Bishop E.W. Jackson, the Republican nominee to be the next Lieutenant Governor of Virginia, does not believe that victims of the Oklahoma tornado should receive any federal aid to help them rebuild their lives. In video from a previous campaign first posted by Right Wing Watch, Jackson claims that federal relief to disaster victims is unconstitutional:

JACKSON: I don’t think that the federal government has much of a role at all constitutionally, at all [in disaster relief]. Now, you may make an argument that it does. You might argue that it’s a national security issue you might argue that it weakens us in the event of some sort of national military emergency. So you can make an attenuated argument. But I think that as a constitutional matter the federal government doesn’t have a whole lot to do with that. In my view, these are things that are ultimately supposed to be handled by the states. And, so, we’ve got a big Tenth Amendment problem in our country. . . . We’ve turned the federal government into a kind of god.

Watch it:

Disaster relief is not an attempt to steal power from God. To the contrary, it is the just response of a nation sensitive to the lesson of 1 John 3:17, which reads that “if anyone has the world’s goods and sees his brother in need, yet closes his heart against him, how does God’s love abide in him?”

It is also entirely consistent with the Constitution. The Constitution gives the United States broad authority to “lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” Ensuring that all Americans can rebuild their lives in the wake of a major national disaster is a classic example of using federal revenues to provide for the general welfare.

While Jackson’s view of the Constitution is wrong, it is not surprising giving the range of unusual views he’s expressed in the past. Jackson believes that Planned Parenthood is “more lethal to black lives than the KKK ever was.” He thinks that the original Constitution’s Three-Fifths Clause, which gave slave states additional representation in the U.S. House by allowing them to count 60 percent of their slave population when congressional seats were apportioned among the states, was “an anti-slavery amendment.” He accused Sen. Harry Reid (D-NV) of faking his faith. And he believes that being gay “poisons culture, it destroys families, it destroys societies; it brings the judgment of God unlike very few things that we can think of.”

Nearly two centuries ago, South Carolina Sen. John C. Calhoun nearly sparked a civil war when he led an unconstitutional effort to nullify a federal law his state government disagreed with. One hundred and eighty years later, South Carolina lawmakers want to do it again. Last night, the South Carolina House passed an attempt to “interpose and refuse to enforce” much of the Affordable Care Act.

The bill includes a number of attempts to undermine health reform, some of which are unconstitutional, others of which are merely unwise. The most insidious provision of the bill, however, is this:

A South Carolina resident taxpayer who is subjected to a tax by the Internal Revenue Code under 26 U.S.C. Section 5000A of the Patient Protection and Affordable Care Act shall receive a tax deduction in the exact amount of the taxes or penalty paid the federal government pursuant to 26 U.S.C. Section 5000A. The tax deduction allowed by this section must be used in the year the federal tax or penalty is paid.

“26 U.S.C. Section 5000A” refers to the so-called individual mandate that was the primary subject of a losing attempt to convince the Supreme Court to repeal Obamacare last year. That provision works by requiring people who are not insured to pay slightly more income taxes in order to give them an incentive to buy insurance. Such an incentive is necessary because the Affordable Care Act also prohibits insurers from denying coverage to people with preexisting conditions. So if people did not have a financial incentive to buy insurance before they get sick, they would wait until they got sick to buy insurance, and would eventually drain all the money out of an insurance plan that they paid virtually nothing into.

The South Carolina bill would erase this incentive by effectively having the state refund taxpayers hit with additional taxes because they did not purchase insurance. What the federal government takes, the state of South Carolina would give back. As a result, smart South Carolina residents would soon figure out that they can drop their insurance plans, save the cost of paying premiums, and then pick those plans back up the minute they are about to be hit with an expensive medical bill. Beginning in the 1990s, seven different states passed laws allowing health care consumers to behave this way, and it ended in disaster every single time. Some consumers saw their premiums rise over 350 percent. Others lost access to individual insurance plans entirely.

Beyond the fact that this bill could literally collapse the individual health insurance market in South Carolina, it is also a tribute to fiscal irresponsibility. By giving a tax deduction to South Carolinians who do not carry insurance, the state is essentially paying people to free ride. That’s money, by the way, that will not go to hiring teachers or putting cops on the streets or building schools because it is being diverted to this crusade against Obamacare.

