Lee vs. Bridgewater Constitution Pop Quiz 

They both love it, but who knows it better?

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In the race to replace Sen. Bob Bennett, R-Utah, in the U.S. Senate, the differences on issues between the two remaining Republican candidates, Salt Lake City attorney Mike Lee (EnergySolutions is one of his clients) and Tim Bridgewater (an entrepreneur who some say makes a living helping companies garner federal grants), are shades of gray more than black-and-white. Both oppose health-care reform, want tougher enforcement of immigration laws and support a balanced federal budget. Also, they both love the U.S. Constitution.

Thus, City Weekly decided that the best thing to do for their primary preview was quiz them on constitutional trivia and ask them to interpret a few constitutional principles.

Trivia (One point for each correct answer in a question)

1. Utah was the final state needed to ratify which amendment?

ML: 21st (Repealing prohibition)

TB: 16th

Correct: 21st. As Bridgewater said, “That’s ironic.”

2. Name the three Constitutional Convention delegates who refused to sign the Constitution.

ML: George Mason. All three were from Virginia ... maybe a guy named Lee? Not sure on the third.

TB: I don’t think George Washington signed it ... I don’t know. I give up.

Correct: George Mason and Edmund Randolph of Virginia, Elbridge Gerry of Massachusetts

3. What 13 colonies were asked to send delegates? (Correct: Georgia, South Carolina, North Carolina, Virginia, Maryland, Delaware, Pennsylvania, New York, New Jersey, New Hampshire, Massachusetts, Connecticut)

ML: Named all 13.

TB: Named all 13, but also said Ohio and was given a one-point deduction.

4. Who approved the seal of the United States that is still used today?

ML: No idea.

TB: No idea.

Correct: John Hanson, president under the Articles of Confederation.

5. How many amendments have been ratified in the month of December?

ML: 13

TB: 15

Correct: 12. The Bill of Rights, plus the 13th and 21st amendments.

Trivia Score:

ML: 15/21 points.

TB: 12/21 points.

Short answers
1. If you think the federal government has exceeded its power under the Constitution, how would you phrase a test to determine the limits of its power?

ML: Any power appropriately exercised by Congress needs to be one that can be traced to the text of the Constitution. as it was understood by the founding generation. By itself, that isn't going to answer every question, but it frames the analysis. Many, if not most, federal laws and federal programs trace this authority to the commerce clause. More laws trace their origin to that provision than any other. I think, with the commerce clause, that standard I just described would be helpful in that it would provide some meaningful limits. The founding generation would have understood that clause as giving Congress the power to make uniform interstate transactions.

TB: I think the enumerated powers act is a good guideline. If it's not specifically allowed in Article 1, Section 8, then it should be left to the states as per the Bill of Rights. I would say the states should be have the first level of responsibility, unless it's specifically allowed in Article 1.

2. Does the federal government have the power to criminalize marijuana possession even in a state that allows medicinal marijuana usage? Why?

ML: If what we're talking about is the bare possession of medical marijuana ... the current policy of the federal government on medical marijuana defers to state sovereignty. It's a state sovereign decision on the bare possession of marijuana for medical purposes. The Supreme Court decided in 2005, I think it was in Ashcroft v. Raich, that the authority of Congress does, in fact, extend to the bare, non-commercial possession of marijuana for medical purposes. Congress may properly, and has in fact, prohibited that. But I actually think that decision was wrong. That's a state prerogative, not a federal prerogative.

TB: It's up to the states to decide their drug policies and drug laws.

3. Can a state legislature declare a federal law to be invalid within the state?
ML:
It can declare it, but it's not going to be recognized in federal court.

TB: They certainly should challenge, and have challenged. The question is whether the courts would recognize that. But the states can stand up. As per the health care the nullification legislation, as they have done after ObamaCare was passed, I would say yes.

4. Are there areas in which the federal government must have exclusive power?

ML: Yes. There a number of areas, and I'll list a few: foreign relations; anything dealing with military power; any kin d of treaty; anything dealing with imports or exports, like tariffs; anything trying to regulate commercial transactions that take place between the states or with foreign nations.

TB: Maintaining an Army and Navy. Creating a court system. Coining and regulating money. They certainly have the power to tax all of the citizens of the U.S., per the Constitution. They set immigration policy. They set banking rules. Did I mention tribunals? Specifically, those areas that are set aside by the Constitution as reserved for Congress, and the powers reserved for the Executive branch in Article 2. They also have the power to establish the Supreme Court and set a check-and-balance between the branches of government.

