Conor Friedersdorf raises the question of whether Tea Party conservatives are in fact situational constitutionalists. They might question the constitutionality of the individual mandate, but they have no problem with violations of due process when conducted under the auspices of the war on terror. Why, it’s a war. Allowing American citizens to be indefinitely detained, or even killed, without much in the way of checks and balances is part of the deal.
Friedersdorf is right that Tea Partiers ought to take the constitutional questions raised by the war on terror more seriously. The point isn’t to keep the federal government from killing terrorists. The idea is to create clear processes and principles to stop them from killing innocent people, either inadvertently or as a result of government corruption. Ignoring these questions creates a mirror image of Barney Frank, who was generally a stout defender of civil liberties (no pun intended) but whose main legacy was manifestly unconstitutional economic legislation.
That said, national security is a legitimate function of the federal government in a way that many domestic programs are not. Some of the questions are more difficult than looking at Article I, Section 8. The new constitutional conservatism is by its nature interested in rediscovering the doctrine of enumerated powers, especially as it applies to the seemingly limitless welfare and regulatory powers of the federal government over the past 80 years. One hopes they eventually rediscover the whole document.