Read more

WASHINGTON DC — The clearest sign that a majority of the Court believes the anti-gay Defense of Marriage Act (DOMA) is unconstitutional is how tenaciously three of the most conservative justices fought to prevent the Supreme Court from ruling on its constitutionality in the first place. Chief Justice Roberts and Justices Scalia and Alito fought tooth and nail to dismiss the case on jurisdictional grounds — an effort that is likely, if not certain, to fail. Most of the left-of-center bloc appeared skeptical of the conservatives’ theory, and Justice Kennedy at one point stated that it “seems to me there’s injury here” sufficient to justify the Court hearing the case. Kennedy did make a pointed comparison between President Obama’s decision not to defend DOMA and President Bush’s infamous signing statements, but this is more likely a gratuitous swipe at the President, than a sign that Kennedy will ultimately vote to kill the case.

Should the Court reach the merits, Kennedy left little doubt that he would vote to strike down DOMA, but not on grounds that bear any resemblance to the Constitution. DOMA is unconstitutional because it violates the Constitution’s guarantee that all persons receive the “equal protection of the laws.” Kennedy, however, largely brushed over this fact to hone in on a states’ rights argument similar to one tea partiers have used to claim Medicare is unconstitutional. In Kennedy’s words, DOMA is problematic because it runs “in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

This is not an accurate description of what DOMA does. The primary effect of DOMA is not to “regulate marriage” it is to define who does who does not receive certain federal benefits — benefits such as tax exemptions, Social Security benefits for spouses and veterans benefits. The overwhelming majority of these benefits were enacted through Congress’ power under the Constitution to tax and spend money, a power which necessarily includes the authority to decide who is taxed and who receives federal spending. Kennedy, however, seems to think that Congress cannot define the scope of federal benefits in ways that may also touch upon marriage. There is no basis for this in the Constitution’s text.

There is, however, a limited basis for Kennedy’s views in the Constitution’s history. In the earliest days of the Republic, James Madison proposed a narrow, extra-textual view of the Constitution that would have limited Congress’ power to tax and spend money to subjects specifically mentioned elsewhere in the document. Alexander Hamilton, by contrast, argued that the we have to follow the words of the Constitution we have — not limits that cannot be found in the Constitution’s text. Hamilton won, and a unanimous Supreme Court agreed with him many years later.

If Madison had won, we likely could not have Medicare, because the Constitution does not specifically mention health care. We likely could not have Social Security, because it does not mention retirement. Medicaid, food stamps, and, indeed, virtually all of the modern American safety net would probably be on the chopping block. Kennedy’s suggestion, that judges can write a “marriage” exemption into the Constitution that doesn’t exist may be the closest that any justice has ever come to embracing Madison’s rejected theory — and it would be truly dangerous if five justices ever signed on to it.
Read more

One way or another, marriage equality is coming to the United States. A recent poll shows support for equality at 58 percent, up 21 points from just a decade ago, and a massive 81 percent of adults under 30 support treating same-sex couples just like any other. The Supreme Court should strike down the anti-gay Defense of Marriage Act (DOMA) and California’s equally anti-gay Proposition 8 because they are unconstitutional, but one way or another, marriage equality is happening. And it is happening soon.

Perhaps for this reason, two leading conservatives published columns last week advocating a way the Supreme Court could strike down DOMA while doing maximal damage to the social safety net. Five days after anti-science columnist George Will published a piece seeking to discredit the social science supporting marriage equality, Will endorsed a radical misreading of the Constitution’s Tenth Amendment that would lead to DOMA being struck down. One day later, Michael McConnell, a former federal judge and leading socially conservative law professor, made the same argument in the Wall Street Journal. Here’s McConnell’s version:

[T]he court need not base its decision in Windsor on the merits of the same-sex marriage question. The leading argument against DOMA all along has been that the federal government lacks authority under the Constitution to create and enforce a definition of marriage different from that of the state in which a couple resides. It is hard to think of an issue more clearly reserved to state law under constitutional tradition than the definition of marriage.

The court has held that “regulation of domestic relations” has “long been regarded as a virtually exclusive province of the States” (Sosna v. Iowa, 1975). In the past, the court has recognized a “domestic relations exception” to federal judicial power. Although the legal question is close, the court could take the same path in Windsor—holding that DOMA improperly intrudes on the reserved powers of the states.

