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Senator Lee Argues That The Constitution Has Been Willfully Subverted -- He's Right
Forbes ^ | June 11, 2015 | George Leef

Posted on 06/11/2015 10:28:01 AM PDT by reaganaut1

Few Americans have much understanding of our Constitution any more. It’s seldom covered in school or college, and law students get a course called “constitutional law” that isn’t really about the document itself, but about the Supreme Court’s many decisions – decisions that often changed its intent.

Worse still, although elected officials take an oath to uphold the Constitution, many vote for legislation that tramples all over it.

One public official who takes the Constitution very seriously, however, is Utah’s junior senator, Mike Lee. In his new book Our Lost Constitution: The Willful Subversion of America’s Founding Document, he makes the case that the country has badly departed from the wisdom written into our government’s foundation.

And he makes that case very effectively, by discussing the actual decisions that have been so ruinous, along with the events and people behind them. Readers will become engrossed in the key turning points where parts of the Constitution were lost.

Each of Lee’s chapters is illuminating, but perhaps the most memorable is the one on the way the meaning of the First Amendment’s “establishment clause” was tormented into an absolute prohibition against any connection whatsoever between government and religion.

All the Constitution says is that Congress shall make no law establishing a religion. What that meant, Lee notes, was that the Founders were against allowing religion to become a national issue, with Congress deciding to favor any church through official support. The states were left free to have whatever law regarding religion their people wanted.

How it happened that the “establishment” clause was turned into a “wall of separation” between religion and government is an amazing tale that involves the Supreme Court’s single justice who had been a Klan member – Hugo Black.

(Excerpt) Read more at forbes.com ...


TOPICS: Constitution/Conservatism; Editorial
KEYWORDS: constitution; mikelee; mikeleebook; obamalawless; ourlostconstitution
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1 posted on 06/11/2015 10:28:01 AM PDT by reaganaut1
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To: reaganaut1

Now here is a captain obvious article.


2 posted on 06/11/2015 10:35:55 AM PDT by servantboy777
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To: reaganaut1

He should change his name to Senator Obvious.


3 posted on 06/11/2015 10:39:00 AM PDT by WayneS (Yeah, it's probably sarcasm...)
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To: reaganaut1

4 posted on 06/11/2015 10:40:20 AM PDT by Jane Long ("And when thou saidst, Seek ye my face; my heart said unto thee, Thy face, LORD, will I seek")
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To: reaganaut1

Because of the damage done to our Constitution in the examples listed in the article, and more there are many in this country that haven’t a clue there is a problem much less what happened. Have to applaud Senator Lee for his efforts.


5 posted on 06/11/2015 10:48:42 AM PDT by rockinqsranch ((Dems, Libs, Socialists, call 'em what you will. They ALL have fairies livin' in their trees.))
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To: 14themunny; 21stCenturion; 300magnum; A Strict Constructionist; abigail2; AdvisorB; Aggie Mama; ...

Federalist/Anti-Federalist ping. It’s a review of Sen. Mike Lee’s new book.


6 posted on 06/11/2015 10:49:32 AM PDT by Publius ("Who is John Galt?" by Billthedrill and Publius now available at Amazon.)
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To: Publius

bump

100% correct


7 posted on 06/11/2015 11:10:59 AM PDT by GeronL
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To: Publius

Please add me to your Ping list.


8 posted on 06/11/2015 11:16:06 AM PDT by Mollypitcher1 (I have not yet begun to fight....John Paul Jones)
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To: Mollypitcher1

Done.


9 posted on 06/11/2015 11:18:52 AM PDT by Publius ("Who is John Galt?" by Billthedrill and Publius now available at Amazon.)
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To: Publius

Add me to the federalist/anti-federalist ping list please.


10 posted on 06/11/2015 11:19:23 AM PDT by StoneWall Brigade
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To: reaganaut1

The Articles of Confederation was the first written constitution ratified by the states. The states were sovereign and Congress served as a governing body to resolve disputes between the states, make treaties and alliances, maintain armed forces and coin money. Congress lacked authority to levy taxes and regulate commerce under the Articles of Confederation.

