Book Review: Our Lost Constitution

OurLostConstitutionby Anniel5/29/15
The Willful Subversion of America’s Founding Document   •  Senator Mike Lee, Conservative Republican, is hated by the Washington D. C. establishment. A person who now lives in Lee’s home state of Utah told me how much she, personally, dislikes him because “he thinks he’s always right about everything and won’t reach across the aisle.” And she thinks that’s bad, probably because of Democrat dollars trying to blacken his name. Today I remembered that this woman is one of those who has not read a book since High School, and also consistently votes Democrat.

I confess that I have read a few books since High School, but this is the first I have read by Senator Lee. I found it to be more wide-ranging and in many ways more simply and clearly written than Charles Murray’s book By the People. Lee is not defeated before he begins and the reader can feel his love and desire to uphold the Constitution of the United States of America. His faith in the American people plays a large part in what he thinks we can do to save the Constitution.

Senator Lee started out to write a work of historical fiction in the section about the Founders and the Constitution, but,

At the outset of this project, I expected to use far more dramatic license than I have taken. In the course of my research, I was pleasantly surprised to find that the historical record is more dramatic than anything I could have imagined. It is also far more illuminating. As a result, with only a few exceptions, I found myself writing not historical fiction but history.

Lee says that his family discussed the Constitution and history around the dinner table, then, when he was about 10 years old he began accompanying his father, Rex Lee, to the Supreme Court as he presented the Government’s cases. His father, Rex Lee, was the founding Dean of Brigham Young University’s Law School and in 1981 became Solicitor General of the United States under President George H. W. Bush. The Solicitor General is the person who argues the Government’s cases before the Supreme Court, so the young Mike Lee was in the catbird seat and seems to have enjoyed every minute of it.

Chapter 1. Ducking and Dodging the Constitution.

After all the reading I did in Charles Murray’s book about agency regulations, it was Lee’s opening paragraphs in this book which firmly established the problem in my mind:

“I keep two towers of documents in my Senate office. The first is only a few inches tall. A collection of all the legislation passed by Congress in 2013, it contains about eight hundred pages.

“The second tower, which is eleven feet tall, is a collection of regulations proposed and adopted by federal agencies in 2013. It contains about eighty thousand pages.

“These extraordinarily unequal towers illustrate a startling reality: The U.S. Congress no longer passes most of the federal laws, rules, and regulations that are imposed upon the American people. While a mountain of those rules are decreed by an army of unelected federal bureaucrats, only about 1 percent of the rules we must live by are enacted by the most accountable branch of Government – Congress.

“Using a classic duck-and-dodge strategy, Congress routinely enacts legislation that purports to solve a genuine problem but provides no specific solutions. Congress then delegates to executive-branch bureaucrats the power to make legally binding rules or “regulations,” which will themselves determine the law’s real-world impact. It’s a brilliant plan; Congress gets all the credit for the popular goal and none of the blame for the controversial particulars of regulation.”

Who in Congress even reads the short stack, let alone the high tower? Congress says, “We shall have clean air.” When the cheering stops the EPA says HOW we’ll have it. Ask your Congressman for help with a burdensome regulation and he says you’ll have to take it up with the agency. That’s how it works in a nutshell.

Lee says that few in any branch of the Government even consider the Constitution they have sworn to uphold and protect. They don’t read it, study it, nor do they care to. Citizen’s would like to believe that their lawmakers have some knowledge of our laws, but even in the courts that may no longer be true. Our Constitution is being subverted by the very people sworn to protect it. Senator Lee is frank about who is to blame and makes no excuses for their bad intent, or their lack of courage.

For instance, President George W. Bush took the easy political way out on the McCain-Feingold Bill. He acknowledged that parts of the bill were unconstitutional even as he signed it. Instead of doing his duty, he left it for the Supreme Court to take the heat 8 years later when they finally repealed the controversial sections of the law.

