Of course, a policy’s popularity does not mean it is necessarily constitutional. Or does it? Even the Originalist Scalia says he accepts the New Deal’s (and I suspect the Great Society’s) programs. He gives a three pronged criteria for why he accepts it, but not decisions like Roe v. Wade, Casey v. Planned Parenthood, and Lawrence v. Texas:
3) easy to apply
The 2nd criterion is a variation of what Lawler mentioned. The New Deal and Great Society programs were popular at the time they were passed. Moreover, they were passed by the LEGISLATURE. On the other hand, the Roe and the subsequent cases were and still continue to be controversial decisions. The Culture War questions are not settled and can still be contested. But some form of a welfare state will be with us for the foreseeable future and it is time to make peace with that fact.
Mainstream Conservatives are not satisfied with turning back the clock 40 years; for them it is double or nothing, as the debate below reveals. Paul Ryan, a rising star in the Republican Party, is debating Neocon David Brooks on limited v. energetic government: