By Jamshid Ghazi Askar Feb 18, 2011, 1:48am MST

SALT LAKE CITY — Less than two minutes after taking the microphone at a tea party rally at the Utah Capitol last April, candidate Mike Lee reached into his back pocket and pulled out a copy of the U.S. Constitution.

“This blessed document, written by wise men raised up by their Creator unto this very purpose, has fostered the development of the greatest civilization the world has ever known,” Lee proclaimed while waiving his pocket-sized Constitution. “I will not apologize for this document or the country it has created — nor will I tolerate those who ignore it.”

Similar scenes unfolded at seemingly every one of Lee’s campaign appearances across the state, as Lee railed against what he saw as a federal government that had grown bigger than the Founding Fathers ever intended.

Fast forward to last week. Lee again stood before a microphone, but this time he was at the Conservative Political Action Conference in Washington, D.C., the largest annual gathering of conservatives in America. Now a senator, Lee found himself giving perhaps the most prominent public address of his career. And barely two minutes into his CPAC speech, Lee again reached for his trusty Constitution, this time stowed in his suit jacket.

There’s no reason to think Lee’s constitutional shtick is anything but sincere. After all, dinner-table discussions with his late father, former Solicitor General Rex Lee, often centered around the Constitution. But Lee’s very public embrace of the Constitution was also shrewd and prescient. As a candidate, he was tapping into the political zeitgeist of the time, a feeling that the nation has become unmoored from the bedrock principles outlined by the Constitution.

As Time magazine recently pointed out, the Constitution has become the new flag lapel pin, a symbol of a politico’s patriotic bona fides. House Republicans recently required that the Constitution be read in its entirety on the House floor and proposed a bill that would require every piece of new legislation to stipulate its constitutional authority. Rep. Michele Bachmann, R-Min., even wants to hold a “Constitution School” for new members.

But Lee and his fellow Republicans aren’t the only ones claiming the Constitution as their political trump card, a de facto source of moral legitimacy. In fact, everybody from the most left-wing liberals to libertarians on the far right cite the Constitution to support their positions on everything from welfare to waging war. During the debates over health care reform, for example, Democrats argued that the federal government was justified in requiring every citizen to obtain insurance, while Republicans such as Sen. Orrin Hatch argued that the measure was a blatant violation of personal liberty and states’ rights. Ironically enough, both sides cited the very same Commerce Clause found in Article I, Section 8 of the Constitution.

How is it possible for rational, intelligent people to conjure vastly different interpretations from a document that has been under scrutiny for more than 223 years and entails a relatively modest 4,543 words? It’s all a matter of perspective, University of Utah law professor Wayne McCormack contends.

“The tools of interpretation for any formative document are the text itself, the history of the words — both pre-textual and post-textual drafting — and then the structure that the words are trying to establish,” he said. “You take all three of those tools, and you use them to the best of your ability. That to me means you don’t get locked into any particular ideology — you try to make sense of each provision as best you can with all those tools.”

McCormack believes that overemphasizing one of the interpretive tools at the expense of the other two can lead judges and lawmakers to skewed interpretations of the Constitution.

“If you have a particular bent that you want to pursue you can say, ‘I want to emphasize the original intent.’ That’s taking the history of the adoption and saying, ‘I can glean something from that.’ There are lots of problems, lots of things wrong with that.

“You can say, ‘No, I just want to be bound by the plain meaning.’ Well, sometimes the meaning is not very plain — what’s an ‘unreasonable’ search and seizure? What process is ‘due?’ ”

Lee’s embrace of the Constitution has so endeared him to the tea party faithful that he is quickly becoming one of the movement’s rising stars. He has also become a media magnet, which could portend well for his political future and influence. As the Washington Post pointed out in a recent profile, Lee did his first national Sunday talk show three days before he took his oath of office. He’s since been featured on the CBS Evening News and CNN. In nearly every media appearance, he talks about the Constitution.

“I am certain his understanding of the Constitution is pretty sophisticated,” says Fred Gedicks, a constitutional law professor at Brigham Young University’s J. Reuben Clark Law School — Lee’s alma mater. Gedicks taught Lee in several smaller, seminar-style classes. “He was the best kind of student — he had his views, but he wanted to engage on the issues. He was forceful and smart and skilled enough to push back, and yet he wasn’t dogmatic.”

At the same time, Gedicks sees a significant disconnect between tea party ideology, which Lee says he identifies with, and any serious scholarly interpretation of the Constitution.

“The tea party interprets the Constitution as if the last 100 years of constitutional law hadn’t happened,” he said. “They go back to the way (it) was interpreted in the late 19th and early 20th centuries prior to the New Deal, so it’s a very anachronistic view of the Constitution.”

On the surface, tea partyers subscribe to a fairly divisive and highly selective philosophy, some constitutional experts believe, holding fast to a literal interpretation with little to no wiggle room for change from the Founders’ intent, while at the same time ignoring the fact that the Framers permitted slavery, for example. “They don’t get to support Madison and renounce Jefferson, then claim to be restoring the vision of ‘the Framers,’ ” Slate’s legal correspondent Dahlia Lithwick recently wrote. “Either the Founders got it right the first time they calibrated the balance of power between the federal government and the states, or they get it so wrong that we need to pass a ‘Repeal Amendment’ to fix it.”

In seeking to lessen the size and scope of the federal government, for example, the tea party argues that the signers of the Constitution never intended for Congress to wield as much power as it presently does. What the tea party ostensibly ignores is the language of the aforementioned Commerce Clause which permits Congress to regulate interstate commerce and which, due to the growth of modern realities like globalization that the Constitution’s authors never could’ve foreseen, has legitimately and exponentially expanded the government’s oversight.

“Early on, (Supreme Court) Chief Justice John Marshall, the first Chief Justice and one of the greatest, the one who really consolidated the power of the Supreme Court and put it on the road to what it is today, argued that the Commerce power was really only subject to political limits,” Gedicks said. “If you think Congress is exceeding its power, then you should vote in new members of Congress and senators who have a more restrained view of their power.”

When Gedicks looks at his former student he sees a man trying to build a philosophical bridge between what he knows as a constitutional expert and what the tea party wants. As Gedicks sees it, Lee is simply an agent of the voters, the people who knowingly or not ultimately decide how to interpret the Constitution.

“And of course, if that’s what Sen. Lee wants to do then that’s perfectly legitimate. If he and other members of the tea party are saying, ‘Vote for us, vote for our platform and vote for our movement, and we will not approve exercises of Congressional power that we believe are excessive,’ I believe that’s right in line with two centuries of (Constitutional) jurisprudence.”

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