The Senator has divided his book in two Sections. Part 1 deals with the history of what he calls the Lost Clauses of the Constitution. As he says:

“Why was that provision included in the Constitution? What does it mean? And how did we forget it? In every case, the clause at issue fell victim to the dangerous and deliberate choices of powerful people – some well-intentioned, others more malevolent – who put their own agendas above the fundamental values of our Constitution.”

“Part 2 explains how the Constitution’s lost clauses can be brought back to life. Each of Part 2’s chapters describes a different mechanism for resurrecting the lost Constitution – from the power litigants have demonstrated in their fight for the Second Amendment to the potential for legislators to rein in abuse by controlling the power of the purse and passing new laws, to the importance of voters making informed choices based on candidates’ commitments to aggressively protect the Constitution they will (if elected) swear to uphold. No single one of these mechanisms is sufficient. We will reclaim our Constitution only when litigants, judges, elected officials, and (most important) voters, decide the Lost Constitution must not remain lost forever.”

PART 1 – The Lost Clauses.
Chapter 2. The Compromise That Saved the Constitutional Convention . . . And That Should Have Saved us From Obamacare
THE FORGOTTEN ORIGINATION CLAUSE
All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur as with other Amendments as on other bills.
-United States Constitution, Article 1, Section 7

In 1787 the fight for a Constitution was on rocky ground. There were 13 states represented, all with their own economic needs, political realities, and suspicions about the intentions of the other states and their representatives.

The large states wanted representation on the federal level to be based on population, and the smaller states wanted to have equal representation so that they could not be pushed around and bullied by the more populated larger states. This chapter is on the history of the origination clause and Senator Lee says George Washington was mostly right when he called it a “miracle,” but it was an acrimonious and short tempered miracle.

Under the Articles of Confederation the federal government was too weak to collect taxes, pay bills and war debts, fight crime, and the myriad of problems that were vexing all the states. Thus the Constitutional Convention.

James Madison was a tiny but very brilliant man who was trying to write the Constitution, and to also guide the other representatives to accept his ideas about formation of a new government, not just rewriting the Articles of Confederation. Evidently he had the new federal government mapped out in his mind and he was the one who led the other delegates to accept his thoughts. Thomas Jefferson was serving as U.S. Ambassador to France, and John Adams was serving in England so Madison didn’t have their wisdom or votes to guide him. Some delegates even argued that the only thing they were authorized to do was rework the already unworkable Articles of Confederation.

Compromise, that dreaded word, was the order of the day, and many compromises were finally reached. The make or break compromise was whether there would be taxation without equal representation between all states. The acrimony was terrible and the large states would not budge, their states wanted taxation based on population. Alexander Hamilton accused the delegates of seeking power, not liberty. The states would not budge. Benjamin Franklin kept pleading for regular prayer at the beginning of each new day, but no one thought prayer was necessary.

Oliver Ellsworth of Connecticut finally reminded the delegates of a proposal that had earlier been rejected. Roger Sherman, also of Connecticut, had suggested that there be proportional representation in the House, and equal representation in the Senate. All states thought they lost in such a plan, with the large states believing it still meant “taxation without representation.” More and more hot days of insult, accusations and charges of dishonesty followed the negotiations.

Benjamin Franklin finally invited all the delegates to a big feast at his home and gave them a chance to cool off and enjoy themselves. The next day he rose to his gout-ridden feet and announced that the solution was simple, “give both sides what they want”:

“The solution is a House based on population and a Senate on equality of representation. . .But all bills for raising money must originate in the House! That’s the key! Equality in one house, but all taxes must come from the other house! . . . For good measure, we might also bar the Senate from introducing laws respecting appropriations of money to be drawn out of the general treasury and for fixing the salaries of officers of the general government. And we will bar the Senate from amending such bills.”

The delegates were astounded by the simplicity of the fix. On July 4, 1787 this compromise was voted on and passed.

Thanks to Obama, this clause would not survive the early 21st Century. ObamaCare meant that an unconstitutional law was passed because of shenanigans by both the Executive and Legislative Branches, upheld by the culpable Supreme Court.