5. Can a suspected drug dealer or a suspected terrorist be questioned without being given Miranda warnings? If those are different answers, then how do we tell the difference between a suspected terrorist and a suspected drug dealer? (By drug dealer, we're talking about drug lords or cartel bosses, not the basement pot dealer selling dime bags).

ML: The answer to both questions is yes. A suspect can be questioned without Miranda warnings if they are subject to what is known as a carry stop. They could be questioned if the officer has a reasonable, articulable suspicion that a law has been broken, the officer can initiate a brief stop and ask questions to the extent necessary to ascertain, to confirm or dispel, the reasonable, articulable suspicion. But that conversation can only continue last as long as reasonably necessary. So yes, you can question somebody without Mridanda warnings. Miranda warnings are only issued upon arrest.

TB: I believe that people who are deemed terrorists should be held as enemy combatants and tried in a military tribunal, so they would not have the Miranda rights. If they are U.S. Citizens, they certainly have those rights if they're arrested. But there's a fine line between deciding, in the modern world, if we have a terrorist who also holds American citizenship. We have to tread lightly to recognize those rights, but also to recognize it's a national security issue if someone is performing terrorist acts against the United States. The cartel example, if they're not an American citizen and deemed an enemy of the United States then you would have to push them into the enemy combatant arena. It depends on how they're captured and arrested, I suppose. If it's a military effort, then those captures would be in the form of enemy combatant. But if they're captured by the [Drug Enforcement Agency] or local law enforcement on American soil, then I think they are usually read those rights.

6. At what point does an interrogation technique become "cruel and unusual punishment?"

ML: Certainly, if it inflicts any lasting permanent bodily injury, if it impairs bodily functions, or if it presents a significant risk of causing lasting, permanent psychological damage.

TB: It steps across the line when it becomes physical interrogation.

7. Should land management be the exclusive domain of the states?

ML: Whose land? If it's land that belongs to the federal government, I don't think the states have exclusive domain over federal lands. In fact, in many instances, Article I, Section 8, clause 17 would say that Congress has exclusive legislative jurisdiction over some federal lands, if they're obtained by the federal government in the manner described in Article 1, Section 8, Clause 17, then Congress is the sole, sovereign lawmaking body over that land. Other lands not so acquired, they wouldn't. If we're not talking about federal land, but land in general, land regulation is outside of the federal land context. It's always going to be states, or local governments, but local governments are considered political subdivisions of states.

This hasn't been borne out in the courts, but a literal, historic reading of Article 1, Section 8, Clause 17 would say that states do have that authority unless that land was acquired in such a way that the state legislature gave its consent to give exclusive, sovereign lawmaking power over that land to Congress.

TB: Yes.

8. If a religious belief conflicts with federal law, which should take precedence? What about state laws?

ML: There's nothing that government can do to punish religious belief or prohibit religious belief. The question, phrased as it is ... the only way to answer that question is to say religious belief takes precedence. Neither federal or state governments may, consistent with the 1st Amendment as its interpreted by the Supreme Court, can prohibit any religious belief. If we're talking about conduct based on religious belief, then whether or not that conduct will protected by the 1st Amendment's free-exercise clause will likely turn on whether that law is religiously neutral, and generally applicable, standard that isn't trying to regulate a religious belief.

TB: The courts would have to determine if it's a violation of the 1st Amendment or not. I believe that as long as other people are not harmed, or people are not harming themselves with a religious belief, then it would be protected under the 1st Amendment.

9. If you could repeal one Constitutional amendment, which would it be?

ML: Probably the 16th (income tax).

TB: 16th.

10. If you could pass a Constitutional amendment, what would it protect?

ML: Require Congress to pass a balanced budget. There are lots of them that we could talk about that would be good ideas, but the most important, no doubt, would be requiring Congress to balance the budget.

TB: Cap on federal spending and requiring balanced budget, and also include term limits in the amendment. I would limit House members to six terms, and Senators to three terms.

11. Bonus question: Which Founding Father is your least favorite?

ML: Alexander Hamilton. He was clearly a bright guy, but his expansive reading of the spending clause has always bothered me.

TB: Alexander Hamilton. He was oriented more towards a big state then smaller states, and he tended to be very argumentative. He had a temper, not that that disqualifies someone. But he was not in the same frame as [Thomas] Jefferson, [James] Madison or [John] Adams in terms of public service. He was more self-interested.

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