I would really like to know...
...Each camp has its list of outrageous court decisions, which it denounces as deliberate distortions of law, cavalierly imposed by “judicial activists.” That epithet has become little more than a verbal grenade, hurled, too often, simply to impugn any decision with which one disagrees.
Maybe they do, but...so what? There are some court decisions through American history that deserve to be held up as outrageous injustices. You know the names...Dred Scott v. Sandford, Plessy v. Ferguson, Kelo v. New London, and the list goes on. And of course Mr. Souter cast his vote on the wrong side of that last one. Heller v. D.C. was one vote away from it, and Souter came down on the wrong side of that one too. And those decisions (not Heller, mind you), as well as the lines of thought behind them, were bad for liberty no matter what school of constitutional thought one subscribes to. I would like to see, though, exactly what actions the "living Constitution" contingent thinks would be so dangerous and antithetical to liberty that the risks outweigh the public benefit, especially considering those folks think decisions like Kelo are a good thing. I tend to think people who write pieces like the above-quoted column would really just like the "strict constructionists" to sit down and shut up (especially considering it's mainly the SCs who come up with the lists of bad cases). They're just too spineless to say it outright.
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