Our Lost Constitution

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I can’t say that I generally have high expectations of books written by politicians – even by smart and thoughtful elected officials such as Utah’s Senator Mike Lee. It’s not that many who run for office and who succeed would not be capable of interesting work; it’s just that their priorities are understandably skewed towards what serves their electoral interests. It’s called democracy: they can’t be public servants (that is, elected officials), unless they’re first elected.

So I intend no slight at all to the Senator when I say that I was pleasantly surprised in reading his: Our Lost Constitution. Sure I was a little surprised, but the surprise was very pleasant, because this is a very valuable and important book.

I’ve taught thousands of university students in courses that have much to do with the Constitution, and I cannot say that I’ve succeeded in being upbeat about the state we’re in, constitutionally. The massive miseducation we receive from our media and, alas, from much of our system of public education, assures us that, to the degree that the Constitution is relevant, it is because it is all about whatever individual or group rights are favorites of today’s leading lights.

The only part of the Constitution that generally interests us is the “Bill of Rights” (actually, the first ten amendments), and even there our interpretation and even our awareness is very selective, depending on the popular causes of our generation. Sometimes of course it comes to our attention that “rights” must have some limits, but it hardly occurs to us to consult the Founders’ own understanding of the natural basis of these limits or of the way these priorities grounded in “the laws of nature and nature’s God” [Declaration of Independence] were embedded in the Constitution’s provision for the institutional design of our Republic.

The clearest and most depressing sign of our oblivion of basic constitutional principles is the almost unquestioned assumption that all fundamental questions are to be decided by a Supreme Court, one member of which (at least) has had the gumption to declare openly that the meaning of the Constitution is, in fact, decided by what the Supreme Court itself says it means.

A moment’s reflection should be sufficient to realize that this attitude does not depict a constitutional order: what it reflects rather is the sovereignty of a regime of nine supposedly expert lawyers.  Thomas Hobbes (Leviathan, 16…), the founding author of the modern secular statism, seems to have prevailed over John Locke, the Baron Montesquieu and the American Founders: individual rights on this view have no foundation but the decree of a sovereign.

Of course everybody knows that the Constitution also provides for three branches of government with a “separation of powers”… blah blah blah… But how does this really matter? We count on Presidents to bring transformational “change” according to their inspiration, and on the Supreme Court to have the final say as to the ever-evolving definition of our “rights.” The idea that the structure of constitutional government might actually exercise some restraint on the imposition of transformational change is so exotic to us now that, when some primitive was brave enough to ask the then Speaker of the House about the constitutional basis of Obamacare, all she could say was: “Are you serious? Are you serious?”


Senator Lee is serious. As we shall see.

You can see why, when asked by students about the well-known (and well-supported) tradition among Mormons concerning a prophecy that one day the U.S. Constitution would hang by a thread, my mood was sometimes such that I would reply: I’d be happy to see that thread!   Well, Mike Lee understands that my dismal mood was well grounded. But he also sees the thread.

I should make it clear that the Senator relies on no prophecy and makes no appeal to religious tradition or authority in this book; nor does he convey any grandiose notions of his own role in efforts to see the remaining thread of constitutional freedom and to begin the hard work of re-weaving the fabric around it. He simply points to some undeniable facts, commits himself to trying to do something about the situation, and invites men and women of understanding and good will to pitch in.

The bold title says it all, doesn’t it: The Lost Constitution. We need to appreciate the scale of the mess we’re in before we can possibly do anything about it.   The genius of progressive American “liberalism” since the New Deal has been to employ the good ole rhetoric of American constitutionalism while eviscerating the actual constitution. So Americans have been led to think they can have their constitutional cake and eat it too: that we can retain a sturdy structure of limited government based on rights grounded in a sober assessment of human nature and supported by a virtuous citizenry, while at the same time giving the federal government the ever-increasing power it says it needs to solve all the problems its helmsmen assure us they can solve… if only we keep giving them more power (and more money, of course). So we’ve nearly eaten our constitutional cake.

Mike Lee understands this, and shows it plainly and eloquently: “The truth is that our Constitution is being subverted by many of the very people who have solemnly promised to protect it.” And he is also very clear that the task of defending (and now restoring) the Constitution, cannot be delegated to the supposedly sovereign federal courts. “To put it simply, the Constitution has to be defended by all three branches of government.”

Senator Lee offers a number of powerful examples of the structures and restraints we have lost. First there is (or was) 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 Obamacare juggernaut trampled this with hardly a second thought. Next he treats what is in my view an even more fundamental source of a pervasive loss of our constitutional bearings, 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.”

