"Like Father, Like Son? Mike and Rex Lee's Divergent Views on the Constitution and Politics"
Ryan Decker and Jansen Gunther
SquareTwo, Vol. 4 No. 1 (Spring 2011)
There’s been a notion that my job is to press the Administration’s policies at every turn and announce true conservative principles through the pages of my briefs. It is not. I’m the Solicitor General, not the Pamphleteer General. – Rex E. Lee
The Constitution has too often been misused for personal gain. Individual desires have been palmed off as scholarship. Politicians have pandered to the public by compounding misunderstandings of Supreme Court decisions, not correcting them. . . . Too many people appear in classrooms, pulpits, campaign platforms, and mass circulation magazines, telling us not what they believe the Constitution means, but what they insist it says, giving every appearance that they are the sole heirs of James Madison’s wisdom.
– Paul Martin Wolff, quoted by Rex E. Lee, 1991 BYU devotional
Rex E. Lee was an archetypical conservative constitutional scholar. The shortlist of his professional achievements speaks to the impeccability of his legal credentials. Lee graduated at the top of his class at the University of Chicago School of Law, clerked for Justice Byron White, founded a law school [1], and served as the Solicitor General in the Reagan Administration [2]. His reputation among the Justices was one of respect and admiration. Justice White once opined of Rex that “he was the epitome of integrity on whom we could rely for straight talk about cases coming before the court" [3]. Indeed, throughout the legal community Rex Lee was widely admired as a “staunchly independent conservative legal scholar" [4].
Mike Lee, the second son of Rex Lee, has a similarly exceptional legal background. Like his father, Mike Lee practiced in Washington, D.C. and Utah as a constitutional lawyer. He attended law school at the J. Reuben Clark School of Law, worked as General Counsel to Utah Governor Jon Huntsman, and clerked for Justice Samuel Alito, a colleague of his father’s, on both the US Court of Appeals and the Supreme Court. These legal credentials served Mike Lee well while stumping for Bob Bennett’s US Senate seat, which he won last November. Further, Mike Lee’s pedigree proved to be a huge windfall to his senatorial campaign—Rex Lee is a widely beloved public figure in Utah, and much of the goodwill Rex accumulated in the Lee namesake trickled down to Mike Lee. Surely, in the minds of Utah voters, the phrase ‘like father, like son’ applied well to this situation. It is ironic, then, that despite similarly impressive legal credentials and widely held conceptions to the contrary, the substance of Mike Lee’s constitutional views so sharply diverge from his father’s. While Rex Lee’s views were driven by commitment to scholastic rigor and interpretive methodology, Mike Lee’s views appear to be primarily driven by political strategy rather than legal scholarship.
One way in which Mike Lee’s view of the Constitution conflicts with his father’s concerns federalism, the vertical distribution of power between federal and state government. Mike’s negative views of federalism permeate his rhetoric. He frequently calls for reductions in government power, accuses members of Congress of approving unconstitutional executive bureaucracies, and continues to posit arguments regarding unwanted government programs such as Federal Disaster Relief [5]. In general, Mike Lee sees much of what the federal government does as a constitutionally impermissible infringement of states’ autonomy.
To illustrate one such stance, Mike Lee has argued that any state has the right to unilaterally nullify federal law with which it disagrees or which it interprets as unconstitutional [6]. According to Mike Lee, states and not the Federal government are the ultimate interpreters of the Constitution and the extent of federal powers, granting states an effective opt out of complying with federal law. That is, according to Mike Lee, state law prevails where state and federal laws clash. Contrast this with his father’s view of federalism: Rex Lee clearly believed that “federal law trumps state law wherever the two come into conflict" [7]. Predictably, nullification as a constitutional theory has long been discredited by mainstream judicial scholars [8]. In addition to violating the express language of the Supremacy Clause, allowing states to choose which federal laws to comply with would reduce federal law to an incoherent medley of regulations inconsistently applicable across the United States. It is for this very reason that nullification is such a wildly popular legal theory among Mike Lee’s Tea Party constituents, a fact shedding light on why Mike Lee would unearth such a widely debunked theory. Mike Lee's preferred decentralization of power would upset the very vertical allocation of power his father praised: “Over the long run of our nation’s history, [federalism] has managed to maintain a balance of power…between our two systems of government that has effectively protected our individual liberties" [9]. Apparently, Rex Lee was more fond of the federal government than Mike Lee [10].