An amendment to the Articles of Confederation required all states to ratify the amendment. Each state’s contribution to fund the Continental Congress rest on the value of its lands and improvements. The Continental Congress was unicameral and a centralized institution of government. Each state had one vote and delegates were elected by state legislatures.

The inability of Congress to raise revenue and the improbability of an amendment to the Articles of Confederation led to a Constitutional Convention to repeal and replace the Articles of Confederation. The US Constitution required nine states to ratify it. See Article VII. Two states ratified the U.S. Constitution after President Washington was sworn in.


11 posted on 06/11/2015 11:22:05 AM PDT by SvenMagnussen (1983 ... the year Obama became a nathuralized U.S. citizen.)
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To: reaganaut1

The Constitution was rendered null and void on Usurpation Day, Jan. 20, 2009, when all of our political and judicial leaders stood by and watched a man they knew was ineligible be sworn in as President.

What do we call Post-Constitutional America?


12 posted on 06/11/2015 11:22:30 AM PDT by Lurkinanloomin (Know Islam, No Peace - No Islam, Know Peace)
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To: StoneWall Brigade

Done.


13 posted on 06/11/2015 11:28:00 AM PDT by Publius ("Who is John Galt?" by Billthedrill and Publius now available at Amazon.)
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To: Lurkinanloomin
What do we call Post-Constitutional America?

America survives an ineligible President. The US Constitution and the US federal government are voided by the installation of an ineligible President.

America is governed by a de facto unitary executive and the Vice President until a national governing document is ratified by the people.


14 posted on 06/11/2015 11:34:48 AM PDT by SvenMagnussen (1983 ... the year Obama became a nathuralized U.S. citizen.)
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To: rockinqsranch

I absolutely agree.

The young people just don’t know know how much of their freedom has been taken from them.

I have a cousin who teaches American history in junior high.
He has left two school systems, with reprimands on his record, because they insisted on bunch of garbage that downplays the constitution as the law of the land.

He’s now at a private school that counted his reprimands as a positive.
He teaches a curriculum heavy on the constitution and the Founders Original Intent.


15 posted on 06/11/2015 11:38:10 AM PDT by oldvirginian (Choose CRUZ because only a constitutiomalist can save the Republic)
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To: reaganaut1

Senator Lee could not possibly be any more right and those few of us who do have a modicum of understanding of our Constitution are passing on now at a rapid rate.


16 posted on 06/11/2015 12:33:56 PM PDT by Bigun ("The most fearsome words in the English language are I'm from the government and I'm here to help!")
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To: reaganaut1; All
Are we not witnessing the consequence of the "living constitution" myth, propagated over many decades by those who self-identify as "progressives"?

The last paragraph of Dr. Walter Berns' essay, quoted below, seems to sum up Sen. Lee's concern:

Do We Have A Living Constitution?

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act." - Alexander Hamilton

In the first of the eighty-five "Federalist Papers," Alexander Hamilton emphasized that:

... it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government fromreflection or choice, or whether they are forever destined to depend for their political constitutions on accident and force."

The Framers knew that the passage of time would surely disclose imperfections or inadequacies in the Constitution, but these were to be repaired or remedied by formal amendment, not by legislative action or judicial construction (or reconstruction). Hamilton (in The Federalist No. 78) was emphatic about this:

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption, or even know ­ ledge of their sentiments, can warrant their represen ­ tatives in a departure from it prior to such an act."

The Congress, unlike the British Parliament, was not given final authority over the Constitution, which partly explains why the judicial authority was lodged in a separate and in­dependent branch of government. In Britain the supreme judicial authority is exercised by a committee of the House of Lords, which is appropriate in a system of parliamentary supremacy, but, although it was suggested they do so, the Framers refused to follow the British example.

The American system is one of constitutional supremacy, which means that sovereignty resides in the people, not in the King-in-Parliament; and the idea that the Constitution may be changed by an act of the legislature-even an act subsequently authorized by the judiciary-is simply incompatible with the natural right of the people to determine how (and even whether) they shall be governed.

