Remembering the Constitution

Our Lost Constitution: The Willful Subversion of America’s Founding Document is Lee’s effort to engage the public in such “a national conversation,” as he also calls it. The book arrives as another election year draws near—a time when the public, or at least the likely-to-vote public, becomes more attentive to the choices ahead.

The book’s title refers to five “lost” or “forgotten” provisions whose principles Lee wants to see “restored” through litigation and legislation, among other means. There are other lost provisions “I could have chosen to address,” the senator says in an interview, adding that he picked the ones he did on account of the compelling stories they involve. Those stories—Lee says he took “dramatic license” in telling some of them—are meant to convey the elemental role the American people have played in making the Constitution and governing themselves under it.

Lee quotes Alexander Hamilton’s famous remark in the New York ratification fight: “Here, sir, the people govern.” Those five words, Lee exhorts readers, “capture the reason why the Lost Constitution will never be a lost cause. 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.”

Lee’s five lost provisions are a diverse group: the legislative vesting clause, which begins Article I, and the obscure origination clause, also in that article, as well as the First Amendment’s establishment clause, the Fourth Amendment’s ban on unreasonable searches and seizures, and the Tenth Amendment.

In his discussion of the Fourth Amendment, Lee tells the story of the English parliamentarian John Wilkes, who successfully challenged general warrants—those that “fail to name the person, place, or things to be searched or seized or that fail to show that here is probable cause to believe that the named target of search or seizure has committed a crime.” In America, Wilkes’s story was well known and admired—think of Wilkes-Barre and other places named after him—and it inspired the Fourth Amendment. But, Lee argues, the amendment’s ban on unreasonable searches and seizures has been compromised by interpretations of the Patriot Act authorizing the National Security Administration to obtain “the information-age equivalent of a general warrant, enabling government agents to search through the phone records of hundreds of millions of innocent Americans.”

Lee thinks the bulk collection effort violates the “core interests” of the Fourth Amendment. That has been a minority view among Senate Republicans, but last week the Senate joined the House in voting to end the practice. Lee sees a marshaling of political will going on, such that what was lost has now been restored. “This reflects,” he told me, “how voters are feeling. .  .  . They’re just uncomfortable with the idea of government telling telephone companies to send us all of your records.”

The establishment clause states, “Congress shall make no law respecting an establishment of religion,” and Lee tells the story of its origins, highlighting the contributions of John Adams and James Madison. They agreed that “government establishes a religion only when it declares a particular denomination to be the religion of the state.” Importantly, the clause was also understood to apply “only to the federal government”—and not to the states. As for how the clause was lost, Lee says that a string of Supreme Court decisions starting with the 1947 case of Everson v. Board of Education, “one of the most transparently misleading and historically inaccurate opinions in Supreme Court history,” did the deed. Lee quotes Justice Potter Stewart, writing in 1963 in one of the public-school prayer cases: “It is not without irony that a constitutional provision evidently designed to leave the States free to go their own way should now have become a restriction upon their autonomy.”

Lee doesn’t propose a way to restore this lost provision. Asked about it, he says that “it’s important for people” to see “that if you dropped someone in from the founding era and they saw what was happening under the establishment clause, they’d be stunned.” For Lee, the establishment clause may function as a reminder of just how badly lost a constitutional provision can become.

The origination clause provides that “all Bills for raising Revenue shall originate in the House of Representatives, but the Senate may propose or concur with Amendments on other Bills.” Lee tells the story of how the clause saved the Constitution, helping overcome, thanks to the work of Benjamin Franklin, the storied impasse between large and small states. The origination clause, Lee writes, ensured that “taxation would originate only in the house most representative of, and accountable to, the people”; it was a restraint upon the Senate. But in the twentieth century the Senate’s amendment power came to be seen as so broad as to permit the upper chamber to strike and replace the entire text of a bill that technically originates in the House.

That is what the Senate did in legislating Obamacare. HR 3590 modified a number of tax-credit, tax-penalty, and estimated-tax provisions of the Internal Revenue Code. In the Senate, the entire text of that House resolution was deleted and replaced with provisions that became the Affordable Care Act.