* * * *
All of Senator Lee’s “Lost Clauses” are well written, and the on-the-ground results are easy and astounding to read. But in the interests of time (both mine and yours) I think from here I will simply list the rest of Senator Lee’s lost clauses with as few explanatory notes as possible. Anything I have to add will be in parentheses.

Chapter 3. From Congress to a King
THE FORGOTTEN 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 a House of Representatives.
-United States Constitution, Article I, Section I.
(We the People run the government in a Constitutional Republic. Alexander Hamilton fought long and hard to give us a King, a strong executive. Madison said that the powers of government should always be separate and distinct within the branches so it is not concentrated in any single branch. Senator Lee thinks that Franklin D. Roosevelt is the one who led the United States astray and set himself up as a King. FDR said, “If the legislature won’t act, I will!” There is a story in this chapter about the Regulatory State, and the lobby for Sunkist establishing an Orange Board that will make your blood run cold. The Board was set up during the Dust Bowl as a temporary group, but it literally haunts us still. No choice in oranges, even if you’re hungry. The hidden cost of complying with Federal Regulations today is about $2 trillion a year. The courts have surrendered to the Regulatory State,)

Chapter 4. The Supreme Court’s Klansman
THE FORGOTTEN ESTABLISHMENT CLAUSE
Congress shall make no law regarding an establishment of religion.
-United States Constitution, First Amendment.
(You all know this First Amendment Protection. I will soon write a Stubborn Things article on Supreme Court Justice Hugo Black, a real villain, and how he misled everyone on the Separation of Church and State.)

Chapter 5. Liberty: “A Reality or a Shadow”?
THE FORGOTTEN FOURTH AMENDMENT
The right of the people to be secure in their persons, homes, papers and effects, against unreasonable searches and seizures, shall not be violated, and and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized.
-United States Constitution, Fourth Amendment.
(This protection is broken every day in every way, and no one is protecting our rights. Senator Lee tells how this Amendment came to be, through the efforts of a seemingly heroic Scotsman named John Wilkes. But Mr. Wilkes was not who he seemed to be, even though the Senator portrays him sympathetically. I hope to have an article coming up on him soon. I will leave out the pornography and admit that there are sometimes quite unlikely heroes.)

Chapter 6. “But Structure Means Liberty”
THE FORGOTTEN TENTH AMENDMENT AND THE INFLATED COMMERCE CLAUSE
The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.
-United States Constitution, Tenth Amendment.
The Congress shall have power . . . to regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.
-United States Constitution, Article I, Section 8.
(Federal powers were always meant to be limited, with no general “police powers,” which were said to be little areas where “someone” ought to act. There were plenty of people who would act in all areas if they were given the chance. Sounds suspiciously like today. Lee says the argument goes like this: “. . . Because (1) the Constitution’s “Commerce Clause”. . . 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.” Gag. FDR was the one who began this and browbeat the Supreme Court members through threats of his court-packing scheme. The Court caved. Lee tells the tale of Andrew Jackson being in a duel that almost killed him and his refusal to go against the Constitution, even when it was for something “good.” He says “the Constitution rules.” The Supreme Court’s ruling on Obamacare is discussed in this chapter.)

PART II – Reclaiming The Lost Clauses
Chapter 7. Reclaiming the Constitution Through the Courts

And here comes the famous Marbury v. Madison case. In short a man named William Marbury wanted to be a Justice of the Peace and sued to have the Supreme Court order the Secretary of State to grant his request. The court ruled that Congress lacked the authority to pass part of the judiciary act. Chief Justice John Marshall said in his ruling: The Constitution “is the fundamental and paramount law of the nation.” Consequently, “an act of the Legislature repugnant to the Constitution is void.” Justices must not allow those “void” statutes to govern the cases before the courts, because doing so “would subvert the very foundation of all written Constitutions “by allowing a legislature to do what is expressly forbidden.”

