A Lawyer Looks at the Constitution by Rex E. Lee

First, let me make a confession. It was not long after I left BYU that someone was trying to convince me to become a Democrat. This person made several convincing arguments, and my only comeback was "Yeah, but they believe in abortion." I was very naive. I now think voting based on the abortion issue is silly, and it's an easy excuse not to think about the many other issues. While I'm still pretty uneducated, I have learned a lot since BYU, but I blame all of you (and BYU) for not educating me about important political issues a lot sooner.

Anyway, as part of my quest to become a reasonably informed citizen, I just read "A Lawyer Looks at the Constitution", by Rex E. Lee. My uncle, a lawyer, said it's his favorite book on the Constitution, but unfortunately, it is no longer in print (so we can never read it for book club). So I thought I'd throw out some of the things I've learned, and you can tell me how much more I need to learn.

1. The book never talks about political parties or liberal/conservative judges. The supreme court has obviously had to make a lot of tough decisions, but 98% of the time I found myself completely agreeing with their decision and admiring them for their wisdom and forethought. That's a much higher percent of the time than I agree with the President or Congress. So I guess I don't really worry too much about what judges the president will appoint. Because all nominees need approval from the Senate, I think that weeds out most of the most extreme individuals.

2. I think I'm finally understanding what politicians are saying when they use Karl's least favorite phrase, "legislating from the bench". While technically it is not possible, there are certainly examples in history where that phrase might apply. (for you lawyers out there, Lee cites Lochner v. New York and the substantive interpretation of Due Process as an example)

He also says that Roe vs. Wade falls into this category. The decision cites a right of "privacy" which is not found anywhere in the Constitution. He also quickly points out, however, that the same reasoning that protects family planning in Roe v. Wade might also protect the people someday against a law limiting family size, like they have in China. He also points out that the rulings that made prayer in school illegal is what protects the religious rights those that want prayer in school so highly value.

Rex Lee comes down in favor of the reasoning that made prayer in school illegal and against the reasoning in Roe v. Wade. I'm not one to argue with the great Rex Lee. It is a slippery slope in allowing the courts to interpret things into the Constitution that aren't there. So far, we've generally had a pretty reasonable supreme court, but the potential for abuse is certainly there. I can understand the "living document" line of thinking, but if the times are really changing, then lets change the constitution through the amendment process not through the supreme court. However, I think most conservatives are wrong in the way they want to pick and choose. They are against "legislating from the bench" when it works against them (abortion), but they are for it when it works for them (school prayer or in the future, family size).

3. I learned that before the 14th amendment the bill of rights only applied to the federal government and that states could make laws discriminating against religion, etc. So when Buchanan said he could do nothing to help the Mormons, technically he was correct.

4. The government was designed to be inefficient. This protects us, as frustrating as it is. However, much of what our government does that directly effects each one of us is done by government bureaucracies (like my very own FDA), and these bureaucracies are not directly accountable to the people. They are the "4th branch" of the government. I guess I already knew this, but this area is key to most government philosophies.

OK, my kid is crying, so I guess I'll stop there. I already offended Ryan enough with my last post that he didn't want to have lunch with me. And the more I say, I'm probably only digging myself into a bigger hole.

PS I just read Elliott's post about taxes, and he said the law about taxes is the will of the majority so we are not being forced to pay so much as abiding by a group decision. This was interesting after reading so much about the Constitution and how the Constitution protects the rights of the minority. Obviously, high taxes are not against the Constitution, and I'm not arguing that they should be. However, I think the topic of the rights of the majority to tell the minority what to do with their money is an interesting one, and I'm looking forward to additional insight.