Sen. Mike Lee (R-UT) has left no doubt that he cannot tell the United States Constitution from a buzzsaw designed to reduce America’s safety net into sawdust. Long before he became a lawmaker, he was on record claiming that Social Security and Medicare are unconstitutional.

Speaking on a panel at the Conservative Political Action Conference yesterday, Lee admitted to the full implications of his backwards view of our founding document. All spending on national programs intended to secure Americans’ retirement or provide for their health are unconstitutional:

QUESTION: What programs that we now call entitlement spending are part of the enumerated powers of Article I, Section 8 [of the Constitution]?

LEE: There are those that will tell you that those are based on the Spending Clause, in, uh, clause one of Article I, Section 8. That was the justification advanced at the time these programs were created. And it rested on an expansive interpretation provided by the Supreme Court saying, in essence, Congress can spend anything it wants, as long as it has tax revenues coming in, or, as it turns out, even if it doesn’t. It can spend it on whatever it wants.

This can’t be reconciled with the original understanding of the clause. If you go back to founding era documents, to discussions around state ratification debates — the Federalist Papers — they understood the Spending Clause as being there to spend money on those powers that were duly enumerated. . . . If these kinds of programs, ah, were to come forward and we were really following the original understanding of the Constitution, we’d say let’s do these at the state level, and the local level. Never at the federal level.

Watch it:

Lee’s odd reading of the Constitution cannot be squared with the text of the document itself. Had Lee actually bothered to read the founding document, he’d know that the United States may “collect taxes . . . to pay the debts and provide for the common defense and general welfare of the United States.” Medicare, Social Security and other such safety net programs clearly provide for the nation’s “general welfare” and thus are unambiguously constitutional if you take the text of the document seriously.

Moreover, Lee’s description of early constitutional history is misleading at best. The reality is that there were two very distinct camps regarding how the Constitution should be interpreted in the early days of the Republic. James Madison led one camp, which believed that America should read the Constitution much more narrowly than its text suggests — although, to Madison’s great credit, he openly admitted that his preferred reading of the Constitution is inconsistent with its “literal” meaning.

Alexander Hamilton led a different faction which rejected the idea that the Constitution creates restrictions that don’t exist in its text, and the Supreme Court unanimously adopted Hamilton’s view in the very first Supreme Court decision to consider the question. More recently, conservative Justice Antonin Scalia laughed openly at the suggestion that this debate should be reopened, stating that “of course it’s not” the proper role of judges to second guess how Congress decides to spend money.

In other words, Lee’s position doesn’t just place him at the lunatic fringe of constitutional thinkers, it also puts him at the lunatic fringe of conservative constitutional thinkers.

Last month, the Obama Administration approved important regulations under the Affordable Care Act requiring health plans to cover contraceptive services. Never one to miss an opportunity to falsely claim something related the the ACA violates the Constitution, Speaker John Boehner (R) said today that these regulations are unconstitutional:

House Speaker John Boehner (R-Ohio) said that the mandate that health insurance plans provide contraceptives at no charge “violates our Constitution,” because it forces Catholics to violate their consciences.

“I think this mandate violates our Constitution,” Boehner said during his weekly news conference Thursday.

Boehner said that there was “a lot of opposition” to the new regulations enacted by the Department of Health and Human Services, because it forces Catholics to provide access to contraceptives despite the fact that the Catholic Church holds that contraception is immoral.

It’s important to note that the regulation exempts churches that provide health insurance to their employees and nothing in the regulations require health providers with religious objections to proscribe contraception. Additionally, it’s not exactly true that “Catholics” believe what Boehner claims they believe. Although the conservative United States Conference of Catholic Bishops does indeed object to these regulations, 98 percent of sexually active Catholic women use contraception.

Boehner’s constitutional analysis, moreover, is completely absurd. There is nothing in the Constitution saying that a person does not have to comply with the law simply because they object to it — if this were actually true, anyone could immunize themselves from paying taxes simply by claiming a moral objection to doing so. Nor does the Constitution allow people to violate the law simply because they have a religious objection to it.

The seminal Supreme Court opinion establishing this point was written by conservative Justice Antonin Scalia — who, coincidentally, is Catholic. Scalia explains that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” In other words, so long as a law does not single out Catholics (or any other faith) for inferior treatment, the law applies universally to everyone.

Ultimately, however, it is not surprising that Boehner is once again mouthing off about the Constitution without understanding what it actually says. The Speaker, of course, is a proud supporter of the lawsuits challenging the Affordable Care Act, despite the fact that a leading conservative judge that the case against the ACA has no basis “in either the text of the Constitution or Supreme Court precedent.”