This chapter also gives a history of gun control and how the Second Amendment came to be first ignored as being only for “militias”, and then revived as an individual right in the Washington D.C. Courts when taken to the Supreme Court in 2008. I loved the following exchange in the Heller case:

When the city’s attorney tried to assert that the founders only intended to protect gun rights in the “military context.” Kennedy dropped on the city what was, according to Supreme Court standards, a bomb : “It has nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?”

Love that! Wish they all had common sense on everything.

Chapter 8. Reclaiming the Constitution Through Legislation

“It is tempting to look exclusively to the courts to resurrect the Lost Constitution. . . But there are some problems that only Congress can solve.”

This is where Charles Murray, I think, makes his big mistake. He gave in and looked exclusively to the courts to, maybe, stop Administrative Law,
while Senator Lee says the Legislature needs to draw lines beyond which agencies may not go. That is, after all, their job. Lee says Congress should pass what is called the REINS Act to force this issue. He says: “. . . Formally titled the Regulation from the Executive in Need of Scrutiny Act, the REINS Act would treat all new “major rules” – that is those federal rules that would impose a “significant economic impact” of $100 Million or more – essentially as legislative proposals that could take effect only if enacted into law by Congress. Under the REINS Act, each new major rule would receive expedited, fast-track consideration by both houses of Congress and, if passed, would then be forwarded to the president for his signature (or veto).”

I again intend to find out much more about the REINS Act and write an Article about it.

Senator Lee also says only Congress can deal with the problem of gathering private information on citizens while seeking information on national security.

Chapter 9. Reclaiming the Constitution Through the Power of the Purse

The Budget battles are explained in detail, and Lee tells how Congress should deal with the Budget and explain their actions to the American people. He shows how funding for Obamacare could have been handled more effectively and fully and simply set forth for the people’s consideration.

The Government “shut-down” is also covered. It is fascinating how far removed in time the actions of the President, the Park Service and all the other crybabies of the Left seem now. We need reminding.

Chapter 10. What YOU Can Do to Reclaim the Constitution

The most important Chapter of all. What average citizens, you and I, can do to help save our nation, because, as Alexander Hamilton said, “Here, Sir, the people govern.” Senator Lee reminds us that 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.”

Steps and Actions We Can Take:

We must elect officials who are committed to our founding documents and will stand firm in enforcing the laws that govern us.

We must influence the attitudes around us by talking to everyone about the founding and the principles of Constitutionally limited government. Inform people how we are not following those principles. Teach them to anyone who will listen.

Ask your friends and family to read the Constitution. (Better still, get copies of the Constitution from either from Hillsdale College or the Cato Institute and give them as a gifts. Be sure to read it yourself, and sign up for a Class on the Constitution at Hillsdale.)

Invite your friends to share what they learn concerning the balance of powers with their friends. Tell them to spread the word to everyone they can. The importance of advocating for Federalism cannot be overstated.

Constantly remind our government officials of the importance of State’s rights. If some states want healthcare coverage, that should be a matter for the state and its people to decide.

Bring your knowledge of the Constitution with you to the ballot box. More than at any other time in our history we need to get answers from the people we elect to represent us. Know who they are and what they advocate. The Senator has a long section in this chapter on how to question and assess a candidate.

Lee wonders if Congress has been too timid in using its Impeachment powers as a tool in preserving their role. Good question.

Lee describes a painting in the Supreme Court building showing both a serpent and a dove. He describes his reactions to it, and Jesus’ admonition to “Be wise as serpents and harmless as doves.” He says:

“The U.S. Constitution was written to make the men and women of America free. But it can succeed in protecting them only when it is followed, and only when the people take steps to prevent it from being distorted and ultimately used against them. As a peace-loving people, we must be as ‘harmless as doves.’ But as a people charged with the task of protecting ourselves from threats to our liberty, we must also be ‘wise as serpents’.”

