Reprinted from Our Lost Constitution by Senator Mike Lee with permission of Sentinel, an imprint of Penguin Publishing Group, a division of Penguin Random House LLC. Copyright (c) Mike Lee, 2015.
My love for the U.S. Constitution took root in my early years. From the time I was a young child, my parents taught me about the separation of powers, checks and balances, due process, equal protection, and the limited role of our federal government. It never really occurred to me that I was being taught about the Constitution; these were just conversations we had from time to time around the dinner table, in the car, and whenever the subject of government happened to arise. Before long, I learned what it meant to be an appellate lawyer because every time my siblings or I would disagree with our parents’ decisions about bedtimes or chores or allowances, they would say, “Make your case. You’re probably not going to win, but we’ll listen.”
When I was about ten years old, I started routinely accompanying my dad whenever he argued cases before the U.S. Supreme Court. As kind and wise a man as I’ve ever known, he was the founding dean of BYU’s law school, and in 1981 he became the solicitor gen- eral of the United States, the federal government’s chief advocate before the Supreme Court. I’d watch with bated breath as the black- robed justices fired questions at him. He had a way of answering their questions in a manner that was not only responsive but also carefully calculated to advance his case. The verbal jousting I saw between lawyers and justices wasn’t quite as raucous as the debates at our dinner table, but after the oral argument ended, my dad would be so excited that he reminded me of a giddy child on a sugar high.
My dad didn’t win every argument at the Supreme Court, but he did win most of them. More important, however, he had a near- perfect batting average at home. He could simplify even the most complicated of concepts, and I hung on his every word. I didn’t al- ways understand everything he said, but I sure made an effort— especially because he had a way of making almost any subject seem interesting, and he loved it when any of his children showed genuine interest in the Constitution. I still remember how pleased he seemed when, as a fourth grader, I replied to his explanation of America’s long-standing abortion debate by asking, “Shouldn’t this issue be addressed by the states rather than by the federal courts?” My dad could hardly contain his joy. I was only nine or ten years old. A year or two later, the same issue arrived at our front door—literally. It was a cold morning in March. My parents had taken my three younger sisters shopping. My older brother was at a basketball game. The only people in the house were me and my older sister Wendy; and because she was still asleep, I was the only one who saw the most peculiar of vehicles pulling up in front of our house: a huge Greyhound bus.
Ours was a quiet suburban street in McLean, Virginia, many miles from the nearest bus stop. But even more unusual than the bus was the behavior of the dozens of people who poured out of it. I watched with wide-eyed curiosity as they began pacing the sidewalk in front of our house. They seemed to be chanting something, but exactly what I wasn’t sure. Determined to figure out what was happening, I went outside, which made it easier for me to see and hear what they were saying. Their chant was simple and consistent with the words written on the signs they were carrying: “Keep your laws off our bodies!”
Immediately, mischievous thoughts flowed through my eleven-year-old mind. Should I turn on the sprinklers? I wondered. Should I deploy my secret stash of firecrackers? Like the boy in Home Alone, I instinctively felt the need to defend my parents’ home, and startling these protesters sounded like an awfully fun way to do it.
Fortunately, I was (barely) mature enough to resist my first instincts. If I do that, it’ll be on the news, I thought. That will end up causing problems for my dad, and I don’t want to do that.
Instead, I decided to calmly approach and speak to the strangers who had arrived without invitation or warning on our sidewalk. I found the woman who appeared to be in charge and said, “I live in this house. Can you tell me why you’re here?”
“Well, little boy,” she said in the most condescending way imaginable, “we’re not here to hurt you. We just really disagree with some of the things that your daddy is doing in his job.”
It can be a little jarring when the first thing people tell you is that they don’t mean you any harm. That’s sometimes the first indication that the opposite is true.
In this case, I knew enough about my dad’s job and the abortion debate to realize they were angry about arguments he had presented to the Supreme Court. I later learned that the case was City of Akron v. Akron Center for Reproductive Health, a case involving the constitutionality of a city ordinance requiring second- and third-trimester abortions to be performed in hospitals and requiring minors to obtain either parental or judicial consent before obtaining an abortion. Appearing on behalf of the U.S. government (as amicus curiae or “friend of the court”), my father argued that, in adjudicating such constitutional questions, the Supreme Court should give due defer- ence to states and local legislative bodies, especially where fact-laden questions of public policy are concerned. But that still didn’t explain why these people were in front of my house.
“That’s fine,” I said, “but why do you have to do it here? Why do you have to do it in my front yard?” After all, their signs said, “Keep your laws off our bodies.” Was it too much to ask them to keep their bodies off our lawn?
Apparently it was. She told me, “We’re being very careful not to step on your grass. I’m sure that you have lots of fun playing with your friends out here. We’re just staying on the sidewalk.”
Boy, I thought to myself, she is really missing my point. I wasn’t concerned about the grass. My concern went beyond the technical distinction between private property and public easements. I had meant to make a fairly obvious point: You can disagree with people, but that doesn’t mean you should go where they sleep and eat and raise children, attempting to subject them and their families to public shame, scorn, and humiliation.
After a while, a concerned neighbor found me and asked, “Hey, are you okay? Are you scared?”
But as soon as he saw the smile on my face, he knew I was just fine. I loved discussing important questions of public policy, and my usual sparring partners at the dinner table were a lot tougher to de- bate than the obtuse protester on my sidewalk. While I was a little startled, I was having the time of my life.
For the next two hours, men, women, and even a few children— apparently oblivious to the irony, they had brought children to an abortion-rights protest—marched up and down our sidewalk, always careful not to step on the grass. A news crew came and went. Neighbors gawked inquisitively from time to time, but the whole affair didn’t seem to hold anyone’s attention very long—including that of the protesters themselves. The sign-wielding activists whose voices became so familiar to me that day eventually grew tired of waiting for their much-anticipated, face-to-face confrontation with my father, who was still running errands with my mom and my three younger sisters. With disappointment showing on their faces, they climbed back into their bus and called it a day.
Within seconds after they left, my parents pulled into the drive- way. In a stroke of bad luck for the protesters—who had traveled all the way from New York and New Jersey to criticize my father—they had missed him by less than two minutes.
I was standing next to the basketball goal at the end of our drive- way, chomping at the bit to tell my parents about all the excitement they’d missed. But before I could get out a word, my dad beat me to the punch. “There was a huge Greyhound bus going out of the neighborhood,” he said with a baffled look on his face. “Do you know anything about that?”
Although I disagree with the message of those protesters and believe they should have found a more appropriate place to march than the private residence of a public official, I admire their passion. At least they cared about the Constitution and the essential role it plays in limiting the power of government. At least they were willing to view government action with a critical eye, refusing to ignore what they perceived as a constitutional overreach. I wish more Americans— even those who read the Constitution differently than I do—shared their passion for identifying and enforcing constitutional limits on the power of government.
I wrote this book for people who share my lifelong love of the Constitution and my growing frustration with legislators, judges, and presidents who ignore and distort it. In one sense, this is a book about heroes and villains—those who inspired, crafted, and re- spected liberty’s safeguards and those who have tried to tear those safeguards down. But in another sense, this is a book with a mes- sage: The “Lost Constitution” should be restored, and it can be, but only if we remember the people and the stories behind it.
My wish for you is that you share your time not with me but with them.