Few Americans realize that the utter oblivion of this clause, an oblivion whose roots lie way back (even before I was born!) in the New Deal has opened the door, not only to massive growth in the Federal powers, but in the growth of essential unaccountable sources of power in the myriad agencies of the Federal government: Congress delegates extremely wide, undefined powers to some federal agency (with hardly more enforceable instruction than: go forth and do good, coercing people as you see fit).

Congressmen get credit first for creating this power to do good, then for voicing the predictable complaints of citizens against the even more predictable abuses of Federal agency powers. The system of aggrandizing power of ineffectual but camera-ready complaints feeds off itself, and we swirl around the constitutional toilet, ever closer to a conclusive swoosh.

The success of the con-job pulled over on the American people is evident: few grasp the constitutional subversion that enables this dysfunctional spiral of power and complaint: “Only in the bizarre world of delegating legislative powers could members of Congress lead a march in protest against the consequences of a law they voted for.”

Further chapters detail the twisting of the Establishment Clause in modern religious freedom Supreme Court jurisprudence and the troubling vulnerability of our Fourth Amendment rights against “unreasonable searches and seizures” in an age of terrorist threats and high-tech government spying. On this latter matter Senator Lee adopts a fairly moderate tone, recognizing the difficult trade-offs involved between national security and individual rights, while clearly coming down on the libertarian side of the issue:

“Nevertheless, for at least the past eight years, the federal government has relied on an excessively broad interpretation of an excessively broad provision of the USA PATRIOT Act (usually called simply the PATRIOT Act) to collect and, in some circumstances, search through vast amounts of information that most Americans would consider both private and entirely unrelated to national security. While experts may disagree as to whether the government’s recent practices can fairly be described as the information-age equivalent of general warrants, I believe they dangerously undermine the core interests protected by the Fourth Amendment…”

Another chapter spills the beans on “the inflated commerce clause”:

For most of our nation’s history, Congress respected the limits on its powers embodied in the Tenth Amendment. But over time, advocates for more federal control over our lives began to promote a radical interpretation of the Constitution. According to them, there are no limits on Congress’s power. Their argument goes like this: because (1) the Constitution’s “commerce clause” (Article I, Section 8, Clause 3) gives Congress the power to regulate “commerce . . . among the several states,” and because (2) almost everything affects “commerce . . . among the several states,” (3) Congress can regulate almost everything. 1841

You can see why I sometimes despair of ever finding that “hanging thread” of American Constitutionalism.

Well, the Senator doesn’t despair. In later chapters, Mike Lee sets forth a practical vision for recovering our lost constitution, including practical steps to be taken by our branches of government and by us citizens. It is impressive that he doesn’t pretend that the task will be easy either intellectually or politically. If the constitution is practically lost, we won’t bring it back by waving flags or by pious incantations. We have to understand just how it was lost, how much our own interests, wishes and indeed delusions are now bound up in the fabric of our statist counter-constitution, and thus how difficult and long will be the job of recovering what was lost, even suppressed, perverted. The existing thread of our tattered constitution will have to be disentangled very carefully from the replacement fabric that surrounds it.

To retrieve the Founders’ Constitution is the one thing needful for good government today, but we like the Founders must know, not only the general theory of constitutional government, but also the character and needs of our society in the 21st century to which these fundamental principles must be prudently applied. Thus a restoration of the Constitution will require careful intelligence as well as courage on the part of both citizens and statesmen/women. As the Senator writes, we, “as a people charged with the task of protecting ourselves from threats to our liberty, we must also be “wise as serpents.””

Senator Lee concludes:

“What George Washington wrote in 1787 remains true today. Whenever we, as a people, decide that the Constitution is being “executed contrary to [our] interest” and in a manner “not agreeable to [our] wishes,” we will start to care differently, act differently, and vote differently as we seek for the limitations on power that have been promised and yet are lost. That vindication will begin when we embrace the opportunity for a real national discussion about the meaning of our Constitution.

“We must be patient but persistent. We must be honest about the meaning of the words written in the summer of 1787 and on subsequent occasions when the Constitution was amended. We must understand how their meaning has been forgotten. We must be able to point to the key passages of our nation’s highest law, demand that our elected officials respect them, and hold each of those officials accountable for disregarding them. I hope this book will be a part of the beginning of that conversation.”

I hope so too, very much. And pray.