Unlike in Britain where, formally at least, the queen rules by the grace of God (Dei gratia regina), American government rests on the consent of the people; and, according to natural right, the consent must be given formally. In fact, it must be given in a written compact entered into by the people. Here is Madison on the compacts underlying American government:

Neither civil society (or as Madison puts it, "the people in their social state') nor government exists by nature. By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life - or, in the words of the Declaration of Independence, everyone is endowed by nature with the rights of life, liberty, and the pursuit of a happiness that he defines for himself. Civil society is an artificial person (constituted by the first of the compacts), and it is civil society that institutes and empowers government. So it was that they became "the People of the United States" in 1776 and, in 1787-88, WE, THE PEOPLE ordained and established "this Constitution for the United States of America."

In this formal compact THE PEOPLE specified the terms and conditions under which "ourselves and posterity," would be governed: granting some powers and withholding others, and organizing the powers granted with a view to preventing their misuse by the legislative, the executive, and the judicial branches alike. WE THE PEOPLE were authorized by natural right to do this, and were authorized to act on behalf of posterity only insofar as the rights of posterity to change those terms and conditions were respected. This was accomplished in Article V of the Constitution, the amending article, which prescribed the forms to be followed when exercising that power in the future.

The Framers had designed a constitutional structure for a government which would be limited by that structure - by the distribution of power into distinct departments, a system of legislative balances and checks, an independent judiciary, a system of representation, and an enlargement of the orbit 11 within which such systems are to revolve" And to the judges they assigned the duty, as "faithful guardians of the Constitution," to preserve the integrity of the structure, for it is by the structure (more than by "parchment barriers") that the government is limited. It would he only a slight exaggeration to say that, in the judgment of the Founders, the Constitution would "live" as long as that structure was preserved.

The Enduring American Constitution

Now, almost 200 years later, one can read Hamilton's words in Federalist No. 1 and conclude that, under some conditions, some "societies of men" are capable of "establishing good government," but that most are not. This is not for lack of trying; on the contrary, constitutions are being written all the time - of some 164 countries in the world, all but a small handful (seven by the latest count) have written constitutions - but most of them are not long-lived.

In September 1983, the American Enterprise Institute sponsored an international conference on constitution writing at the Supreme Court of the United States; some twenty-odd countries were represented. With the exception of the Americans, the persons present had themselves played a role - in some cases a major role - in the writing of their countries' constitutions, most of them written since 1970. Only the con­stitution of the French Fifth Republic predated 1970; and the Nigerian, so ably discussed and defended at the 1983 conference by one of its own Framers, had subsequently been subverted, much as the four previous French republican constitutions had been subverted. It would seem that many peoples are experienced in the writing of constitutions, but only a few of them - conspicuous among these the people of America - have an experience of stable constitutional govern­ment. In that sense, we surely have "a living Constitution." That is not, however, the sense in which the term is ordinarily used in the literature of constitutional law as shall be explored herein.

Treating The Constitution As A Thing Without Form or Substance: New Definitions Of 'Living'

In the language of many today, a "living Constitution" is not first of all one that is long-lived; rather, its longevity is a secondary or derivative quality which is attributed to its "flexibility" or better, its "adaptability." It is this quality " ­ adaptability" that allows it to be "kept in tune with the times," as the members of this school of thought sometimes say. According to them, a living Constitution is first of all a protean constitution - one whose meaning is not fixed, but variable.

In this respect, it is similar to the Constitution as understood by the "judicial power" school. Some judicial power advocates go so far as to say that, until the judges supply it in the process of adjudication, the Constitution has no meaning whatever. Here are the words of judge Lynn D. Compton of California, writing in 1977 in the pages of the Los Angeles Times:

"Let's be honest with the public. Those courts are policy-making bodies. The policies they set have the effect of law because of the power those courts are given by the Constitution. The so-called "landmark decisions" of both ofU.S. Supreme Court and the California Supreme Court were not compelled by legal precedent. Those decisions are the law and are considered "right" simply because the court had the power to decree the result. The result in any of those cases could have been exactly the opposite and by the same criteria been correct and binding precedent.

"In short, these precedent-setting policy decisions were the products of the social, economic and political philosophy of the majority of the justices who made up the court at a given time in history .."

