Alberto Gonzales knows something about distorting the law. As George W. Bush’s White House Counsel, he called the Geneva Convention’s protections for wartime prisoners “quaint” and played a key role in authorizing the Bush Administration’s torture policies. As Attorney General, he presided over massive efforts to politicize the Justice Department’s hiring process, infamously delegating responsibility for much of DOJ’s hiring to former Republican National Committee opposition researcher Monica Goodling.

And yet, in an interview on Fox News this afternoon, even he couldn’t bring himself to claim that the Affordable Care Act is unconstitutional:

QUESTION: Some on the right are now saying they are concerned that Chief Justice Roberts is not going to go along with the way they want to see this case come out. They believe he might go with the liberals in a possible decision to uphold the law. As you say, having been the man to recommend him to the high Court to President Bush, what is your anecdotal thought on it?

GONZALES: This is a very hard decision. I almost laugh when I hear pundits say it’s going to go this way, it’s going to go that way, it’s a fairly easy decision. I think this is a very difficult decision.

Watch it:

For the record, it’s not just “pundits” who say that this is an easy case. It’s also iconic conservative judges. Judge Laurence Silberman, who received the Presidential Medal of Freedom from Gonzales’ former boss, upheld the law because the case against it “cannot find real support . . . in either the text of the Constitution or Supreme Court precedent.” Judge Jeffrey Sutton, a former law clerk to conservative Justice Antonin Scalia who spent much of his pre-judicial career looking for ways to undermine federal power, nonetheless wrote his own opinion rejecting a challenge to the Affordable Care Act. And Judge J. Harvie Wilkinson, one of the finalists for the Supreme Court seat President Bush eventually gave to Chief Justice Roberts, called the case against health reform “a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.”

So the Affordable Care Act lawsuit is not a hard case — it is one of the easiest cases the Supreme Court has heard in years. The fact that former Bush Administration official who devoted much of his career to placing politics ahead of the law isn’t willing to embrace the case against health reform only lends credence to that fact.

According to a poll by the Marijuana Policy Project, nearly three quarters of respondents believe that the federal government should defer to a state’s decision to legalize marijuana for certain uses, even when federal law calls for stricter enforcement:

QUESTION: Currently, 16 states plus the District of Columbia have made the medical use of marijuana legal. In some of these states, individuals have been authorized to cultivate and sell medical marijuana under tightly regulated conditions. However, medical marijuana use remains illegal under federal law, even in states that have passed laws or ballot measures that allow it for medical treatment.

Do you feel President Obama should: (ORDER ROTATED)

- Respect the medical marijuana laws in these states, or

- Use federal resources to arrest and prosecute individuals who are acting in compliance with state medical marijuana laws? . . .

RESPECT STATE LAWS 74% . . .
PROSECUTE FED LAW 15% . . .
NOT SURE 11% . . .

To be fair, much of the language in this poll question is highly suggestive — the phrase “tightly regulated conditions,” for example, implies that marijuana use will still be closely guarded even in states with relatively permissive laws — so it is likely that the poll would not have achieved such a dramatic contrast if it had used less loaded language. Nevertheless, the poll is consistent with other polls showing increased support for liberalization of marijuana policy, including a recent Gallup poll showing majority support for outright legalization.

The poll also highlights the very real political danger facing progressive lawmakers if they continue to support a marijuana policy that is both overreaching and unpopular. Regardless of how they poll, there is simply no question that federal marijuana laws are constitutional. The Constitution gives Congress the power to “regulate commerce . . . among the several states,” and this includes the power to ban a substance from commerce entirely. Moreover, states simply do not have the power to nullify federal laws that they do not wish their citizens to be required to follow.

Nevertheless, many tenther activists who believe that everything from Social Security to Medicare to national child labor laws violate the Constitution are aggressively trying to entice young people into their movement by highlighting the fact that their misreading of the Constitution would also lead to federal marijuana laws being declared unconstitutional — or, at least, significantly rolled back. Progressive lawmakers can ill-afford to cede a generation of young voters to an extremist movement simply because they would rather cling to policies the country neither wants nor benefits from.

