Magazine | June 1, 2015, Issue

Lost, Not Forgotten

Our Lost Constitution: The Willful Subversion of America’s Founding Document, by Mike Lee (Sentinel, 256 pp., $27.95)

We certainly do not want for books about the Constitution. They are ubiquitous. Why should we read another? What does it tell us that we haven’t already encountered elsewhere? One does not have to proceed far into Senator Mike Lee’s new book to find the answer. In a book about the Constitution, one hardly expects to encounter extensive discussions of Andrew Jackson’s famous duel or John Wilkes’s epic standoff against King George III. Our Lost Constitution uses these stories to teach the reader about some of the Constitution’s fundamental principles. The result is a book that teaches constitutional law and history but reads like a thrilling tour through some of the most interesting episodes in American history.

The book is fundamentally about the strange fact that we live under a Constitution that is still ostensibly in effect, and still revered by most Americans, but has been circumvented time and again in practice. Five provisions of the Constitution are given extensive attention here: the origination clause (all bills for raising revenue must originate in the House), the clause vesting “all legislative powers herein granted” in the Congress, the establishment clause of the First Amendment, the Fourth Amendment’s prohibition of illegal searches, and the Tenth Amendment. Each chapter addresses its clause in two parts: first by telling an interesting story about the history of the clause, and then by illustrating a contemporary event during which the clause was ignored or abandoned.

If you are wondering which one of these clauses is not like the others, you’re not alone. The origination clause is not typically considered a critical bulwark of limited, constitutional government, yet it is the first clause treated in the book. It is not hard to understand why Lee emphasizes the clause: It was central to the legal battle over Obamacare, because that bill was eventually determined to be a tax increase. The bill was deemed to have originated in the House, but only through creative and questionable legal gymnastics.

But the difficulty with using the origination clause to oppose Obamacare is twofold. First, doing so accepts the premise that the Affordable Care Act was a bill for raising revenue (which is far from clear). And second, it elevates the origination clause to the stature of the other clauses Lee discusses, thus failing to distinguish between temporary controversies and principles of permanent importance: That tax bills originate in the House as opposed to the Senate is hardly as essential to freedom as are the other provisions addressed in the book.

Our Lost Constitution is written in an engaging manner without sacrificing substance. I have studied the Constitutional Convention for years, and I learned new things about that great moment in our history from reading this book. I had not known, for example, the full story of British parliamentarian John Wilkes’s courageous opposition to King George III’s invasive practice of general warrants (in which British officers would claim a general power to invade the homes of British citizens rather than rely on particular warrants and probable cause) and the reaction it produced in the American colonies. Wilkes became a hero to the colonists, some of whom even adapted the Apostles’ Creed to memorialize Wilkes’s opposition to the Crown’s arbitrary power.

Lee’s concerns are not so much with specific political issues as they are with matters of constitutional and government structure: Are we going to continue to be governed by our own representatives? Will the government respect time-honored constitutional principles, such as the right to be free from arbitrary government searches? Can Congress fulfill its traditional constitutional role, or should we resign ourselves to a new form of executive government?

The book’s most crucial chapter discusses the vesting clause, which opens Article I. That clause states that “all legislative powers herein granted shall be vested in a Congress.” It does not permit Congress to exercise all of the legislative powers granted to the national government; it mandates that Congress exercise those powers. However, for decades most federal laws have been generated by agencies through the process of administrative rule-making.

Lee attacks this circumvention of the Constitution as a violation of two principles: the republican principle that we elect those who make the laws that bind us, and the separation-of-powers principle. He explains: “[The vesting clause] captures, more than any other, the audacity of the American experiment and its break with millennia of pharaohs, despots, and divinely inspired potentates. It was no accident that the framers made it first in the structure of the new Constitution. . . . They understood that ‘We the People’ would never truly be free unless we retained control over the branch of government responsible for making laws.”

In addition, “liberty cannot long survive in a nation where the person or entity that enforces the laws is the same person or entity that writes the laws.” Unfortunately, “that ideal of separation of powers,” like the ideal of lawmaking by elected representatives, “is far from the reality in which we live. . . . Most laws are now written and promulgated by executive agencies, not by Congress.” (One might note, as a modest correction, that some of these agencies aren’t even “executive agencies” but rather independent regulatory commissions, a truly “headless fourth branch.”)

This change came about gradually, but Lee draws our attention to one of the most important moments in the process: the inauguration of Franklin Roosevelt in March 1933. FDR’s first inaugural address was one of the most audacious speeches in American history. Nearly everyone remembers his famous admonition that “the only thing we have to fear is fear itself.” Sadly, fewer are attentive to the remainder of that speech, in which FDR compared the Great Depression to “the emergency of a war” and called upon “a trained and loyal army willing to sacrifice,” with Roosevelt as its leader. Self-appointed Generalissimo Roosevelt proceeded to assume the power to plan and control the entire U.S. economy — until he was challenged by the Supreme Court, at which point he threatened to pack that body with judges who supported his interpretation of the Constitution. The darker side of FDR’s famous speech is something more Americans should know about, and Our Lost Constitution should be commended for highlighting it.

No book is without deficiencies, of course, and there are a few to be found in this one. First, the book suffers from jarring shifts of tone between its historical narratives and its discussion of current controversies: The present-day sections immediately become more partisan.

Second, the book’s chapters on reform are short on specifics. The titles of four chapters in part 2 of the book suggest that we will learn how the courts, Congress, and the people can restore the lost Constitution. But, especially with regard to the courts and Congress, the reader receives very little in the way of detail. The chapter on the courts tells the story of the successful litigation in District of Columbia v. Heller that established that the Second Amendment applies to individuals as well as state militias. But it provides little guidance on how to achieve similar results in other areas. What are the potential opportunities out there for successful litigation? What kinds of institutions should be built to pursue these avenues? The chapter is silent on these important practical questions.

The chapters on using Congress to restore the Constitution are more specific, but they essentially boil down to a three-pronged strategy: pass the Regulations from the Executive in Need of Scrutiny (REINS) Act, to require Congress to affirmatively pass major agency rules before they go into effect; pass the USA Freedom Act “to rein in and reform government surveillance”; and make good on the threat to defund legislation. Of course, in order to do these things successfully, advocates of this strategy will require the support of the American people. And this is the real issue, as Senator Lee seems reluctantly to accept. Unless the American people start to care about these constitutional principles and are willing to hold their elected officials accountable for violating them, there is not much that our national institutions can do.

In fact, the Founders designed things this way. They believed that (in George Washington’s words) “the preservation of the sacred fire of liberty, and the destiny of the republican model of government, are justly considered as deeply, perhaps as finally, staked” not on the Constitution’s parchment barriers but “on the experiment entrusted to the hands of the American people.” The final chapter of Our Lost Constitution grants this point: “In the United States the people always ultimately have the power to rein in, redirect, or kick out their elected representatives. They need only marshal the political will to do so. . . . Congress and the courts each have a role to play in reclaiming the Constitution. But if we wait around for them to act on their own initiative, we will be waiting forever.”

Therein lies both the promise and the peril of our experiment in self-government. It is up to citizens to ensure that the lost parts of our Constitution are recovered. Our Lost Constitution is a book that should be on the shelf of every citizen who wants to aid in the process of recovery.

– Mr. Postell, an assistant professor of political science at the University of Colorado at Colorado Springs, is a co-editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era.

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