Oh, that clears it up. Define the following: “expand”, “reasonable”, “reading”, “due process”, “liberty”, and “property”. Thanks.
May I please slip in a Toldjaso here? Thanks for your indulgence. 
expand: to increase the extent, number, volume, or scope
reasonable: not extreme or excessive, moderate, fair
reading: to learn from what one has seen or found in writing or printing; to interpret the meaning or significance of
due process: a process of law sanctioned by settled usage in common and statutory law
liberty: the positive enjoyment of settled social, political, and economic rights and privileges
property: something to which a person or business has a legal title
So contracting a reading of the Constitution beyond what many consider reasonable is not activist?
Reading the text in a unduly narrow, restrictive way, as opposed to a reasonable way?
Sure.
So how would finding a right to sexual intimacy or the right to have children in the term “liberty” be activist, with those definitions? Wouldn’t finding a person to be “property” be strict constructionist?
I’m not sure what you, specifically, you mean by “a right to sexual intimacy” or “the right to have children.” Neither of those are unfettered rights in the context of settled social, political, and economic rights and privileges.
Certainly the right to sexual intimacy with your spouse would be a settled right. But the right to sexual intimacy with the part-time teenage bagboy at the grocery store where you’re his manager is not. Which did you mean?
No, reading the text in a way that is sufficiently narrow as to challenge the collective preference of the majority, calculated loosely.
Let’s focus on this one. Do I have the right to choose whether or not to use contraception with my wife? Did I the day before I got married?
Are you saying that Scalia’s concurrence in Gonzales v. Raich is an example of judicial activism?
Not at all. If Congress is passing laws that are contrary to the Constitution, then striking them down is certainly not “legislating from the bench” – indeed, one could make the case that allowing them to stand is amending the Constitution from the bench.
Yes, and I expect you to make sure the next batch is ready for pickup on time tomorrow, if you have to work your staff round the clock to do it.
That’s a tough one. On the one hand, it does follow from earlier precedents, and is only incrimental in its broadening of state power. But the line of reasoning leading to that decision is certainly activist.
I love watching lawyerball. It’s a real treat seeing a method of constitutional interpretation called “objective” when it’s based on defining the word “reasonable”.
It’s turtles all the way down, right?
No, that’s not activism. The job of judges is to interpret the existing written law. If the law as written conflicts with the majority viewpoint, then it’s up to the majority to effect a change in the written law.
No one used the term “objective”*, so I’m not sure where you’re getting that from. I think the term “least subjective” would be better. Objectivity is a goal that can’t be achieved, but we can try to minimize subjectivity. Based on your posting in other legal threads, your proposed methodology would enshrine subjectivity, not minimize it.
*except the OP, but he didn’t use it in the context you are using it.
When did you get married?
I would have decided Griswold differently, and I do think Griswold is an activist decision. It’s very shy on noting any precedents that are on point and full of flowery language about how sacred the marital relationship is.
And I agree. A state should not forbid the use of contraception. But that is not a matter addressed in the Constitution.
But remember that I’m not advocating a blanket reversal of every case of judicial activism we’ve seen. Today, we’ve built a tower on top of Griswold. So today you have a right to choose contracptive use with your wife, a federal constitutional right, based on Griswold. But Griswold is based only on the judge’s belief that contraceptive use should be a fundamental right. I agree that it should; I disagree that “it should” equates to “therefore, it’s in the Constitution.” The correct remedy for Connecticut residents in the early 1960s aggrived by the law was to vote out the legislators that made such an unwise law.
In a manner of speaking, yes.
Gonzales v. Raich’s result is absolutely compelled by Wickard v. Filburn, which was undoubtedly activist.
This isn’t the first thread in which the subject has arisen.
If you think there’s a difference, I suppose you’re welcome to it.
It can’t be avoided or even contained, so it doesn’t matter what methodology I propose or what I call it. I’m simply bemused by the oft-repeated assertion that there is something other than turtles down there. It would be more helpful, and enlightening, to clear away that bit of sophistry and discuss the process for what it inherently is.
I’m assuming you’d go with, despite the 9th amendment, that if a right isn’t in the Constitution, it isn’t really a right? I know that arguing about the idiocy of the law or of standing idly by while the government legislates a right that a vast majority of people would consider fundamental, is of no consequence to you. But, purely from a Constitutional viewpoint, what reason, other than the precise words weren’t in the Constitution, would you think it wasn’t covered? Surely part of the role of the judiciary is to act as protector of the rights of individuals? And, just as surely, the Constitution is clear that the Bill of Rights is not a complete list of rights, correct? What rights are there that aren’t in the Constitution? Any?
Why?
I, personally, don’t like how Griswold was written or even the rationale it uses, but, given the alternatives, I’ll take what I can get.
Sure it is. The due process clause.
I agree that policy should not be the deciding factor into what rights are protected by the Constitution. But I’m not going to say that what is a right is to be determined by whether or not it is specifically listed in the Bill of Rights alone, especially when the Constitution itself says that’s not so. And personally, I’d be terrified to live in a country where your mode of judicial determination carried the day.