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Ah, federalism. Which is in the eye of the beholders. The beholders being Clarence Thomas, Antonin Scalia, Samuel Alito, Anthony Kennedy, John Roberts … and the Koch brothers.

(Correction appended.)

(Clarence Thomas in his separate concurrence]* adds that in his view the First Amendment religion clauses don’t apply to the states in the first place. And it only probably bars the establishment of a national church—leaving open the question for another day.

Let Us Pray:The Supreme Court gives its blessing for prayer at town meetings. Get ready for a lot more Jesus in your life., Dahlia Lithwick, Slate, yesterday

That’s right; the First Amendment religion clauses don’t apply to the states in the first place. No Sir. No way. No how. It’s only the First Amendment’s speech clause that applies to states in the first place.

In the last two years, Thomas and Scalia have voted with their three compadres to strike down Montana and Arizona campaign-finance laws as violative of the First Amendment’s speech clause–in the Montana case in a summary reversal of a ruling by the Montana Supreme Court; that is, without briefing and argument.  The vaunted freedom conferred by federalism (a.k.a., states’ rights!) is somewhat temperamental.  But, whatever.

I strongly recommend the entire Lithwick article, which discusses several parts of the Kennedy plurality opinion, a concurring opinion by Alito, and the Thomas concurrence.  The statements these people make go well beyond the issue in that case, and are truly breathtaking.

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*CORRECTION: Originally this post said that Scalia joined Thomas’s concurrence in full. That was incorrect; he joined all of it except the part in which Thomas repeats his belief that the First Amendment’s two religion clauses are not properly viewed as applying limitations to states via the Fourteenth Amendment, through what’s known as “the incorporation doctrine.”  Thomas is the only justice, to my knowledge, to express or support such a view–ever.

As I understand Thomas’s claim, it’s that the Framers’ intent in drafting the religion clauses was to prevent the federal government from stopping the states from adopting a state-sponsored religion. It’s utter nonsense–absolutely fanciful–but it is part and parcel of a key premise of the Conservative Legal Movement’s “federalism” claim: that the very structure of the Constitution itself as set forth in the original Articles is that the Constitution makes states sovereigns and that a threshold purpose of the document is to protect state’s prerogatives from incursion by the federal government–and that this includes the right of state courts in criminal and civil cases, and the right of state prosecutors, to infringe at will upon the rights of individuals.

Kennedy, in fact, actually has written that the structure of the original Constitution trumps Amendments that alter the relationship between the states and the federal government.  Roberts,for his part, made clear last year in his opinion striking down a key section of the Voting Rights Act that he agrees wholeheartedly with this; his opinion in that case, Shelby County, Ala. v. Holder, effectively holds that these folks’ concept of the structure of the original Articles trumps Section 2 of the Fifteenth Amendment.  And it explains the bizarre juggernaut that I wrote about here.

We’re witnessing here a concerted, unremitting restructuring of fundamental parts of American law under the guise of constitutional interpretation, employing medicine-man semantics gimmicks and other such tactics, including baldly false, disorienting declarations stating what others’ opinions are.  The Articles of the Constitution are viewed as really the Articles of Confederation, except when that would limit rather than advance this crowd’s lawmaking or outright partisan agenda.** And they’re getting away with it–and will until the Democrats actually start making it an issue.  My suggestion: that the Dems run ads this election year actually quoting from the opinion in McCutcheon v. FEC and also note the striking down of Arizona’s and, especially, Montana’s campaign-finance laws.  Montana’s statute was enacted in the early part of the last century. – 4/7 at 11:04 a.m.

**I just updated this post again to add “and outright partisan” to that sentence and to link to Thomas Edsall’s terrific op-ed about this in today’s New York Times. This issue is finally getting some mainstream-media attention.  Hurray. – 4/7 at 12:57 p.m.

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Kochcare vs. Obamacare: Finally, Finally, Obama Comes Out Swinging

Mr. Obama also singled out sponsors of a “cynical ad campaign” discouraging Americans from signing up for the new health care program by arguing that it would effectively put the government into the room when women undergo gynecological exams and men undergo colonoscopies.

“These are billionaires several times over,” Mr. Obama said, evidently referring to the conservative political activists Charles and David Koch, without naming them. “You know they’ve got good health care.” But if people who turn down the new health care subsidy get sick, he said, the Kochs would not care. “Are they going to pay for your health care?”

Obama Makes Impassioned Defense of Health Law, Peter Baker, New York Times, today

Damn!  A few days ago, when I first read about these silly Koch-sponsored ads, I thought I would post here commenting on the good news: The Koch brothers are promising to pay the medical expenses of young people who forego healthcare insurance now available to them via Obamacare!

That was how I interpreted the ads, anyway.  I mean, after all, the only other option for these newly christened “young healthies” who do have the option of gaining affordable healthcare insurance through Obamacare is to not have healthcare insurance at all. Sort of like the many millions of seniors who, without Medicare, would have no access to healthcare insurance at all, because of its high cost or because of preexisting conditions.

But since the Kochs aren’t urging seniors to forego Medicare in order to keep the government out of, say, the chemotherapy room or the coronary-bypass-operating room, I figured the difference was just that the Kochs aren’t willing to pick up the tab for the elderly, who will have no choice but to continue to let the government into the examining room with them and their doctor.  I mean, what other possible reason would there be for the Kochs to not run ad campaigns similar to those directed at young people but instead directed at Medicare recipients?

None, I thought!

But I was wrong.  According to Obama, the Kochs have no intention of paying the medical bills of the young people who, at their urging, and misunderstanding the ads just as I did, forego Obamacare in order to keep the government out of the physician’s examining room. And out of the delivery room. And out of the orthopedic surgery room.  Among other rooms.

How disappointing. All those young people who thought from that ad that they’d be inviting the Kochs into all those medical rooms, and that the Kochs would accept the invitation!  Or at least have United Health Care, WellPoint and Blue Cross Blue Shield stand in for them in those medical rooms. Only to hear the president say that that’s not what the Kochs meant.

Of course, what the Kochs actually are doing is trying to keep United Health Care, WellPoint and Blue Cross Blue Shield from being ushered into the examining room via Obamacare. And also from keeping their targets—the young currently-healthies—from themselves entering the examining room, at all, or from entering it and then having to pay large out-of-pocket retail costs (should they happen to have a savings account or a decent-sized regular paycheck, and can pay it).  Even if they suddenly become unhealthy.

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