This is constitutional gobbledygook. McConnell and Will are both arguing that, because the Constitution does not give the federal government power over “domestic relations” it follows that DOMA exceeds Congress’ lawful powers. This is similar to the argument conservatives raised against the Affordable Care Act, and it is also compete nonsense.

Federal law grants married couples numerous financial benefits that unmarried individuals do not enjoy. Married couples pay taxes at different rates than single people. They are exempt from estate and gift taxes that apply to their spouse’s property. They receive certain benefits under Social Security, Medicare and other federal programs, and so forth. These financial benefits are constitutional because the Constitution gives Congress the power “to lay and collect taxes . . . and provide for the common defense and general welfare of the United States” — what lawyers call the “tax and spending power” — and the power to tax and spend necessarily includes the power to decide who pays what taxes and who receives what benefits. DOMA does not, as Will and McConnell suggest, define the meaning of “marriage” for the entire nation. Rather, it mostly just defines the meaning of the word “marriage” for the purpose of determining who is eligible for federal benefits that are given only to married couples.

If Congress does not have the power to decide who pays what tax rates and who receives what federal benefits, than the entirety of America’s safety net could be in danger. Retirement programs like Social Security cannot exist unless the government can limit it to persons of retirement age. Veterans benefits cannot exist unless the government can limit them to veterans. Even progressive taxation is in jeopardy under Will and McConnell’s theory, because the government must have the power to decide who pays more and who pays less taxes.

In other words, if the Supreme Court embraces Will and McConnell’s misreading of the Constitution, it could radically rework America’s social contract and leave most Americans much worse off as a result.
Read more

South Carolina state Rep. Bill Chumley really hates the Affordable Care Act. So much so that he introduced a wildly unconstitutional bill that would imprison any federal official who enforces Obamacare in the state of South Carolina for up to five years.

Chumley, however, isn’t just wasting the state legislature’s time with unconstitutional fantasies about nullifying health reform and giving big government’s employees their comeuppance, he also wasted taxpayer money shuttling a questionable “expert” into the state to testify in favor of his proto-Confederate proposal:

Rep. Bill Chumley of Woodruff brought Walter Williams from a suburban Washington airport to push for a bill that initially sought to nullify the federal health care law. The state planes’ four legs — to a Manassas, Va., airport and back, to pick up Williams and return him — would have cost a paying passenger nearly $6,400, according to the state Aeronautics Commission’s manifest and flight log.

Williams, a syndicated columnist and radio commentator who sometimes fills in for Rush Limbaugh, is well known for advocating state measures attempting to nullify the federal law.

Chumley again dismissed requests that he reimburse the state, calling Williams’ testimony official state business.

Nullification, the idea that states can invalidate federal laws — or worse, criminalize their enforcement — conflicts directly with the Constitution’s declaration that duly-enacted federal laws “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” As James Madison once warned, if states did have the unilateral authority to nullify federal laws, such a power would “speedily put an end to the Union itself.”

NATIONAL HARBOR, Maryland — Nearly three years ago, future Sen. Rand Paul (R-KY) gave a series of interviews where he explained his opposition to federal bans on private race and gender discrimination. In short, Paul believes that “private ownership” should trump civil rights, and thus business owners should be free to discriminate.

Paul now appears to have company in his opposition to civil rights. In an exclusive interview at the Conservative Political Action Conference, Rep. Paul Broun (R-GA), a Republican candidate for the U.S. Senate, Broun told ThinkProgress’ Scott Keyes that a federal law protecting LGBT Americans from employment discrimination is unconstitutional. And he strongly suggested that all federal employment laws violate the Constitution:

KEYES: One of the issues that the Senate’s now looking at is the Employment Non-Discrimination Act, whether or not it should be illegal for a company to be able to fire someone for being gay. Do you have a sense on where you stand on an issue like that?

BROUN: I believe that the federal government should be doing what the Constitution says it should be doing. Following what our founding fathers meant for us to do. These issues should be dealt with on the state basis. When we inject the federal government with things it should not be doing, we create this huge federal government that is spending money it should not be spending. [...]

KEYES: Do you think the federal government should even have a role in anti-discrimination laws at all, at least as it pertains to employment?

BROUN: I think the federal government should be doing only what the Constitution says it should be. We don’t have authority under the federal Constitution to have a big federal criminal justice system. I want to see us to shrink the federal criminal justice system, let the states prosecute these types of laws. We’re spending money we shouldn’t be.

