Commonweal and Alito, cont'd

A quick response to Mark (who is loving life and living large in bella Roma):  I agree, as I said, that the Commonweal editorial was, as Mark says, "an extremely fairminded editorial from a liberal mag."  But, in response to Mark's question, yes, I do deny that Justice Scalia is a "radical" and / or an "activist." 

In my view, the extent to which Justice Scalia's -- and even Justice Thomas's -- interpretive method or judicial "philosophy" would have earth-shattering effects of the kind to which Mark alludes is often exaggerated.  As for what the "arch-activists on the Warren court thought they were doing," my sense is that they regarded their project as one of updating and improving the Constitution, not merely correcting wrongly decided cases. 

Mark is right, of course, that words like "activist" don't move the ball much.  Still, there is an important distinction worth drawing between (a) expansive and novel interpretations that have the effect of removing disputed moral and policy questions from the democratic arena and (b) interpretations policing the Constitution's structural features and boundaries and enforcing the idea of limited congressional powers.