Our Lost Constitution: The Willful Subversion of America’s Founding Document
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Our Lost Constitution: The Willful Subversion of America’s Founding Document

September 21, 2019


>>David Ferriero: Happy Constitution Day.
Good afternoon. I’m David Ferriero, the Archivist of the United States. It’s a pleasure to have
you here in the William G. McGowan Theater. A special welcome to those of you who are
joining us on our YouTube Channel. Today we’ll take a look at our Constitution with a member
of the United States Senate who believes it has been subverted and needs to be restored
to what the founding fathers created in Philadelphia in 1787. Senator Mike Lee of Utah is here
to talk about the concerns raised in his book “Our Lost Constitution: The Willful Subversion
of America’s Founding Document.” Before we go any further, I’d like to tell
you about several programs coming up in this theater. Tonight at 7:00, join us for “The
Young Madisons: Why a New Generation is Standing Up for the Constitution.” It will feature
a panel representing a new generation of civic leaders shaped by the digital revolution,
reaffirming its commitment to the rights, principles on the Constitution. This will
be the ninth annual State of the Constitution lecture at the National Archives presented
in partnership with the Robert H. Smith Center for the Constitution. The lecture focuses
on the voices of young leaders who are shaping America’s future as a constitutional democracy.
On September�23, noon, we will host historian Irwin Gellman discussing “The President and
the Apprentice: Eisenhower and Nixon 1952 to 1961”. The author reveals the relationship
between Eisenhower and Nixon and discusses how Ike’s presidency worked and what it accomplished.
Ike trusted and relied on Nixon and sent him on sensitive overseas missions.
If you want to know more about these and all of our upcoming events and programs, refer
to our monthly Calendar of Events. There’s a signup sheet in the lobby where you can
receive it by email or in regular mail. In “Our Lost Constitution,” Senator Lee argues
since the Constitution was ratified in 1789, key provisions have been ignored and distorted
through legislation in Congress, decisions by the Supreme Court, and regulations issued
by agencies and departments. They include, for example, the provision that all tax bills
originate in the House of Representatives. Today many a tax bill in practice originates
on the Senate side of the Capitol. Joseph Pastell, writing about the book, says that
it is fundamentally about the strange fact that we live under a Constitution that is
still ostensibly in effect and still revered by most Americans but circumvented time and
again in practice. An American spectator writes, “With interesting profiles and colorful anecdotes
Lee provides an engaging history lesson for each of his lost causes and explains the public
policy significance of the Supreme Court’s departure from the text of the Constitution.”
Please welcome Senator Mike Lee. [Applause]
>>Senator Mike Lee: Thank you very much, David. Thanks to all of you for being here.
It’s a real honor to be here at the home plate of the Constitution, the base of the Constitution,
to speak on Constitution Day about the Constitution. It is a real honor for me to be here with
you. I have been in the Senate now for about four
and a half years. It’s been an interesting ride. When I first arrived in the Senate,
I was the Senate’s youngest member. I was 39 years old at the time. So I cleared the
Constitutional threshold by nine years at the time I was elected; nonetheless, I was
the youngest member at the time I arrived. In order to make myself sound older and then
make myself feel like I fit in better, I started telling my colleagues that even though I was
only 39, I was reading at the level of a 40yearold. They weren’t all that impressed. The age differential
manifested itself in many ways. Among other things, the security personnel didn’t seem
to recognize me. Part of that was just a function of the fact that I was new and part of it
was that I guess I didn’t look very much like a senator. It was a new experience for me
because as a nondrinking kid from Utah, I’m not used to be carded.
>>[Laughter]>>Senator Mike Lee: Yet this is what was
happening to me nearly every time I went into the Senate chamber to cast a vote. These heavily
armed, burley gentlemen who guard the doors to the Senate, would look at me almost as
if to say, you know, the door for the staff is over there. They didn’t want to see my
driver’s license. They wanted to see my Senate I.D. I’ll show you the card. It says that
I’m a United States senator, representing Utah. It has my picture. It’s not very impressive.
Then there’s this jarring statement at the bottom of it in fine print that says expiration
January 3, 2017.>>[Laughter]
>>Senator Mike Lee: I had to assure my wife Sharon and our three children, who told me
to tell you hello — by the way, the Archives is their favorite place to visit in Washington. I had to assure them that January 13, 2017 was not the day I personally expire; it’s just my term of office.
They would sit there, the police guarding the Senate chamber, would actually examine
the card so as to make sure I hadn’t bought it at a fake ID outlet in Georgetown. They
would look at each other, shrug their shoulders and say I guess we have to let him in.
After this went on for a few months, I was talking to one of my colleagues about it who
said, You know that lapel pin that they gave you serves a purpose. It’s there to help them
know that you’re a senator. I said, Why is that? He said the only people who wear those
are senators. I had forgotten about the lapel pin. I’m not into accessories. When they gave
it to me, I put it in a desk drawer, closed the drawer and forgot about it. Ever since
then I put the pin on, have worn it and it works like a charm. I refer to it affectionately.
I’ve given it a nickname, my sorry senator pin. When they card me, I point to the pin
and they say, Sorry, Senator, you can come on in. It works most of the time like a charm
but occasionally it doesn’t. After I had been in the Senate for nearly
a year, one time on the floor of the Senate, casting votes, in between two or three roll
call votes — each of these votes takes about 15 minutes to complete. I had one arm gently
resting on the desk in front of me thinking about how the vote was going to turn out.