Washington state Reps. Matt Shea (R), Cary Condotta (R), Jason Overstreet (R) and Jim McCune (R) apparently believe that the U.S. dollar itself is unconstitutional because it is not gold or silver. Worse, if a bill they introduced late last week should become law, this strange vision of the Constitution would be written directly into their state’s law. According to their bill,

Only gold and silver may be recognized as government legal tender under Article I, section 10 of the United States Constitution, which gives the states the power to enact gold and silver based legal tender laws, “no state shall . . .; make any Thing but gold and silver Coin a Tender in Payment of Debts.” . . . The general government has failed to abide by Article I, section 8 of the United States Constitution: “To coin Money, regulate the Value thereof and of foreign Coin, . . .” and provide market value for gold and silver coins for circulation as currency among the states.

All of this, of course, is constitutional gobbledygook. While it is true that the Constitution does forbid states from making something other than gold or silver into legal tender, the American dollar is a creation of the federal government — which is an entirely different thing than the states! Likewise, there is nothing in the Constitution that requires the federal government to “coin” gold or silver money. The Constitution gives Congress the power to mint such coins if it wants to. It also, however, permits the United States to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Creating a national currency that can be used for all commercial transactions throughout the United States easily fits within this power. The Supreme Court also upheld America’s power to use a paper currency as recently as the 1800s, although it relied upon somewhat more complex reasoning.

Nevertheless, strange bills intended to undermine the U.S. dollar have popped up across the nation — many of which attempt to make bizarre changes to how a state or its citizens do business. A Georgia bill, for example, forbids anyone from doing business with the state unless the transaction is conducted with gold or silver coins. Similarly, a Utah bill would allow citizens to mint their own gold and silver coins.

Later today, Texas Gov. Rick Perry is expected to drop out of the Republican presidential race and endorse former Speaker Newt Gingrich. Not too long ago, however, Gingrich provided Perry with an endorsement of his own. In 2010, Perry published Fed Up!, a screed against the federal government which claims that Social Security, Medicare and, indeed, most of the progress of the 20th century is unconstitutional. Gingrich wrote the foreword to Perry’s book, and he wholeheartedly endorsed the book as a “handbook” that will arm “every American” with “the facts so that you can inform your family, friends and neighbors”:

Lest there be any doubt, Fed Up! is not the least bit ambiguous when it claims that America’s safety net violates the Constitution. The passage calling Social Security unconstitutional, for example, clearly and unequivocally states that Social Security exists “at the expense of respect for the Constitution” (note: the font in this clip is different because it is not available online and had to be captured on a Kindle reader):

Eighteen months after Gingrich lavished praise on Perry’s narrow vision for America, he will now share a stage with the radical governor and accept his endorsement. Given Fed Up!‘s complete clarity in laying out Perry’s view of the Constitution, however, it is difficult to believe that Gingrich did not know exactly what he was praising when he drafted such an effusive foreword to Perry’s book.

Now that Gingrich has emerged as one of the two leading contenders for the GOP presidential nomination, he has an obligation to explain whether he still believes, as Perry does, that Social Security is unconstitutional. Moreover, if Gingrich has since abandoned that belief, he has an equal obligation to explain what happened in the last eighteen months to change his mind on such an important constitutional question.

The 10th Circuit Court Of Appeals struck down Oklahoma’s ban on Sharia law today, declaring that the Sooner State’s move violated the United States Constitution.

In November 2010, Oklahoma voters approved a ballot initiative to prevent Sharia law from being used in the state, something that even the measure’s defenders could not identify ever happening. (To learn more about what Sharia law actually is, read this brief primer.) Following Oklahoma’s lead, Sharia hysteria soon made its way to other states – including Arizona, Louisiana, and Tennessee – orchestrated by a small group of anti-Muslims misinformation experts we profiled in a report entitled Fear Inc.: The Roots of the Islamophobia Network in America.

Before the Oklahoma law could take effect, however, a federal judge issued an injunction blocking the measure while courts considered its constitutionality. The 10th Circuit, which includes one George W. Bush appointee, a Carter appointee, and an Obama appointee, heard oral arguments in September 2011.

Today, the 10th Circuit unanimously affirmed the lower court’s permanent injunction. In a 37-page decision, the three-judge panel agreed that Oklahoma’s Sharia ban violated the First Amendment’s Establishment Clause and was therefore unconstitutional. On page 32, the 10th Circuit identified the heart of the matter, that Oklahoma’s move had no basis in reality but simply singled out Muslims for discrimination.

Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma. See Awad, 754 F. Supp. 2d at 1308; Aplt. App. Vol. 1 at 67-68.

