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The still-unfolding story of America’s Constitution is a history of heroes and villains—the flawed visionaries who inspired and crafted liberty’s safeguards, and the shortsighted opportunists who defied them. Those stories are known by few today.
In Our Lost Constitution, Senator Mike Lee tells the dramatic, little-known stories behind six of the Constitution’s most indispensible provisions. He shows their rise. He shows their fall. And he makes vividly clear how nearly every abuse of federal power today is rooted in neglect of this Lost Constitution. For example:
· The Origination Clause says that all bills to raise taxes must originate in the House of Representatives, but contempt for the clause ensured the passage of Obamacare.
· The Fourth Amendment protects us against unreasonable searches and seizures, but the NSA now collects our private data without a warrant.
· The Legislative Powers Clause means that only Congress can pass laws, but unelected agencies now produce ninety-nine out of every one hundred pages of legal rules imposed on the American people.
Lee’s cast of characters includes a former Ku Klux Klansman, who hijacked the Establishment Clause to strangle Catholic schools; the Chief Justice of the Supreme Court, who called the Second Amendment a fraud; and the revered president who began his first of four terms by threating to shatter the balance of power between Congress and the president, and who began his second term by vowing to do the same to the Supreme Court.
Fortunately, the Constitution has always had its defenders. Senator Lee tells the story of how Andrew Jackson, noted for his courage in duels and politics, stood firm against the unconstitutional expansion of federal powers. He brings to life Ben Franklin’s genius for compromise at a deeply divided constitutional convention. And he tells how in 2008, a couple of unlikely challengers persuaded the Supreme Court to rediscover the Second Amendment’s right to keep and bear arms.
Sections of the Constitution may have been forgotten, but it’s not too late to bring them back—if only we remember why we once demanded them and how we later lost them. Drawing on his experience working in all three branches of government, Senator Lee makes a bold case for resurrecting the Lost Constitution to restore and defend our fundamental liberties.
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Senator Mike Lee (R-Utah) is a tireless advocate for our founding constitutional principles. A former Supreme Court clerk, he serves on the Senate Judiciary Committee, the Armed Services Committee, and the Joint Economic Committee. He was recently named chairman of the Senate Steering Committee. He lives with his family in Alpine, Utah.Excerpt. © Reprinted by permission. All rights reserved.:
The Forgotten Origination Clause
The Forgotten Legislative Powers Clause
The Forgotten Establishment Clause
The Forgotten Fourth Amendment
The Forgotten Tenth Amendment and the Inflated Commerce Clause
IN THE KILLER ANGELS, MICHAEL SHAARA REMINDS READERS that Stephen Crane wrote The Red Badge of Courage “because reading the cold history was not enough; he wanted to know what it was like to be there, what the weather was like, what men’s faces looked like.” He warns his readers, “You may find it a different story from the one you learned in school.”1
I hope this book tells a different story from the one you learned in school, even if (perhaps especially if) your school was a law school. I don’t purport to be another Shaara or Crane. But like them, I wanted to give readers some glimpse into “what it was like to be there.” What was it like to live under King George’s tyranny? What was it like for those who participated in the “miracle in Philadelphia” and produced our Constitution? If this book succeeds, it will help you feel as if you were right there at the pivotal moments of history, experiencing the rise and the fall of the constitutional provisions that I call the “Lost Constitution.”
To that end, I have taken some dramatic license on several occasions in telling these historical backstories. In no instance have I knowingly departed from what I have found in the historical record. But I have, for example, imagined what Alexander Hamilton might have said when he confronted a lynch mob at his college. And I have imagined some of what might have transpired behind closed doors at a dinner and special session of the Philadelphia Convention when Ben Franklin proposed the compromise that saved the Constitution.
At the outset of this project, I expected to use far more dramatic license than I have taken. In the course of my research, I was pleasantly surprised to find that the historical record is more dramatic than anything I could have imagined. It is also far more illuminating. As a result, with only a few exceptions, I found myself writing not historical fiction but history.