How do we recognize and what do we do about our “political wolves” dressed in “sheep’s clothing”? Senator Lee places the onus squarely on us to make judgments between good and evil and insist that Constitutional principles be followed so we can judge if too much power is being sought by any person or branch. We want no federal government of unlimited power.

Lee believes that the American people can be relied upon to do the right thing.

My take on this book is that anyone concerned for liberty should read it, no study it, and then decide for themselves where they can be most effective in the battle(s) before us.

God bless us all, and bless our land.


Our Lost Constitution by U.S. Senator Mike Lee, Republican, Utah; Published By Penguin Random House, 2015. Available on Kindle. • (1308 views)

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19 Responses to Book Review: Our Lost Constitution

  1. Brad Nelson Brad Nelson says:

    After all the reading I did in Charles Murray’s book about agency regulations, it was Lee’s opening paragraphs in this book which firmly established the problem in my mind:

    That is an astounding statistic, Annie. Eight hundred pages of legislation in one year vs. eighty thousand regulations.

    • Anniel says:

      Brad, One of the things I liked about this book was the simplicity with which Lee tells his readers what happens on the ground. He occasional gives a case citation but he doesn’t overwhelm your system with them. Lee’s approach to showing who is responsible for egregious constitutional abandonment of principle was what I missed so much in Murray’s book. There are really bad guys out there, as if you ever doubted that. Hugo Black was a terrible person. I almost hate telling his history and what he did to our religious freedom, but it will help us understand why we’re where we are.

      • Brad Nelson Brad Nelson says:

        The official position of conservatives and the Tea Party is to reform America by electing candidates of similar values and by spreading the word of traditional America to the general populace (something we ostensibly do here, not for our egos, but for love of our country).

        That said, to steal some of the shtick of Chauncey Gardener from the wonderfully quirky movie, “Being There”: Sometimes the weeds grows so deep that to pull them out will also uproot the plant you’re trying to save. This is certainly the notion I get from another one of your excellent reviews (you tend to think as I do…or me you), particularly Lee’s note about the ratio of legislation vs. regulation.

        A conservative and Tea Party member can have the best of intentions. But as soon as you poke your head in and see the particulars of the patient, it’s generally understood that the task at hand is beyond any one person, any one essay, or any one president (or Senator). Glenn the Greater brought a book to my attention yesterday: Inventing the Individual. I started reading the free Kindle portion of it last night. One line caught my eye:

        Deep moral changes, changes in belief, can take centuries to begin to modify social institutions. It is folly to expect popular habits and attitudes to change overnight.

        I beg to differ. One can send a more-or-less normal son or daughter off to college (what Dennis Prager calls “seminaries of the Left”) and back will come a foreigner, for all intents and purposes. Change can be abrupt and speedy.

        Still, the author has a point. It at least took (starting from, say, 1859 upon the publication of Origin of Species or thereabouts) about a hundred years to “fundamentally transform” America…until the turbulent 60’s when the rotten fruit of the Left began to ripen. And we’ve been ripening ever since.

        I think Lee is a more or less sincere man. One reason I became somewhat pessimistic about our chances in beating back the Left is that I was truly astonished and surprised to see the lack of nobility amongst so many who claimed to oppose Obama and the welfare state. One reason I finally got off Facebook is that I just couldn’t take it anymore. Everyone was mad at this or that, but “hands off my Social Security.” Okie doke. But how to reform the patient when the weeds are so deep?

        I may be guilty of extrapolating too much from your impressions, say, of Senator Lee vs. Charles Murray. I don’t mean to besmirch Murray or any other writer. They may be performing an important function. But it can also become a theatre of the absurd. There really seems that nothing can be done but describe the problem and sell books. Much of conservative leadership has become little more than a book club.

        I’m going to suppose Lee’s motives are higher and that Murray’s are what they are…he’s another member of a sort of industry describing the destruction of America by the Left. There’s no harm in that. But it also should be noticed that there may be little good in it either.

        • Steve Lancaster says:

          Brad,
          We have been out in the weeds for a long time. The first step in to the regulatory abyss was Malbury v. Madison which created the court as official determiner of what is constitutional.