Fourth Circuit Judge J. Harvie Wilkinson, one of President George W. Bush’s five finalists for the Supreme Court seat that eventually went to Chief Justice Roberts, has emerged as one of the most outspoken conservative opponents of efforts to toss out the nearly 200 years of precedent establishing that the Affordable Care Act is constitutional. As Wilkinson warned in an op-ed last March, “the prospect of judges’ striking down commercial regulation on ill-defined and subjective bases is a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.”

At a recent gathering of one of the nation’s leading conservative lawyers’ groups, Judge Wilkinson offered a similar warning — telling the gathered group of conservatives to back off efforts to constitutionalize Tea Party ideology:

And last month, receiving the Federalist Society’s Lifetime Service Award at Georgetown University, Judge Wilkinson hinted that the high court he nearly joined should think twice before striking down the symbol of everything contemporary conservatives revile—the health care overhaul President Barack Obama signed into law over near-unanimous Republican opposition.

“It may of course seem tempting to press the advantage when one seemingly has a judicial majority at hand. But this wheel shall turn,” Judge Wilkinson said. “Lasting credibility on an issue such as judicial restraint requires us to practice it, as the old saying goes, when the shoe pinches as well as when it comforts.” . . .

“It is also one thing to welcome the Tea Party as a political movement, quite another to embrace a Tea Party Constitution. Political disputation and constitutional debate are simply different things, and it does our democracy no favors to confuse one with the other.”

Wilkinson deserves a lot of credit for standing up for democracy at a time when his fellow conservatives have largely abandoned it in favor of what the judge describes as an effort to “press one’s views into our fundamental charter such that our opponents are left with no quarter and are defeated not in the temporary sense of a political ebb and flow, but in the more absolute tones of constitutional condemnation.”

Moreover, there should be no doubt that Tea Party constitutionalists are calling for a sweeping attack on American democracy. As a Center For American Progress report explained last September, a short list of laws that leading Tea Party lawmakers claim are unconstitutional includes Social Security and Medicare, Medicaid, children’s health insurance, and other health care programs, all federal education programs, all federal antipoverty programs, federal disaster relief, federal food safety inspections and other food safety programs, national child labor laws, the minimum wage, overtime, and other federal labor protections and many federal civil rights laws.

The John Birch Society is best known for touting conspiracy theories about how the United Nations is plotting to eliminate everything from paved roads to the game of golf, so all of their claims need to be taken with quite a few grains of salt. Nevertheless, their official magazine contains a very plausible report about Tea Party U.S. Senate candidate Dan Liljenquist (R-UT) that raises serious questions about his judgement if it is true. According to this report, Liljenquist told them they he will work to repeal the Constitution’s guarantee that voters — and not state lawmakers — get to elect United States senators:

[I]n a surprising answer to a question, Liljenquist informed The New American that he supports the repeal of the 17th Amendment. Regarding , [sic] Liljenquist explained his opposition to tthe [sic] popular election of the U.S. Senate that was effected by the ratification of the 17th Amendment to the Constitution:

“There is a disconnect between the state legislatures and the state delegations in Washington, D.C.” “I commit that if I ever lose the support of the Utah State Legislature, I will come home and not return to Washington,” he continued.

If this report is accurate, it is disturbing not just because of its content, but because Liljenquist decided to talk to this extremist group in the first place. Moreover, Liljenquist, has a well documented history of attacking the Seventeenth Amendment’s promise of democracy, so it is reasonably likely that the Birchers are telling the truth here.