In addition to disagreements over federalism, the views of father and son are at odds over existing amendments. The Seventeenth Amendment changed the way Senators are elected from having Senators chosen by state legislatures to a simple popular vote. Rex Lee saw this amendment as an asset to the highest law of the land. “Our republic has functioned very well, probably even better, after at least one of its original provisions … was amended out of existence by the Seventeenth Amendment.” Conversely, Mike Lee joined the current Tea Party movement by claiming, “I do think the Seventeenth Amendment was a mistake,” in what some have characterized as an ill-considered attempt to repeal it in hopes of procuring greater state powers [11].
Perhaps the greatest discord between Mike Lee’s view of the Constitution and his father’s lies in how they respond to and interpret its ambiguities. The Framers wrote many of the Constitution’s most important clauses in general terms ambiguous enough to raise questions of applicability. To Mike Lee, interpreting these abstractions is a straightforward task, often determinable by what appears to some to be a fairly cursory reading of the text. Mike Lee’s apparent confidence in his ability to ascertain the document’s definitive meaning ignores much of the ambiguity that permeates it—ambiguity his father expressly acknowledged. This unequivocal, at times anachronistic, reading of the Constitution leaves little room to acknowledge the variety of plausible interpretations among even original interpretive methodologists [12]. Ignoring the alternatives, Mike Lee does not profess what he believes the Constitution means but rather insists on what it says. For example, Mike Lee, as aforementioned, does not merely believe the Constitution grants states the right to nullification; he insists it does. And implicit in his platform is the notion that those who disagree with his views about the document do so not because they have a defensible alternative interpretation but because they ignore or disregard it altogether [13].
Contrast this view with the one espoused by Rex Lee. To Rex Lee, these ambiguities are a key feature. “One of the most important features of the American Constitution, both in theory and in practice, is the magnificent breadth of its most important provisions—notably the Commerce Clause, most of the Bill of Rights guarantees, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment" [14]. This ambiguity, lack of specificity, and generality, according to Rex Lee, allows the document to be applied to contemporary circumstances the Framers could not envision.
As can be imagined, Rex Lee therefore saw the Supreme Court as essential in light of this lack of clarity found in many parts of the Constitution—a lack of clarity which Mike Lee is loathe to acknowledge. Rex Lee recognized that the Constitution was drafted in a time very different from our own and thus required an acknowledgement of its ambiguity and judicial review to clarify parts in light of contemporary circumstances. Rex Lee also recognized that the document’s lack of specificity and the power of judicial interpretation were purposeful designs of the Framers. Speaking of the Constitution in 1991 [15], Rex Lee argued,
The lack of specificity of these and other provisions has almost certainly been essential to the ability of this document drafted in 1787 to survive over 200 years. … And yet there is another edge to this generality. Someone has to be vested with the final authority to determine what the Constitution means when its provisions are applied to concrete practical facts, many of which were totally unanticipated at the time of the Constitutional Convention.Rex Lee then lists several examples of the difficulty of applying the brief text of the Constitution to current issues without judicial interpretation. Rex Lee acknowledges the problems caused by giving such interpretive power to so few people, but he argues that this concern “needs to be tempered by two facts”: first, that the framers intended the courts to have this power; and second, that the makeup of the courts is determined indirectly by the will of the people, since judges are appointed by the popularly elected president. Conversely, Mike Lee, because he does not acknowledge the document’s generality, derides the Supreme Court for failing to see the Constitution’s clear meaning. On Glenn Beck’s radio program, for example, he argued that “members of Congress stop reading [the Constitution] and instead point across the street to the Supreme Court and say, ‘they said we can get away with it'" [16]. Throughout this interview and others, Mike Lee painted the Court as an adversary of the Constitution and good governance. One can only wonder what Rex Lee would have thought of this view.
