Mike Lee: Indispensable Constitutional Provisions Have Been Marginalized, Ignored for Too Long

Rick Bowmer/AP
Rick Bowmer/AP

Even Alexander Hamilton, who proposed a monarchy, would be shocked by how much power is concentrated in today’s executive branch, argues Sen. Mike Lee (R-UT). Unelected and unaccountable bureaucrats now make laws that are even too complex for Members of Congress, which has created a system of governance that benefits insiders and lawyers at the expense of everyday Americans.

With his blockbuster new book, Our Lost Constitution: The Willful Subversion of America’s Founding Document, Lee spotlights some of the most important provisions in the Constitution–and the stories behind them–that have been ignored and marginalized, hoping it will spur discussions and help the country reverse course and become less foreign to America’s Founders.

In an extensive interview on Breitbart News Sunday on Sirius XM Patriot channel 125, Lee told Breitbart News Executive Chairman and host Stephen K. Bannon that “there has been a conscious, deliberate effort over the course of decades to ignore the Constitution, to marginalize it, to make it a document about yesterday, about an agrarian society.”

Lee, one of the Senate’s intellectual heavyweights, said “one of the left’s favorite tricks” is to give off the impression that since the authors of the Constitution tended to grow their own food and travel by horse and buggy, “what they had to say about governing doesn’t matter anymore.” Lee said he wrote the book because the opposite is true, and it has “never been more necessary than right now to have the Constitution and follow it.”

In Our Lost Constitution, the thoughtful and principled Senator tells the stories that “underlie some of the most important provisions of the Constitution” that he believes have been ignored over the years. Lee said once people understand those stories behind provisions like the Origination and the Legislative Powers Clauses, it will be impossible to ignore the document and text and “say that we don’t need it.” He said his father, who was President Ronald Reagan’s Solicitor General and the founding dean of BYU’s law school, always said the Constitution had vertical (federalism) and horizontal (separation of powers) protections, which were the most important parts of the Constitution.

“If you follow those two, a lot of other things will fall into place,” Lee said. “And a lot of bad things are going to happen if you neglect those two.”

Lee spoke passionately about the Legislative Powers Clause, which he said the Founders put at the very top of the Constitution because they wanted all legislative powers vested in Congress. But Lee said that unfortunately, “we’re not legislating anymore” when 80,000 pages of new regulations that cost Americans $2 trillion a year are written by unelected bureaucrats.

“And that’s a problem,” he said.

In his office, Lee has two stacks of documents. The first is an 11-foot tall stack that consists of last year’s Federal Register, which contains all of the federal rules and regulations. The other stack, which Lee said is a few inches tall and a few hundred pages, consists all of the laws that Congress passed last year.

The stacks of paper remind Lee that Congress is not defending its own ground and has actually created the laws that have given regulatory agencies massive rule-making power so that most of the laws, measured by volume and economic impact, “are not made by men and women of our own choosing.”

“The worst thing about it is that you can’t fire those people,” Lee said of bureaucrats who are hard-working but not accountable to the electorate. “The voter can’t fire them. The voters have a chance to fire Senators every six years and Congressman every two years if they make bad laws.”

Lee said he is hopeful about restoring Constitutional principles with the REINS Act. The bill has passed the House in each of the last three years but has not come up for a vote in the Senate, which Lee hopes to rectify this year. He said the bill is a “relatively simple start to a solution to this very big problem” and neither a liberal nor conservative piece of legislation. Simply put, the REINS Act would ensure that any major rule that has the effect of a new law because it would have a major impact on the economy will not “take effect until Congress first enacts it into law.”

Washington’s permanent political class, though, hates that idea, according to Lee, “because they say there’s no way Congress can possibly keep up with the amount of regulations that come out.”

“That makes my head want to explode,” Lee said.

He continued by pointing out that “if what you’re saying is that our laws are so complex that the people’s Representatives can’t keep up with them, then that’s telling us something: Watch out–you’re on the high-road to tyranny.”

Lee said that the “tyranny of expertise” or the “tyranny of hyper-specialization” only benefits the permanent political class because “complexity is a subsidy that helps lobbyists and lawyers in D.C. get rich at the expense of everyone else.” He pointed to Obamacare and Dodd-Frank, which he said contains “scores if not hundreds of instances of de facto lawmaking authority to executive branch agencies.” Lee said that just those two bills alone produced tens of thousands of pages of new regulations that serve as regressive backdoor taxes that end up hurting poorer Americans.

The Legislative Powers Clause is not the only part of the Constitution that has been neglected and marginalized.

Lee spoke about the importance of the Origination Clause, which he pointed out was central to the great Constitutional compromise thanks to Ben Franklin’s genius. Though the Origination Clause states that Congress cannot raise taxes without having that proposal originating in the House of Representatives, Senate Democrats employed a bunch of legislative shenanigans to pass Obamacare by stripping the language out a bill that technically originated in the House and replacing it with the text of what would become the Obamacare bill.

Regarding the Establishment Clause, Lee said the whole purpose of it was to”make sure we didn’t end up with a national church.” Lee said that even though the courts have distorted the Establishment Clause, there is not a single state in the union that would have an established religion today. He took offense at federal judges who are “micromanaging what public schools may allow in terms of speech regarding religion or the utterance of prayer in any public setting.” According to Lee, the text and historic understanding of the Establishment Clause had “nothing to do with restricting the states like this from the vantage point of the federal courts.”

Lee also discussed the forgotten Fourth Amendment by telling the story of 18th century English parliamentarian John Wilkes, whose documents were seized after he criticized King George. Americans have the Fourth Amendment against unreasonable searches and seizures because of Wilkes’s experiences, and Lee said that though “privacy is part of our security,” the various national security surveillance laws were created to gather and monitor foreign intelligence and “were not intended to create this sweeping authority whereby [the federal government] could monitor the activity of law-abiding U.S. citizens on U.S. soil.” Lee said the Fourth Amendment is threatened when the federal government can “keep track of everyone you’ve called” and hold “grandma’s phone records for five years.”

Regarding the 10th Amendment, Lee said the Commerce Clause has been interpreted so broadly by the courts that “there is almost no limit to Congressional power–and when there is no limit the meaning of the 10th Amendment is almost nil.” He said there is this “big myth that if it’s really important it needs to be done nationally when the opposite is true.”

Lee also mentioned that Andrew Jackson, in the face of intense pressure, once vetoed a bill to fund a road because  since the road in question “starts and ends entirely within the state,” Congress did not have jurisdiction over it. He said the country needs more presidents like Jackson who are willing to veto bills they believe are unconstitutional.

In the end, Lee said the ideas and proposals in his book are “neither conservative nor liberal,” but “simply American.” He mentioned that the big-government bureaucracy has helped the permanent political class and their preferred army of experts but has “not helped the forgotten man and the little guy.” He said the most compassionate way to help average, hardworking moms and dads in addition to the helping the poor get out of poverty and expanding the middle class is to govern as a constitutional conservative.

An excerpt from Lee’s Our Lost Constitution: The Willful Subversion of America’s Founding Document can be read here.



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