College students taking Poli-Sci 101 learn that conservatism is an ideology that reveres established tradition, emphasizes a deep respect for the rule of law and comes with a deep distrust of rapid social change – especially change driven by public policy. William F. Buckley Jr., famously described a conservative as, “someone who stands athwart history, yelling stop, at a time when no one is inclined to do so.”

Traditional conservatism might provide a valuable check on overly ambitious policy-making. Traditional conservatism doesn't deny that government plays a role in our society, it isn't driven by animus towards “unworthy” citizens, and it isn't based on a fanciful alternative reality.

As American “movement conservatism” has shifted ever further to the right, it has become hard to discern this strain of ideology in our public discourse. The Tea Party right fancy themselves right-wing revolutionaries. They reject long-standing jurisprudence and venerable traditions. And they don't fear rapid social change, as long as it comports with their worldview – they embrace it. Many of those whom we call conservatives today are, ultimately, reactionaries.

I recently caught up with Ian Millhiser, a senior constitutional policy analyst at the Center for American Progress Action Fund and the editor of ThinkProgress Justice, to discuss how this reactionary bent is manifesting itself in legislatures across the country. Below is a lightly edited transcript of our conversation.

Joshua Holland: Ian, I know this first question is subjective, but I’m going to ask you to speculate. Which do you think is more likely, that Sharia law will become the law of the land or that I will get a date with Scarlett Johansson?

Ian Millhiser: You’re much more likely to get a date with Scarlett Johansson.

JH: That is great news. This is what I wanted to hear.

IM: This is a conspiracy theory that’s been around for a while that somehow there are these courts out there that are threatening to replace American law, stop following American law, and instead follow Islamic law. So you’ve seen these bills pop up to forbid courts from doing that, like it’s ever going to happen.

JH: This has been done in a handful of states, like Kansas passed one of these anti-Sharia laws. I would also point out that there is no coherent body of law called “Sharia.” There are different strains of Sharia, and it is not really …

IM: Right.

JH: …It’s best not translated as “law” at all. It’s kind of a way of life. A code by which to live.

IM: Yeah, and I should point out that this doesn’t come from nowhere. Where this comes from is in this country we’ve got contracts. We’ve got wills, and we’ve got all sorts of documents where basically people get to set their own rules. You know, I can write a contract, and we can both sign it, and we set the rules for how we work, how we interact with each other. So what’s happened is sometimes two people want to be governed by Islamic law. So they write a contract, and they agree between themselves to be governed by Islamic law. And sometimes a father wants to distribute his estate in a way that’s compliant with Islamic law, so he writes a will.

And then that will shows up in court, or that contract shows up in court. And so what you have is you have conservatives who are seeing private cases — where contracts, wills, what have you – where people have chosen to be bound by this Islamic law, and the courts are just saying, “Okay, well, yeah, we’ll enforce that contract for you because that’s what we do.” And they’re saying that, that there’s a threat that this will lead to the court applying Islamic law to people who don’t want to be bound to it. And that’s not how the law works. That’s not how contracts work. That’s not how wills work. You know, I am not bound by a contract unless I sign it. I’m not bound by a will unless someone wants to give me money for free.

JH: It always strikes me that those who profess to have this undying love for the Constitution either don’t know or don’t care what’s in it. Can you tell us a little bit about these so-called Tenthers, and maybe give us a bit of the history of this movement over the past, I don’t know, 30 or so years?

IM: Sure. About four years ago, you started to hear these weird noises about how things violate the 10th Amendment. And not just, you know, the Affordable Care Act – that's when they made this argument over and over again – but it was also people claiming that Medicare violates the 10th Amendment. Social Security violates the 10th Amendment. And what I started to hear at these Tea Party rallies that were popping up is speakers got up and they were saying things that very closely resembled this discredited constitutional theory that existed about 100 years ago. At the time, it led to child-labor laws getting struck down, it allowed pretty much any law protecting unions getting struck down, that led to minimum wage getting struck down — all of these essential worker protections getting struck down. And these people, who are not lawyers and who, you know, had no reason to know about this obscure part of our legal history, were suddenly speaking very eloquently about this discredited way of reading the 10th Amendment.

And the reason why is because there are conservative think tanks, there are conservative groups, that want to see this theory brought back. And while we were asleep at the switch, they were writing books and they were educating their partisans about how awesome it would be if we had this crazy theory of the 10th Amendment, and then I guess we wouldn’t have to be stuck with these terrible child-labor laws anymore.

