  What is it about urlLink Dahlia Lithwick that makes her repeatedly come close to a great idea and then suddenly drop the ball? There is probably nothing I can do or say to convince you that the words "activist judge" have no more meaning than the words "hectic smurlbats. " You've heard "activist judges" so many times - from the president, from Congress, from the angry guys on the radio - that you can define it right along with me. Together then: Liberal activist judges make law, as opposed to interpreting it. They ignore the plain meaning of texts to invent new rights. Superimposing their moral views onto their legal reasoning, they brazenly advance the cause of the fringe liberal elites in the culture wars.
That certainly sounds right. Justice Antonin Scalia would say it better, of course. He'd make reference to the framers and toss in words like kulturkampf . The sarcasm seems well-placed so far. Re-activist judges are able to present themselves as "strict constructionists" or "originalists" by arguing, as does Justice Clarence Thomas, that any case decided wrongly (i.e., not in accordance with the framers of the Constitution) should simply be erased, as though erasure is somehow a passive act. Not quite. The "strict constructionism" and "original intent" theories of statutory interpretation are, basically, total opposites and not two different ways of saying the same thing. Here's a classic example of the rather stark difference between "strict constructionism" and "original intent": Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Now, if you're a "strict constructionist," then these words say what they mean and mean what they say, and the draft is unconstitutional. End of discussion. But if you're an "original intent" theorist, then you ask not what the words mean , but what they meant .
Then you get to dance around the "strict construction" of the Thirteenth Amendment by arguing that the drafters and ratifiers were only talking about slavery., . Now of course sometimes you simply have to do at least some interpretation -- what exactly is " urlLink interstate commerce " or an " urlLink unreasonable search "? Then the debate should be between: (a) the plain meaning of the text, (b) the original intent (in a modern context), or (c) the meaning as developed over time via precedent and scholarship. A very libertarian judge, urlLink Richard Posner , describes this process as "gap-filling. " But such debates rarely align perfectly along liberal-conservative (or libertarian-statist) partitions.
The simple, and perhaps cynical, answer is that you argue whichever school of interpretation helps your position, selectively choosing and ignoring source material as best suits your needs. Lithwick is dead-on accurate when she exposes the hypocrisy of, say, Justice Scalia (or his ideologically conjoined twin, Robert Bork, who called part of the Bill of Rights an " urlLink inkblot on the Constitution ") -- such jurists cannot possibly be called "strict constructionists" with a straight face.
I've long argued that it is almost always best for libertarians to argue true strict constructionism, since most of the constitution limits the actions of government and most "interpretation," both from liberals and conservatives, tries to get around that "nuisance. " It would be unfortunate for lay libertarians to become confused by mislabeled legal theories such as "strict construction" and "original intent" applied too casually to those who oppose libertarian policies. Some good (but not perfect) review materials urlLink here . (Cross-linked with urlLink Outside the Beltway . ) urlLink 
