The rise of these self-proclaimed constitutional conservatives is an ominous development that has received too little notice - and too little push-back.
Until now. Under the banner of "Constitutional Progressives," a coalition of liberal groups has begun making an important two-part argument: First, that a progressive government agenda is consistent with constitutional values. Second, that the constitutional conservative approach represents a dangerous retrenchment of the government's role.
This bid to "rebut the constitutional fairy tales being peddled by the tea party," as Douglas Kendall of the Constitutional Accountability Center put it, could not be more timely, with the dizzying rise of Texas Gov. Rick Perry.
The constitutional conservative critique, goes far beyond the familiar laments about activist judges. It is, at bottom, an argument against the 20th century - specifically against the notion that the Constitution envisions and empowers a muscular federal government able to ensure that its citizens have clean air, healthy food and safe workplaces.
To grasp the radical nature of the constitutional conservative approach, consider the record of every Republican president since the New Deal.
Richard Nixon, for example, ran on the pledge of appointing "strict constructionist" judges, but he created the Environmental Protection Agency.
Likewise, George W. Bush inveighed against judges "legislating from the bench." Yet he presided over the largest expansion of Medicare in the history of the program and oversaw a sweeping new role for the federal government in assuring quality education by local schools.
The constitutional conservative vision
The steep and slippery slope argument!
The Commerce Clause, giving the federal government the authority to regulate commerce among the states, would be drastically diminished.
Certainly, there's a legitimate debate about the proper role of the federal government and the scope of federal versus state power. But that is a different argument than the one long thought settled during the New Deal: that the Constitution grants the federal government power to regulate a broad array of activities in the national interest.
More settled science?
A white paper by the liberal Center for American Progress spells out the potential consequences of the constitutional conservative vision. Programs such as Social Security, Medicare and Medicaid would be deemed to exceed the federal government's enumerated powers.
And all be eliminated by executive fiat!
The federal government would cease any role in education and in combating poverty, ending food stamps and unemployment insurance. Laws on everything from child labor to food safety would be overturned.
Steady, Ruthie!
None of this is likely to happen, of course, for the simple reason that most Americans don't want it to.
So why are you wasting all these photons? Paid by the word, are you?
But the emergence of the constitutional conservative argument has real-world consequences - even without a constitutional conservative in the White House. It shifts the legal debate significantly rightward, and it changes the nature of the political debate as well by narrowing the turf on which the federal government is deemed authorized to operate.
And you conclude this is a bad thing. I do not. But I will let you rant; your side seeks to make me illegal. Welcome to America!
"This is a way to weaponize the Constitution to prevent a real debate about how the government can solve national problems," Kendall told me.
Looks like it is encouraging debate, just not whether the debt ceiling should be limited to $20 trillion, or not.
Strong words, but the constitutional conservative vision is too extreme to continue to ignore in the hope that it will fade on its own.
Too strong; you mean too strong.