Lee’s concern is that in instances in which the clause is lost, the discipline it can bring to lawmaking, particularly with respect to raising revenue, is also lost, with more invasive and more costly government the result. Here again Lee does not offer a restoration plan. But in our interview he said he’ll be “thrilled” if lawsuits challenging the ACA as a violation of the origination clause (two, in different circuits) succeed. Lee, however, is realistic enough to know that the controversy may not be decided by the courts—for lack of standing, he told me, or because it is deemed “a political question” and thus not one for judges to decide. The issue, he says, may be one that the two houses will have to address. Here Lee, so sharply critical of Congress for its constitutional failings, takes a hopeful view.

The remaining lost provisions are the legislative vesting 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.” And the Tenth Amendment: “The 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.”

The vesting clause has been transformed in the 80 years since the rise of the administrative state. Writes Lee: “The clause has become so distorted by successive Supreme Courts, Congresses, and power-hungry presidents that most laws are now written and promulgated by executive agencies, not by Congress.” As Lee explains: Congress passes a law purporting to solve a genuine problem but provides no specific solutions. To implement the legislation, Congress delegates to executive agencies the power to make legally binding rules—i.e., regulations. The executive branch then effectively writes the law that it enforces—in violation of the separation of powers, Lee says. Congress gets the credit for solving a problem and none of the blame for problems the regulations create. Lee calculates that only about 1 percent of the rules we must live by are legitimately enacted by Congress.

Lee observes that few members of the Supreme Court have expressed a willingness to reconsider the precedents that permit almost unlimited delegation to executive agencies. He’s skeptical about the Court’s ability to improve the situation. Here he looks to Congress, and he has a specific recommendation—the aptly titled Regulations from the Executive in Need of Scrutiny Act. The REINS Act would treat all new major regulations as “legislative proposals that could take effect,” Lee writes, “only if enacted into law by Congress.” Congress would be made accountable for exercises of the power it so often delegates.

Because Lee advises GOP presidential hopefuls on constitutional matters, I asked him what else he would do if he were president to restore congressional authority and responsibility. “I’d back up my support for the REINS Act by vetoing legislation that I believe amounts to an undue delegation of authority by Congress to the executive branch bureaucracies.”

As for the Tenth Amendment, Lee writes that Congress long respected the limits on its powers that the meas-ure embodied. But starting with the New Deal, things changed. Under the commerce clause, Congress has “the power to regulate commerce .  .  . among the several States.” On the new understanding that “almost everything” affects “commerce,” the power to regulate commerce was “inflated,” as Lee puts it. When Congress could regulate virtually everything, the Tenth Amendment became a nullity.

In the 2012 case of NFIB v. Sebelius, which challenged the constitutionality of the individual mandate in the Affordable Care Act, the Supreme Court seemed to restore a bit of the Tenth Amendment by somewhat deflating the commerce clause. A five-justice majority said that Congress couldn’t compel commerce; people couldn’t be ordered to buy health insurance. Yet this apparent victory for the Constitution and limited government was undone, Lee says, when one of the five, Chief Justice John Roberts, found the mandate permissible after all, a legitimate exercise of Congress’s enumerated power “to lay and collect taxes.”

If Lee were president, he would, he told me, veto a bill if it “exceeded Congress’s proper authority.” He would do that “regardless of whether I thought the Supreme Court would uphold it or not.” Here Lee is saying that a president need not adhere to the Court’s jurisprudence on a particular matter. “I’d have my own test and outline what that test was.”

Lee came to Congress in 2011 having run as a constitutional conservative. He has since acquired a reputation as a reform conservative, defined as a conservative seeking policy changes that, as Lee has said, “help the poor get out of poverty and .  .  . expand the middle class.” To those who think constitutional conservatism and reform conservatism are in tension, Lee says, “They are parts of the same whole,” explaining that a government of limited powers “can help restore economic mobility.” Lee has a large agenda, distinctive for its pursuit of constitutional self-government and likely to shape his party’s politics in the 2016 elections.

Terry Eastland is an executive editor at The Weekly Standard.