Tuesday, May 15, 2018

Our Lost Constitution: The Willful Subversion of America's Founding Document Paperback – June 28, 2016 by Mike Lee (Sentinel)

Here is a book about the Constitution that places this seminal document in historical context, explains how selected parts have been overlooked or misinterpreted over the years, and offers some thoughts on how matters can be put right.

PART I explains the “lost clauses,” relates how they were subverted, and provides examples of recent consequences.

•The origination clause (tax bills must originate in the House of Representatives) is described as “the compromise that saved the constitutional convention” by persuading the big states to accept a bicameral legislature in which only one house would be selected on the basis of population. Credit the wily elder statesman, Benjamin Franklin, for pulling this rabbit out of his hat. But for the procedural workarounds that have since come into vogue, the controversial GovCare (aka Obamacare) law might not have been enacted

•The legislative powers clause vests the power to make the laws solely in Congress, whereas the president is responsible for executing the laws. Over time, however, it seemed expedient to create government agencies with delegated powers to do most of the actual legislation. The volume of regulations that are adopted by unelected government bureaucrats these days vastly exceeds the volume of legislation passed by Congress. It costs the American public some $2 trillion per year, by some estimates, to comply with all the regulations on the books.

•The First Amendment provides, among other things, that “Congress shall make no law respecting an establishment of religion.” Based on a wealth of contemporaneous evidence, the intent was to preclude the federal government from establishing a national religion. Subsequent interpretation of this clause as requiring a wall of separation between governments at all levels and any expression or display of religion would have greatly surprised the founders. Justice Hugo Black, a former member of the Ku Klux Klan with an axe to grind against Catholic schools, played a key role in the change in thinking, as is vividly related.

•The Fourth Amendment provided protection against warrantless or nonspecific search and seizures, which protection was inspired by abuses of the British Crown in both England (a series of epic battles between King George III and a political maverick named John Wilkes is related) and the American colonies. In recent years, however, serious questions have been raised about electronic surveillance of Americans under the Patriot Act in the wake of the 9/11 terrorist attack. As but one tangible indication, the National Security Agency has built a $1.5 billion electronic storage facility in Utah “just to keep up with its ever-growing data-storage needs.” Supporters of this program claim that it’s needed to keep America safe. According to the writer, however, “the only thing the NSA has to show for its program are countless violations of privacy as profound as those authorized by the general warrants of John Wilkes’ era.”

•The 10th Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” And Congress is empowered under Article I “to regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.” The 10th Amendment had real meaning once (witness Andrew Jackson’s dramatic vetoes of several bills that he viewed as beyond the powers of Congress), but it was subsequently allowed to atrophy. Meanwhile the power to regulate commerce has been interpreted (since Roosevelt threatened to pack the US Supreme Court in 1937) as extending to the regulation of activities having any conceivable connection to interstate commerce. The upshot is that Congress can enact essentially any legislation it wants so long as it does not violate some specific right (generally noneconomic) that is deemed to be guaranteed by the Bill of Rights. The coup de grace was delivered by the Supreme Court decision (5-4) upholding GovCare against a constitutional challenge in 2012.

PART II offers ideas for restoring the Constitution to some semblance of its original meaning.

•Litigation - The Second Amendment right to bear arms was originally viewed as an individual right (such as had formerly been recognized in England after some historic struggles) and not simply a right associated with service in a state militia (as revisionists argued). It took an exemplary plaintiff (retired Army veteran Dick Heller, who plausibly needed a gun for self defense), good lawyers (Clark Neily & Steve Simpson of the Institute for Justice), and a financial angel (Robert Levy, who had made millions in business, gone to law school, and wound up as the Cato Institute’s chairman) to successfully challenge the ban on personal firearms in the District of Columbia and win the case (5-4) in the Supreme Court. So take heart, there is always hope.

•Legislation - The Supreme Court isn’t about to rollback the administrative state on a wholesale basis, so any widespread changes would require congressional action. The best bet: (1) requiring major regulations to be approved by Congress before going into effect, as provided by the proposed REINS Act, and/or (2) exercising the “power of the purse” to block programs or policies. The writer argues that the 2013 attempt to force a one-year postponement of the employer mandate under the GovCare legislation by defunding – complementing the one-year postponement of the individual mandate, which the administration had already decreed without any lawful authority – was fully justified and in no way represented a “government shutdown.”

•Public opinion – In a general way, Americans can affect what kind of Constitution we are going to have by studying the Constitution, asking questions about political candidates, and letting their views be known. It worked in colonial America, although a revolution was also required, and it could hopefully work now. “As the previous three chapters showed, 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.”

Assessment: Senator Lee’s vision of reclaiming the Constitution may or may not be practical, but his scholarship and sincerity are apparent. This is a solid analysis, communicated in an engaging and easy to follow style, which is not overtly partisan. I would recommend it for all Americans who care about the future of this country.

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