Senator Mike Lee blends history with legal heritage in his interesting and relevant book Our Lost Constitution: The Willful Subversion of America’s Founding Document. Lee provides important historical context to give provisions of the Constitution important meaning. While also engaging, this method provides key insight into unheeded constitutional requirements contained therein. His analysis considers a few key portions of the Constitution: the Origination clause, the Vesting Clause, the Establishment Clause, the Fourth Amendment, the Commerce Clause and Tenth Amendment. Each with relevant history and the details of how each has been transformed into a dead letter.
In Part I, Lee documents the portions lost through the abdication of duty from our Federal government, in particular judicial enforcement. His first lost clause is that of the Origination Clause (amusing, I know). This is a worthwhile place to start as well, as the Origination Clause was the product of much debate at the Constitutional Convention that yielded our form of government. Lee successfully details the driving forces that lead to this division of power, that, in the spirit of compromise and in an effort to prevent an overbearing government, Benjamin Franklin suggested the power of the purse be delegated entirely to the House of Representatives. Some portions were removed and in the end the Origination Clause was passed, stating that a “Bill for raising Revenue” must originate within the House. Lee proclaims it as the “compromise that saved the Constitutional Convention.” (Chapter title).
However, this compromise did not last into our modern day. Though this clause has been ignored in times past, never to the degree seen in the enactment of the Affordable Care Act. Here, the Senate gutted a completely unrelated bill, the Service Members Home Ownership Tax Act of 2009 and filled it in with the Affordable Care Act, which is now currently the law of the land. This maneuver was only bolstered by the recent decision from the Supreme Court to deny writ of certiorari appealing the lower court’s ruling. The lower court ruled that this was not a “Bill for raising Revenue,” but instead to fund a program. This is an assertion that completely thwarts the purpose of the Clause, to keep tax creation and increases in the body closest to the people. Furthermore, the lower court determined that even if the ACA hadn’t been a bill for raising revenue that it nevertheless originated in the appropriate house. Now any revenue bill is at risk of being completely replaced with a tax and program by the government body more removed from the people.
The second lost provision covered by Lee is the Article 1 Vesting Clause, granting Congress law-making authority, which has been consistently and systematically delegated to the administrative state. An unfortunate result of an ideological shift in the 1930s. With this shift the Constitution no longer prevented the executive branch and the unaccountable “Fourth Branch,” administrative agencies, from exercising law-making authority. Instead, this constitutional requirement and the divisions of power so associated where deemed an unnecessary hurdle in the way of progress. Lee describes the shift in mentality well, detailing the acts from the Roosevelt administration that lead to the swelling of the executive branch, but more importantly the real and substantial growth of power inherent in vague congressional directives that have only continued since.
Missing from this analysis, but contained within the discussion of the Commerce Clause and Tenth Amendment, is the discussion on the “switch in time that saved nine.” A historical turning point for the Constitution, changing the standards of review employed by the judiciary particularly in economic matters. At this juncture the judiciary also began to defer consistently since then to agencies and their decisions. This effectively eliminated the non-delegation doctrine, which limited delegation authority to preserve the law-making function of the legislature. This oversight by the book is minor, but the impact of this major jurisprudential shift which has fundamentally changed Constitutional law. Lee more than makes up for it in his explanation of the history of the law, and powerfully ends this chapter noting the logical conclusion to this wholesale abdication by the legislative and judiciary branches to the executive when President Obama stated that “If Congress won’t act…I will.”
Lee takes us on several historical explanations that explore the deterioration of other provisions. The misinterpretation of the Establishment Clause, crusaded by a former Klansman whose animus against Catholics helped shape his views and jurisprudence, subverting the clear text of the First Amendment and generalizing specific limits on the Federal government as a limit on all governments. The story of Justice Black is riveting and surprising, Lee’s account is a must read.
Remaining true to form, Lee treats the reader to the historical context surrounding the Fourth Amendment, finding enlightening context in the arrest and trial of John Wilkes, a “sometime member of parliament, and sometime political prisoner.” This tale illustrates the dangers of the abuse of power and the necessity of restricting government action against its people by requiring the government obtain a specific warrant, opposed to the general warrants often issued as blank checks for invasive searches. More recently, Lee points to the similar scenario regarding NSA collection of metadata based off broad interpretations of statutory authority and without specific requirements. This analogy is sadly accurate. Indeed, there is little difference between the general warrants of yore to our modern sleek broad authorizations via legislative and executive mandate. Of the many issues Sen. Lee shoulders in his book, this is the one most ignored by his own political party. Considering that Sen. Lee is a political actor and sitting Senator, it is refreshing to see his willingness to disagree consistently (in the book and in the Senate) with the tone the Republican Party has often taken regarding warrantless data collection.
As I previously mentioned, Lee does detail the jurisprudential shift known as “the switch in time that saved nine” and surrounding events. This appears in his discussion on the Commerce Clause and the Tenth Amendment. His analysis is generally good, he aptly shows how the expansion of federal power was permitted through judicial deference to the legislative and executive branches. Notably, previously unprecedented interpretations of the Commerce Clause, which has allowed Congress to regulate items such as whether a farmer grows his own wheat for personal consumption. Lee, unfortunately, omits a portion of the story regarding the switch in time. Not only did this mark a deferential attitude toward the federal government, but it did so to state governments as well.
This switch was marked first by West Coast Hotel Co v. Parrish, where the Court found a state minimum wage law constitutional, overturning previous law, and relegating freedom of contract to a second class right. Though this case was decided mere weeks before Jones & Laughlin, the case mentioned by Lee as a pivotal point (which is accurate regarding the Commerce Clause), without the its ideological predecessor it denies the reader the full impact of this new court attitude and view of government. One that has largely rubber stamped government economic interference at any level constitutional. Granted, Sen. Lee may not hold a robust view of Supreme Court review over State actions. However, the fact remains that a robust era of constitutional review for state and federal laws caved simultaneously, and not as a matter of coincidence. Indeed the driving factor was a new theory of government which allowed constant meddling in markets attempting to reach desired result. Something that could only be implemented by allowing governments to disregard express limits on power and individual rights.
This is the one real weak point in the book. Understandably Lee may not wish to weigh in on the matter. Yet some recognition of the complex debates surrounding due process, fundamental rights, state’s rights, and the role of the judiciary does appear to be in order when dealing with a book on unenforced and neglected portions of the Constitution.
Lee does a good job describing possible solutions in recovering the lost portions of the Constitution. He also details some of the successes in restoring previously lost portions of our founding document. Notably the DC v. Heller case re-established the individual right to bear arms, litigated by Clark Neily now with the Institute for Justice. This is a fantastic tale and victory for those who cherish individual rights.
Ultimately, Sen. Lee’s book is a satisfying and educational read, treating readers to relevant historical background both in the writing and subversion of this important document. It is also accessible, even for those who are of a different party persuasion, though (and justifiably so, in my opinion) Lee does address politics, including his own experiences. Not only that, it provides much of the introductory material for the uninitiated, those less familiar with Constitutional law. In short, I would recommend this interesting and quick read from Senator Lee.
James C. Devereaux is an attorney and freedom fanatic. Questions, complaints and hysterics can be sent to email@example.com or follow him on twitter @jcdevereaux1. All views are representative of author only and not of any affiliate or employer.by