At a campaign event in Morgan County, Utah, Liljenquist lamented the fact that, as a state lawmaker, the Seventeenth Amendment prevented him from imposing his will on his primary opponent Sen. Orrin Hatch (R-UT):

Liljenquist also talked about Senator Hatch. He said, “As a state legislator it has been very disappointing. We have almost no working relationship with our Senior Senator…It was supposed to be that the senate would represent the state and work with the legislature to make sure state’s rights were protected. Last year we passed a bill and we said, ‘Hey, we know that the seventeenth amendment is in place, we can’t tell you what to do, but come and consult with us, come and speak with us.’ Mike Lee said I understand that’s my role and Orrin Hatch said I don’t report to you.

Earlier this month, Liljenquist also claimed that there need to be term limits on Senators to help counteract the effect of the Seventeenth Amendment. And Liljenquist’s past digs on the Seventeenth Amendment are also part of a larger record of hostility to the Constitution. Indeed, a centerpiece of Liljenquist’s campaign against Hatch is Liljenquist’s belief that Hatch should not have voted to provide health care to children because Liljenquist believes a national program to heal children is unconstitutional. Indeed, his proposal for senatorial term limits is also unconstitutional.

Liljenquist also would not be the first prominent conservative to embrace the ludicrous idea that Americans should not be able to elect their own senators. Justice Scalia once slammed the Seventeenth Amendment, as has Sen. Mike Lee (R-UT) and Gov. Rick Perry (R-TX).

Liljenquist’s campaign did not return a request to confirm or deny the John Birch Society’s claim that he wants to make his own senate election unconstitutional. Nevertheless, in light of Liljenquist’s long pattern of hostility towards the Constitution, and his record of strange statements expressing suspicion about the Seventeenth Amendment itself, it seems reasonably likely that the Birchers’ reporting is accurate.

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.

Watch it:

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.

Most Republicans are smart enough not to openly admit that they think America’s social safety net is unconstitutional, even if they do misunderstand our founding document to prohibit Medicare or Medicaid or Social Security. Instead, the Republican leadership normally placates the most radical parts of their base with vague rhetoric about respecting the Tenth Amendment, without explaining that much of this rhetoric would undercut three generations of progress if it were ever taken seriously.

This weekend, however, delegates to the Utah GOP convention voted to force a primary that will determine whether Republicans in one of the nation’s reddest states are still satisfied with vague generalities — or whether they would prefer a senator who openly and proudly proclaims that it is unconstitutional for the United States to provide health care to children. On Saturday, tenther state lawmaker Dan Lijenquist (R-UT) earned enough support from convention delegates to force a primary against incumbent Sen. Orrin Hatch (R-UT). Lijenquist joins at least four other Republican senate candidates who believe the Constitution requires America to drown most of its protections for workers, consumers and the elderly in a bathtub:

• Dan Lijenquist: Lijenquist himself called the State Children’s Health Insurance Program (SCHIP) unconstitutional in at attempt to draw contrast between himself and Hatch, who once supported the program. It’s not clear what false theory of the Constitution Lijenquist bases this claim on, but a court decision striking down SCHIP would almost certainly have to take out Medicaid, and could endanger Medicare as well.
• Ted Cruz: Texas U.S. Senate candidate Ted Cruz co-authored a white paper suggesting that Medicaid and most federal education funding is unconstitutional. He also coauthored a complex but nonetheless unconstitutional plan to nullify the Affordable Care Act.
• John Raese: West Virginia U.S. Senate candidate John Raese, who is best known for declaring that “we need 1,000 laser systems put in the sky and we need it right now” when he also ran for the same job in 2010, also called the minimum wage unconstitutional during his failed 2010 race.
• Wendy Long: Long, a U.S. Senate candidate in New York, is a former law clerk to tenther Supreme Court Justice Clarence Thomas. She also penned a book review praising an opinion by her former boss which would lead to everything from national child labor laws to the federal ban on whites-only lunch counters being declared unconstitutional.
• Sam Rohrer: Pennsylvania U.S. Senate candidate Sam Rohrer gave a speech claiming that “such things as education, or health care, or for that matter even highways and roads” are limited to the states, a position that would lead to Medicare, all federal education funds & student loans and the entire federal highway system being invalidated.

