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Issue not "judicial activism," but re-writing Constitution One of the criticisms that has been made of Mark Levin is that he is wrong to attack the Supreme Court for "judicial activism" in instances such as McCain-Feingold, where the Court simply approved a bill that the Congress had passed and the president had signed into law. But this mistates the issue. Here's the problem. If the Congress passes, and the president signs, a blatantly unconstitutional bill such as McCain-Feingold that expands Congress' powers into areas never remotely envisioned by the Constitution, and, in fact, explicitly prohibited by it, and if the Supreme Court then approves that legislation on the basis of its own policy preferences (which in the case of McCain Feingold happen to be the same as those of the Congress and the president) rather than on the basis of what is in the Constitution, then the Court is certainly guilty of Constitutional malfeasance, even if it is not guilty of "judicial activism." The problem is in Levin's reliance on the phrase "judicial activism." As Justice Scalia argued in his recent speech, the issue is not whether the Court is "active" or not, since sometimes the Court needs to be active in defense of the Constitution; the issue is whether the Court is attempting to read the Constitution as written and intended, or whether it is injecting into the Constitution its own meaning, derived from "evolving social standards," or "international consensus," or the judges' personal feelings and preferences, or emanations and exhalations from the moon, or whatever. Similarly, says Scalia, "strict constructionism" is a misleading term, since either a judge is attempting to read the Constitution as it was written and intended or he is not, whereas "strict construction" makes it sounds as though a judge is artificially forcing the Constitution into a cramped and narrow meaning. Therefore, Scalia continues, to avoid confusion in this debate, the issue should not be framed as "strict constructionism" versus "judicial activism," but as the "originalist" view versus the "Living Constitution" view.