Indiana U.S. Senate candidate Richard Mourdock, the Tea Party candidate who proclaimed that “bipartisanship ought to consist of Democrats coming to the Republican point of view” shortly after defeating longtime incumbent Sen. Richard Lugar (R-IN), does not think he should be elected to the U.S. Senate. Indeed, he believes that it should be unconstitutional for anyone to run for the Senate. At a campaign event last February, the Tea Party candidate came out against the Seventeenth Amendment, which ensures that senators will be chosen by elections and not by state legislatures:

You know the issue of the 17th amendment is so troubling to me, our founding fathers, again those geniuses, made the point that the House of Representatives was there to represent the people. The Senate was there to represent the states. In other words the government of the states. . . . You know I think most senators if they had to come back every two years and by the way that would solve another problem. It would solve the idea that Senators move out of their state and never return. But it would cause those senators to have much greater contact with their states. You know just think of this. In today’s you see millions and millions of dollars spent on Senate campaigns. Two years ago, in 2010, Sharon Angle out in Nevada spent 31 million dollars, just herself. How much money would be spent in federal senate races if the state legislators were electing those people. You just took the money out of politics. Is that a bad thing?

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Mourdock is certainly right that eliminating U.S. Senate elections would end the practice of corporations and wealthy individuals throwing millions of dollars to change the result of those elections. Indeed, under Mourdock’s logic there’s no reason to stop there. If we simply named someone the hereditary monarch of the United States — King Mitt I — then no one would ever spend money to influence an American election again!

Mourdock is dead wrong, however, to suggest that ending Senate elections would eliminate corruption. Rather, one of the primary forces driving the Seventeenth Amendment’s ratification was the fact that the old system led to a kind of Citizens United on steroids:

[T]he system led to rampant and blatant corruption, letting corporations and other moneyed interests effectively buy U.S. Senators, and tied state legislatures up in numerous, lengthy deadlocks over whom to send to Washington, leaving those bodies with far less time to devote to the job of enacting the laws their states needed for the welfare of the people.

Sadly, Mourdock is not the first major Republican to say that the American people should not be allowed to elect their own senators. Texas Gov. Rick Perry believes this, as does Sen. Mike Lee (R-UT) and Justice Antonin Scalia.

There aren’t many things Sen. Mike Lee (R-UT) doesn’t believe to be unconstitutional. While it probably would not be possible to count every essential law or program that violates Lee’s tenther understanding of the Constitution, a short list includes Medicare, Medicaid, Social Security, FEMA, the FDA, federal income assistance for the poor and national child labor laws.

So it’s really not that much of a surprise that he found yet another law he thinks is unconstitutional today. This time, it’s the entire Violence Against Women Act:

[The Violence Against Women Act] oversteps the Constitution’s rightful limits on federal power. Violent crimes are regulated and enforced almost exclusively by state governments. In fact, domestic violence is one of the few activities that the Supreme Court of the United States has specifically said Congress may not regulate under the Commerce Clause. As a matter of constitutional policy, Congress should not seek to impose rules and standards as conditions for federal funding in areas where the federal government lacks constitutional authority to regulate directly.

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Once again, Lee might want to consider reading the Constitution before he behaves like he’s an expert in what it says. Although it’s true that Congress cannot prohibit domestic violence under its power to regulate commerce — unlike, say, a comprehensive regulation of the nation’s health care market, domestic violence laws are not economic regulation — the Constitution permits Congress to do a whole lot more than just regulate the nation’s economy. Specifically, the Constitution allows our national leaders to “to pay the debts and provide for the common defense and general welfare of the United States,” and there is simply nothing in the Constitution’s text that prevents Congress from providing for the general welfare by funding grants that states can use to combat domestic violence.

Lee, however, has made quite a political career out of ignoring the text of the Constitution — and wielding his fake Constitution to declare that pretty much any federal law that protects the sick, the unfortunate, the young, the old and, now, women is somehow unconstitutional.

Shortly after President Obama announced that he would recess appoint four officials in order to prevent Senate Republicans from effectively shutting down two key agencies through a filibuster, Sen. Mike Lee (R-UT) compared Obama’s actions to Pearl Harbor and promised a scorched earth campaign of obstruction against every one of the president’s nominees.

Fortunately, even most of Lee’s fellow Republican senators deemed Lee’s tantrum to be overblown. Last February, when the Senate voted to confirm Judge Cathy Ann Bencivengo shortly after Lee announced his obstruction campaign, only five of Lee’s colleagues joined him. Yesterday, the Senate voted to confirm Judge Stephanie Thacker to a seat on the United States Court of Appeals for the Fourth Circuit, and Lee was only able to convince Sens. Jim DeMint (R-SC) and David Vitter (R-LA) to join him in opposition. Even Tea Party stalwarts like Sen. Rand Paul (R-KY) who joined Lee in opposing Bencivengo, broke with Lee on Thacker.