Given the lack of evidence of any concrete problem, any harm Appellants seek to remedy with the proposed amendment is speculative at best and cannot support a compelling interest.15 “To sacrifice First Amendment protections for so speculative a gain is not warranted . . . .” Columbia Broad. Sys., Inc. v. Democratic Nat’l Co., 412 U.S. 94, 127 (1973).

The 10th Circuit is the highest court to date to strike down an anti-Sharia law. It is not yet clear if Oklahoma will appeal the ruling to the Supreme Court.

Today’s decision is a seminal moment in the ongoing battle against Islamophobia. As anti-Muslim individuals continue to push Sharia hysteria in other states, many legislators may think twice before passing a law deemed unconstitutional by the 10th Circuit.

Two such prominent individuals are David Yerushalmi, author of anti-Sharia legislation, and Frank Gaffney, president of the Center for Security Policy and leading anti-Muslim advocate. In a July 2011 New York Times article, Gaffney noted that the two wanted to “engender a national debate about the nature of Shariah and the need to protect our Constitution and country from it.” In an ironic twist, today’s ruling ultimately concluded that it was the Constitution which needed protecting from the Islamophobia network.

The Supreme Court’s egregious Citizens United decision was not just, as Justice Stevens wrote in dissent, “a rejection of the common sense of the American people,” it is also easily one of the worst Supreme Court decisions in American history. Its holding that corporations can spend unlimited funds to buy and sell elections belongs in the same dustbin as separate but equal and the entire corporations before people doctrine of the misguided Lochner Era in the early 20th Century.

As has now been widely reported, the Montana Supreme Court recently tried to consign Citizens United to its well deserved fate by essentially holding that the U.S. Supreme Court’s folly does not apply in Montana. I have genuinely struggled about what to say about this 5-2 decision — which is why ThinkProgress has not reported on it prior to this post. On the one hand, the Montana justices defied an obviously wrong decision that threatens to turn American democracy into an auction that sells essential government jobs to whichever special interest group happens to be the highest bidder. On the other hand, ThinkProgress has been unequivocal in condemning conservative officials who believe that they have the power to defy Supreme Court decisions they disagree with, or who think that states can simply ignore federal law or the Constitution.

We will not abandon this commitment to the rule of law today. It is wrong when Newt Gingrich plots a campaign of massive resistance against judges he disagrees with, and Montana’s justices act no less illegitimately when they fail to follow a binding Supreme Court precedent. There is no reason to doubt that every word of the Montana Supreme Court’s decision — which explains in great detail how corporate money corrupts a state’s politics — is accurate, except for the part when they say that Citizens United does not force them to allow corporations to corrupt Montana.

Yet, while the Montana justices erred, they erred far less than the five U.S. Supreme Court justices who ignored the Constitution and decades of precedent to strike down a 63 year old ban on corporate money in politics. The U.S. Supremes will doubtless decide they need to review the Montana decision. They should do so, and they should reverse their error in Citizens United as soon as possible to minimize its impact on the upcoming election.

Additionally, every judge in the country should read Montana Justice James Nelson’s dissent from the decision rejecting Citizens United. He devotes most of the last eight pages of this decision to explaining why, despite the fact that he is bound by Supreme Court precedent, the one that binds him today is disastrously wrong:

While, as a member of this Court, I am bound to follow Citizens United, I do not have to agree with the Supreme Court’s decision. And, to be absolutely clear, I do not agree with it. For starters, the notion that corporations are disadvantaged in the political realm is unbelievable. Indeed, it has astounded most Americans. The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping. In my view, Citizens United has turned the First Amendment’s “open marketplace” of ideas into an auction house for Friedmanian corporatists. Freedom of speech is now synonymous with freedom to spend. Speech equals money; money equals democracy. This decidedly was not the view of the constitutional founders, who favored the preeminence of individual interests over those of big business. [...]

Lastly, I am compelled to say something about corporate “personhood.” While I recognize that this doctrine is firmly entrenched in the law, I find the entire concept offensive. Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.

Even in an era when corporate interest groups dominate the U.S. Supreme Court, judges lack the authority to defy the high Court’s commands. What they can never lose, however, is their right to speak out in published opinions about how deeply misguided the nation’s highest Court has become. Justice Nelson’s opinion should be the model for every judge who fears the Supreme Court has forgotten to follow the very Constitution it is sworn to uphold.

At town hall event in Northfield, New Hampshire today, GOP presidential hopeful Rick Santorum reiterated his call for abolishing the U.S. Court of Appeals for the Ninth Circuit and floated the idea of shipping its judges off to Guam.

