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the meaning of originalism One of the problems with Mark Levin and company is that its not that they don't want Judicial Activism, they just want it with a different of politics. They will claim to just be following the constitution and original intent, but the problem is that they are the ones who get to tell everyone else what the original intent is. The powers belonging to congress is intentionally vague in the constitution as is the definition of interstate commerce. There is no set of fixed rules that can be applied to laws to see if they are beyond the powers granted congress in the constitution in most cases. In the area of the powers of congress, the concept of a living constitution has rarely come up. The issue in regard to congressional powers is how the courts are to react to the changing scope and meaning of interstate commerce over time. It is not the constitution thats changing, its the economy and the nature of business. Where the living constitution argument has come in is in the area of rights determined by the courts. The court has expanded what comes under the bill of rights tremendously since the second world war. They have done so, mostly in the name of a living constitution. Those cases, such as Roe V. Wade is where Levin's argument is strongest. Where it is weakest is where he (and others) call for a blatently political court with an agenda. McCain-Feingold isn't obviously unconstitution by the standard of original intent. There are conservatives who think that congress has no right to regulate elections and that free speech obviously implies unregulated political spending and fundraising, but thats not in the constitution in a definitive way. A convincing case can be made based on original intent that McCain-Feingold is utterly constitution. Those who say otherwise are not interested in original intent, but original intent as interpreted by conservatives. so-called "originalist" view isn't that at all. Its typically a set of interpretations of the constitution constraining the power of congress to regulate commerce coming out of the 1920s. The courts of that era were blatently political in stricking down laws to regulate business or working conditions but in upholding laws to regulate "morality" or "law and order". They came to the conclusion that while the government had no power over businesses, it had any power it wanted to regulate the lives or freedom of citizens. And in building up this system, they did not use original intent. They used contradictory previous court rulings to selectively allow or overturn laws. The true originalist doctrine of the court as practiced for over a century was that the courts should overturn laws and make decisions defining the powers of congress as rarely as possible. Those powers should be left for cases where the court has no other option. There is a whole century long history of courts yielding to congress as much as possible in the matter of how far its powers to pass laws should go. The authors of the constitution never meant for the courts to aggressively define the limits of the powers of congress to regulate.