So extreme a view of judicial power is not likely ever to be expressed in the official reports; there (perhaps in order to be dishonest with the public) even the most inventive judge will claim to be expounding the Constitution, if not its ex­plicit provisions then, at least its emanations, penumbras, or lacunae (Griswold v. Connecticut). What is of interest is that a judge should be willing to express it anywhere - for what it means is that a constitutional provision can be interpreted, but not misinterpreted, construed but not misconstrued. More to the point here is that it means that the Constitution is a living charter of government only because it is repeatedly being reinvented by the judiciary.

The 'Living Constitution' school and the 'Judicial Power' school may be indistinguishable at the margins, but they derive from unrelated and distinct sources. 'Judicial Power' is a product or an extension of legal realism, the school of thought whose advocates, from the beginning of the twentieth century, have argued that the essence of the judicial process consists not in interpreting law, whether statute or constitutional, but in making it. Its advocates today speak with a certain nonchalance of "creating" constitutional rights (Moore v. City of EastCleveland), and, when pressed to cite their authority for doing so are likely to point to the work of contemporary legal theorists like Ronald Dworkin and his bookTaking Rights Seriously . It is Dworkin who has purportedly given this sort of "constitutional lawmaking" what it has always lacked ­ a philosophical underpinning. As he sees it, rights cannot be taken seriously until there has been "a fusion of constitutional law and moral theory," and to make it clear that he is not referring to any particular moral theory that may have informed the Constitution as written, he finishes that sentence by saying that that fusion "has yet to take place."

As it turns out, however, the moral theory he propounds, and which he hopes to "fuse" with constitutional law, proves to be nothing more than a fancy way of justifying what the judge Comptons among us have been doing all along. And what they have been doing is, essentially, treating the Constitution as a thing without form or substance, except insofar as it authorizes the judges to give it substance.

The living Constitution school also claims to have a source more venerable than legal realism or Ronald Dworkin - justice John Marshall. A former president of the American Political Science Association argues that the idea of a " 'living Constitution'...can trace its lineage back to John Marshall's celebrated advice in McCulloch v. Maryland (1819): 'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs' " The words quoted are certainly Marshall's but the opinion attributed to him is at odds with his well-known statements that, for example, the "principles" of the Constitution "are deemed fundamental [and] permanent" and, except by means of formalamendment, "unchangeable" (Marbury v. Madison). It is important to note that the discrepancy is not Marshall's; it is largely the consequence of the manner in which he is quoted - ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify "all the subdivisions of which its great powers will admit;" if it attempted to do so, it would "partake of the prolixity of a legal code" (McCulloch v. Maryland), In the second statement, Marshall's subject is the legislative power, and specifically the power "to make all laws which shall be necessary and proper for carrying into execution" the explicitly granted powers.

Neither Marshall nor any other prominent members of the founding generation can be 'appropriated' by the living Constitution school to support their erroneous views. Marshall's and the Founders' concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written.

They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:

At this point, it is well to remember Hamilton's strong warning about unwarranted presumptions by those in government of a power to depart from the people's established form as quoted in the title of this essay.

Marshall referred to the "principles" which he called "permanent," and the "basis on which the whole American fabric has been erected" Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to "...allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of "human affairs."

Ironically, the very case cited by the "living Constitution" school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.

Summary: Do We Have A Living Constitution?

What has been undertaken here has been providing (within a very brief compass indeed) an accurate statement of the principles underlying the American Constitution: pointing to (but by no means elaborating) the political theory from which they derive and the constitutional conclusions to which they lead. Among the latter is the untenability of the proposition that constitutional limitations can be jettisoned, constitutional power enhanced, or the constitutional divi­sion of powers altered, by means other than formal constitutional amendment.