Mike Lee joins many in the Tea Party movement who seem to believe that uncovering the true intent of the framers is a simple task likely to result in interpretations which conveniently parallel, almost to near perfection, the political preferences of their constituency. Rex Lee, on the other hand, found difficult phrases in the Constitution, some of which conflict with others, and noted that “nothing in the text of the Constitution, and nothing in its history, provides the answer to those and many other practical questions that arise every day" [17]. That is, it is complicated; more complicated, perhaps, than Mike Lee would have us believe. Hence the Court’s interpretive responsibilities earn the respect of Rex Lee and the derision of Mike.
In general, then, father and son approach the Constitution from entirely different angles. Rex Lee took a clear-eyed view of the document’s strengths and weaknesses, attempting to carefully discover and rigorously defend its abundant merits while recognizing its fundamental limitations and, in a few cases, shortcomings. He noted that a view of the document as flawless “cannot withstand analysis.” In addition to interpretational difficulties, the Constitution originally protected slavery and had “other provisions that are not as offensive as the slavery guarantee, but they were quite clearly bad policy" [18]. In contrast, Mike Lee makes the Constitution the center of nearly every public appearance, turning the act of pulling a copy of the document out of his pocket into his signature move. Assigning primacy to the Constitution is important and timely. Certainly there are too many lawmakers with insufficient deference to our founding document. But Mike Lee justifies his entire policy platform based on his interpretation of the Constitution without acknowledging the ambiguity and nuances which make interpretation such a difficult and divisive element of American politics and governance [19]. His deliberate emphasis on his pocket Constitution as the solution to every policy dilemma reveals a view of the document which is markedly lacking in objectivity. Such an approach may be an asset for politicking in a conservative state, but it does not reflect the reverential yet analytical approach employed by Rex Lee.
This clear discord between the views of father and son would be less interesting had Mike Lee not expended so much effort to link Rex Lee’s career and credibility to his own, an effort which became a theme the media echoed throughout his campaign. Lee’s website biography begins with this statement:
Mike acquired his love for the Constitution early on while discussing everything from the Due Process Clause to the Second Amendment around the dinner table. Mike's father, Rex Lee, served as Solicitor General under President Ronald Reagan and later as President of Brigham Young University. Mike attended most of his father's arguments before the U.S. Supreme Court, giving him a unique understanding of the government from an early age [20].
That Lee would attempt to link himself to his father’s legacy is understandable: Rex Lee’s career was indeed impressive, he was nearly universally respected and loved, and his ties to Utah are obvious. Rex Lee could provide Mike Lee immediate name recognition, a crucial asset for a political newcomer. His father was bound to be a key part of Mike Lee’s brand development for a Utah campaign which would focus heavily on Constitutional issues—Rex Lee’s life work. In addition to frequent references in official publications, Mike Lee highlighted his father’s record many times in interviews and speeches. “I wish [Rex Lee] were still around to ask, but I think he would be excited” about the campaign, Mike Lee told one reporter. “It was normal for us to discuss the presentment clause over brussels sprouts at the dinner table,” he said, again linking his brand to his father’s reputation [21]. But this effort to expressly link Mike and Rex Lee did not stop with official campaign doctrine.
Media reports and commentaries on Lee’s campaign almost always mentioned his lineage. His focus on the Constitution was frequently tied to his father. One Deseret News article illustrates this well:
Mike Lee may be known for his encyclopedic knowledge of the U.S. Constitution, but what his friends and family mention most about him is his sense of humor.
Not that they don't enjoy having the same kind of impassioned debate over interpreting the Constitution that Lee, an attorney, grew up with at the family dinner table as the son of a former U.S. solicitor general. . . .
Even as a child, Lee took his opinion on the law and politics in general seriously. That's what was expected of him as the son of Rex Lee, who served as President Ronald Reagan's solicitor general and later, as president of Brigham Young University. . . .
There seemed little question Lee would follow his father's professional footsteps. [22]
This “dinner table” theme is repeated often in media reports [23] and Lee interviews. This same article goes on to quote another high profile Utah politician:
State Sen. John Valentine, R-Orem, first met Lee as a little boy, when Valentine was a law student at BYU attending events hosted by Rex Lee. Then, Valentine said, Mike Lee "kind of reminded me of a mini-version of his father."
