More on Commonweal and Alito

I had to take a break from my spaghetti eating here in Rome to respond to Ricks comments on the Commonweal Alito editorial. I must say it was an extremely fairminded editorial from a liberal mag. and I would defend it from Ricks criticisms (though it looks like I am sucking up to our mutual editor). First, I dont think those were scare quotes around "originalism", but rather an attempt to highlight that as a distinctive interpretive approach. More important, does Rick really believe that Scalia are not both radical and activist? Is not Scalia literally radical, in his desire to tear up non originalist modes of constitutional interpretation by their roots, and start again on originalist premises? If he had the chance to write more majority ops than dissents, would not he be very activist. in terms of upsetting prior precedents? And would not Thomas view of the commerce clause have radical consequences, dismantling much of the constitutional basis for federal regulation of business? Of course, the term activist is often just a way of criticizing a judge who would produce results one does not like, hence usable by both the left and right, and not a coherent way to define judicial philosophy. But is it not at least fair to say that the difference between Alito & Roberts on one hand and Thomas and Scalia on the other is that the latter are "Big Idea", top down guys whose very clear, systematic principles would produce a greater and more rapid degree of constitutional change. I do not think this is just a question of willingness to overturn wrong decisions - after all, is that not what those arch-activists on the Warren court thought they were doing? I invite those who know more con law than I do to weigh in on this...

--Mark

PS So far spaghetti a la carbonara, arabiatta, amatriciana, con carciofi, con funghi....