One of the nonuniformed security guys inside the Senate chamber came up to me and says
in a very harsh tone of voice, Excuse me. Will you please not lean on the senator’s
desk?” I said, I’m terribly sorry. It won’t happen again. I thought it was weird he referred
it as the senator’s desk and not your desk. You see, they’re very protective of the desks.
A lot of the desks in the Senate chamber are original equipment, which means a lot of the
desks in the Senate chamber are about 150 years old which means a lot of them are about
as old as some of my colleagues. Guard them very jealously.
Then he said, Are you with the minority? Referring to the minority party. Republicans were then
the minority party in the Senate. I said, Well, yes. I’m not sure you mean am I voting
with my party this time or on the next vote. He said, No. Are you with the minority leader?:
I said, Mr. McConnell is our leader. I don’t understand the question. He said, Are you
part of the Minority Leader’s staff? Then I realized, ok, he doesn’t know who I am.
So I pointed casually to the sorry senator pin. It didn’t work. All I get was a blank
stare. So I realized then and there, I was going to have to do something I didn’t like
to do, still don’t like to do. I was going to have to use my title. I don’t like throwing
title around. It makes me uncomfortable. I mumbled it. I said, I’m Senator Lee. He said,
What? I said, Ok, my name is Mike Lee, I come from a state called Utah, sort of like a square
lovely skiing in the rocky mountains. Senator from there. to drain from his face as he told
me in one hurried breath, I’m terribly sorry for the misunderstanding sir. My name is Steve
if you want to report me. He ran for the door. This was an honest mistake. So I chased after
Steve to tell him it was no big deal but he was too fast. So from then on, every time
I pass Steve in the halls of the Senate or the Capitol building, I say, Hi, Steve. I
wave to him, smile so he knows there’s no hard feelings. We joke around. Only recently
did it occur to me his name’s probably not Steve.
>>[Laughter]>>Senator Mike Lee: Pretty sure it’s Bob.
Steve is probably a guy he works with that he doesn’t like.
I didn’t want to have to assert my right to be there that day in the way that I had to
assert my right to be there that day; meaning, I didn’t want to have to use my title. It
made me uncomfortable. But had I not done so, I might have found myself being removed
from the Senate chamber and unable to vote that day. The three million people I represent
in my state wouldn’t have been represented by me that day. I would have lost something
meaningful had I not asserted that which was rightfully mine that which I worked for very
hard in 2010 in getting elected to the Senate. Sometimes this applies to all of us not just
U.S. senators, not just people who hold public office, but all of us as U.S. citizens have
certain things that are rightfully ours. That while rightfully ours will cease to be meaningful
unless we continually assert them. There are many rights under the Constitution that we
understand sufficiently well as a society and that are sufficiently honored and respected,
revered, followed as a society that we can reasonably hope and expect our government
officials will follow them. Most of the time, for example, if you get pulled over for a
speeding infraction, the officer is not going to ask you for proof of where you went to
church on Sunday. If that ever does happen, call me. That’s a problem. They can’t do that.
You probably are not going to be arrested if you advocate for a cause or a candidate
of your choice. The First Amendment would prohibit that, too. If that ever happens,
please call me. They can’t do that. There are other rights under our Constitution
that aren’t always as obvious. And for our rights to be meaningful, for us to be able
to assert them, we have to be able to understand them. For us to fully understand and appreciate
them and be passionate about them enough that we can and will assert them and protect them
and defend them, sometimes it’s helpful for us to know the stories behind those provisions
of the Constitution, to be able to put them in historical context so that when we see
a constitutional violation we recognize it. Not only will we recognize it but we’ll see
and feel at least at a relevant level the importance of asserting that right.
I’d like to talk to you today about a few of our rights in the Constitution, some of
which I have addressed in my book “Our Lost Constitution.” It came out in April. By the
way, all 12 people who have read it so far have really enjoyed it.
>>[Laughter]>>Senator Mike Lee: These provisions that
I discuss in the book are provisions that are more or less known to the public or known
to the public to one degree or another. But we can more fully understand if we know the
stories behind them. I learned from my own parents the fact that when they told me a
story behind something, in many cases it was a provision of the Constitution. I would learn
about it more fully. The Constitution was something we discussed
in our household when I was a child. My father was a professor of Constitutional law. I didn’t
realize that that was unusual. I think I was 30 before I realized not every family discusses
the presentment clause over dinner. But it is nonetheless the kind of discussion as we
as Americans of all political persuasions, of all backgrounds need to be having these
kinds of discussions because they make our public discourse and dialogue more robust.
And to the extent we understand these provisions, we will defend them and we will assert our
rights under them and they will be more meaningful us.
The first of the provisions I’d like to discuss with you today is the Fourth Amendment. The
Fourth Amendment has a long and storied history and tradition in America, one that predates
our existence as a country. The interests protected by the Fourth Amendment can in many
respects be traced back to a man named John Wilkes who was a member of parliament in the
mid to late 1700s. John Wilkes was a patriot. He loved his country. He even loved his king
even though he was inclined frequently to criticize his king.
At the time John Wilkes was serving in parliament it become common to have these political news
magazines called weeklies. Weeklies were frequently read in taverns, saloons, homes across England
discussing the public affairs of the day. In many instances they would discuss the policies
of the parliament and the king. In some circumstance they would even be critical of certain policies.