Santorum said the court is overly liberal and imposing a “reign of terror of California judges” on other Western states, but acknowledged that outright abolition of the court wouldn’t be exactly constitutional, as judges are guaranteed lifetime appointments. So, Santorum suggested, perhaps jokingly, “maybe we can create a court that puts them in Guam or something like that and keep their life appointments” and be safely quarantined. Watch it:

Santorum also channeled Rick Perry a bit, joking he harbors more nefarious intentions for the current Ninth Circuit judges: “I have some ideas that I won’t share publicly.”

When rival GOP candidate Newt Gingrich also proposed abolishing the Ninth Circuit, former George W. Bush Attorneys General Michael Mukasey and Alberto Gonzales called the plan “ridiculous,” “irresponsible,” and “troubling.” Indeed, as ThinkProgress’ Ian Millhiser has explained, abolishing a federal court because the president doesn’t agree with their rulings is a dangerous breakdown of the separation of powers.

As ThinkProgress predicted yesterday, congressional Republicans did not wait long to whine that President Obama’s wholly legal decision to recess appoint Richard Cordray is unconstitutional. According to a blog post written by Speaker John Boehner’s staff, the Cordray appointment is unconstitutional because Obama defied an imaginary time-limit on his recess power and failed to respect the Senate’s decision to pretend that it’s actually doing something:

President Obama today made an unprecedented “recess” appointment even though the Senate is not in recess – “a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” according to Senate Republican Leader Mitch McConnell (R-KY).

It turns out that the action not only contradicts long-standing practice, but also the view of the administration itself. In 2010, Deputy Solicitor General Neal Katyal explained to the Supreme Court the Obama administration’s view that recess appointments are only permissible when Congress is in recess for more than three days.

First of all, Boehner needs to learn to count. For constitutional purposes, the Senate has been in recess since December 23. Although a single senator has opened a pretend session that lasts about half a minute — what is known as a “pro forma” session — every three days since then, these pro forma sessions have no impact whatsoever on the president’s recess appointment’s power. As Steven Bradbury and John Elwood, two key constitutional advisors during the Bush Administration, explained in 2010:

Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not “in session for the appointment of officers.” . . . [A 1905 Senate report] cautioned that a “recess” means “something actual, not something fictitious.” The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”

The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president’s nominations. That means the Senate remains in “recess” for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.

Moreover, even if the Senate could stave off a recess by convening in the Neighborhood of Make Believe, it is simply not true that three days must pass before the president’s recess power kicks in. Though it’s true that Katyal once said that “I think our office has opined the recess has to be longer than 3 days,” an off-the-cuff comment by the Deputy Solicitor General does not have the power to change what the Constitution actually says. As the highest court to consider issue explained, “[t]he Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.”

New Hampshire Republicans are taking textual originalism to a whole new level: three lawmakers have proposed a bill that requires that all legislation find its origin not in the U.S. constitution, but an English document crafted in 1215.

When the legislature reconvenes this month, Republicans want their colleagues to justify many new bills with a direct quote from the 800-year-old Magna Carta:

House Bill 1580 is the product of such a brainstorming session this summer between three freshman House Republicans: Bob Kingsbury of Laconia, Tim Twombly of Nashua and Lucien Vita of Middleton. The eyebrow-raiser, set to be introduced when the Legislature reconvenes next month, requires legislation to find its origin in an English document crafted in 1215.

“All members of the general court proposing bills and resolutions addressing individual rights or liberties shall include a direct quote from the Magna Carta which sets forth the article from which the individual right or liberty is derived,” is the bill’s one sentence.

The Magna Carta, while famed as the first major declaration of rights under English monarchy, is a bit outdated in its actual prose.

The Magna Carta is indisputably an important historical document, with ideas about liberty that inspired America’s founders. But as the Concord Monitor points out, the substance of the document is fixated on the tedium of feudal times, and has little if any relevance to modern American life.

New Hampshire lawmakers might have trouble applying passages like, “We shall straightway return the son of Llewelin and all the Welsh hostages,” or, “If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age.”

One of the bill’s sponsors admitted that he wasn’t terribly familiar with the actual text, and mainly saw the measure as an homage. New Hampshire Democratic Party spokesman Ray Buckley said he was “mostly speechless” when he heard about the bill. “I appreciate all the hard work the Republican legislators are putting into the effort to make them look like extremists,” he said. “Saves us the trouble.”

Conservatives have long prided themselves on being constitutional “purists” who want to strip government down to the basic form they say was laid out in the country’s founding document. But requiring textual justification from another country’s founding document, which has no legal history or authority in the U.S., is a curious extension of that principle.

As the country’s focus shifts from the Iowa caucus to the more influential New Hampshire primary, it’s worth noting that the state’s Republicans apparently trying to repeal not just the 20th century “welfare state,” or even the 20th century, but the modern era entirely.

(HT: Working America)