Mike Lee’s book “Our Lost Constitution” swings between ultraconservative and ultralibertarian positions, indicating that he is certainly not a consistent conservative who believes in the original intent of our Constitution’s framers. Conservatives, guided by judicial restraint, aim to conserve the status quo by respecting precedents and upholding federalism and states’ rights. Lee quickly cast these qualities aside when his political agenda necessitates libertarian positions.

Lee does present a strongly conservative states’ rights view of the First Amendment: He states, “Contrary to the views of most judges and legislators, the establishment clause applies only to the federal government. It does not put any limit on state governments.” He notes six states that ratified the First Amendment had established state religions supported with tax dollars. In Massachusetts, towns could criminalize skipping church services: “Over the next several decades, grand juries in the state issued more indictments for failing to attend church than for any other crime.” Five states required that legislators be Protestant and people then were comfortable with their state-established religions, he maintains.

Through the 1800s, conservatism dominated. The Supreme Court viewed the Bill of Rights as not applicable and irrelevant to the states. Thus states were enabled to take extremely regressive and restrictive positions on free speech, blasphemy, religion, guns and the rights of the accused. At that time, the Bill of Rights was a real nothing burger. (In the 1970s, I heard Lee’s father, Rex Lee, maintain that Missouri’s 1838 extermination order against Mormons did not transgress the First Amendment since the order originated on the state level.)

The conservative position that the judiciary cannot create brand-new rights or impose new policies on states which reduce their prerogatives was illustrated in 1983 when a Morton Grove, Illinois, ordinance prohibiting handgun ownership was left intact. (See Quilici v. Morton Grove) The 7th Circuit Court of Appeals upheld Morton Grove and the Supreme Court declined to review it because it raised no federal question and was entirely consistent with all the gun decisions of the 1700s, 1800s and 1900s. That decision displays the Court’s commitment to conservative principles, precedents, federalism, states’ rights and judicial restraint.

Of course, Lee never mentions the above decision; it would blow his theory out of the water. Lee’s failure to tell the whole truth leaves the utterly false impression that immediately after the Second Amendment was ratified it protected gun rights. The late preeminent conservative Judge Robert H. Bork stated the truth in 1996: “The Supreme Court has consistently ruled that there is no individual right to own a firearm.”

Libertarians seek to expand individual liberty by reducing state power. They cannot rely on historical precedents since federally protected individual rights were almost nonexistent before 1900. Yet libertarian purveyors of pornography showed decades ago that if certain clauses were liberally construed (“no law … abridging the freedom of speech, or of the press;”) then brand-new rights to pornography, never before known, would materialize. After 2000, the Court fabricated and expanded individual gun rights as they had earlier done with pornography.

Libertarianism would determine the U.S. approach to censorship, pornography and guns. As Judge Bork observed: “The Court is a cultural institution whose pronouncements are significantly guided not by the historical meaning of the Constitution but by the values of the class that is dominant in our culture.” Because the monied classes and the media have a heavy libertarian bent the Court will reflect that, regardless of the enormous social costs.

It should not be surprising that Lee swings between ultraconservatism and ultralibertarianism. He idolizes Trump (“Capt. Moroni”), a man who kept two sets of books. And in the aftermath of the last election, his emails show he was two-faced about Trump’s defeat. Where it is difficult to imagine a less conservative position on gun rights than Lee’s, it is no wonder that this self-described “conservative” fails to reflect a consistent judicial philosophy.

Rick Jones is a retired adjunct teacher of economics from Weber State. He is a Democratic Party candidate for Utah’s 1st Congressional District.

Newsletter