Although these candidates’ views are increasingly common among Republican elected officials, it is somewhat baffling that Republicans are willing to repeat this strategy of running tenther extremists in their bid to take control of the Senate. In 2010 — a year that otherwise benefited Republicans — four of the six outspoken tenther Senate candidates went down in defeat.

Shortly after President Obama took office, his opponents began combing through constitutional history looking for discredited ideas they could revive to block progressive advances. Many embraced tentherism, the belief that everything from Social Security to Medicare to national child labor laws violates the Constitution. Two conservative federal judges recently took this even further, suggesting that all labor, business or Wall Street regulation should be treated as if it were just as constitutionally suspect as Jim Crow or government-enforced speech codes. Numerous lawmakers, including Govs. Rick Perry (R-TX), Bob McDonnell (R-VA) and Bobby Jindal (R-LA) embrace nullification, the unconstitutional idea that states can simply invalidate federal laws that they don’t want to follow. And, conservative orthodoxy now proudly embraces the ridiculous idea that the Affordable Care Act is unconstitutional.

Missouri state state Sen. Brian Nieves (R) puts most of these efforts to shame, however. In a rambling, somewhat incoherent proposed amendment to his state constitution, Nieves combines parts of the most unconstitutional tactics revived in the last three years, and mixes them in with a fundamental misunderstanding of conservative legal theory. As the amendment’s summary explains, Nieves proposal provides that:

The state also shall not recognize, enforce, or act in furtherance of any federal actions that: restrict the right to bear arms; legalize or fund abortions, or the destruction of any embryo from the zygote stage; require the sale or trade of carbon credits or impose a tax on the release of carbon emissions; involve certain health care issues; mandate the recognition of same sex marriage or civil unions; increase the punishment for a crime based on perpetrator’s thoughts or designate a crime as a hate crime; interpret the establishment clause as creating a wall of separation between church and state; or restrict the right of parents or guardians to home school or enroll their children in a private or parochial school or restrict school curriculum.

The state is also required to interpret the U.S. Constitution based on its language and the original intent of the signers of the Constitution. Amendments to the U.S. Constitution shall be interpreted based on their language and the intent of the congressional sponsor and co-sponsors of the amendment.

Much of this proposal is utter gobbledygook. It’s not at all clear, for example, what it means for Missouri to “recognize” a federal law regulating emissions or punishing hate crimes more severely than others. So long as Nieves’ proposed amendment isn’t read to suggest that Missouri can somehow prevent the federal government from enforcing its own laws — something that would be clearly unconstitutional — much of the amendment’s text would actually do nothing at all.

Parts of it, however, call for outright defiance of the Supreme Court and other binding judicial decisions. The amendment defines a “federal action” to include any federal “judicial ruling.” So Nieves’ amendment is nothing less than an attempt to declare Roe v. Wade inapplicable to Missouri, in addition to any future decision ensuring marriage equality or any current decision enforcing the Constitution’s guarantee of church/state separation. Southern states tried to do the same thing to Brown v. Board of Education in the 1950s. It wasn’t constitutional then and it remains unconstitutional today.

The most bizarre part of Nieves’ amendment, however, is its declaration that the Constitution must be interpreted based on the “original intent” of its signers. Leading conservative jurists, such as Robert Bork and Antonin Scalia, abandoned this method of interpretation decades ago, and for good reason. The framers themselves rejected the idea that the Constitution should be interpreted according to their own subjective intentions, so Nieves’ amendment actually creates a paradox. Judges will be required to rely only on the framers’ original intent, but the framers’ original intent was that judges should not rely on their original intent.

Ultimately, Nieves’ amendment simply shows the unseriousness that far too many conservatives bring to the Constitution. His amendment is useless at some points, wildly unconstitutional at others, and seems designed to make judges’ heads spin as they try to resolve the fact that the amendment contracts itself.