MY LOVE FOR THE U.S. CONSTITUTION TOOK ROOT IN MY EARLY years. From the time I was a young child, my parents taught me about the separation of powers, checks and balances, due process, equal protection, and the limited role of our federal government. It never really occurred to me that I was being taught about the Constitution; these were just conversations we had from time to time around the dinner table, in the car, and whenever the subject of government happened to arise. Before long, I learned what it meant to be an appellate lawyer because every time my siblings or I would disagree with our parents’ decisions about bedtimes or chores or allowances, they would say, “Make your case. You’re probably not going to win, but we’ll listen.”1
When I was about ten years old, I started routinely accompanying my dad whenever he argued cases before the U.S. Supreme Court. As kind and wise a man as I’ve ever known, he was the founding dean of BYU’s law school, and in 1981 he became the solicitor general of the United States, the federal government’s chief advocate before the Supreme Court. I’d watch with bated breath as the black-robed justices fired questions at him. He had a way of answering their questions in a manner that was not only responsive but also carefully calculated to advance his case. The verbal jousting I saw between lawyers and justices wasn’t quite as raucous as the debates at our dinner table, but after the oral argument ended, my dad would be so excited that he reminded me of a giddy child on a sugar high.2
My dad didn’t win every argument at the Supreme Court, but he did win most of them. More important, however, he had a near-perfect batting average at home. He could simplify even the most complicated of concepts, and I hung on his every word. I didn’t always understand everything he said, but I sure made an effort—especially because he had a way of making almost any subject seem interesting, and he loved it when any of his children showed genuine interest in the Constitution. I still remember how pleased he seemed when, as a fourth grader, I replied to his explanation of America’s long-standing abortion debate by asking, “Shouldn’t this issue be addressed by the states rather than by the federal courts?”
My dad could hardly contain his joy. I was only nine or ten years old.
A year or two later, the same issue arrived at our front door—literally. It was a cold morning in March. My parents had taken my three younger sisters shopping. My older brother was at a basketball game. The only people in the house were me and my older sister Wendy; and because she was still asleep, I was the only one who saw the most peculiar of vehicles pulling up in front of our house: a huge Greyhound bus.
Ours was a quiet suburban street in McLean, Virginia, many miles from the nearest bus stop. But even more unusual than the bus was the behavior of the dozens of people who poured out of it. I watched with wide-eyed curiosity as they began pacing the sidewalk in front of our house. They seemed to be chanting something, but exactly what I wasn’t sure. Determined to figure out what was happening, I went outside, which made it easier for me to see and hear what they were saying. Their chant was simple and consistent with the words written on the signs they were carrying: “Keep your laws off our bodies!”
Immediately, mischievous thoughts flowed through my eleven-year-old mind. Should I turn on the sprinklers? I wondered. Should I deploy my secret stash of firecrackers? Like the boy in Home Alone, I instinctively felt the need to defend my parents’ home, and startling these protesters sounded like an awfully fun way to do it.
Fortunately, I was (barely) mature enough to resist my first instincts. If I do that, it’ll be on the news, I thought. That will end up causing problems for my dad, and I don’t want to do that.
Instead, I decided to calmly approach and speak to the strangers who had arrived without invitation or warning on our sidewalk. I found the woman who appeared to be in charge and said, “I live in this house. Can you tell me why you’re here?”
“Well, little boy,” she said in the most condescending way imaginable, “we’re not here to hurt you. We just really disagree with some of the things that your daddy is doing in his job.”
It can be a little jarring when the first thing people tell you is that they don’t mean you any harm. That’s sometimes the first indication that the opposite is true.
In this case, I knew enough about my dad’s job and the abortion debate to realize they were angry about arguments he had presented to the Supreme Court. I later learned that the case was City of Akron v. Akron Center for Reproductive Health, a case involving the constitutionality of a city ordinance requiring second- and third-trimester abortions to be performed in hospitals and requiring minors to obtain either parental or judicial consent before obtaining an abortion. Appearing on behalf of the U.S. government (as amicus curiae or “friend of the court”), my father argued that, in adjudicating such constitutional questions, the Supreme Court should give due deference to states and local legislative bodies, especially where fact-laden questions of public policy are concerned. But that still didn’t explain why these people were in front of my house.
“That’s fine,” I said, “but why do you have to do it here? Why do you have to do it in my front yard?” After all, their signs said, “Keep your laws off our bodies.” Was it too much to ask them to keep their bodies off our lawn?
Apparently it was. She told me, “We’re being very careful not to step on your grass. I’m sure that you have lots of fun playing with your friends out here. We’re just staying on the sidewalk.”
Boy, I thought to myself, she is really missing my point. I wasn’t concerned about the grass. My concern went beyond the technical distinction between private property and public easements. I had meant to make a fairly obvious point: You can disagree with people, but that doesn’t mean you should go where they sleep and eat and raise children, attempting to subject them and their families to public shame, scorn, and humiliation.
After a while, a concerned neighbor found me and asked, “Hey, are you okay? Are you scared?”
But as soon as he saw the smile on my face, he knew I was just fine. I loved discussing important questions of public policy, and my usual sparring partners at the dinner table were a lot tougher to debate than the obtuse protester on my sidewalk. While I was a little startled, I was having the time of my life.
