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Can President Obama Sit at Rand Paul's Lunch Counter? Can John Roberts and Nino Scalia? and Other Reasons Jack Conway Must Be Kentucky's Next Senator

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Yesterday I wrote a post about -- like a million other Wednesday morning quarterbacks -- one of the possible paths to victory in Kentucky for Jack Conway -- a Senate seat and candidate I have a particular interest in.  

The path went straight through Ran Paul's purist teabaggery.

Now it can be told: Election eve, I was downright worried for Jack. Paul was (and still is) going to raise a ton of Tea Bucks. And, I had heard, Paul was shrewd, and was already tacking to the center to capture the centrist vote.

But then Paul's victory speech showed that, to the contrary, Paul was doubling down on Teabag Libertarianism.

Jack's chances had just improved markedly.

Then yesterday Paul questioned the constitutionality of the Civil Rights Act of 1964 -- and therefore the racial integration of Kentucky's businesses, from diners in coal country in the east to hotels in Paducah in the west.

It took Barry Goldwater the whole 1964 presidential election to implode.

It took the Gingrich Revolution two to six years, depending on how you measure it.

It took Rand Paul less than 24 hours.

Even Joe Scarborough now says Paul's extremism has moved the race to the lean Democrat column, with Conway likely to win.

Paul set himself up, in short, to be 2010's Barry Goldwater -- whose radical libertarianism and 10th Amendment states' rights advocacy turns him from right wing darling to general election loser in record time.

Except that in 1964, Goldwater's views were not counter to nearly 50 years of settled Supreme Court law and societal acceptance. Goldwater was a libertarian - but he was rooted in his time.

George Allen's soft Macaca racism didn't play, even in the appalachian town of Breaks, Virginia where he said it. And in Kentucky, just one mile to the west, Paul's refusal to endorse the Civil Rights Act of JFK/MLK/LBJ won't play either.

It was a brilliant display of political self-immolation -- or self-mutilation -- surely more than self-mortification.

Paul's Constitutional Hot Tub Time Traveling back to the 1950s (or even 1920s) - and his particular focus on state's rights and the Commerce Clause (more on that below) open more and more opportunities for Conway.

(BTW, why stop at at 1930? Why not Constitutional Hot Tub Time Travel back to 1860? Seriously, a reporter needs to ask Paul if he believes states have the right to secede).

The NPR/Maddow demographic, of course, cares most about the Civil Rights implications of Paul's retrograde constitutionalism -- as do Kentucky's African Americans, who make up 8 percent of the Commonwealth.

But its implications for Social Security, Medicare, Medicaid, and the the Department of Education are perhaps of greater personal concern to Kentucky's senior voters, among others.

Which gets us to the John Roberts and Nino Scalia part of this post.

Rand Paul and the Tea Party's constitutional extremism, if and when the public clearly views it, is way out of the American mainstream.

Mainstream America does not believe Social Security is unconstitutional. It does not believe Medicare and Medicaid are unconstitutional. It does not believe the Department of Education and the Civil Rights Act are unconstitutional.

Americans accept the principal of finality -- be it the Civil War or the certification of the 2000 election - and the constitutionality of above federal programs.

The scary thing is, based on recent Court decisions, the Roberts Court majority -- or at least the Roberts-Alito-Scalia-Thomas plurality -- does not accept finality -- or stare decisis, as translated into legalese. Moreover, the Roberts/Scalia plurality takes a narrow view of Congress' ability to regulate business through the Commerce Clause, like Paul.

And that is the basis for the legal challenges to the Health Care Reform Act now being brought by the right wing Republican Attorneys General like Virginia's Kenneth T. Cuccinelli.

(Conway refused to join the state Attorneys General challenge to the law, natch).

Some Tea Baggers may think the constitutional challenge to Health Care is a good one-off political attack. But Paul and the Tenth Amendment true believers (who evidently haven't read the rest of the Constitution, such as the Commerce Clause the Supremacy Clause) -- see the Health Care challenge as merely the first domino to tip over.

If Health Care's constitutional basis falls, so too falls Social Security, Medicare and Medicaid, and yes, the Civil Rights Act.

That Paul is sticking to his fundamentalist libertarian guns on this point is bad politics -- but it is good for America's public dialog.

It forces the Tea Party and Tenth Amendment Movement to come to Jesus, and decide if it truly believes that much of our federal government is illegally constituted -- or merely needs a change in leadership and policy (though they don't seem to accept the validity of election returns, at least in the case of Barack Obama).

Jack Conway, thankfully, is the perfect candidate to speak truth -- and reason -- to the Tea Party/Tenth Amendment/Radical Libertarians.

As Kentucky Attorney General and courtroom lawyer before that, Jack has proved his chops as a legal and constitutional thinker. Back when we were housemates, he would have me quiz him before finals until he knew the all the cases cold.

Legal precedent and stability and the rule of law. Something neither Rand Paul nor even the Roberts-Scalia wing care much about. But Jack Conway does.

What is at stake isn't merely one Senate race in Kentucky.

It's the Constitution itself.

Kentucky Republicans backed the Rand Paul view of the world in their primary.

But if the Supreme Court does, we're in real trouble.

Another reason why Kentucky 2010 is so important -- as is America 2012.

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