At this point, Keyes asked Broun to clarify whether his statement that anti-discrimination issues “should be dealt with on the state basis” also applies to race and gender discrimination, but a staffer accompanying Broun insistently cut off the interview.

Listen:

There are a number of factual errors in Broun’s answer. Typically civil rights suits are civil, not criminal, matters, for example, so declaring federal civil rights laws unconstitutional would do very little to “shrink the federal criminal justice system.”

Most importantly, his reading of the Constitution flat wrong. The Constitution gives Congress broad authority to regulate the national economy — in the Constitution’s words, the power to “regulate commerce . . . among the several states” and to “make all laws which shall be necessary and proper for carrying into execution” its power over the nation’s commerce. While segregationists did indeed claim that this power does not extend to discrimination by local businesses in the 1960s, the Supreme Court unanimously rejected these arguments.
Read more

Lochner v. New York is widely viewed as one of the worst Supreme Court decisions in American history. It is taught in law schools, alongside decisions upholding segregation and permitting Japanese detention camps, in order to instruct budding lawyers on how judges should not behave. Even Robert Bork, the failed, right-wing Supreme Court nominee who claimed women “aren’t discriminated against anymore”, called Lochner an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”

Lochner fabricated a so-called right to contract in order to strike down a New York law preventing bakery owners from overworking bakers, but its rationale has implications for any law intended to shield workers from exploitation. In essence, Lochner established that any law that limits any contract between an employer and an employee is constitutionally suspect. If desperation forces someone to agree to work 18 hours a day, seven days a week, for a dollar a day in a factory filled with toxic air, then courts must treat that law with heavy skepticism. Not every workplace law was struck down during the so-called Lochner Era — the justices of that era sometimes valued sexism more than they valued exploiting workers, for example — but Lochner placed any law benefiting workers on constitutionally weak footing. Needless to say, the “right to contract” it invented appears nowhere in the Constitution.

Nevertheless, Sen. Rand Paul (R-KY) took several minutes out of his lengthy talking filibuster yesterday to praise this “abomination” of a decision on the Senate floor:

You get to the Lochner case. The Lochner case is in 1905. The majority rules 5-4 that the right to make a contract is part of your due process. Someone cannot deprive you of determining how long your working hours are without due process. So President Obama’s a big opponent to this, but I would ask him — among the other things I’m asking him today — to rethink the Lochner case. . . . I think it’s a wonderful decision.

Watch it:

Although its not entirely clear what exploiting workers has to do with drone strikes, the primary subject of Paul’s filibuster, the senator seemed to think that Lochner was relevant because that case claimed that its fabricated right to contract flowed from the Constitution’s “due process” guarantee.

Paul’s speech also includes a somewhat rambling attempt to claim that Lochner helped “end Jim Crow,” a claim that would cause anyone with even a rudimentary understanding of civil rights history to scratch their head. Lochner was decided in 1905, and, while Paul is correct that the Lochner Era justices very occasionally struck down discriminatory laws, Jim Crow was still very much alive when Lochner was overruled in the 1930s. The Supreme Court decision that did the most to eradicate Jim Crow — Brown v. Board of Education — rested on the Constitution’s guarantee that no person shall be denied the “the equal protection of the laws,” not on some fabricated right to contract. And Brown alone was insufficient to overcome the campaign of “massive resistance” segregationists mounted in defense of Jim Crow.

What finally killed American apartheid was big, centralized government of the kind Paul and his fellow tea partiers love to hate. The Civil Rights Act of 1964 required business owners to contract with minorities — something that would undoubtedly been unconstitutional under Lochner. And, of course, the same Voting Rights Act that is now endangered in the Supreme Court tore down Jim Crown voter exclusions. Sen. Paul, for his part, has incorrectly suggested that the Civil Rights Act violates the Constitution.

Paul’s endorsement of Lochner reflects a disturbing evolution in Tea Party thought. For much of Obama’s first term, Tea Party conservatives rallied behind “tentherism,” the false belief that most of what the federal government does is unconstitutional. Unlike tentherism, which applies only to federal laws, Lochnerism prevents both the federal government and the states from enacting necessary legislation. Although a handful of the most radical federal judges openly embrace Lochnerism or similar reasoning, this particularly virulent misreading of the Constitution was largely absent from elected officials’ rhetoric until Paul’s speech yesterday.