Now, Valentine said, Lee sounds just like his father when he talks about the law. [24]
The 2010 Utah Republican primary was not short on candidates that appealed to Tea Party stalwarts. What Mike Lee offered that the other candidates lacked was the goodwill his father had built up in the Lee name. Utah voters imputed to Mike Lee the reputation of his father, while likely unaware of the wide discord between their views on the Constitution and the proper role of government. The questions this raises are obvious enough: if Mike Lee’s nomination was in large part attributable to his nurturing the fiction of ‘like father, like son,’ why did the media (and the voters) not discover the substantive discord of their views on the Constitution? Or if they did, why vote for someone due to their kinship with a beloved figurehead when they share little in common with their key views? Perhaps voters were simply not informed as to how radically Mike’s views diverged from his father’s. Perhaps Utah voters simply desire a public figurehead with a surname connoting conservative respectability. If Utah voters were unaware of the disconnect between the views of the two Lees, then Utah media organizations demonstrated a stunning deficiency of competence. On the other hand, if Utah voters were aware of such substantive discord, the campaign is a sad reflection on the electorate. The form of respectability and trust comprised in a name or persona should never be valued over its function.
Mike Lee’s nomination and its inextricable link with his father’s reputation raises even larger questions about voter rationality. Brian Caplan has argued that voters are often more concerned with ideological comfort than reality-based political preferences [25]. Voters often support politicians for image-related reasons orthogonal to governing. Rex Lee conveyed trustworthiness, respectability, expertise, and conservatism. To the extent that Mike Lee could link himself to Rex Lee, many voters likely assumed Mike Lee shared those attributes with his father without reasonable grounds for verification [26]. This tendency of Mormons to base votes on proxies they believe reflect a politician’s honesty and abilities may have affected support for Mitt Romney, for instance, whose background was largely at odds with typical Mormon conservative political views but whose name recognition (from his father George Romney) and religion brought him excessive trust from voters who might otherwise have rejected him as a flip-flopping “RINO" [27]. In other words, this false association tendency among LDS voters is a larger issue than Mike Lee’s nomination—and, apparently, an issue we will face again in coming elections.
Regardless of the broader issue of false association, if Utah voters actually did support Mike Lee because of his father’s reputational capital, they did so at the expense of truth-based voting. Rex Lee was a highly respected legal thinker and practitioner because he built his views of the Constitution on rigorous scholarship and rejected the partisan political approach to legal reasoning, while Mike Lee’s platform is not only at odds with his father’s views of the Constitution but may also assign more importance to political considerations than Rex Lee ever would be willing to countenance.
One could argue that Mike Lee faces a situation of real political necessity that Rex Lee did not (Rex Lee never ran for elected office); but Rex Lee did serve as a Reagan political appointee and explicitly rejected using political rationales for legal decisions. While serving as Solicitor General, an office that requires a balancing of political and legal interests, zealous Reaganites blasted Rex Lee for not tightly adhering to his boss’s conservative policies. In response, Lee, ever witty, quipped, “[t]here’s been a notion that my job is to press the Administration’s policies at every turn and announce true conservative principles through the pages of my briefs. It is not. I’m the Solicitor General, not the Pamphleteer General" [28]. At one point, Rex Lee even called the White House’s agenda “an albatross around my neck" [29]. When an honest inquiry into what the Constitution means clashed with politics, Rex Lee ensured that politics unequivocally gave way.
In stark contrast, it would be an understatement to characterize Mike Lee’s constitutional interpretation as influenced by the need to gain political advantage. Indeed, Mike Lee’s interpretive methodology seamlessly maps onto his political preferences. This sheds light on the methodological underpinnings of some of Mike Lee’s more controversial interpretations, such as the Citizenship Clause—one of the Constitution’s clearer clauses—where Mike Lee argues that citizenship is not conferred on the children of undocumented aliens born in the United States [30] despite express language and case law to the contrary. To Mike Lee, the document he claims to protect often appears to primarily serve as a mechanism through which to funnel his ambitions. It is a document interpreted by his political methodology rather than the originalist one he learned from his father “around the dinner table.” In this sense, Mike Lee personifies his father’s very fear that politicians all too often “pander . . . to the public by compounding misunderstandings of Supreme Court decisions,” and that they “appear in classrooms, pulpits, campaign platforms, and mass circulation magazines, declaring not what they believe the Constitution means, but what they insist it says, giving every appearance that they are the sole heirs of James Madison’s wisdom" [31]. If there is an albatross around Mike Lee’s neck, it is a self-imposed one.
