Hugo Lafayette Black (Former Associate Justice of the Supreme Court 1937-1971)
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.
He couldn’t abide the idea of any government funds going to help Catholics or Jews if there was even the slightest connection with religion. So in 1947, when a case came to the Court challenging a New Jersey law under which state funds could be used to help pay transportation costs for parents who chose religious schools over public schools, Black saw his opportunity.
Cleverly siding with the majority that wanted to uphold the law so he could write the Court’s opinion, Black then crafted a decision that put such severe restraints on any connection between government (at any level) and religion that almost every future tie between church and state would be open to attack.
Lee readily demolishes Black’s disingenuous opinion, showing that his “wall of separation” actually has no constitutional basis. Unfortunately, that case (Everson v. Board of Education) is now the precedent that is used to assail any governmental action that isn’t perfectly neutral with respect to religion.
Another of Senator Lee’s stories concerns the demolition of the concept of federalism – that the federal government has only the specific powers granted to it. The Founders wanted to keep federal authority strictly limited to just a few truly national functions and thought they had accomplished that by enumerating the powers given and clarifying in the Tenth Amendment that all others were reserved to the states or the people.
Their efforts at putting limits on federal power were often challenged in our earlier history, but the dam held pretty well until the presidency of Franklin D. Roosevelt. An impatient, domineering man, FDR couldn’t stand the idea that the Constitution kept him (and his compliant Congress) from taking any steps he wanted to deal with the Depression and otherwise expand the scope of centralized power.
Until 1936, however, the Supreme Court largely ruled that FDR’s plans were unconstitutional. Angered at the justices who dared get in his way, FDR denounced them in one of his radio “fireside chats” late in 1936 and announced his solution to the Court’s dedication to the written Constitution. He would add five new members who would, of course, be chosen because they agreed with his “progressive” philosophy.
His threat worked on a “swing” justice, Owen Roberts. In the Court’s first big decision in 1937, NLRB v. Jones & Laughlin Steel, Roberts ignored all the precedents and voted to uphold Roosevelt’s gift to the unions, the National Labor Relations Act.
In that case, the key issue was whether the power to regulate interstate commerce (which is given to Congress) includes the power to control working conditions where goods were produced. By going against long-standing precedents and ruling that it did, the Court not only upheld one of the worst pieces of special interest legislation ever, but also opened the door to endless statutes and regulations whose legality was premised on the idea that the federal government has authority over anything that could affect interstate commerce.
Other crucial “turning points” that Lee covers, where parts of the Constitution were lost, are the Origination Clause, the erosion of the 4th Amendment, and the blind eye the courts turn to the language that “all legislative powers” are vested in Congress.
Senator Lee’s history is fascinating, but he knows that most Americans won’t readily grasp the problem of a federal government that has gone far beyond its proper scope. How can we get them to see that a government that won’t abide by its fundamental charter is undesirable?
One of his suggestions is to put this in terms they’ll probably understand, such as a neighborhood homeowners association. What if the clique in charge of your HOA were to take actions beyond what the owners agreed to and didn’t even consult them? You’d be outraged – and should be equally so over the way federal officials have grabbed power than the Constitution denies them.
America today is much worse off for having allowed “progressives” and statists to wreck our constitutional framework. We are poorer because government policies that should have been declared unconstitutional have wasted tremendous wealth and diverted energies into seeking favors from Washington.
We are also a far more contentious and divided nation because many issues that should have been left to the states or the people under the Tenth Amendment are now subjects for furious battles in the nation’s capital. Recall that Madison warned about the harm that would come from clashing “factions” if the government’s power were not constrained. Because the constraints have been loosened or even eliminated, we suffer from the precise malady he forecast.
Senator Lee deserves a lot of praise for a learned yet easily read book that explains our predicament.
Originally posted on Forbes.com.