But they had a certain rule. There was a certain almost unwritten rule. You don’t ever criticize
the king. You might criticize his ministers. You might criticize one or more policies.
But you never, ever criticize the king or even come close to it. It just isn’t done.
John Wilkes eventually became bored with the weeklies that were popular in England, the
most prominent of which was known as The Briton. So in an act of symbolic protest against what
he saw as a lackluster political debate, he started a new weekly which he called The North
Briton. It was kind of an alternative voice. A North Briton over time became increasingly
critical of the regime of King George III, of some of his policies. And eventually with
the publication of North Briton 45, the administration of King George III decided that John Wilkes
crossed the line. With the publication of North Briton 45, John Wilkes found himself
under arrest. He was arrested because of his involvement in this.
Now, the interesting thing about how this was carried out was that the arrest warrant
and the warrant to search Mr.Wilkes and his home never named John Wilkes. It never specifically
identified him either by name or through any other indirect means. It simply said go after
and search and seize everyone and everything related to the publication of the North Briton.
Go after it. Go find it. This was an approach that was referred to as a general warrant.
It was the kind of thing that had already become outlawed in Great Britain. It was against
the law. John Wilkes knew this even though he also
understood that in many instances the wielding of executive power is a little bit like the
holding of property in that possession is 9/10 of the law. He knew that he was not in
a favorable position of bargaining power and yet he also understood that he needed to assert
his rights. He argued quite aggressively in court. He eventually won his release from
jail. He was released and he also was very upset still, notwithstanding his release,
over the fact that his home had been searched pursuant to this general warrant. Every door
had been opened. Every drawer had been searched. All of his most personal papers had been rummaged
through by government officials. He understood that this was unfair; that it was a profound
injustice under the laws of England at the time. So he decided he wasn’t content with
simply winning his freedom. He decided that he was going to challenge the validity of
that warrant in court. And what that meant under the laws of England at the time was
that those who conducted this search of his house could actually be held liable. He could
have a valid court action against them. Could recover damages against them if he could prove
that they acted unlawfully, if he could prove that this warrant was invalid, that it was
unlawful. He brought his case to court. And recognizing
that initially when he was released, he wasn’t released under the idea that the general warrant
was invalid because the judge who handled the case chose to deal with it on a technicality;
as a matter of parliamentary privilege, he ordered the release of John Wilkes. So in
his civil case he argued very aggressively and ultimately victoriously that the officials
who conducted this search had acted unlawfully because the warrant itself was invalid.
At the end of the day he was awarded 4,000 pounds in damages, a tremendous sum equivalent
today to I believe somewhere well into the six figures in terms of present day dollars.
But that victory, the financial victory, the economic component of the victory, was only
the tip of the iceberg as far as what it meant. Because in the course of winning his freedom
initially from being jailed and then in the course of successfully trying his civil action,
John Wilkes became a folk hero in England. The name John Wilkes became synonymous with
freedom, with liberty, with resisting oppression throughout all of England. People celebrated
the case of John Wilkes by putting lighted candles in their window. You couldn’t go within
15 miles outside of London without seeing candles lit in every window. Even people most
loyal to the king had a lit candle in their window for fear of being the victims of a
pro John Wilkes mob. The number 45 representing the North Briton
45, the publication, became a symbol of this resistance movement. This would be the equivalent
to some of the things that you saw if you read “The Hunger Games” series of people resisting
an oppressive government. So all over England, the number 45 was written on the doors of
taverns, saloons, carriages, and of homes. People celebrated the number 45 by buying
drinks for 45 people in their local bar. The number 45 became synonymous with John Wilkes.
And the name John Wilkes became synonymous with the cause of liberty initially in England,
ultimately in America as well. We have counties and cities and towns that were named after
John Wilkes during the American Colonial period honoring his contribution to the cause of
liberty. Interestingly enough, the judge who ruled
in his favor was later given the title of Lord Camden. And that interestingly enough,
was the name given to the railroad intersection that later became Camden Yards where the Baltimore
Orioles play. So Lord Camden even also became famous as a result of this struggle.
People everywhere understood that John Wilkes represented each of them; that if his liberty
was threatened by the use of general warrants and by the indiscriminant searching of homes
without specifically identifying the targets to be searched and to be seized by the warrant,
that no one was free. Thus John Wilkes became the every man around whom people rallied on
both sides of the Atlantic. Shortly after the Constitution was drafted
and gaining momentum after the Constitution’s ratification, there came a great call for
a bill of rights. And everyone understood that among the Bill of Rights we needed some
type of protection from the use of general warrants. And that ultimately is where we
got the Fourth Amendment. That ultimately is why we have part of our Constitution that
says that no warrants shall issue except on an evidentiary finding of probable cause and
that you have to identify the names of the people subject to the warrant. You have to
identify them with sufficient particularity; that there is some semblance of due process
attached to the entire thing. So we have a lot to be grateful for when it
comes to John Wilkes. How is this relevant today? In a sense, we live in a world where
general warrants are not entirely unfamiliar, at least there is something that’s been in
use for many years now that in many ways resembles a general warrant.