          The next were the 16th and 17th amendments creating the current tax system and making senators elected instead of appointed by state legislature. You know the long list of progressive “reforms” that followed from 1917 on.

          So, yes it took a long time to get here and it will take a long time to weed progressive thought from our culture, but the first step is to accurately describe what the problem is and understand how it became a problem. That is what Murray is doing and has done with his work. If you have not read
          “coming apart” you should read it. The research is solid and the conclusions are IMHO valid.

          Change is possible, and parts of it could be done rapidly. However, institutions do not change because they want to, especially cultural institutions. They change with the attitudes of the people who form them and that will take, I fear, generations.I also doubt that the changes will necessarily be those we would approve.

          We are much further on the road to serfdom today than we were when Heyak wrote in 1943 or when Friedman wrote
          Capitalism and Freedom in the sixties. Murray owes his intellectual development to both of these men.

          • Brad Nelson Brad Nelson says:

            The first step in to the regulatory abyss was Malbury v. Madison which created the court as official determiner of what is constitutional.

            I don’t share that view, Steve. Who else but the highest court in the land should be final arbiter (or co-arbiter) of Constitutional issues? It seems like an obvious fit. The alternative is to leave to Congress or the President to determine what is constitutional. In that case, you have the same situation: unchecked power, the ability to define things as you will.

            The Supreme Court was meant to satisfy another core and needed function of government and to be a check on the other branches. And often the rulings of the Supreme Court have been good, just, and wise. And often they have been the reverse. The problem is not in the powers of the Supreme Court but in their abuse of them. (If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.)

            We can’t just suppose that if we eradicate a core function of government that then things will work out because we thus never committed the Original Libertarian Sin of instituting government. I can’t think of anything more basic than a Supreme Court passing judgment on the constitutionality of a law or a presidential act. And because these are co-equal branches, there is no reason the other branches (as they have today) should completely cave to the judgments of the court. This situation has added substantially to the problem.

            But I agree that the 16th and 17th amendments were core pieces of the puzzle that have led us to Big Government. You can also add to this the 19th amendment which tipped the balance from interests of freedom to pining for security.

            Change is possible, and parts of it could be done rapidly. However, institutions do not change because they want to, especially cultural institutions. They change with the attitudes of the people who form them and that will take, I fear, generations.I also doubt that the changes will necessarily be those we would approve.

            For all practical purposes, the ability to make change has been stymied. As Mark Steyn notes about Europe, an election may bring to power one party rather than another, but most of the actual power is retained in the regulatory state. The bureaucracy runs things. The politicians are more and more becoming “for show.”

            We see this, especially on the Republican side, in America. They’ll all talk about how this or that department needs to be eradicated. But so far (to the best of my memory) no department or entitlement (except for one minor one decades ago) has ever been eradicated. Politics is more and more becoming Kabuki theatre. They write books (or make speeches). We rant or give high-fives, and nothing really changes. Big Government, at least in the short- and medium-term, seems to be a one-way ratchet.

            • Anniel says:

              If big government and the regulatory state were the “only” problems i wouldn’t be so unsure what we face. But what I see before us is a criminal enterprise that is sickening in its reach. How does one deal with such men, and women? Like our world-wide problems, we first have to name them, both the problems and the perpetrators, so we know how and where to fight.

              Both Murray and Lee tell parts of the same story. I have read Philip Hamburger’s book, which was simplified and clarified by Murray’s book, and further simplified and clarified by Lee’s.

              The biggest plus for Lee’s book for me was that it covered more territory and is willing to name some names. His fixes even sound doable. Should we support the Madison Groups of Murray? I say, Absolutely, but it is limited in scope.

              Where to go from here is open. I just have to trust that God is concerned about this nation.

            • Steve Lancaster says:

              Brad,
              I believe the founders chose to make our government 3 separate and co-equal branches, the idea of judicial review is not in the constitution because the court, congress and the executive were intended to work out issues of constitutionality as a part of the political process. Debate on issues of constitutionality would be out in the open, a part of the political process, subject to the pressure of the people or not as the case may be.

