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.