I note in my book that the NSA has over the last decade or so been collecting data on
the telephone calling patterns of the American people, collecting records on the origin,
the destination, the time, and the duration of every call made by every American. And
the NSA has kept those records for a period of five years at a time in a large database
that can be searched. Now, a lot of people point out that in this
program, which is known as the bulk data collection program, carried out pursuant to Section 215
of the USA Patriot Act, they point out that under this particular program the NSA is not
collecting this substance of the phone calls. In other words, it’s not listening to the
calls. It’s not recording the calls, at least not under this program. It is collecting only
what they call the metadata the origin, destination, the time, and the length of each call.
But if you think about it and you unwrap all of this, you realize this is not something
that is entirely innocuous. It’s certainly not something that can’t be abused. Over time
your calling patterns reveal a lot about you. Imagine, for example, how many people you
have called or have called you over the last five years. For most of us I would say it’s
at least 1,000. Maybe in the many thousands for people who are heavy telephone users.
So if they have access to everyone you’ve called, everyone who has called you, the time
the call occurred, and the duration of the call and can put it into a big database, they
can tell all kinds of things about you. In fact, with the proper data analytics tools,
in many cases they can figure out your age, sex, political leanings, your partisan affiliation,
what is the condition of your health, what health ailments you might suffer from, and
what your hobbies are. All kinds of things about you; things that are, frankly, none
of the government’s business. All of this is done pursuant to a court order but doesn’t
specify, doesn’t provide with particularity for things to be searched or seized. It just
says telephone company X, send us your calling records. We want them all. It’s been storing
them in a large database. Now, a lot of us think that this is at least
closely analogous to a general warrant. A lot of us think this is wrong. This is also
the kind of issue that I believe is neither republican nor democratic. It’s neither liberal
nor conservative. It’s simply an American issue. It’s an issue closely connected with
the rules of law. That’s why I joined together a couple of years ago with my friend Pat Leahy.
Pat Leahy is a liberal, democratic senator from Vermont. And I’m not. But he and I both
share a passion for the Constitution. We share a passion for the Fourth Amendment. And we
both share the belief that the NSA’s bulk metadata collection program carried out under
Section 215 of the Patriot Act violates at least the spirit if not also the letter of
the Fourth Amendment. It was a tough battle. We had opponents in
both political parties and in both Houses of Congress. I’m pleased to say this is one
instance where talking about the Constitution, talking about the stories behind the Constitution,
talking about the reason why the Constitution matters, why the Constitution is a good in
and of itself and why it’s a good that needs to be protected if nothing else for the sake
of the rule of law, how that kind of cause can ultimately bring about good fruit.
Ultimately we succeeded. A couple of months ago we passed the USA Freedom Act which is
bringing about an end to the bulk collection of metadata pursuant to Section 215 of the
Patron Act. I thank John Wilkes for his contribution to that. I’m reminded frequently of the number
45. And the number 45 has special meaning for a lot of reasons not only because of North
Briton 45 and all it represents with John Wilkes but I kind of like the number because
Utah happens to have been the 45th state admitted to the union.
The next part of the Constitution I’d like to tell you about does not rely on a specific
provision of the Constitution but on the Constitution as a whole, the structure of the Constitution.
One of its most important protections has to do with the way that the Constitution separates
power. The founding fathers understood that human beings are fallen, they’re subject to
potential corruption but they’re redeemable. In other words, human beings aren’t inherently
evil but if given power and if that power is allowed to remain unchecked, eventually
they are prone to abuse it. For that reason they knew that they needed to check power.
And they needed the power to make and implement and enforce law. They needed to make the processes
by which those things are carried out subject to the popular will of the people and not
insulated from the will of the American people, from the public.
Now, this today is something that in many ways we take for granted because we’ve all
been raised in a country where this is the case. And this has been the case for a very
long time. But even at the time of the American Revolution this wasn’t necessarily something
that everybody took for granted that everyone assumed would always be the case. In fact,
even at the Constitutional Convention there was some debate as to whether or not those
who made and enforced our laws would always be subject to elections.
Alexander Hamilton had an interesting take on this. I’m telling you this story about
Alexander Hamilton. I want to start with a story that occurred many years prior, about
12 years before the Constitutional Convention. In May of 1775, Alexander Hamilton was a young
man, living in New York. He was awakened in the middle of the night by a friend. This
friend was there to tell him that someone they knew was in trouble. Myles Cooper was
the President of Kings College at the time, a wellknown supporter of the king. He was
loyal to the king. And for that reason he was unpopular with the sons of liberty. He
was unpopular with a lot of people who were for the revolution and who were not loyal
to the king. He received word in the middle of the night that President Myles Cooper was
under attack and that there was a mob that was attacking him and that was trying to tar
and feather him. At that moment, Alexander Hamilton went out
and although there was no greater American patriot, no more staunch supporter of the
revolutionary cause than Alexander Hamilton, he didn’t want this mob to do violence to
Myles Cooper. He knew that that would be wrong. So he went out there and put himself at great
risk not only reputationally but also potentially physically in order to stop the mob from tarring
and feathering Myles Cooper or even doing much worse. At the end of that he was able
to convince the mob not to do it. They left him alone.
