Constitutional Law's Tyranny of Complexity

Senator Ben Nelson (D-NE) recently said that, as he is not a constitutional scholar, he could not say whether it is constitutional or not to require an individual mandate to purchase health insurance. Nelson’s statement is problematic for many reasons.

The Constitution is a simple document. I read through it for the first time when I was eight. The Constitution is 4,400 words long and takes fifteen to twenty minutes to read through carefully. It was made so that it could be understood by a New England plow boy. This is important considering that Senator Nelson is a two-term United States senator and former two-term governor who four times has sworn to uphold this document he can’t quite understand. Not only that, but he is a University of Nebraska-trained lawyer.

Is the reason for Senator Nelson’s uncertainty merely that we’re not as bright as we once were? To a degree, this might be part of the problem. In the Truth Project video series, Del Tackett recounts the story of a law professor who assigned his constitutional law students the Federalist Papers. One student complained that the papers were hard to understand. The professor responded that this was understandable, as the Federalist Papers were written for the average 18th-century New York farmer and encouraged the law student that he might someday attain their level of understanding.

But there’s a greater problem that leads to a situation where a sitting senator can’t review the list of seventeen powers granted to Congress in the Constitution and see if forcing individuals to buy health insurance is on the list.

The problem is that complexity has been introduced over the past century. It has not come through the passage of constitutional amendments, but rather through those who have wanted to accomplish ends that the Constitution does not allow the federal government to do. To do so, they’ve come up with novel and complex theories to justify government interference that the Constitution never condoned.

This isn’t to say these efforts were malicious. Many were as well-intentioned as an elderly woman writing bad checks to give money to charity. Many meant well in backing things like Social Security, the war on drugs, or the New Deal. But the road to hell is paved with good intentions.

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.