May 05, 2015

Senator Mike Lee’s The Lost Constitution

It has been decades since a United States Senator was nominated to the Supreme Court by a president. Senator Mike Lee (R-Utah) would be one of two serious candidates to be the next one if a Republican wins the White House in 2016. After all, Lee has a resume that would suit him for the job. He was a clerk for the U.S. District Court for the District of Utah before serving as a clerk for future Supreme Court Justice Samuel Alito when he was a judge on the Third Circuit Court. Lee spent several years as an appellate and Supreme Court litigator with the Sidley Austin law firm in Washington D.C., before serving as an Assistant U.S. Attorney for the District of Utah, from 2002 to 2005. He then served as the general counsel in the office of the governor from 2005 to 2006 before again clerking for Alito, this time after he joined the High Court. He then returned to private practice. Lee was elected as senator from Utah in 2010.

Lee’s latest book, The Lost Constitution, , focuses on six areas of the Constitution which he believes have become neglected or distorted by politicians and judges, to the detriment of the country.

As one who has taught American government at different levels for over 15 years and blogged about our out of control government for over a decade, I have to agree that these six provisions, designed to limit government, have been twisted beyond recognition, limiting the freedom of Americans while putting too much power in the hands of government.

The thing I most like about Lee’s book is that he presents his material not as a scholarly treatise, but as a book for the average American who does not have an advanced education in history or the law. He presents a clear narrative about how principle has been perverted, and does not shy away from laying the blame for the harm that has been done to the American people by the failure to follow the clear meaning of the Constitution. If I assigned this book to my paralegal students, they would have no difficulty with his arguments; if I handed it to my high school students, they would be able to follow his arguments.

Frankly, I found the book quite engaging and particularly enjoyed Lee’s take-down of Justice Hugo Black, the anti-Catholic bigot whose First Amendment decisions while wearing black robes hearkened back to the ideology he espoused while wearing the white robes of the Ku Klux Klan. The damage done to the First Amendment by the Alabama Democrat is incalculable, for he laid the basis for turning the Establishment Clause from a provision that protected religious freedom to a cudgel with which increasingly hostile judges and bureaucrats could use to attack religious groups and individuals.

Senator Lee concludes his book with four chapters outlining how to fix the damage done. I won’t give away his suggestions – instead I will urge you to get a copy of the book and discover them yourself. After all, citizen vigilance is a key part of holding government – including the courts – accountable to the limits of the Constitution.

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Lee’s take-down of Justice Hugo Black,

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