It is difficult to determine what any politician actually believes and what is mere posturing. Mike Lee might be fully committed to his unconventional, politically charged views—or he may merely be enveloping himself in the zeal of the Tea Party zeitgeist for political advantage. We do not profess to know. But in terms of intellectual consistency as well as logical and historical rigor in Constitutional analysis, the apple has fallen far from the tree.
NOTES:
[1] The J. Reuben Clark School of Law is consistently ranked among the top twenty-five percent of law schools. [Back to manuscript]
[2] Rex Lee’s achievements as a Solicitor General includes winning an unusually high number of cases, at one point winning reversals in twenty-seven of twenty-nine cases originating in the nation’s most liberal circuit. See David Binder, “Rex Lee, Former Solicitor General, Dies at 61,” New York Times, March 13, 1996, http://www.nytimes.com/1996/03/13/us/rex-lee-former-solicitor-general-dies-at-61.html (accessed February 2011). [Back to manuscript]
[3] Lee Davidson, “Supreme Court Justices Pay Tribute to the Late Rex E. Lee,” BYU Magazine, November 1996, http://magazine.byu.edu/?act=view&a=441 (accessed February 2011). [Back to manuscript]
[4] David Binder, “Rex Lee, Former Solicitor General, Dies at 61,” New York Times, March 13, 1996, http://www.nytimes.com/1996/03/13/us/rex-lee-former-solicitor-general-dies-at-61.html (accessed February 2011). [Back to manuscript]
[5] Interestingly, Mike Lee did not hesitate to accept FEMA funds made available to Utah after a state emergency was declared due to torrential downpours and flooding. See http://www.publicbroadcasting.net/kuer/news.newsmain/article/184/0/1750395/RadioWest.%28M-F..11AM..and..7PM%29/11811.Senator.Mike.Lee (accessed February 2011). [Back to manuscript]
[6] See http://www.mikelee2010.com/mike-lee-testifies-regarding-health-care-nullification-bill (accessed February 2011). [Back to manuscript]
[7] Rex Lee, “The Constitution and the Restoration,” Brigham Young University devotional address, 15 January 1991, at http://speeches.byu.edu/reader/reader.php?id=7066&x=50&y=0 (accessed January 11, 2011). [Back to manuscript]
[8] See McCulloch v. Maryland, 17 U.S. 316 (1819) (holding that the federal government laws form the supreme law of the land anything in the constitution or laws of the any state notwithstanding); See also Martin v. Hunter’s Lessee, 14 U.S. 304 (1816); Chisholm v. Georgia, 2 U.S. 419 (1793); Rejection of Virginia and Kentucky Resolutions. [Back to manuscript]
[9] Rex Lee, “The Constitution and the Restoration,” Brigham Young University devotional address, 15 January 1991, at http://speeches.byu.edu/reader/reader.php?id=7066&x=50&y=0 (accessed January 11, 2011). [Back to manuscript]
[10] Could the difference between Rex Lee’s 1991 opinions and Mike Lee’s current views on federalism and the power of the federal government be due to a difference in federal power in the two periods? The recent activities of the federal government, including a large increase in spending and debt, might suggest the possibility that Rex Lee would agree with Mike Lee had he seen the current political climate. However, the recent past is not significantly different from that of 1991 in terms of the size of federal government and its activities. Since Rex Lee made the cited statements, gross federal debt as a percent of GDP has climbed from 59 percent to 91 percent, an increase of thirty-two percentage points (as of September 2010). However, between 1972 and 1991 (the same amount of time), gross federal debt as a percent of GDP climbed from 34 percent to 59 percent, an increase of twenty-five percentage points. Given the decline in GDP during the largest contraction since the Great Depression and subsequent stimulus measures—controversial but not unique to this latest recession—this difference does not seem significant enough to render Rex Lee’s 1991 argument irrelevant. Other measures of federal activity yield a similar comparison: net federal outlays as a percent of GDP climbed from 18 percent to 22 percent from 1972 to 1991, a four-percentage-point increase; the figure for the 1991-2010 period is just one percentage point, climbing from 22 percent to 23 percent. Notably, this number reached a peak in 2009 at nearly 25 percent, but it also reached nearly 23 percent just a few years before Rex Lee’s statements. Federal employment per capita, another indicator of the size of the federal government, fell from 2.49 percent in 1972 to 2.04 percent in 1991—a decline of 45 basis points. From 1991 to 2009, the indicator fell from 2.04 percent to 1.44 percent, a decline of 60 basis points. The debt, outlays, and federal employment figures do not lend support to the argument that Mike Lee faced a federal government the dramatic expansion of which Rex Lee could not have contemplated.
