The following is excerpted from Our Lost Constitution by Utah Sen. Mike Lee on sale April 7, 2015, with permission of Sentinel, an imprint of Penguin Publishing Group, a division of Penguin Random House LLC. Copyright (c) Mike Lee, 2015.
Chapter 1: Ducking and Dodging the Constitution
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 on 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.
One prominent example of this kind of lawmaking can be found in the Clean Air Act. The act essentially declares that “we shall have clean air” and then outlines a broad vision for limiting air pollution from both mobile sources (like cars) and stationary sources (like factories). The act contains relatively few details as to how its laudable objectives will be achieved. Instead, it authorizes the Environmental Protection Agency (EPA) to make and enforce legally binding regulations that, far more than the act itself, restrict air pollution.
This approach certainly has its advantages, and few would dispute that America’s air quality has improved substantially since the Clean Air Act’s passage and implementation. I’m happy, as I assume all Americans are, that the Clean Air Act has improved our nation’s air quality. There is, however, a major problem with this method of lawmaking: It insulates lawmakers from voter accountability and thereby undermines one of our Constitution’s most important features. It insulates members of Congress by giving them plausible deniability; they can blame the executive agencies for anything the voters don’t like. The bureaucrats at those agencies, in turn, become a unique and privileged class of lawmakers; they are insulated from voter accountability because they are never required to stand for election.
Thus, when the EPA adopts a new regulation carrying the force of law, those who find that law unnecessary, unreasonable, or even harmful are left with little recourse. Understandably, they might complain to those who have been elected to represent them in Congress. Members of Congress instinctively respond to such complaints by expressing empathy for those harmed by the law and frustration with the EPA and then adding something like “Well, that regulation was put in place by the EPA. That is where you should take your complaint.” Of course, the people at the EPA—as hardworking, well educated, and well intentioned as they may be—tend not to be terribly concerned about citizen complaints because they cannot be voted out of office.
It can be hard for most Americans—that is, those who don’t work in Congress or monitor its operations on a full-time basis—to understand how far our government has drifted from the Constitution’s vision and in many cases its actual stated provisions. Many Americans probably assume that our lawmakers understand our founding document and are devoted to defending it. Unfortunately, that assumption is in many ways incorrect.
Far too many members of Congress don’t understand the Constitution they’ve sworn to defend—not because they can’t understand it but because they make little or no effort to do so. Some Supreme Court justices aren’t much better; too many of them understand our founding document but refuse to acknowledge that its most important function is to limit and check power. Presidents are often even worse; they pay lip service to our nation’s governing document with their words, but their actions frequently betray a lack of real commitment to its restrictions.
People serving in each of these positions have raised their right hands and sworn some variation of an oath “to preserve, protect, and defend the Constitution of the United States.” Most, if not all, of the people who have made such a vow intended at the outset to keep it. Maybe they believe they are keeping it. But far too often they are not. The truth is that our Constitution is being subverted by many of the very people who have solemnly promised to protect it.
Most of the destruction is done by well-meaning government officials who believe that our governing document is more of a starting point than a necessary set of boundaries. Those who espouse this view tend to profess a kind of reverence for the Constitution but talk about its restrictive structure with a combination of detachment and disdain. They make it clear that they think the idea of restraining government power by means of a written governing document is a
topic better suited for an ancient-history class than for a contemporary political discussion. Adherents to this viewpoint will occasionally say that the Constitution was crafted by and for an “agrarian society”—meaning that it is a sort of quaint document written for a society that is nothing like our own. As far as these critics are concerned, we don’t need to follow a bunch of rigid rules put in place by Americans who grew their own food and whose most sophisticated mode of transportation involved a horse and buggy.
When I arrived in Washington, I found it awash with people who viewed the Constitution as a nuisance. There was an attorney general who, contradicting experts within his own Department of Justice, vouched for the constitutionality of a legislative proposal that would give the District of Columbia representation in Congress, even though the Constitution makes clear that only states are entitled to such representation. There was a president who had bullied and badgered the Supreme Court after it issued a free-speech decision with which he disagreed. And there was an outgoing Speaker of the House who, when asked which provision of the Constitution gives Congress authority to make Americans buy health insurance, answered with scorn and incredulity by simply replying, “Are you serious? Are you serious?”
Rather than considering the Constitution important enough for their consideration, many senators and congressmen now punt constitutional questions to staff, who in turn defer (often excessively) to the courts in construing the Constitution. If you ask senators or congressmen about the constitutionality of a particular legislative proposal, they might well answer, “Experts on my staff have assured me that, if this bill becomes law, the courts will not invalidate it.”
Relying on court decisions is no substitute for legitimate, independent constitutional analysis, which should take place within every branch of government. Every elected official has an affirmative, independent obligation to act within the Constitution’s limits, regardless of whether courts are likely to intervene. Lawmakers who don’t move beyond the question of what the courts will permit are like children trying to get away with a kind of rule breaking their parents aren’t likely to catch.
It was this state of affairs that convinced me to run for the U.S. Senate in 2010, challenging a three-term incumbent from my own party. It bothered me that even in the Republican Party, far too many elected officials have been reluctant to engage the public in a meaningful constitutional discourse. Although the GOP purports to stand for principles of constitutionally limited government, not every Republican lawmaker is willing to engage in a thoughtful constitutional dialogue—one that attempts to identify limits on federal power and extends beyond a facile assessment of how likely the courts might be to invalidate a particular law.
Sometimes government officials overlook serious constitutional defects in a legislative proposal because they see that some features of the proposal may be popular. It is politically advantageous for them to defer all constitutional questions to the courts, which can then carry all responsibility (and any accompanying blame) for the proposal’s unconstitutionality. President George W. Bush, for example, signed the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold Act), even though he knew major parts of it violated Americans’ right to free speech. He explained that “certain provisions present serious constitutional concerns”; that “questions arise under the First Amendment” regarding a limit on individual campaign contributions; and that he had “reservations about the constitutionality” of another major provision restricting political advertising.2 But in a shocking abrogation of his constitutional duty to defend the Constitution, Bush signed the bill, meekly explaining, “I expect that the courts will resolve these legitimate legal questions as appropriate under the law.” In so doing, he forced upon the American people an onerous set of legal obligations that he himself recognized were constitutionally infirm. Americans had to either humbly submit to an unconstitutional law or go through the time-consuming, expensive, and politically risky exercise of challenging the law in court.
Eight years after Bush acknowledged this law’s constitutional defects but refused to veto it, the Supreme Court invalidated parts of it. Liberals went wild, demanding a constitutional amendment to repeal part of the First Amendment and heaping on the Court the criticism that Bush had deflected and that continues to this day.
Even though the Supreme Court righted some of Bush’s wrongs, many of our constitutional rights cannot (or, for one reason or another, will not) be addressed by the courts. To put it simply, the Constitution has to be defended by all three branches of government. Now more than ever, we need our elected officials to think about these things and enforce provisions of the Constitution that courts have not been willing to enforce.
Our Lost Constitution tells the stories behind some of the most important of those provisions. Each of the chapters in part 1 describes the story behind the rise and fall of a particular constitutional provision. 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 executive abuse by controlling the purse and passing new laws to the importance of voters making informed choices based on candidates’ commitment 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 that the Lost Constitution must not remain lost forever.