We’ve danced the “judicial activism”, dance, many times before on the SDMB.
The two main points I’d like to make here are:
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eschroedinger’s assertion that “Only since Marbury v. Madison. Before that, there was a view that Congress and the president would interpret the constitution for themselves, and not pass anything that they viewed as unconstitutional. Any law that they passed would have been deemed constitutional by them, and no one would have had the power to overrule that. Again, judicial review is not expressly in the constitution. It became law in Marbury v. Madison through constitutional interpretation.” is patently wrong. Marbury v Madison didn’t create judicial review out of thin air; state courts had been reviewing the constitutionality of legislation for decades before Marbury, and common law in England had also. Federalist Paper #78 also highlights the constitutionality of judicial review.
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“Originalism” is a horribly flawed method of Constitutional interpretation. The Founders had a multitude of differing beliefs and definitions of the words used in the Constitution. They were no more of one mind about what “due process” is or of how far the right to free speech extends than modern Republicans and Democrats are today. Pretending you can divine the one true original meaning of the Constitution is folly. If you attempt to determine a single intent of the Founders, you have to ignore " the Founders’ view of the Constitution as a framework, not an eternal truth. It was intended to change over time." As Jefferson said: “We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.” Quote