Recall also that Rex Lee was a child during Roosevelt’s New Deal and had graduated from law school by the time Johnson introduced his Great Society programs; he lived through two of the most significant expansions of federal power and did not indicate his belief they were constitutionally impermissible. If anything, Rex Lee’s 1991 speech suggests the contrary position.
Debt, net outlays, and GDP data were retrieved from FRED at the Federal Reserve Bank of St. Louis, http://research.stlouisfed.org/fred2. Federal employment data are from the US Office of Personnel Management, http://www.opm.gov/feddata/HistoricalTables/TotalGovernmentSince1962.asp. US population data are from World Bank World Development Indicators, http://data.worldbank.org/data-catalog/world-development-indicators. All data accessed February 2011.
[11] See http://politicalticker.blogs.cnn.com/2010/07/10/repeal-17th-amendment/ (accessed February 2011). [Back to manuscript]
[12] Even the highly conservative Justice Antonin Scalia has rejected many of the same Constitutional interpretations Mike Lee posits. In explaining the difference between his interpretive approach to the Constitution and that of Justice Clarence Thomas—who shares with Mike Lee many of the same divisive, constructionist views of the Constitution—Scalia has commented, “I’m a conservative, I’m a textualist, I’m an originalist, but I’m not a nut!” (See Interview of Jeffrey Toobin; http://www.npr.org/templates/story/story.php?storyId=14505105). [Back to manuscript]
[13] Jamshid Ghazi Askar, “Constitutional Divide: Sen. Mike Lee, Others Battle to Define a Living Document,” Deseret News, February 18, 2011, http://www.deseretnews.com/article/700111142/Constitutional-divide-Sen-Mike-Lee-others-battle-to-define-a-living-document.html (accessed March 2011). [Back to manuscript]
[14] Rex Lee, “The Constitution and the Restoration,” Brigham Young University devotional address, 15 January 1991, at http://speeches.byu.edu/reader/reader.php?id=7066&x=50&y=0 (accessed January 11, 2011). [Back to manuscript]
[15] Ibid. [Back to manuscript]
[16] See http://www.youtube.com/watch?v=tiHt9KTiM3I&feature=related (accessed January 2011). [Back to manuscript]
[17] Rex Lee, “The Constitution and the Restoration,” Brigham Young University devotional address, 15 January 1991, at http://speeches.byu.edu/reader/reader.php?id=7066&x=50&y=0 (accessed January 11, 2011). [Back to manuscript]
[18] Rex Lee, “The Constitution and the Restoration,” Brigham Young University devotional address, 15 January 1991, at http://speeches.byu.edu/reader/reader.php?id=7066&x=50&y=0 (accessed January 11, 2011). [Back to manuscript]
[19] Jamshid Ghazi Askar, “Constitutional Divide: Sen. Mike Lee, Others Battle to Define a Living Document,” Deseret News, February 18, 2011, http://www.deseretnews.com/article/700111142/Constitutional-divide-Sen-Mike-Lee-others-battle-to-define-a-living-document.html (accessed March 2011). [Back to manuscript]
[20] See http://www.mikelee2010.com/about-mike (accessed January 2011). [Back to manuscript]
[21] “Howrey Partner, Son of Rex Lee, Announces Run for US Senate,” The BLT: The Blog of LegalTimes, January 6 2010, http://legaltimes.typepad.com/blt/2010/01/howrey-partner-son-of-rex-lee-announces-run-for-us-senate.html (accessed January 2011). [Back to manuscript]
[22] “Mike Lee Known for His Constitution Knowledge, Sense of Humor,” Deseret News, June 15, 2010, accessed January 2011 on Lee’s website, http://www.mikelee2010.com/mike-lee-known-for-his-constitution-knowledge-sense-of-humor. [Back to manuscript]
[23] For more examples of the media emphasis on Mike Lee’s parentage see the following:
Joe Pyrah, “Mike Lee Keeps Eye on Senate Seat,” Daily Herald, June 16, 2010, http://www.heraldextra.com/news/local/article_3d2a3f00-6334-5422-b8cb-48ccbfc4822a.html, (accessed February 2011).