He was able to go back to bed that night. He was able to rest comfortably. But I think
that episode, among others that he saw, caused Alexander Hamilton to have a certain distrust
for mob mentality. This may have influenced the fact that 12 years later at the Constitutional
Convention, Alexander Hamilton actually stood before his colleagues, years after we had
won the Revolutionary War, stood before his colleagues when discussing what kind of government
we wanted. And he proposed a monarchy. He actually proposed that we have an elected
monarchy that we choose the monarch. Once the monarch was in place, we would have a
monarch for life, for the period of that person’s life. He gave this speech for a period of
two hours on June18, 1787. I can only imagine the hot, humid, sweltering summer of 1787
having to sit there and listen to him for six hours. It wasn’t until he was three hours
into his speech that he explained to them where he was going. Up until that point he
had dropped little clues here and there talking about the risk of mob rule, talking about
the bad things that can happen when the will of the mob isn’t checked in any way. And then
the zinger came three hours into it. I think we should have an elected monarch.
As you might imagine, it didn’t exactly go over well. In fact, it went over like a lead
balloon. It came down with a thud. A lot of people were shocked. They didn’t like it.
In fact, there has been a lot of speculation that this completely destroyed Alexander Hamilton’s
chances of being president in part because many believe that’s why they put the birthright
citizenship requirement in the Constitution, was to prevent Alexander Hamilton from ever
becoming president of the United States, specifically because he gave this speech. They didn’t trust
him. Yet the reason he gave that speech was because he didn’t trust the mob. The reason
they rejected that speech was because they didn’t trust what a monarch would do. After
all, we had just won a revolution against a government headed by a monarch. They saw
that as the last thing we wanted at the time. One of the reasons why they were so careful
at the Constitutional Convention to parse out the different powers of government to
separate them out and to make sure that those in charge of maintaining the laws which stand
accountable at regular intervals to those they represented. It’s one of the reasons
why we ended up not just with an elected legislative body but an elected legislative body consisting
of two chambers. They wanted to make doubly sure that there was accountability at every
level within our law making system. So how is that story relevant today? How does
that matter now? In some ways we’ve reverted to a system that operates at least to a significant
degree on the basis of people who are immune from the vote, from the voter, from the American
people. Let me explain what I mean. I have two stacks
of documents in my office, in the Russell Senate Office building. If you’re there, you’re
welcome to see it. I’m in Room 361A. Two stacks of documents that illustrate the point that
I’m talking about, about our laws. One stack of documents consists of the laws passed by
Congress last year, the people’s elected representatives in the House and the Senate, agreed, president
signed into law. It’s a few hundred pages of law passed last year. It’s only a few inches
tall. It’s a small stack of documents. The other stack, by comparison is huge. Instead
of a few inches tall, it’s 11 feet tall. Instead of a few hundred pages in length, it’s 80,000
pages in length. And this second stack of documents consists of last year’s Federal
Register. Now, for those of you who are blessed sufficiently
to not know what the Federal Register is, it’s the annual accumulative index of federal
regulations as they’re released for notice and comment and later as they’re finalized,
80,000 pages. Now, these are regulations that are promulgated.
You know, I want to make clear they’re promulgated by men and women who are, by and large, very
well educated, very wellintentioned, very hardworking, and usually have a very high
level of expertise. They have a lot to offer. I don’t mean to disparage or denigrate in
any way the hardworking men and women who worked in our federal agencies and who promulgate
these rules and regulations. But they have one thing that members of Congress do not
and never will. They’re not elected. And they, therefore, don’t stand accountable to the
voters at regular intervals. Not now, not ever. They’re not really even directly accountable
to anyone who is, in turn, elected. This creates a problem. It creates one of the same problems
that the founding fathers fought so hard against at the Constitutional Convention. One of the
problems they were so concerned about was this one.
It’s interesting. When I was in law school, about 20 years ago, I remember we had a guest
speaker who came to speak to us about the growth of the modern regulatory state, the
modern federal regulatory state. He explained to us that this regulatory system creates
some problems. He may have mentioned the lack of accountability of federal bureaucracies
that issue rules carrying the force of applicable law. What he focused on most directly, acutely,
was the fact that the federal regulatory system was costing the American economy $300 billion
a year. I remember when he said this, there was an audible gasp from the room. $300 billion?
That’s an enormous amount of money. He went on to explain this operates like a backdoor
invisible tax. Only it’s a really regressive backdoor invisible tax, one that tends to
afflict the poor and the middle class more than anyone else even though they may not
know it. Even though they may not attribute the fact that it costs them money to the existence
of the federal largess in the area. These federal regulations make everything the American
people buy more expensive. Goods and services purchased are made more expensive. The poor
and middle class feel that more acutely. Others may pay for those costs also in terms of diminished
wages and lack of employment opportunities. But he explained that we needed reform.
Now, that was 20 years ago, $300 billion a year, which was shocking at the time. Annual
compliance cost, the cost of complying with federal regulations today, is nearly seven
times that. It now stands at about $2 trillion a year. This makes everything the American
people buy more expensive. And these are rules that are put in place by men and women who
however well intentioned, hardworking, and well specialized and well-educated they are
don’t work for you. They don’t report to you. You can’t fire them, ever.
Now, lest I paint Congress as a victim here I want to make clear Congress is not a victim.
Congress, in fact, is the problem. Congress has created this problem. It has done so under
the direction of republicans and democrats alike over the last 80 years. And it has done
so by passing really broad, vague, amorphous laws.