And when there was a backlash against the bad economy and there was a conservative backlash against the Affordable Care Act, they pulled this trigger on all this groundwork they had laid, and they’re trying to reinvigorate this terrible theory of the Constitution from so long ago.

JH: And that was basically during the so-called Lochner era of the Supreme Court. You know, these were things that we settled during the New Deal.

IM: That's right. So there was sort of a two-fisted punch that you had in the very early part of the 20th century. You had Lochner, which said that, the Constitution protects liberty, and one of those liberties is the right to contract. So if you sign a contract saying that you’ll work for below the minimum wage in a poisoned work environment for 14 hours a day while someone is whipping you, great. You signed a contract. You’re bound by it.

JH: Right.

IM: And of course, that completely ignores the reality of the workplace. It ignores that people who are poor often have to take jobs that aren’t the best jobs, and we need government to step in and make sure that those workplaces are safe and they’re making an adequate wage.

And then the other prong of it was this 10th Amendment thing. And the 10th Amendment only applies to the federal government. So this is an attempt to just make sure that our national government can’t solve any of our national problems. And in their vision, that means no Medicare, no Social Security, no minimum wage, no child-labor laws. You know, most of the progress in the 20th century, out the door.

JH: And conservatives or — I don’t even want to call them conservatives, because if you just eschew the last century of jurisprudence, you’re not someone who’s kind of guarding the status quo — reactionaries have really floated this idea that the states can just nullify any federal law that they don’t like, based on the 10th Amendment.

Um, wasn’t that something that we settled with the Civil War?

IM: Yeah, this is another thing, and this is something that’s even more virulent than Tentherism. Not even all the Tenthers sign onto this, this theory, which is called Nullification. It’s the idea that a state can just pass a law saying, oh, the federal law doesn’t apply here, so …

JH: And they have been doing this. I mean, legislatures that have been dominated by the kind of Tea Party Republicans have passed these laws in just the last year.

IM: Yeah. In places like Wyoming and Alaska and a few other states, we’re seeing these bills pop up that say we won’t follow the Affordable Care Act, that say that gun laws — if there are any new federal gun laws — they just won’t apply here. There’s a Texas version of this bill that says that if you’re a federal law enforcement officer –if you’re an FBI agent – and you enforce the federal gun laws in the state of Texas, Texas will try to arrest you and throw you in jail and hit you with a felony charge because you were an FBI agent and you tried to enforce federal law.

JH: It’s crazy. Let’s talk about North Carolina. They seem to be vying for the title of craziest legislature in the US. I think that title is currently shared by Florida and Arizona. I’m not sure.

IM: Mm-hmm.

JH: A couple of weeks ago, lawmakers proposed what they were calling the Defense of Religion. What would this do?

IM: Well, the good news is that this seems to be dead. There was so much bad press — and I’m glad to say I played some role in it — that they’ve realized they couldn’t get away with it. But was a remarkable piece of legislation and was backed by some of the most powerful people in North Carolina, including the House Majority Leader.

What it said was — it started off with the statement that the federal courts don’t actually have the power to enforce the Constitution. They don’t actually have the power to enforce it, and if federal courts say that North Carolina isn’t complying with the Constitution, North Carolina can just ignore that court order. And then it says that since we’re free to ignore court orders, we’re just going to ignore any court order that says there’s a separation of church and state. It’s not going to apply here. And of course, that’s just dirt. That’s ridiculous.

JH: (Laughs).

IM: That’s not what the Constitution says. And it’s actually rooted in a very radical theory of the Constitution that assumes that the Civil War didn’t happen. It’s, you know, it’s assuming that all the amendments that were enacted after the Civil War, as part of the condition of the rebel states being readmitted into the union, just didn’t happen. And all the realignment that happened because of that just doesn’t exist.

JH: I mean, I don’t even understand what this argument is, because there was a case called Everson vs. Board of Education, and this incorporated the First Amendment’s Establishment Clause to the states specifically.

IM: Right. So, so what their argument is, if you read the First Amendment, the First Amendment says Congress shall make no law respecting an establishment of religion. So Congress refers to the federal government. And when, you know, the framers got together, and then when James Madison wrote the Bill of Rights, they really were thinking about just the federal government. You know, their concept was that this is a federal Constitution. It says what the federal government can and cannot do, and it just doesn’t have that much to say about the states. The states, if they wanted to declare, you know, Baptism or Buddhism or whatever, the official religion of North Carolina, they were free to do that.