Stu Woo, “In Utah Race, Tea Party Has Already Won,” The Wall Street Journal, June 21, 2010, http://online.wsj.com/article/SB10001424052748704638504575319070993061124.html, (accessed February 2011).
David Rodeback, “Lee Over Bridgewater: The Abridged Version,” LocalCommentary.com, May 17, 2010, http://www.localcommentary.com/davidblog/2010/20100517.htm, (accessed February, 2011).
[24] “Mike Lee Known for His Constitution Knowledge, Sense of Humor,” Deseret News, June 15, 2010, accessed January 2011 on Lee’s website, http://www.mikelee2010.com/mike-lee-known-for-his-constitution-knowledge-sense-of-humor. [Back to manuscript]
[25] Bryan Caplan, The Myth of the Rational Voter: Why Democracies Choose Bad Policies (Princeton University Press, 2007). [Back to manuscript]
[26] This is not to say that Mike Lee does not have those attributes—only that voters may not have carefully verified such. [Back to manuscript]
[27] RINO is an acronym for “Republican In Name Only,” frequently used as a slur within conservative circles. Nation-wide data on Mormon votes for Romney are apparently unavailable; but state-level data can be telling. For example, in the 2008 Nevada Republican primary, Romney won 94 percent of voters who self-identified as Mormon. Note that these data already control for party affiliation. Clearly, amidst a crowded Republican field, Romney was extremely popular among Republican Mormons. See CNN at http://www.cnn.com/2008/POLITICS/01/19/nevada.gop.romney/index.html (accessed March 2011). [Back to manuscript]
[28] David Binder, “Rex Lee, Former Solicitor General, Dies at 61,” New York Times, March 13, 1996, http://www.nytimes.com/1996/03/13/us/rex-lee-former-solicitor-general-dies-at-61.html (accessed February 2011). [Back to manuscript]
[29] Ibid. [Back to manuscript]
[30] Reducing illegal immigration is another pressing concern of Tea Party members. While it is true many politicians believe their political ends are constitutionally permissible, only a small minority submit that their political ends are constitutionally required. That is to say, in this instance, Mike Lee avers that the Constitution not only allows barring citizenship to natural born children of illegal aliens, but that it demands it. To Mike Lee, the question is, why achieve political ends via the legislature when one can do so via the judiciary?—a particularly inconsistent stance given his claims of political activism of the Supreme Court.
It is also worth noting that Mike Lee’s particular interpretation of the Citizenship Clause flies in the face of his claimed commitment to textualism. An overriding interest in furthering political ends explains why an avowed textualist would interpret this clause contrary to its plain meaning.
[31] Paul Martin Wolff, quoted in Rex Lee, “The Constitution and the Restoration,” Brigham Young University devotional address, 15 January 1991, at http://speeches.byu.edu/reader/reader.php?id=7066&x=50&y=0 (Accessed January 11, 2011).
See also Mike Lee’s interpretation of Hammer v. Dagenhart where Mike fails to inform an audience that the Supreme Court case he cites was overruled seventy years ago in United States v. Darby Lumber Co.
Full Citation for This Article: Decker, Ryan and Jansen Gunther (2011) "Like Father, Like Son? Mike and Rex Lee's Divergent Views on the Constitution and Politics," SquareTwo, Vol. 4 No. 1 (Spring), http://squaretwo.org/Sq2ArticleDeckerGuntherLees.html, accessed [give access date].
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