Constitutional Fairy Tales

Washington – Tea party types and other conservatives talk about how they'd like their country back.

I'd like my Constitution back.

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, as articulated by Perry, Minnesota Rep. Michele Bachmann and others, 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 ran on the pledge of appointing “strict constructionist” judges, but he created the Environmental Protection Agency, telling Congress that “our national government today is not structured to make a coordinated attack on the pollutants which debase the air we breathe, the water we drink and the land that grows our food.” Nixon didn't doubt — as do the modern-day constitutional conservatives — that environmental regulation was an appropriate and constitutional role for the federal government.

Likewise, George W. Bush inveighed against judges “legislating from the bench.” Yet he presided over the largest expansion of Medicare — the addition of a prescription drug benefit — in the history of the program and oversaw a sweeping new role for the federal government in assuring quality education by local schools. Bush didn't question — as do the constitutional conservatives — whether these were permissible activities for the federal government.

The constitutional conservative vision is dramatically different. It sees a hobbled federal government limited to a few basic activities, such as national defense and immigration. The 10th Amendment, reserving to states the powers not specifically granted the federal government, would be put on steroids. 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.

The danger posed by the constitutional conservative approach is to attempt to lash together debates about what the federal government should do and what the Constitution allows it to do.

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.

The federal government would cease any role in education, eliminating funding for public schools and college financial aid, and in combating poverty, ending food stamps and unemployment insurance. Laws on everything from child labor to food safety would be overturned.

None of this is likely to happen, of course, for the simple reason that most Americans don't want it to. When Perry was pushed during a debate about the implications of his views on the constitutionality of Social Security, for example, he waved off the question as an interesting intellectual exercise.

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, energizing and empowering conservative judges and justices. And it changes the nature of the political debate as well by narrowing the turf on which, at least in the view of some lawmakers, the federal government is deemed authorized to operate.

“This is a way to weaponize the Constitution to prevent a real debate about how the government can solve national problems,” Kendall told me.

Strong words, but the constitutional conservative vision is too extreme to continue to ignore in the hope that it will fade on its own.