And then the 14th Amendment happened. And the 14th Amendment recognized that our rights are not something that’s just a battle between federal power and state power. There are civil rights that we get because we are human beings. That was the insight of the 14th Amendment, that almost all the rights in the Bill of Rights, the rights that we enjoy in the United States, are not rights that we get because we want states to be more powerful than the feds. They are rights that we get because we are people. And one of those rights is the right to be free from government establishment of religion.

So when North Carolina says they are not bound by the First Amendment, what they’re saying is that this — and this is the most revolutionary moment in American history – it changed our conception of what it means to be a person living under a government. No longer are we saying that there are these governments and they have different powers and they fight out amongst themselves and that’s how we figure out what our liberties are. Now, we live in a world where everyone has rights just because they are a human being, and that’s what North Carolina is rebelling against.

JH: And they cited the 10th Amendment. They cited, as you mentioned, that they believe, at least, that the Supreme Court doesn’t have the final say on what is and is not constitutional.

Ian, I want to get your reaction to Oklahoma Republican Congressman Jim Bridenstine talking about healthcare:

"Just because the Supreme Court rules on something doesn’t necessarily mean that that’s constitutional. What that means is that that’s what they decided on that particular day, given the makeup of the Court on that particular day. And the left in this country has done an extraordinary job of stacking the courts in their favor. I hear this all the time from Republicans. You know, they say that the Court is the, you know, the arbitrator. And after, you know, the arbitration is done, that’s the rules that we have to live under, and then we can go forth and make legislation given those rules. That’s not the case. A perfect example is Obamacare. Obamacare is not constitutional."

So okay. It’s true that this was debatable like 200 years ago, right, before Marbury vs. Madison. How prevalent is this view on the right these days?

IM: Well, I’ve seen that clip before, and it’s actually something I’m fairly ambivalent about because, on the one hand, we have a terrible Supreme Court that gets a lot of things wrong. And I don’t want to say that because there are five justices who think that it doesn’t corrupt our entire political system when some corporation is able to buy congressmen, that, therefore, we’re stuck with Citizens United — I mean, the Supreme Court misinterprets the Constitution all the time.

But first of all, there has to be a final arbiter, because if there isn’t someone who gets to make decisions about what the Constitution does and doesn’t say, then you’re stuck with something like Nullification, where you have something like what happened in the 1830s when South Carolina claimed that they had the unilateral power to declare laws unconstitutional. It almost sparked a civil war, 30 years before our actual Civil War, because South Carolina said the law was one thing and the federal government said it was something else. You can’t have that. There has to be a final, final decision-maker.

The second point is that, you know, the Affordable Care Act is a terrible example, if you want to point to something and say, hey, the Supreme Court screwed up here, because the argument against the Affordable Care Act is nonsense.

JH: Right.

IM: You know, let’s set aside the tax argument, which I also agree with, that the Chief Justice relied on. The Constitution says that Congress can regulate commerce among the several states. It says that when there is commercial activity and it deals with more than one state, it crosses state borders or it’s a national marketplace, the federal government gets to regulate that however it wants, so long as it doesn’t violate our individual rights.

JH: Now, I agree with you in one sense that, you know, obviously, I’m not of the opinion that the Supreme Court gets it right all the time, and I certainly think that we all have the right to criticize their rulings and to challenge their rulings legally. But when I’m listening to this guy, I hear him saying that he doesn’t respect a ruling from the Court – he doesn’t respect the Court as an arbiter.

IM: Right, at a certain point you have to accept the fact that our government has to have legitimacy. I mean, there can come a moment where you kick the table over. You know, if, if they tried to reinstate Dred Scott, there might come a moment where you kick the table over, but do you really want to kick the table over because a bunch of people who are dying because they don’t have health insurance are suddenly going to get to live? Is that the sword you want to die on?

JH: Well, Paul Ryan said that he was dedicated to destroying the healthcare system, so, you know, some of them do.

IM: Yeah.

JH: Ian, let’s move north, just a little bit, up to Virginia. They have an attorney general who is a genuine wingnut, Ken Cuccinelli. He is expected to be the Republican nominee for governor, actually. Your colleague, Josh Israel, wrote about Cuccinelli’s kind of quixotic fight against oral sex and anal sex, and this includes oral and anal sex among straight people, even among married people. Now this didn't end up going anywhere, but it's interesting that he tried.

And I just want to point out that, according to the CDC, 90% of Americans under the age of 45 report having had oral sex, so Cuccinelli would make 90% of us felons.

Can you tell us a little bit about this law and especially how Cuccinelli himself helped to undermine the state’s laws against adults having sex with minors?