(HT: Josh Blackman)

Virginia’s tea partying Attorney General Ken Cuccinelli (R) has a new book out today: The Last Line of Defense: The New Fight for American Liberty. Here are ten of the most bizarre ideas advanced by this book:

1) Medicare Is ‘Despicable, Dishonest, and Worthy of Condemnation’

Cuccinelli quotes a story about an “elderly woman painfully huddled on a heating grate in the dead of winter . . . hungry and in need of shelter and medical attention.” It would be wrong, according to this tale, for a mugger to “walk up to you using intimidation and threats” in order to steal money to pay for the woman’s care. And so, this story concludes, it must also be wrong for government to use its power to tax and spend in order to provide for a sick woman’s needs:

What if instead of personally taking your money to assist the woman, I got together with other Americans and asked Congress to use Internal Revenue Service agents to take your money? . . . Don’t get me wrong. I personally believe that assisting one’s fellow man in need by reaching into one’s own pockets is praiseworthy and laudable. Doing the same by reaching into another’s pockets is despicable, dishonest, and worthy of condemnation.

2) Medicare, Social Security, Medicaid and Food Stamps Are Deliberate Attacks On Americans’ Freedom

In what is already one of the most quoted lines in the book, Cuccinelli attacks the entire social safety net

One of [politicians'] favorite ways to increase their power is by creating programs that dispense subsidized government benefits, such as Medicare, Social Security, and outright welfare (Medicaid, food stamps, subsidized housing and the like). These programs make people dependent on government. And once people are dependent, they feel they can’t afford to have the programs taken away, no matter how inefficient, poorly run, or costly to the rest of society.

3) If We Don’t Tax People, They’ll Just Give All Their Money Away To Charity

“Your government will never love you,” Cuccinelli proclaims. Only “[c]hurches and charities can love you and nurture your soul.” So Social Security and Medicare are bad because they take money away that could go to charities that love you — “[i]f instead of spending all this money on social service programs, the government left all those dollars in the hands of the taxpayers, Americans would have more money to donate to private charities and churches.” It apparently does not occur to Cuccinelli that David Koch or Grover Norquist might do something other than fund a nationwide retirement and health care program if relieved of the need to pay taxes.

4) All Welfare Is Unconstitutional

“[P]ublic charity was never supposed to be a function of the federal government,” proclaims Cuccinelli, citing a single 1794 speech on the Constitution by James Madison. In reality, Madison led a minority faction during the early days of the Republic to shrink America’s power to govern itself more than the Constitution’s text permits. He lost.

5) Antitrust Law Is Unconstitutional

Cuccinelli also strongly implies that the Sherman Antitrust Act, which prevents monopolies, cartels and similar practices that allow wealthy corporations to exploit consumers, is unconstitutional — “For the first hundred years of our national existence, the Commerce Clause functioned just as Madison and the framers had expected. However, beginning with the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890, Congress began asserting more affirmative power under the Commerce Clause.”
Read more

Since then-Delaware Senator Joe Biden first authored the law in 1994, the Violence Against Women Act (VAWA) has earned bipartisan praise for providing vital protections against domestic violence and assistance to victims. But of the eight Senators — all Republicans — who voted Monday against even considering VAWA renewal, at least four apparently did so because they believe the bill is unconstitutional.

Several of these senators have expressed similarly radical views about the constitutional role of the federal government in other contexts. Sen. Mike Lee’s (R-UT) claimed that national child labor laws, Social Security and Medicare violate the Tenth Amendment, for example; and Sen. Ted Cruz (R-TX) once led a Tenth Amendment project at a conservative think tank and co-authored a paper proposing an unconstitutional process to nullify the Affordable Care Act. The four senators who claim that the Violence Against Women Act is unconstitutional are:

• 1. Sen. Jim Risch (R-ID): In a statement, Risch explained: “It is at the state and local level where I believe enforcement and prosecution must remain. The federal government does not need to add another layer of bureaucracy to acts of violence that are being handled at the state and local level. In addition to my 10th Amendment concerns, this legislation raises additional constitutional questions regarding double jeopardy and due process. I opposed this legislation, however well intended it was, because it is another effort of the federal government extending its reach into the affairs of state and local jurisdictions.”
• 2. Sen. Rand Paul (R-KY): In a 2012 letter explaining his opposition to last year’s VAWA re-authorization attempt, Paul wrote: “Under our Constitution, states are given the responsibility for prosecution of those violent crimes. They don’t need Washington telling them how to provide services and prosecute criminals in these cases. Under the Constitution, states are responsible for enacting and enforcing criminal law. As written, S. 1925 muddles the lines between federal, state, local and tribal law enforcement.”
• 3. Sen. Mike Lee (R-UT): In 2012, Lee claimed VAWA “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.”
• 4. Sen. Ted Cruz (R-TX): A Cruz spokeswoman told ThinkProgress: “For many years, Senator Cruz has worked in law enforcement, helping lead the fight to ensure that violent criminals—and especially sexual predators who target women and children—should face the very strictest punishment. However, stopping and punishing violent criminals is primarily a state responsibility, and the federal government does not need to be dictating state criminal law.” While the statement does not explicitly call VAWA unconstitutional, his previous comments leave little doubt that that is what he means.

These senators’ apparent belief that the federal government cannot constitutionally play a role in preventing violence against women is not even shared by most Republican members of Congress. 216 House Republicans agreed just last year that the Constitution does not prohibit a version of the Violence Against Women Act. The Supreme Court did strike down one piece of VAWA in 2000, but it left most of the law intact.

While the other four Senators who voted against the “motion to proceed” did not respond to a request for an explanation of their votes, Sen. Tim Scott (R) voted for the watered-down House version of VAWA last year and Sen. Marco Rubio (R-FL) claims he supports a scaled-back version of the legislation.

Justice Antonin Scalia is easily the Supreme Court’s most strident conservative. He defends torture and finds little wrong with executing the innocent. He once argued that the Constitution does not protect women from gender discrimination (although he’s since backed off this statement somewhat). Scalia compared same-sex attraction to murder. He believes our immigration law should look to antebellum laws excluding “freed blacks” from southern states for guidance. And he spent the much of the Supreme Court arguments on the Affordable Care Act parroting conservative talking points against health reform.

Yet, according to Virginia Attorney General Ken Cuccinelli (R), Scalia’s really just a squishy liberal:

At the annual gathering of the conservative National Review Institute, held at the Omni Shoreham Hotel in Washington, Cuccinelli appeared on a panel discussing the topic, “Does the Constitution Have a Future?” During the session, he criticized President Obama, suggesting the president had a malleable vision of the meaning of sin and of the Constitution.

“And really the way to fight back, given the governmental structure we have, the primary way is to get good judges who don’t accept what is wrong as right after a while,” Cuccinelli said, according to a video clip of the discussion. “Justice Scalia is in this category: ‘Well, we’ve been doing it wrong for a while, so now it’s part of the Constitution.’ I don’t buy that. I don’t buy that. And that needs to be reflected in the judges selected by the president, not this president, but the president generally, and approved by the Senate. They need to take that a lot more seriously than they do.”

To explain this a bit, in the late 19th and early 20th centuries, conservative justices created new, artificial limits on the federal government’s power — such as saying that the Constitution did not permit Congress to regulate manufacturing, mining or agriculture. They then wielded these extra-constitutional limits to strike down basic workplace protections such as child labor laws or laws protecting the right to organize. The Supreme Court abandoned this misreading of the Constitution in the 1930s, and Justice Clarence Thomas is the only member of the current Court who embraces this misreading. Justice Scalia repeatedly refused to join opinions by Thomas pining for the days when manufacturing was considered immune to federal regulation and national child labor laws were considered unconstitutional.

Cuccinelli disagrees with Scalia on this point. He’s claimed that “[w]e want judges who will do nothing but apply the law as it was written and originally understood.” And, in one of his briefs challenging the Affordable Care Act, he tipped his hand to indicate a broader agenda to return to the days when child labor laws were tossed out because they exceeded Congress’ constitutional authority to “regulate commerce.” Cuccinelli’s brief embraces Thomas’ view that “the founding generation distinguished between commerce on the one hand, and manufacturing or agriculture on the other, as distinct things.”

Of course, Cuccinelli’s understanding of the Constitution’s history is dubious at best, but that’s beside the point. The point is that Cuccinelli thinks judges are bound by the founders’ understanding of the Constitution, and he also agrees with Justice Thomas that the founders would not have approved of child labor laws.

And so Justice Scalia is a villain, because he won’t join Thomas’ noble crusade against the most basic labor protections.