The second empty issue to be discussed is the bugaboo of “judicial activism” and its conjoined twin, “judicial restraint,” which today's judicial conservatives have inherited from New Deal progressives. But what exactly is “activism”? Is it activism when any popularly enacted law is held unconstitutional? Neither Democrats or Republicans truly believe this, however, since they want judges to strike down laws as unconstitutional when doing so leads to the “right result” (but not when it doesn't). So judicial activism means thwarting the “will of the people” when critics agree with the people, while they complain about the “tyranny of the majority” when they disagree.

We can do better.

Even if we agreed upon a method of understanding the Constitution, there are further questions regarding “context” or “literal” or “bigger picture.” I'm not attacking your critique, I'm simply pointing out that “bigger picture” is vague at best because there are varying understandings of that “bigger picture.” You and I quite obviously disagree on some of these things, based on past exchanges.

On the Fed Society's own page, it “is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be…. This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law.”

Wow, I'm scared! Such activism to make sure the Constitution is applied, not reinterpreted by judges who don't quite like the laws.

And you cannot prove that it is “by definition activist” unless you admit that any endeavor to propagate a philosophy of politics or legal framework is also… which kinda means just about every political or religious organization.

Oh, the days when I used to think of things in “Left” and “Right.” Made arguing so much easier.

The same division happens in biblical hermeneutics, the so call hermeneutical circle. The term “activist judge” is a insult thrown at another judge. I think anyone would be hard pressed to find any Federal judge who says they are an activist judge, though I could quickly find judges charged with be an activist judge. One man activist is another's upholder of the constitution and that echos the battles in biblical hermeneutics, which was my point. One last point is with term, strict constructionism (and I should have made this point, apologises) I used it was more as it is used political realm, when politicians use the term, as Nixon did in relation to the Warren court.

The Sotomayer hearings are that the intersection of Law and Politics.

I used to think that the Republican Party could do nothing to marginalize themselves any more than they had already. I was wrong.

The GOP is in such bad shape that they can't appear to oppose a Latino candidate for fear they would lose even more of those votes. Also, Roberts and Alito are members of the Federalist Society, a right-wing legal fraternity that is by definition activist; the reason Robert Bork was voted down some 20 years ago was that he made that a little too obvious.

FWIW, the courts are *designed* to be a conservative check on the rest of government, in that changes there are supposed to take place slowest of all. In terms of problems with the “living constitution,” yes the problem is how it then, pushed to its logical conclusion, the constitution means whatever the court wants it to mean. And ultimately, it has to mean *something* objective.

For the disasterous effects of trying to read too much into the constitution, see the Dred Scott case and Roe for examples. Also, consider Lochner for an economic example. Contrast that to the women's vote case(s), where the court refused to interpret “equal protection” to include votes for women, and the subsequent ratification of the 19th amendment. Was that ideal? No. But the process does have much more democratic legitimacy since it wasn't imposed by the court.