It will not be argued that it may sometimes be convenient to allow the Senate to originate a bill "for raising revenue," but convenience is not a measure of constitutionality. There is much to be said in favor of the legislative veto - Who would, in principle, deny the need of checks on administrative agencies? - but, as the Supreme Court correctly said, the Framers anticipated that Congress might find reason to employ such devices and, when designing the so-called "presentment clause" in Article 1, Section 7, forbade them ( Immigration and Naturalization Service v. Chadha). And from a particular par­tisan perspective it is understandably frustrating, simply because the required number of states had not yet ratified the Equal Rights Amendment, to be denied the power to pro­mote the cause of sexual equality; but frustration alone cannot justify a judicial attempt to preclude the necessity of for­mal ratification, as Justice Brennan is said to have wished to do. In Frontiero v. Richardson (411 U.S. 677, 1973) the Supreme Court was divided on the issue of whether sex, like race, should be treated as a suspect classification. We are told that Justice Brennan circulated a draft opinion in which he proposed to declare classification by sex virtually impermissi­ble and that he knew this would have the effect of "enacting" the pending ERA. "But Brennan was accustomed to having the Court out in front, leading any civil rights movement," a major publication stated. Hence, we are further told, he saw "no reason to wait several years for the states to ratify the amendment." No reason, that is, other than the fact, which Brennan implicitly acknowledged, that the Constitu­tion as then written, and which had not yet been rewritten by the only people authorized to rewrite it, did not support the role he would have the Court hand down.

Those who would use "convenience" or "frustration" as reason, or who insist that it lies within the powers of the Court (or the Congress or the Executive) to effect constitutional change, can be charged with a lack of respect for the principles on which, as Marshall wisely observed: "the whole American fabric has been erected."

We are told that it is unreasonable - even foolish - to expect that the Framers could have written a Constitution suitable alike for a society of husbandman and a society of multinational corporations, to say nothing of one as well adapted to the age of the musket and sailing ship as to the age of intercontinental nuclear-tipped missiles. As the problems have changed, the argument goes, so must the manner in which they are confronted and solved, and the Constitution cannot be allowed to stand in the way. Indeed, there is no reason to allow it to stand in the way, we are told, because the Framers intended it to be flexible. And we are told that John Marshall would support this position. But it was Marshall, in McCulloch v. Maryland, who stated: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported." The United States, in this view was not intended to be a simple society of husbandmen, and Marshall Clearly saw that the Constitution empowered Congress to do what was required to meet the crises of the Republic, and to maintain the Constitutional structure intended by the Framers, changing it only when such change would be in keeping with the structure itself.

That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a "Living Constitution" - but let that not be claimed by those who would use the language to subvert the structure.

Reprinted with permission from the Bicentennial Volume, "Our Ageless Constitution" - W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates,1987) Part VII:  ISBN 0-937047-01-5: (Essay adapted by Editors for publication in this Volume in consultation with Dr. Walter Berns from Berns' article by the same title in National Forum , The Phi Kappa Phi Journal, Fall 1984). See.


17 posted on 06/11/2015 12:50:12 PM PDT by loveliberty2
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To: WayneS

It’s like the few who admit to the obvious, do so as if it was a novel situation. Some sort of capital hill etiquette prevents them from screaming the obvious and pointing accusing fingers without first going through some sort of courtship dance.


18 posted on 06/11/2015 1:28:07 PM PDT by Vaquero ( Don't pick a fight with an old guy. If he is too old to fight, he'll just kill you.)
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To: reaganaut1
I am fairly convinced that the republic is broken beyond the ability to repair the damage inflicted upon it by the progressives.

Unproductive members of society are the new majority of the voters in the nation and they are voting for Santa Claus in every election. The productive members of society are being whipped to death like they are the Elves making toys up at Santa's North Pole sweatshop.

I think the only real way to fix this is to whack Santa.

19 posted on 06/11/2015 1:32:40 PM PDT by Rodamala
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To: All

The first draft of America’s first written constitution was introduced into the Continental Congress record as, “The Articles of Confederation and Perpetual Union,” on July 12, 1776.

Article I. THE Name of this Confederacy shall be “The United States of America.”

Article II. The said Colonies unite themselves so as never to be Divided by any Act whatever, and hereby severally enter into a firm League of Friendship with each other, for the common Defence, the Security of their Liberties, and their mutual and general Welfare, binding the said Colonies to assist one another against all Force offered ...


The US Constitution repealed and replaced the Articles of Confederation.


20 posted on 06/11/2015 1:43:39 PM PDT by SvenMagnussen (1983 ... the year Obama became a nathuralized U.S. citizen.)
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