              If the Roe decision were subjected to open debate by congress, executive and the courts do you think abortion as it is now practiced would be the law of the land?

              Yes, it would be messy, full of the fire and brimstone of debate, but in the end all could agree. The founders clearly intended the supreme court to decide questions of law, not to be an ex-offical tyrant with jurisdiction over the other two branches of government.

              Mulberry creates 2 co-equal branches of government supervised by the court, in effect the court then is the unelected ruler of the nation. The founders were well aware that one of the problems with the English system was that control of the courts was the route to tyranny.

              The direct authority of the supreme court is to supervise the lower courts that congress decides to create.

              I do believe change in some small way is possible how or when it will happen is hard to say. Remember the Tea Party began with a rant on MSNBC byRick Santelli, big things often have small beginnings.

  2. Timothy Lane says:

    A very nice summation, and no doubt I will have more to say on this later (this is close to my bedtime here). One thing I will mention here is that SCOTUS needs to bring back the logic used in the Schechter Brothers case (also known as the “sick chickens” case), when SCOTUS unanimously (thus including the 3 liberals as well as the 4 conservatives and the swing votes) struck down the National Recovery Administration and its regime of regulations because the original law provided too vague a basis for them. This is the basic problem that leads to regulatory law — vague laws that then must be “interpreted” (which in practice means that the regulators are writing the real law under vague guidelines).

  3. Anniel says:

    Timothy, I could not practice law in the U.S., especially today. SCOTUS is almost as criminal as the rest of government. I still wonder what they have on John Roberts, or is he just weak? And I’m suspicious how long Hastert was kept under wraps until they needed a new distraction. Maybe someday all will be clear. Good night.

    • NAHALKIDES NAHALKIDES says:

      Anniel, while many have thought that Roberts must somehow have been blackmailed, my own opinion is that he was intellectually corrupted back in law school (the Left control pretty much all the law schools these days, especially the famous ones like Harvard that Roberts attended). As I have written here in ST before, his decision essentially repudiated the doctrine of judicial review, taking the point of view that if people hated Obamacare, they should elect a Congress that would repeal it.

      I believe he arrived at this point by misunderstanding two infamous Supreme Court cases, Dred Scott and Roe v. Wade. Without going into details (I think everyone is familiar with Roe at least), the Court attempted to solve an extremely contentious but non-Constitutional question (slavery in the territories in Dred; abortion in Roe) by striking down existing laws under the guise of judicial review. Roberts, not wanting to join these prior Courts in their infamy (of course to the Left Roe is holy writ), failed to recognize that the issues in Obamacare were much more Constitutional than political, at least “political” in the ordinary sense, where one party is not wholly committed to rule by brute force, and every contentious issue involves a serious threat to liberty).

      So Obamacare, which fundamentally alters the relationship between citizen and state, escaped any serious challenge to its constitutionality.

      By the way, the compromise in which bills to raise revenue were supposed to originate in the House, contained a fatal flaw: contrary to Franklin’s wishes, the Senate retained the power to amend such bills. This is the loophole the Democrats exploited: they took a House bill, gutted it completely and replaced it with one of their own (the Obamacare bill), and called it an “amendment”. This was a lie, of course, but will the courts call them on it and conclude that an “amendment” which is on its face a new bill that raises revenue is unconstitutional?

      • Timothy Lane says:

        To some extent, there is a good conservative basis to Roberts’s decision on Obamacare. His cautious attitude is reasonable to some extent, though it should be noted that he has been willing to strike other laws down, few of which deserved it as much as Obamacare. We will have a better notion within a month. His rejection of the interstate commerce justification was very good, but of course the liberal “justices” will ignore the precedent, limiting its value.