So imagine, for example, if Congress decided that it didn’t want to do its job anymore;
that members of Congress found political accountability to be so difficult that Congress wanted to
just sort of escape any public criticism and therefore passed one central law that said
we shall have good laws.>>[Laughter]
>>Senator Mike Lee: And we hereby delegate to the herewith created federal Commission
on the Creation of Good Laws, the power to make rules carrying the force of generally
applicable law, that the herewith created commission will also have the authority to
enforce and implement. And then Congress says, that’s it, we’re done. From that moment forward
Congress avoids any accountability for federal law. People come and say the federal Commission
on the Creation of Good Laws has fined us, treated us harshly, has come up with these
horrible rules. Members of Congress would say, oh, yes, those barbarians over at that
commission, they’re just awful, aren’t they? Let’s talk about our common hatred. Congress
would escape accountability. And the commissioners have no accountability because they’re not
elected. They’re not really accountable to anyone who is elected.
This may sound like a farfetched example but it’s not because it’s what Congress does all
the time. There are a lot of good legal and regulatory structures that in one form or
another ought to be in place but have been put in place the wrong way. For example, the
Clean Air Act. Congress this is a bit of an over simplification but more or less proves
the point to say Congress passed a law saying in effect we shall have clean air, we hereby
delegate to the EPA the task of explaining what clean air is what pollution is and then
punishing polluters, defining the penalties that will apply. All of those things then
belong to EPA. With some regularity, I have constituents coming to me explaining how this
or that regulation promulgated by the EPA or another agency is harming them. And members
of Congress at the end of the day like to explain also about the agencies; never acknowledging
that we ourselves are the problem, we ourselves created the problem.
Fortunately here, as with the Fourth Amendment example I pointed to, there is a solution.
This one hasn’t been enacted yet but it needs to arrive. The solution is actually quite
old. It’s about as old as the modern federal regulatory state itself. You see, James Landis,
the famed law professor who was part of FDR’s brain trust, helped create the modern regulatory
administrative state, advised President Roosevelt at the time that a lot of these agencies were
first created this type of law making first became fashionable. He said in order to make
this work within our Constitutional structure, these regulations, the regulations that impose
affirmative obligations on the American people, need to be passed into law by Congress they
need to be treated more or less as legislative proposals; that once passed by the House and
the Senate and signed into law by the president can take effect.
Well, Congress, for whatever reason, never adopted that rule. James Landis’ advice was
overlooked in the 1930s. Congress drifted away from this. Congress left itself a backdoor
by creating what’s known as a legislative veto. And initially to begin with a few provisions
of federal law over the next few decades became hundreds and hundreds of provisions of federal
law or Congress would say, ok, we give agency X, the power to promulgate regulation Y. If
we don’t like regulation Y, Congress can veto that. That became a favorite tool of Congress.
It made it even easier for Congress to rely on the outside law making task.
Over time Congress became addicted to these. There was one problem. The Supreme Court came
along in 1985 in a case called INS v. Chadha and declared the legislative veto provision
unconstitutional. Concluding that it violated article 1, Section 7 of the Constitution which
contemplates that any new law has to be passed by the House and the Senate and submitted
to the president for signature or for veto and that the legislative veto provision contemplated
an additional loop in the circuit, one that didn’t conclude with the president and was,
therefore, unconstitutional. A lot of people thought or speculate order
wondered at the time INS v. Chadha was decided whether that would mean perhaps the end of
this excessive regulatory law making; that maybe since Congress no longer had the last
word, that Congress could no longer veto legislatively any executive branch regulation; that perhaps
that would be the end of the party, at least prospectively.
It turned out it was not the end. It was not even the beginning of the end. It was only
the end of the beginning. Since then we have had a lot more of these wholesale delegations
of what is essentially legislative authority. We can point to laws passed in the last few
years, including the DoddFrank Financial Regulation Act including the patient protection Affordable
Care Act, each which have had many, many hundreds of instances of delegation, of broad law making
authority to executive branch agencies. Here again, both republicans and democrats have
done this. But here again, republicans and democrats are the victims of this.
This harms the American people. Unfortunately there is a fairly simple legislative solution
going back to what James Landis recommended, back in the late 1930s. It’s been reduced
to a legislative proposal called the REINS Act. It stands for regulations in need of
scrutiny. It’s been passed by the House of Representatives for the last three years in
a row, has not been voted on in the merits of the Senate yet but it needs to be. Here’s
what it says. It takes James Landis’ recommendation and says for every new federal regulation
that the OMB deems to be economically significant, that regulatory rule will be deemed as a legislative
proposal that may take effect if and only if the House and the Senate pass it and the
president signs it into law. The important thing to remember here is that
it’s not that members of Congress are any smarter than the people who work in the Executive
Branch agencies. If anything, they’re far more smart than we are, far more specialized
than we are in their respective fields. The difference is we work for the people. We stand
accountable to the people. You can fire us, every two years in the case of representatives,
every six years in the case of senators. And we’ve learned from our common experience that
it works much better when the people are in charge, when the people are the sovereigns,
when the people have ultimate decision making power as to the direction of their government.
This, George Washington concluded in the fall of 1787, after the Constitution was drafted
but prior to its ratification, this would be the ultimate protection of our Constitutional
liberty. He said the power will always be in good hands. It will be in the hands of
people. The people will discover from time to time that the Constitution is not being
implemented in a manner consistent with their wishes and whenever that happens, it will
be the right of people to see that their elected representatives are recalled and replaced
with others who will more closely reflect the wishes of the people.
That’s the genius of our system but it can operate only to the extent that we understand
it; that we know the stories behind it and can therefore recognize when it’s being violated
either in letter or spirit. In this case I think it’s both. In this case I think the
American people can have the ultimate word and ultimately they will.
