In his new book on the Constitution, Senator Mike Lee, the first-term Utah Republican, recalls his decision to run for the upper chamber in 2010. “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 . . . 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.”
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.”