        Incidentally, this problem of amending a tax bill by replacing it with a totally different bill was also used for the 1982 TEFRA bill (and someone sued unsuccessfully to overturn it precisely on the basis that the replacement was really a new bill that hadn’t originated in the House).

        • NAHALKIDES NAHALKIDES says:

          Actually, Tim, the alleged “Conservative” basis for not striking down O’care doesn’t hold water either. The idea is that if there are two possible interpretations of a statute, one constitutional and one not, the constitutional one should be chosen. Now this will rarely be the case in practice, but even here there must be a reasonable interpretation that does not violate the Constitution. Roberts tied himself in knots, absurdly construing an obvious quasi-criminal penalty into a “tax” – and was still left with an interpretation of the ACA that made it plainly unconstitutional!

          To see this, we must remember that the provision in question, the justly-reviled Individual Mandate, requires the citizen to purchase an insurance policy of which an unelected government official, the Secretary of HHS, approves, and provides a penalty for failure to do so. Now Congress may not achieve a plainly unconstitutional end through allegedly constitutional means any more than it can do the reverse. In this case, since Congress has no power to compel the purchase of insurance under any provision of the Constitution, it cannot pretend to enact a “tax” which in effect does exactly that. In fact, if Congress had called the penalty a “tax” instead of a penalty, saving CJ Roberts much contorted reasoning, it still did not have the power to enact such a “tax”! The operative principle here is that no power in a free state is without limit, even a power expressly granted by the Constitution, whose basic purpose is not to grant power but to limit it.

          To see this more plainly, suppose that Congress decided to ban guns by passing a $1000 per bullet tax, or ban speech critical of the government by enacting a $100,000 per speech tax. Yes, Congress possesses the power to tax – but it may not use that power to achieve otherwise unconstitutional ends.

          • Timothy Lane says:

            I don’t disagree with you there; I wasn’t defending Roberts’s reasoning, but rather his lack of arrogance. We could use some judicial modesty. Unfortunately, as I said, his modesty is selective (e.g., he supported the partial voiding of the Arizona immigration law). Roberts seems to be a poor judge, but he is at least better than the 4 liberals, and possibly Kennedy (who has midwifed the libertinist takeover by his consistent ruling in favor of homosexual rights).

  4. NAHALKIDES NAHALKIDES says:

    Good review, Anniel. It sounds like Lee has written an interesting book. We need a lot more like him in the Republican Party.

  5. Annie — What a thorough and helpful review. Now another book will climb onto my list. I am assuming there will be vast libraries in heaven — I’m going to need an eternity; what a happy thought. Thanks,

  6. Timothy Lane says:

    This book was reviewed in the June 1 National Review by Joseph Postell. The review argues that the emphasis on the Origination Clause was unwise, since this isn’t a major contributor to our loss of freedom (particularly compared with the loss of the Vesting Clause and the Tenth Amendment). Postell also thinks Lee mostly was rather vague on his solutions. But he comments favorably on Lee’s use of historical examples to illustrate why these provisions were added.

    • Brad Nelson Brad Nelson says:

      I don’t disagree with you, Timothy. But your detailed description of other people’s thinking on this reminds me once again that you can’t write enough laws to stop the careless or the unscrupulous. Our Constitution was made only for a moral and religious people. And certainly written law is no defense against the pedantic or those who parse problems in more mechanical or legalistic ways. This is why I get tired of people saying that judicial review or some other one thing was where we went wrong.

      We went wrong when we stopped valuing and honoring the society that we lived in. We went wrong when we stopped understanding why things were constructed the way they were. We went wrong when we began to forget our own history.

  7. Kung Fu Zu Kung Fu Zu says:

    June 15, 2015 is the 800th anniversary of the signing of the Magna Carta at Runnymeade.

    This was arguably, the beginning of the long march of English and American common law.

    • Anniel says:

      The name “Runnymede” has always made me feel happy inside, just to know that men have always been searching for better ways to pass on to the next generations is such a testament to the desire for freedom. Common law is an uncommon good.

      Some things are worth fighting, and dying, for.

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