HANS VON SPAKOVSKY, HERITAGE FOUNDATION
Sen. Mike Lee has written a fascinating book about the six most important “lost” provisions of the U.S. Constitution, and how they need to be “restored.”
According to Lee, a Republican who represents Utah, that is the key to reinvigorating our country and getting rid of “what the founding generation would never have ratified and what subsequent generations have never endorsed—a federal government of unlimited power.”
This is not the type of book we often get from Washington political types, who tend to write superficial books intended to enhance their future office desires.
But then, Mike Lee is not your usual Washington politico: he is a former Supreme Court clerk for Justice Samuel Alito, an appellate lawyer well-experienced in fundamental constitutional issues. He ran for office because he was tired of seeing members of Congress fostering a huge increase in the administrative state by delegating their legislative powers “to federal bureaucrats unelected and unaccountable to the American people.”
Lee has obviously thought long and hard about the problems we are experiencing today with an out-of-control, bloated federal government and an overregulated, overburdened American economy.
In “Our Lost Constitution,” he explains why these problems are the direct result of how the courts, Congress and the executive branch have minimized or ignored what he considers to be the most important provisions in the Constitution that limit the size, scope and power of the federal government.
Lee has a family history that grounds him in his constitutional analysis: his father was Rex E. Lee, the 37th Solicitor General of the United States under President Ronald Reagan and the founding dean of Brigham Young University’s law school. When he was 10 years old, Lee “routinely” accompanied his father to the U.S. Supreme Court.
Lee says he learned how to be an appellate lawyer early on, not just because he attended Supreme Court arguments where he watched as “the black-robed justices fired questions” at his father, but because whenever he disagreed with his parents’ decisions on chores or allowances, “they would say, ‘Make your case. You’re probably not going to win, but we’ll listen.’” So he started his legal career at a very early age.
Lee even got his first experience of the political heat generated by constitutional fights when pro-abortion protestors showed up at his family’s home in Falls Church, Va., while his parents were out shopping with three of his sisters. They were angry about the arguments that General Lee was presenting to the Supreme Court in City of Akron v. Akron Center for Reproductive Health. All of these experiences helped start Lee’s “lifelong love of the Constitution” and his “growing frustration with legislators, judges, and presidents who ignore and distort it.”
The five essential but “forgotten” provisions of the Constitution—and the sixth provision that has been vastly expanded—that Lee discusses are:
- The Origination Clause—“All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”
- The Legislative Powers Clause—“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
- The Establishment Clause—“Congress shall make no law respecting an establishment of religion.”
- The Fourth Amendment—“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
- The Tenth Amendment—“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
- The “inflated” Commerce Clause—“The Congress shall have Power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
For anyone who thinks this book must be a boring legal treatise, think again.
Lee starts each chapter with a fascinating, historical story about how and why each particular provision was created by the delegates to the Philadelphia convention in 1787. This is a book that any layman will easily understand, because Lee put his considerable skills as a lawyer to work not only telling the stories of the convention and the vigorous debates between James Madison, Alexander Hamilton, and a host of other famous (and not so famous) early Americans, but explaining the historical Supreme Court decisions that interpreted (or more often misinterpreted) these essential parts of the Constitution, including decisions within the past few years, such as the Obamacare case.
Given the current fervor over the state religious freedom laws in Indiana and Arkansas, Lee’s chapter on the forgotten Establishment Clause is particularly interesting and timely. Chapter 4 is entitled “The Supreme Court’s Klansman” and tells the disturbing story of how Hugo Black, a member of the Klu Klux Klan, became a justice in 1937. Black built his career on his successful defense of a Southern racist who murdered a Catholic priest in 1921 for marrying the racist’s daughter to a Puerto Rican.
According to Lee, Black was a virulent anti-Catholic who used his position on the Supreme Court to push a distorted interpretation of the Establishment Clause that was intended to destroy Catholic schools. Black’s legal skills, however, were so mediocre that Justice Harlan Stone told a reporter on background that Black “made blunders which have shocked his colleagues.” Yet, according to Lee, it is Black’s view of the Establishment Clause that has prevailed and become the dominant view over the past eight decades.
The final four chapters of “The Lost Constitution” detail Lee’s recommendations on how the Constitution can be reclaimed through the courts, legislation and the power of the purse. For example, he recommends passage of the REINS Act, which would require all regulations with an economic impact over $100 million to be enacted into law by Congress before they can take effect.
Although Lee says that “we have plenty of reasons to be concerned about our republic’s state,” he remains “optimistic about its fate.” But “the Constitution has taken a beating over the years, and restoring it is a daunting endeavor.” He urges Americans to “demand that our elected officials respect” the Constitution and its essential provisions, and that we “hold each of those officials accountable for disregarding them.”
Hans von Spakovsky is Senior Legal Fellow at The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and manager of the think tank’s Election Law Reform Initiative. He is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration, the rule of law and government reform.
This article was originally published at Heritage.org. Used with permission.