poobahs to take the power to erode those fundamental rights & responsibilities that are explained and expounded in the Bill of Rights and the Constitution is a travesty. A travesty that is compounded by their use of our fears and petty worries of safety or financial security to remove this country’s greatest asset, freedom.
Graham’s article recognizes that “the purpose of the Constitution is to set boundaries for the government to protect the freedoms of the people. But then goes on to misinterpret this purpose throughout, and raising the fears in the process that the Constitution may be considered a “living document,” which it IS in fact. If it were not a living document then why would we tolerate any amendments to it at all?
I wouldn’t care whether it were a living document or not if I, and all the people who are or will be affected by it were dead rather than living. You want a “dead” Constitution, then fine. Just die.
Graham decries those who he wants you to believe are misinterpreting the original intent of the Constitution when it is HE who is grossly and shamefully misinterpreting it for political advantage in advancing his narrow and bigoted world view.
The fact is that the Constitution was written by people living in the 18th Century who were forward enough in their thinking to allow for adaptation of it to the needs of future living people who they apparently realized would have their own lives to deal with long after they, the framers, would be dead and gone. And thank god for that. By the way… to all you “original intent” believers, what do you think the framers would say about your demanding that their Constitution is not a “living document?” I don’t think they would be flattered. I think they would rather intend to rebuke you for such an insult.
But, more to the point for those of us happy to be alive in the 21st Century, and those coming after us (if we don’t totally ruin it for all time), any talk about the Constitution bestowing any rights upon “We the People” is bunk. All of you who say you read the Constitution when you were a child need to go back and read it again as adults. Somewhere along the line you will come to recognize that the genius of the Constitution is that it purposely does NOT presume to bestow rights on anyone. The purpose and intent of the Constitution is that it expressly allows the democratic process to determine what rights and freedoms of the people will be infringed upon by their government, with or without due process. Any rights not restricted thus are our rights as a free people. So you will not find in the Constitution a right of the people to practice whatever religion they want (or to not practice any religion), or to express whatever they want to express, or to marry whoever they want, and so on. You will find language that intentionally forbids the government (“Congress”) from infringing on our rights or freedoms without due process or without agreement as expressed through our democratic processes (including elections and appointments to courts by our elected officials). Read the Constitution. How often do you see “Citizens are granted the right…” as opposed to “Congress shall make no law respecting the right of the people to…” This is NOT just semantics, except in the twisted minds of the Teabag Cult and Corporate Conservatives. This is how the Constitution is written and what it intends to say. Shame on you for trying to scare people into thinking that we are in danger of losing our freedoms by misinterpreting our brilliant Constitution.