Sunday, April 12, 2015

Mike Lee's "Our Lost Constitution"

Via The Originalism Blog [itself highly bookmarkable], which is affiliated with the University of San Diego School of Law's Center for the Study of Constitutional Originalism:

Recently published—Senator Mike LeeOur Lost Constitution: The Willful Subversion of America's Founding Document (Sentinel 2015)
Here is the book description from Amazon: 
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 threat[en]ing 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.
From Randy Barnett:
Senator Mike Lee knows how to tell a story. Combining historical fact and his own legal expertise with imagined dialogues and settings, Lee brings the sometimes dry and archaic debates of the constitutional convention in Philadelphia and other episodes to life, and with them the Constitution itself. This is truly an inspired, fascinating, and important book.
And from Michael McConnell: 
Mike Lee won election to the Senate by traveling around his state giving talks about the Constitution. Now he has written a most unusual book, which interweaves lively histories of what he calls the lost clauses of the Constitution with biting critiques of such modern issues as delegation of legislative power to agencies, NSA data collection, church and state, and Obamacare. Readers may not agree with all his conclusions, but they will encounter serious history and a conscientious attempt to grapple with modern issues in light of an enduring Constitution.


JMS said...

Well, the silence is deafening on this one, so I'll "bite."

One does not have to be a legal scholar to recognize that there have always been (e.g., with Hamilton and Jefferson arguing about every issue in President Washington’s first-term cabinet meetings), and there will always be differing opinions on all manner of constitutional matters, particularly on Presidential actions, legislation from Congress and Supreme Court decisions. But it is beyond tiresome to hear the unending litany of self-proclaimed “real” Americans or constitutionalists who are always under attack and vow to save us all if we only ________________ (fill in the blank). There is no monolithic U.S. Constitution that has been “lost” or hijacked, or needs rescue and resurrection by any self-professed unadulterated political faction.

From the only substantive excerpt of Senator Lee’s book I could find on the Internet (other than the Introduction), I think Larry Wilmore would call Senator Lee’s “origination clause” legal analysis of Obamacare as unconstitutional as “weak tea, ” especially for someone affiliated with the Tea Party. Of course the Constitution says, “all Bills for raising Revenue shall originate in the House of Representatives.” But the Affordable Care Act was not a “raising Revenue Bill,” despite Justice Roberts’ after-the-fact ruling of the individual mandate penalty as a “tax.”

For the founders, the origination clause was written to place the taxing power closer to the people by investing the House with a special role in the development of revenue bills. But this original clause (Article I, Section 7) has a “hedge” in it by concluding, “but the Senate may propose or concur with Amendments as on other Bills.”

Most scholars agree that the origination clause is more or less defunct. Originally it made sense because House members were the only federal office-holders directly elected by the people, while senators were installed by state legislatures, and presidents via the Electoral College. Under that system, the House really was closer to the people. But, in 1912 the 17th Amendment largely eliminated that distinction by also providing for the direct election of senators.

Until an anti-gerrymandering amendment is added to the Constitution (as proposed by former SC Justice JP Stevens), it’s absurd to argue or believe that House members are closer to their constituents in this day and age, especially when 2014 House election spending totaled over one billion dollars (23% of which came from “outside money”).

I’ll conclude by strongly supporting Senator Lee’s efforts to invoke the 4th Amendment against the NSA and other federal agencies’ “search and seizure” surveillance of U.S. citizens email and phone calls without probable cause. But Bush and Obama both violated the 4th Amendment, and a majority of neither party’s Congressional delegation stood up against their president, so I suspect this is another bipartisan non-starter since 2001 and into the immediate future.

Tom Van Dyke said...

Of course the Constitution says, “all Bills for raising Revenue shall originate in the House of Representatives.” But the Affordable Care Act was not a “raising Revenue Bill,” despite Justice Roberts’ after-the-fact ruling of the individual mandate penalty as a “tax.”

Then Roberts is wrong and the bill is unconstitutional for all the other reasons, because the "tax" dodge was the only thing that saved it.

Not that "Living Constitutionalists" {Democrats] give a damn for the Constitution when it stands in their way.

Lee's book is way overdue, but perhaps too late to stop the lawlessness to which the left feels an entitlement.

A Feb. 2015 Rasmussen poll revealed that only 35% of Democrats disagreed when asked: “Should the president have the right to ignore federal court rulings if they are standing in the way of actions he feels are important for the country?”

81% of Republicans and 67% of voters not affiliated with either major party disagreed– an astounding difference of 32 to 46 percentage points from the Democrat perspective.

Art Deco said...

The rot in the intramural culture of the Democratic Party is dismaying. What's interesting is that rank-and-file Democrats favor this course of action when their chiefs are generally the beneficiaries of judicial free-booting. In fora like this, you see the long-term running grudges when decisions of circumscribed or evanescent import go against them (Bush v. Gore, Citizens' United).

The thing is, in our time, it would not necessarily be unreasonable to ignore a federal court decision. The arrogance of the judiciary is that bad. The time to do that might have been more than 25 years ago when federal judges were seizing control of local school districts and running them into the ground. Another might have been that 1985 case where a power-drunk judge jailed most of the Yonkers, N.Y. city council. Simply withdrawing the U.S. Marshall Service from the district and telling judge whatshisface that he'll have to hire bounty-hunters out of pocket if he wants the Mayor in the fedral lock up might have been enough.

Then of course, you contemplate the behavior of Eric Holder and the IRS. We live at a time where the collapse of professionalism among the elite bar is right in front of our eyes and has no systemic solution. The bar cannot complain if, in the future, they are dealt with in a rough and ready way.