IM: Sure. So Virginia has a law — they actually call it the Crimes Against Nature law – which, as you said, criminalizes oral and anal sex. So, you know, if you get a blow job, I guess that’s a felony, and you go to jail for, you know, potentially a number of years. That’s unconstitutional. It was declared unconstitutional in a case called Lawrence v. Texas. That was the case that also established that you can’t criminalize gay sex. And what Lawrence said is that between consenting adults — consenting adults are allowed to consent to be adults with one another. Prostitution is still something that can be criminalized. Adults having sex with children is still something that can be criminalized. There are still lots of things that can still be illegal and, frankly, should be illegal.

And so after this Crimes Against Nature law passed, there was a bill to amend it and basically bring it into compliance with Lawrence, say consenting adults can consent with one another, but if it’s children, if it’s prostitution, the statute will still apply in those cases.

And Cuccinelli voted against that bill, and the reason he voted against the bill is he said – I’ll read you what he said. He said, “My view is that homosexual acts, not homosexuality, but homosexual acts are wrong. They’re intrinsically wrong. I think that is a natural law.”

And so he wanted to preserve this unconstitutional statute that says that you cannot have oral or anal sex, and now that’s turning around to bite him, because there’s a prosecution that his office wanted to bring, and it’s been struck down because he would not amend this law to bring it into compliance with the Constitution.

JH: You know, I am really a strong believer in this idea that the really virulent homophobes are dealing with some repressed issues, because they just seem obsessed with gay sex. And I have, you know, no issues whatsoever with homosexuality, and I never think about gay sex. I just don’t think about it. I don’t spend any time thinking about it.

IM: Yeah, it’s not something on the top of my list.

JH: I mean, I think about straight sex because I’m straight, but um, yeah.

Anyway, I want to talk about one other issue. Last month, Colorado managed to pass some gun-safety laws. Great. This is where we’ve had some horrific gun massacres, of course – Aurora, Columbine.

IM: Right.

JH: So they passed these gun-safety laws and multiple local sheriffs said that they would not enforce the law. And they joined a bunch of other local law-enforcement agencies across the country saying the same thing, "We’re not going to enforce gun uh safety laws." And they always base this on the Constitution. They say that their own interpretation of the Second Amendment is all that matters.

This seems especially dangerous to me, and I think it requires a special kind of ignorance about our structure of government. I mean, Ian, isn’t the core principal here the separation of powers? And these people are not part of the judicial branch.

IM: Right. So there, there are two types of sheriffs doing this. So there’s one group of sheriffs that has said that they will actively thwart the enforcement of federal law. So if the FBI agent shows up trying to enforce federal law, they will stand in that agent’s way and try to prevent them from enforcing federal law, and that’s unconstitutional. That’s a form of Nullification.

There are other sheriffs who are saying that they will not enforce the federal law themselves, but if the feds show up, they won’t stop them. And that second thing is wrong, because in many cases these are good laws. And in the case of Colorado, where it’s a Colorado state law, they probably have an obligation to enforce the state law, and I think it’s a mistake if you tell your sheriffs that they’re allowed to decide, on their own, which state laws they want to comply with.

But, you know, I think that there is a broader principal, you know, with respect to these sheriffs who are just saying, “You know, if the feds want to show up and enforce federal law, that’s cool. We just won’t help them.” I don’t agree with their decision. But I think that’s less troubling, and I think that part of the reason why I take that position that there’s a similar battle going on right now over marijuana laws, where in states like Washington and Colorado, where marijuana is legal, I don’t want to see state officials enforcing the federal marijuana laws. If the federal government wants to send DEA agents in there to enforce these laws, they have the right to do that. But, you know, at least as a constitutional matter, that is an area where the state and the federal governments are separate.

JH: I’m not just speaking about gun-control laws.

IM: Right.

JH: There was a guy up in New Hampshire who said that he would actively prosecute people for seeking an abortion. Some of them are these so-called sovereign citizens, and it’s estimated that there are 100,000 sovereign citizens in the U.S.

Briefly, what is this nuttery?

IM: There’s this weird – this is a sheriff-specific movement. I think they call themselves the Oath Keepers, where these sheriffs — and if you go to the website, they have all this talk about how like the government’s going to confiscate our food and sheriffs needs to stop that from happening. So there are these bizarre conspiracy theories.

The sovereign citizens, who they are a subgroup of people who think that they personally are their own country, so they don’t have to follow American law, because they only have to follow their own law.

So there are all of these silly theories, you know, some of them that are infesting sheriffs, that have cropped up to say that people don’t have to follow the law, and that’s just not true. You know, we are a nation of law, and in this nation, you have to comply with it.