For the next two hours, men, women, and even a few children—apparently oblivious to the irony, they had brought children to an abortion-rights protest—marched up and down our sidewalk, always careful not to step on the grass. A news crew came and went. Neighbors gawked inquisitively from time to time, but the whole affair didn’t seem to hold anyone’s attention very long—including that of the protesters themselves. The sign-wielding activists whose voices became so familiar to me that day eventually grew tired of waiting for their much-anticipated, face-to-face confrontation with my father, who was still running errands with my mom and my three younger sisters. With disappointment showing on their faces, they climbed back into their bus and called it a day.
Within seconds after they left, my parents pulled into the driveway. In a stroke of bad luck for the protesters—who had traveled all the way from New York and New Jersey to criticize my father—they had missed him by less than two minutes.
I was standing next to the basketball goal at the end of our driveway, chomping at the bit to tell my parents about all the excitement they’d missed. But before I could get out a word, my dad beat me to the punch. “There was a huge Greyhound bus going out of the neighborhood,” he said with a baffled look on his face. “Do you know anything about that?”
· · ·
Although I disagree with the message of those protesters and believe they should have found a more appropriate place to march than the private residence of a public official, I admire their passion. At least they cared about the Constitution and the essential role it plays in limiting the power of government. At least they were willing to view government action with a critical eye, refusing to ignore what they perceived as a constitutional overreach. I wish more Americans—even those who read the Constitution differently than I do—shared their passion for identifying and enforcing constitutional limits on the power of government.
I wrote this book for people who share my lifelong love of the Constitution and my growing frustration with legislators, judges, and presidents who ignore and distort it. In one sense, this is a book about heroes and villains—those who inspired, crafted, and respected liberty’s safeguards and those who have tried to tear those safeguards down. But in another sense, this is a book with a message: The “Lost Constitution” should be restored, and it can be, but only if we remember the people and the stories behind it.
My wish for you is that you share your time not with me but with them.
Ducking and Dodging the Constitution
I KEEP TWO TOWERS OF DOCUMENTS IN MY SENATE OFFICE. THE first is only a few inches tall. A collection of all the legislation passed by Congress in 2013, it contains about eight hundred pages.
The second tower, which is eleven feet tall, is a collection of regulations proposed and adopted by federal agencies in 2013. It contains about eighty thousand pages.
These extraordinarily unequal towers illustrate a startling reality: The U.S. Congress no longer passes most of the federal laws, rules, and regulations that are imposed on the American people. While a mountain of those rules are decreed by an army of unelected federal bureaucrats, only about 1 percent of the rules we must live by are enacted by the most accountable branch of government—Congress.
Using a classic duck-and-dodge strategy, Congress routinely enacts legislation that purports to solve a genuine problem but provides no specific solutions. Congress then delegates to executive-branch bureaucrats the power to make legally binding rules or “regulations,” which will themselves determine the law’s real-world impact. It’s a brilliant plan; Congress gets all the credit for the popular goal and none of the blame for the controversial particulars of regulation.
One prominent example of this kind of lawmaking can be found in the Clean Air Act. The act essentially declares that “we shall have clean air” and then outlines a broad vision for limiting air pollution from both mobile sources (like cars) and stationary sources (like factories). The act contains relatively few details as to how its laudable objectives will be achieved. Instead, it authorizes the Environmental Protection Agency (EPA) to make and enforce legally binding regulations that, far more than the act itself, restrict air pollution.
This approach certainly has its advantages, and few would dispute that America’s air quality has improved substantially since the Clean Air Act’s passage and implementation. I’m happy, as I assume all Americans are, that the Clean Air Act has improved our nation’s air quality. There is, however, a major problem with this method of lawmaking: It insulates lawmakers from voter accountability and thereby undermines one of our Constitution’s most important features. It insulates members of Congress by giving them plausible deniability; they can blame the executive agencies for anything the voters don’t like. The bureaucrats at those agencies, in turn, become a unique and privileged class of lawmakers; they are insulated from voter accountability because they are never required to stand for election.
Thus, when the EPA adopts a new regulation carrying the force of law, those who find that law unnecessary, unreasonable, or even harmful are left with little recourse. Understandably, they might complain to those who have been elected to represent them in Congress. Members of Congress instinctively respond to such complaints by expressing empathy for those harmed by the law and frustration with the EPA and then adding something like “Well, that regulation was put in place by the EPA. That is where you should take your complaint.” Of course, the people at the EPA—as hardworking, well educated, and well intentioned as they may be—tend not to be terribly concerned about citizen complaints because they cannot be voted out of office.
It can be hard for most Americans—that is, those who don’t work in Congress or monitor its operations on a full-time basis—to understand how far our government has drifted from the Constitution’s vision and in many cases its actual stated provisions. Many Americans probably assume that our lawmakers understand our founding document an...
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