Earlier this year, Tea Party Sen. Mike Lee (R-UT) announced that he would oppose each of President Obama’s nominees in retaliation for the fact that Lee believed the president’s recent recess appointments to be unconstitutional. Lee also believes that national child labor laws, Social Security, Medicare, FEMA, food stamps, the FDA, and income assistance for the poor are unconstitutional.

Regrettably, Lee’s fellow Tea Partier Sen. Jim DeMint (R-SC) has now decided to follow Lee’s lead:

DeMint, who voted last fall for two Obama judicial choices from South Carolina, said he’s now rejecting all of the president’s nominees to protest his winter recess appointments of four controversial nominees to avoid GOP opposition.

“President Obama has shown a complete disdain for the people’s elected representatives and our duty to advise and consent on nominations,” DeMint told McClatchy.

“Unless he revokes his unprecedented recess appointments that defied the constitutional role of Congress, I don’t intend to support any of his judicial nominees this year,” DeMint said.

Needless to say, Lee and DeMint are wrong about the constitutionality of the president’s recess appointments. They and many of their fellow congressional Republicans have argued that the Senate can defeat the president’s recess appointments power by having a single senator hit the Senate’s gavel twice every three days (this is not an exaggeration). Yet, as two of President George W. Bush’s top constitutional advisors explained in 2010, the question of whether the president can make recess appointments does not turn on whether the Senate engages in some empty formality, rather, “the question ‘is whether in a practical sense the Senate is in session so that its advice and consent can be obtained.’”

Because the Senate was out of town and conducting no business when the president named his recent recess appointments, there is no good reason to doubt their constitutionality.

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.

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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.

Newsday reports that Wendy Long, a former law clerk to tenther Justice Clarence Thomas who is best known for spearheading several inaccurate race baiting attacks against Justice Sonia Sotomayor during Sotomayor’s confirmation process, is considering running for Senate against Sen. Kirsten Gillibrand (D-NY) this year. Long, however, is not simply significant for her racially-questionable attacks on Sotomayor. She would also be the latest GOP Senate candidate to bring both genuine legal credentials and a deeply radical tenther vision of the Constitution to the race.

In 2008, Long penned a book review which not only slams the late Justice Thurgood Marshall’s rather banal statement that the original Constitution was a flawed document because it allowed slavery and discrimination, it also embraces one of her former boss’ most radical views — praising an opinion by Justice Thomas which would lead to everything from national child labor laws to the federal ban on whites-only lunch counters being declared unconstitutional. Sadly, such bizarre distortions of the Constitution has become increasingly common on the campaign trial in the post-Tea Party era:

• Sen. Mike Lee (R-UT), a former law clerk to Justice Samuel Alito, shares Long and Thomas’ radical belief that national child labor laws violate the Constitution. He’s also claimed that Medicare and Social Security — among many other things — are unconstitutional.
• Ted Cruz, a former Texas solicitor general and law clerk to Chief Justice William Rehnquist, proposed using an unconstitutional backdoor method to get states to nullify the Affordable Care Act and he co-authored a white paper advocating a reading of the Constitution that would eliminate Medicaid and most federal education funding.
• Joe Miller, a Yale law grad and former federal magistrate judge, ran for Senate in 2010 on the platform that pretty much everything is unconstitutional — including Social Security, Medicare, the federal minimum wage, and unemployment benefits.

There is hardly an outpouring of support for this kind of candidate. Long is far from the favorite to win in a solid blue state like New York, especially after Gillibrand so recently spanked her GOP opponent during a cycle that otherwise favored Republicans. Likewise, the six outspoken tenther candidates who ran for Senate in 2010 massively underperformed the remainder of the GOP. Miller lost to a candidate whose name wasn’t even on the ballot. And Lee won in large part because he was able to manipulate the Utah’ GOP’s undemocratic method of choosing Senate candidates in order to get his name on the ballot in this blood red state.

Nevertheless, the emergence of multiple candidates who combine genuine legal credentials with a desire to declare nearly the entire Twentieth Century unconstitutional is a troubling trend, and one that could have long term consequences for American policy. Few Democratic officials have the same comfort discussing constitutional matters as a Mike Lee or a Wendy Long, even if Lee and Long are consistently wrong about how they read the Constitution. If this trend continues, it will mean that voters will receive a continuous diet of constitutional garbage with little constitutional reality presented to them as an alternative. And if only one side makes its case to the electorate, it won’t be long before the inmates take over the asylum.