NBC News " Hardball"- Transcript: Americans' Constitutional Rights

Interview

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MATTHEWS: Welcome back to HARDBALL.

There have been many constitutional fights waged over the long history of
our country, including the highly anticipated Supreme Court ruling coming
up on gay marriage that`s likely to come down, I hear now, in June.

But one lawmaker in Washington says that the Congress, the president, even
the Supreme Court itself often gets the Constitution wrong.

Senator Mike Lee of Utah makes the case in his new book, "Our Lost
Constitution: The Willful Subversion of America`s Founding Documents,"
going back, by the way, to the Constitutional Convention of 1787 in
Philadelphia. Senator Lee explores the original and application of several
constitutional provisions through history, provisions that he says are now
viewed as nuisance, as a nuisance by many in Washington.

Well, I`m joined right now by the author, senator mike Lee.

This is going to be lively, because most of our lives, my life has been
taken up by what are called landmark decisions by the Supreme Court, the
Brown case in `54, when they said segregation in schools, separate but
equal can`t work because young African-American kids would look at dolls
and would prefer white dolls over black dolls, which meant that they got
the message from school that they were inferior.

This isn`t written in the Constitution, but it was a decision by the court
back then. Of course, you have the Civil Rights Act of 1964, which passed
constitutional review based upon what`s called the Interstate Commerce
Clause, which allowed the federal government to go into the littlest bitty
store and the littlest bitty gas station and say you cannot segregate, you
cannot be discriminatory against black people at this station because we
say so.

In your book, it says that`s covered by the 10th Amendment and it should
have been a local decision. Talk. These issues are all landmark. And now
we`re going to -- we had Roe v. Wade, where Justice Scalia said they found
this thing about penumbra of privacy, they discovered it, it was never
written in a law.

So much of our constitutional progress, liberals would say, progressives
would say is based upon finding things, seeing things that are inherent
that weren`t written. But you say we should go back to only what`s
written.

SEN. MIKE LEE (R), UTAH: Well, with respect to the Civil Rights Act of
1964, I think that`s justifiable and should have been justified under
Section 5 of the 14th Amendment. That would have been the more appropriate
way to do that. And I think that gives more dignity to the civil rights
movement to do it that way.

Brown vs. Board of Education, absolutely the right reasoning, absolutely
the right conclusion.

(CROSSTALK)

MATTHEWS: But where does it say in the Supreme Court -- where does it say
in this document, the U.S. Constitution, that you can`t have separate but
equal schools? Because Plessy vs. Ferguson, for years, they got away with
saying it`s just separate but equal, it`s OK.

LEE: Right, but Plessy was wrong, because separate isn`t equal and
separate can`t be equal. You`re treating people differently based on race.
That`s why Brown vs. Board of Education was right.

MATTHEWS: So, you would -- if you had sat on the jury, you would have
said, if you had been a judge back in `54 on the Warren court, you would
have voted to outlaw separate but equal?

LEE: Absolutely.

MATTHEWS: You would have voted to accept the constitutionality of the
Civil Rights Act of `64?

LEE: Yes.

MATTHEWS: I think your colleague has a little more problem with that, Rand
Paul.

LEE: Which colleague?

MATTHEWS: Rand Paul. We will let him speak for himself, but he`s had a
few burps over that. And I understand because I was around at that time
and I remember the arguments. But the arguments were you got to do it this
way because we will never get three-quarters of the states to pass a
constitutional amendment to outlaw discrimination in public accommodations.

This is the only way to do it. We are going to stretch that Interstate
Commerce Clause and get it done that way.

You wouldn`t have done that?

LEE: I think that the same argument actually finds more support under
Section 5 of the 14th Amendment. I think that`s part of what Section 5 of
the 14th Amendment was there intended to do.

MATTHEWS: Which phrase?

LEE: Section 5 of the 14th Amendment is there to make sure that Congress
has the power to pass sort of protective legislation, to make sure that the
purposes of the 14th Amendment are carried out, including the Equal
Protection Clause.

MATTHEWS: Even in the private sector?

LEE: Yes.

MATTHEWS: OK.

Let`s look ahead, gay marriage this summer.

LEE: Yes.

MATTHEWS: Do you think it will happen 6-3? I keep hearing 6-3 with
Roberts, who is no -- you`re no fan of. Roberts and Kennedy join the
majority.

LEE: It wouldn`t surprise me. It wouldn`t surprise me to see a 5-4
decision.

(CROSSTALK)

MATTHEWS: Where in the Constitution can you find protection of gay
marriage or acknowledgment of it?

LEE: Well, that`s the question before the court. And the argument --

MATTHEWS: Would you vote with the six or the three?

LEE: The argument made by those seeking that outcome here is that it`s
under the Equal Protection Clause.

I don`t believe that Equal Protection Clause covers that. I nonetheless do
believe the court`s likely to rule that way, either by a 5-4 decision or 6-
3.

MATTHEWS: Well, this follows the Lawrence case, liberty, too. Isn`t there
a lot of factors in here, when they struck down the sodomy clause?