In conclusion, I want to end on a positive and optimistic note. We as Americans I think
will find that even though we suffer from a lot of problems, many of which are inflicted
by the government itself, I think we’re going to find that our best days remain yet ahead
of us. I say that in part because of an optimism that I gained from reading a quote by Winston
Churchill who many, many decades ago said that the American people can always be count
on to do the right thing after they have exhausted every other alternative.
>>[Laughter]>>Senator Mike Lee: We have experimented
with a lot of experiments, a lot of designs around the Constitution, a lot of attempts
to circumvent the Constitution. Those experiments haven’t always gone so well but we’ve given
them a nice, long try. And I think we’re returning to first principles, democrats and republicans
alike because we know that the Constitution works well to the extent that we follow it.
When we look back to the event that occurred in Boston in December of 1773, it’s an important
time to remember this moment when you have these American patriots who are still British
subjects who decided that they would board a ship and in an act of symbolic protest,
against the kind of national government they did not want — their national government,
of course, being based in London, not Washington, D.C. Washington, D.C. didn’t exist then. They
were opposed to certain things their large, distant national government in London was
doing to them. It was taxing them too much, regulating oppressively, doing so from afar,
so far that people in America — it was slow to respond to their needs. It wasn’t accountable
to them. They took this act of symbolic protest, they destroyed the tea, English tea, by throwing
it into the harbor. Had they stopped there, had they done no more
than that, what we refer to as the Boston Tea Parties, I would at most be a obscure
footnote in American history. But fortunately they didn’t stop there. They channeled their
energy in a constructive and productive way. It took them 14 years but they went from Boston
in 1773 to Philadelphia in 1787. Over that 14year period they declared and fought for
and won their independence. And ultimately in that summer of 1787, the Constitutional
Convention, the conclusion of which we celebrate today, the founding fathers came together
and they rallied together around a set of ideals about what they wanted their government
to look like, what they wanted it to be like. It took them 14 years to go from Boston, where
they started by protesting against the kind of government they did not want to get to
Philadelphia where they embraced the kind of government they did want.
Today we have a similar task. It’s a task that needs to be completed a lot faster than
that. And it can be. We don’t have to fight a War of Independence. We don’t have to fight
a war at all, at least not a traditional war. But we do need to engage in a robust discussion
about the kind of government we do want. In many respects the kind of government we do
want is still the kind of government that is described in that document. That document
is the creation we celebrate today. That document I believe was written by the hands of wise
men. Not just any wise men but the wise men I think who were raised up by their creator
to that very purpose. That document that has fostered the development of the greatest civilization
the world has ever known. It’s my hope and indeed my expectation we
can take our own journey from our own Boston moment to Philadelphia where we can come together
once again as democrats, as republicans, as liberals and conservatives, as Americans from
every background around the cause of the kind of government we do want.
Thank you very much. May God bless the United States of America.
[Applause] I’d love to answer any questions you have
about the Constitution, law, politics, Washington, relationship tips, fashion advice, rock music
lyrics, anything you want.>>I happen to know that everyone in this
room, 200 years ago, would say now that they would be opposed to slavery if it was decided
but I’m not sure whether that would actually be the case, right? Because there were certain
economic incentives to having slavery and other religious reasons why people justified
slavery. But maybe it would be more fair to ask what would happen we know the consequences
of slavery. Like 200 years later the aftermath of slavery is still with us. So what is it
that’s going on now that in 200 years if we can anticipate something that’s going on now
that’s going to have a severe consequence on our future, if we anticipate that and try
to legislate because of that in order to, let’s say, slow it down or reverse it, do
you think of anything that’s going on now that in 200 years we would be better off because
we’re doing it now? Something that has to do you know, when you talk about the economy
and how we would be severely impacted if we do certain things now but that could possibly
prevent something in the future, say agriculture from being decimated by heat or shores from
being inundated by water. Is there anything that you might think of now that you could
do that could prevent that from happening?>>Senator Mike Lee: Sure. A couple of things
come to mind right off the bat. One is an issue that relates to our federal criminal
justice system. Our federal criminal justice system has seen some changes in recent decades.
Since 1980 we’ve seen our federal prison population explode. It’s increased nearly 10fold. This
does not reflect a 10fold increase in the commission of crime in America. It does, however,
reflect a few trends. One involves the over-criminalization of the law generally. Another involves the
over-federalization of criminal law. And yet another involves excessive reliance on minimum
mandatory sentences within the federal sentencing system such that we’re putting a whole lot
of people in prison for a really long time. As my friend Cory Booker often explains and
has taught me, there are some severe racial disparities within that that compound how
troubling this can be. Some communities in America you’ve got huge percentage of the
population, virtually the male population, that finds itself in prison.
Now, I’m not saying that I’m always against minimum mandatory penalties but in many cases
they’re excessive. Let me give you an example. There was a man sentenced to 55 years in prison
a few years ago, a man in Utah. He sold marijuana three times over a 48hour period in relatively
small increments. He happened to have had a gun on his person at the time of those sales.
And the way that the federal laws interacted with each other, caused this cascading series
of minimum mandatory penalties to kick in where the guy got sentenced to 55 years in
prison for three sales of pot, relatively small sales.
