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The New Federalist Papers
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Our-Lost-Constitution-Subversion-Americas/dp/159184777X">Our Lost Constitution: The Willful Subversion of America’s Founding Document
Sen. Mike Lee
(Sentinel, 244 pages, $27.95)

Sadly, the American public has become disconnected from its founding document, the Constitution. Knowledge of civics is so deplorable that few people can identify the three branches of government, let alone the constitutional bases for them. Most Americans have never read the Constitution. Even law students studying Constitutional Law learn mainly about Supreme Court decisions interpreting the Constitution—and arcane “theories” of interpretation— not the actual text. This ignorance has permitted the Supreme Court (and elected officials) to manipulate the Constitution, in the process allowing the Leviathan state to expand beyond the narrow limits intended by the Framers.

Senator Mike Lee (R-Utah) intends to correct that with his fine new book, Our Lost Constitution. The book is primarily directed at a lay audience, in the nature of the essays written by Alexander Hamilton, James Madison, and John Jay in 1787-88, popularly known as The Federalist Papers. Those essays, published in newspapers in the states critical to ratification of the freshly-drafted Constitution, engaged the public in an intelligent conversation about the structure and operation of the federal government. Lee seeks to begin a similar dialogue, regarding how far we have strayed from the original understanding.

Alas, since the Constitution was ratified in 1789, key provisions have been ignored and distorted. Lee, son of former Solicitor General and founding BYU law school dean Rex Lee, and a legal scholar in his own right, aims to restore the “Lost Constitution” by identifying some of these errors and their consequences. He focuses on five clauses that have been neglected or misconstrued: the “origination clause” in Article I, Section 7, which requires that all tax bills originate in the House of Representatives; the “legislative powers” clause of Article I, Section 1, which confers all authority to enact legislation on the Congress; the “establishment clause” of the First Amendment, which bars Congress from establishing a religion; the Fourth Amendment’s protection of privacy against governmental intrusion; and the Tenth Amendment’s reservation to the states of all powers not delegated to the federal government. Lee devotes a chapter to each of these “Lost Clauses.”

A generation raised to believe that the only important provisions in the Constitution pertain to free speech and “equal protection of the laws” may be surprised to learn that Founding Fathers had an elaborate, and carefully balanced, structure in mind. The Constitution granted limited powers to the federal government, and then warily allocated them among the three branches, to restrain abuses and provide accountability to the people. Over the years, the Supreme Court has circumvented those limits and altered that structure by neglect and, at times, outright fabrication. With interesting profiles and colorful anecdotes, Lee provides an engaging history lesson for each of his “Lost Clauses,” and explains the public policy significance of the Court’s departure from the text. Predictably, these errors have invariably expanded the size and power of the federal government, encroaching upon individual liberty.

For example, the requirement that the House (members of which are elected based on the states’ population) originate all federal tax bills was an important compromise—brokered in Philadelphia by Benjamin Franklin—between large and small states. Yet in enacting the disastrous Patient Protection and Affordable Care Act in 2009, then-Senate Majority Leader Harry Reid overcame the lack of political support by commandeering an unrelated bill (H.R. 3950) in the Senate, gutting it, and then “amending” it to incorporate the monstrosity we have come to call Obamacare, complete with at least 17 tax provisions. Fittingly, Obamacare was literally born in violation of the Constitution’s checks and balances.

Congress is entrusted with passing all legislation because it is politically accountable to the people at regular intervals. The Framers deemed this an essential bulwark against tyranny. Yet we now drown in an ocean of administrative regulations—equivalent to legislation in every way, civil and criminal—promulgated by unaccountable and entrenched bureaucrats at hundreds of federal agencies, to whom Congress has “delegated” rulemaking authority. Lee states that “most laws are now written and promulgated by executive agencies, not by Congress,” with annual compliance costs estimated as high as $2 trillion! Even the courts have abdicated review of administrative agency regulations, under the deferential Chevron standard. The Founding Fathers would be appalled.

No provision in the Constitution has been interpreted more erroneously than the First Amendment’s “establishment clause,” the meaning of which has been inverted. The mythical “wall of separation” between church and state—unknown at the founding—was concocted in 1947 at the behest of the rabidly anti-Catholic former Klansman (and U.S. Senator from Alabama), Justice Hugo Black in Everson v. Board of Education. “The result,” Lee explains, “was one of the most transparently misleading and historically inaccurate opinions in Supreme Court history.” Black’s goal was to cripple state support for parochial schools, and he succeeded beyond his wildest dreams. The Everson holding has been extended to ban voluntary prayer from schools, the Ten Commandments from courthouses, and nativity crèches from public squares. As Lee notes, a constitutional provision applicable only to Congress, designed to empower the states, has instead been interpreted to restrict their autonomy.

Few provisions were as important to the early colonists as the Fourth Amendment’s protections against unlawful searches and seizures. King George III greatly abused his subjects, and especially disregarded the sanctity and security of their homes. When James Madison went about drafting the Bill of Rights in 1789, the requirement of a general warrant to justify a government search was a central concern. However, in recent years, the exigencies of “national security” have led to a proliferation of laws that permit warrantless access to citizens’ personal information (including telephone records) by agencies such as the NSA. The Framers knew that unchecked government power will be abused, as the IRS has repeatedly demonstrated.

Lee’s final example, the neutering of the Tenth Amendment, has reduced the 50 sovereign states to the status of mere appendages to the federal government. The visionary delegates to the 1787 Constitutional Convention in Philadelphia would not recognize the bloated monolith—begat by the New Deal and engorged ever since—the national government has become. Congress has asserted essentially unlimited power to regulate pursuant to the “commerce clause” of Article I, Section 8. The Supreme Court’s ignominious acquiescence to this overreach began in 1937 and continues to this day, with Chief Justice John Roberts’ 2012 decision in NFIB v. Sebelius upholding Obamacare being the latest example. Congress has become untethered from its constitutional limits.

The second (and shorter) part of Lee’s book is devoted to solutions, and he spends a chapter apiece on the roles of courts, legislators, and voters in reclaiming the Constitution. Lee’s prescriptions here are hopeful, but vague and possibly unrealistic. The essential first step is to restore the political will for reform, which requires public education and thoughtful dialogue. The Federalist Papers guided public debate 230 years ago, and Lee’s book could prompt a renewed (and overdue) dialogue today. If the people are ever going to “take back” their country and insist upon a federal government whose powers are limited in the manner intended by the Framers—as set forth in the “Lost Constitution”—they need to begin by electing a President committed to that vision. Congress, which lacks the resolve to even pass a balanced budget, is not going to reform itself. (Ultimately, we need a five-person majority on the Supreme Court dedicated to reclaiming the Constitution.)

Although Senator Mike Lee is not a candidate for President in 2016, his friend and colleague Senator Ted Cruz (R-Texas) is. Whoever is elected President, the road to reclaiming the “Lost Constitution” could begin by appointing Lee (or a serious constitutionalist like him) to the Supreme Court. The Supreme Court’s job is to enforce the Constitution, as written and ratified. Much of our current predicament owes to the Court’s failure discharge that responsibility in a principled manner. Lee’s book is a guide to much-needed reform—a radically smaller federal government limited by the Constitution. Our Lost Constitution deserves to be widely read, and discussed, and heeded.

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