(CROSSTALK)

LEE: Yes. That`s one of the reasons why I think the court`s headed in
that direction, if you look at Romer v. Evans from 1996, if you look at
Lawrence v. Texas in 2003 or 2004. That appears to be --

(CROSSTALK)

MATTHEWS: Where would you vote, six or three? Where would you -- for or
against it, recognizing gay marriage?

LEE: I don`t think it`s in the Constitution. I don`t believe that the
Equal Protection Clause addresses that particular issue.

Again, I think the court is likely here --

MATTHEWS: But couldn`t you argue inherently that it`s discriminatory
towards people who are born gay not to allow them to bond?

LEE: Some of that depends on the definition of marriage.

And the traditional definition of marriage has always been something that
is up to the states to decide. Each state ought to be able to decide on
its own what marriage is. Marriage historically, traditionally has been a
union between a man and a woman.

MATTHEWS: But, historically, it was a union between the people of the same
race.

LEE: Correct.

MATTHEWS: In our law, in our legal system, you couldn`t marry across the
racial line, and now you can legally. Virginia had the law against that.

LEE: correct. Loving vs. Virginia was the case that decided that. And
those who were advocating for that outcome were relying --

(CROSSTALK)

MATTHEWS: Is the Constitution a living document or is it a dusty old
document that must be adhered to in terms of original intent?

Because I keep thinking in high school -- this is a high school debating
point. Air Force, where is that in here? I don`t see that in here.
There`s no Air Force in there. No, there`s an Army and a Navy, and the
Navy includes the Marines. But -- and the Army Air Corps was OK. But when
they created a separate force called the Air Force, where is that in here?
They didn`t have airplanes back then.

LEE: I think it`s just fine because it contemplates our armed services,
our defense infrastructure.

(CROSSTALK)

MATTHEWS: But, in other words, it doesn`t have to be literal?

LEE: It doesn`t have to be literal. But the application of it is
sufficiently broad that it can cover things.

For example, there`s nothing in there that talks about the FAA or the FCC,
the ability to regulate interstate airwaves or airways.

MATTHEWS: Is that under the post office?

LEE: No, I think it`s more of the application of the Commerce Clause.
Those are channels and instrumentalities of interstate commerce. They`re
unavoidable national. They cross state lines. And in order to regulate
them appropriately, you need federal law.

MATTHEWS: Let`s talk about something that is going to come up again.

I keep thinking the gun case is never far away from -- the Heller case,
D.C. vs. Heller, in which you allowed -- have the right to own a handgun in
your house, which doesn`t bother me. I don`t mind holding a shot -- you
live out in the middle of Kansas, out in the middle of nowhere, you have a
shotgun in the house. Fine. You`re not going to kill anybody unless they
bother you probably.

But this question about whether the right to bear arms as a straight right,
separate from the need to have a militia, how did that get separated?
Because we grew up with the idea you were allowed to have a gun because you
had to be eligible -- you had to have a gun ready to join the militia with.
It was part of your right and your ability to join the militia.

But that`s now been separated. And apparently Kennedy did separate it.
You can now have a gun, whether you`re going to join a militia -- There`s
no militias in D.C., but you can have a gun in your house based upon that
ruling. Are you on with that ruling?

LEE: Yes.

(CROSSTALK)

MATTHEWS: So, the Second Amendment to you is a separate right to own?

LEE: Yes. It`s an individual right.

And this goes back not just to that ruling a few years ago in the Heller
case. This goes all the way back to 1791 at the time of the Bill of
Rights, including the Second Amendment, was ratified. And it goes back
further than that.

(CROSSTALK)

MATTHEWS: Last question. If you`re a literalist, if you`re an original
intent person, why do you ignore the militia part of that phrase, of that
sentence? It`s all in one sentence.

LEE: Yes, it`s all in one sentence, but we`re also told that the right to
bear arms exists.

(CROSSTALK)

MATTHEWS: The need for a militia makes the right to bear arms.

LEE: There is also the need for a militia. But we have to remember --

(CROSSTALK)

MATTHEWS: It didn`t say also. It doesn`t say also.

LEE: The way the early militias were formed were that the individual
citizens, having arms, exercising their right to bear arms, were able to
come forward with their own guns, with their own ammunition.

(CROSSTALK)

MATTHEWS: Why did it even say militia if a right to bear arms was a right
in itself? Why bring it up? If the original intent was just to give
people the right to bear arms, why talk about the need for a militia?

LEE: Well, I think, again, it had to do with the fact that militias were
formed by free individuals with their own arms coming together for their
common defense.

MATTHEWS: Thank you.

LEE: Thank you very much.

MATTHEWS: This argument will go on throughout the history of our republic.
I hope it never stops.

Thank you.

The book is called "Our lost Constitution."

Thank you very much for joining us. I think we aired all the issues.

Senator Mike Lee, an intellectual in the United States Senate.

Up next -- does that hurt?

LEE: Not too much.

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