>>[Question Inaudible]>>Senator Mike Lee: Yes. A huge societal
impact. As we continue to put this many people in prison, a lot of people in prison, sometimes
for decades at a time, for offenses that might not warrant it. This can cause all kinds of
problems in society. Let me give you another example. These are
things that happen when you’ve got people who decide to mistreat other members of the
society. Another example is the accumulation of debt. The fact that we’ve accumulated $18
trillion in debt within our federal government. Now, there are a lot of people in America
today who are not even old enough to vote yet and before they’re even old enough to
vote they own a significant share of that $18 trillion debt. That’s a nasty form of
taxation without representation. We fought a war over, won it. That’s going to have longterm
ramifications as well.>>I refer to the 14th Amendment to the Constitution
in which it is alleged that the provision anyone born in the United States automatically
gets citizenship. Some say it was intended only to apply to the freed slaves, American
Indians, and gypsies. What are your views on that version?
>>Senator Mike Lee: Great question. So you’re referring to the Section 1 of the 14th Amendment
which provides in pertinent part all persons born are naturalized in the United States
and are subject to the jurisdiction there of citizens of the United States and where
in the United States where they shall reside. I agree with your assessment of what they
were intending to do there. I think that’s right. But I think it potentially extends
even more broadly than that. I do not believe that that is the end of the sentence, however.
I don’t think that that means it is the only possible construction of that is that you
could conclude that anyone born here is automatically a citizen. We know, for example, that we don’t
count people born — for instance, diplomats on U.S. soil. They are not considered entitled
to automatic birthright citizenship. The phrase that we just read and referred
to in Section 1 of the 14th Amendment, the part that says and subject to the jurisdiction
thereof, does some work. That’s not a mere surplusage. As I read that, that says Congress
has the authority and the discretion to decide what it means to be born of the United States
and subject to the jurisdiction thereof; such that Congress can set the parameters for that:
Now, Congress has not adopted such a law but it could. So you have had proposals that have
been introduced. It will say, for example, that if the law were enacted, you’d be entitled
to automatic birthright citizenship only at the time of your birth you had at least one
parent who was a citizen or a lawful permanent resident or, perhaps, an alien who was engaged
in active fulltime military service to the United States. That would be one approach
Congress could take but hasn’t taken yet. Yes?
>>Thank you, Senator. I really enjoyed your talk today starting out with your personal
experiences. I’m curious a couple of things from your talk. The 80,000 documents, the
people electing yourself and others for the people, representation. What things would
you suggest people do? Obviously your book is one example in learning about the Constitution,
but obviously the 80,000 is an example of something that’s overwhelming. And for people
living their lives, they’re expecting yourself and others to continue with the government
and do the best thing as Churchill said ultimately everybody gets to for the U.S.
What checks and balances either do the Constitution through the Constitution would you recommend
be put in place, checks and balances for the government? Are the things you had talked
about with the NSA documents and things you tried to change in the government but obviously
those should have been changed prior to that. So are there things in regards to the Constitution
that people can say, hey, let’s look at the Constitution before we proceed on this vote?
>>Senator Mike Lee: Yes. That’s a great question. I’m glad you asked that. In almost every instance
there is at least one potential fix. And the ideal thing is when you can identify a couple
of solutions to a particular problem. In many instances when we see a constitutional overreach,
you’ll have at least one branch of government that is most directly responsible for the
constitutional problem. So the ideal circumstance is to look for a possible solution in at least
two of the free branches to that same problem. So for instance, in the case of the excessive
delegation of de facto law making power with our federal regulations, I think, my personal
belief, is the best way to solve that is through the REINS Act or something like it that would
require these executive branch regulations in so far as they impose obligations on the
American public rather than just dictating what time of day the lights in the Department
of Energy go on; that they have to be run through Congress. That’s a fairly simple legislative
fix. Not easy to get passed but if we could get it passed, it would fix the problem.
Simultaneously, those of us who are concerned about it ought to look for other ways that
we can look for other solutions, in the other two branches of government. I love the idea
every time I hear about a challenge being brought to an Executive Branch regulation,
anytime I hear of someone contemplating a challenge to an Execute Branch regulation
based, for example, on an excessive delegation of legislative authority theory, even though
it’s difficult and expensive and time consuming to do, I think that’s got great potential.
I think the REINS Act has greater potential but it’s good to have that one as well. But
the more people thinking about it and looking for solutions, the greater the likelihood
there will be of there being a solution. It’s interesting. When I first ran for the
Senate back in 2010, so five, five and a half years ago since I started running for this
job, nobody people rarely talked in the sort of Town Hall setting. I never heard from Joe
six pack about regulatory overreach. Today it happens all the time. In every hamlet throughout
my state, every obscure town throughout Utah, somebody brings up over regulation because
it’s become such a big problem that people are more aware of it now. They’re aware of
the economic impact, in part because federal agencies have started being more aggressive
in going after not just big businesses but also small, single business entrepreneurship
and things like that. So the more people who are affected by it, the more people will be
interested in it and interested in finding a solution. But it’s very important for people
to look for and identify a solution and then aggressively push for it.
A little secret I’ll tell about Congress. Congress doesn’t move unless it has to. We
are a very big, immobile beast and we move only when there’s no other way out. So the
more we can hear from people, the more we can hear from people all over the country
say we do want this solved and we think this kind of thing is the best way to solve it
the better off we’re going to be. Ok. I’m told I’m out of time. Thank you very
much for coming today. I appreciate it. [Applause]
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