Throughout history, from the Roger Taney courts of the 19th Century to the activist courts of the first 3 1/2 decades of the 20th Century to the Reagan/Bush Courts of today, right wing conservative extremists have systematically sought to use the courts to impose an ultra right wing agenda that is unconstitutional.
Said philosophy is best epitomized by groups like the Federalist Society. In my opinion, The Federalist Society believes that the role of the judiciary is to reach conclusions consistent with the political viewpoints of radical right wing conservatives even if such conclusions are clearly contrary to the Constitution of the United States of America.
The most common tactic used by right wing judicial activists to subvert the Constitution is to claim "original intent." But as anyone with an iota of logic soon realizes, original intent can be used to validate any ridiculous opinion. I could ludicrously argue that automobiles and planes are unconstitutional because it was the original intent of the Founding Fathers to have people travel either by foot or horse and buggy. If you think this is laughable, read the decisions of Scalia on constitutional law cases. It's the same thing.
I would assert that it was the original intent of the Founding Fathers to have the Constitution to be a living breathing document with mechanisms built in for change. The Founders realized that society would evolve and the framework of the Constitution gave future generations the option to amend the Constitution.
In the initial Constitution (w/o amendments) government has broad but limited powers. Instead of cutting down a forest to list every perceivable type of commerce transaction, the Constitution simply gives Congress the power to regulate Commerce. Instead of cutting down a forest to list every scenario of Full Faith and Credit given to a State's public Acts, Records, and judicial proceedings, the Constitution simply grants that power. Therefore it appears that these powers are meant to be broad and so long as a law has even the slightest nexus to these powers, the law is constitutional. (This makes perfect sense on economic laws because the remedy to a Congress passing bad economic laws is called an election.) And if there is any doubt about whether or not this power was to be broadly or strictly construed, the Constitution answers that for us by giving Congress the enumerated power to do what is necessary and proper.
In 1791, a brilliant set of laws were amended to our Constitution. We call them the Bill of Rights. They are the cornerstone of liberalism and democracy. Again, we don't cut down a forest to list every perceivable scenario, we look at the language.
Amendment 1 -
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peacably to assemble, and to petition the Government for a redress of grievances.
How many times have conservative justices ignored this great Amendment?
Amendment 4 -
The right of the people in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, the the persons or things to be seized.
How many times have conservative justices ignored this great Amendment?
Now I can list all 10 Bill of Rights but I want to simply list Amendment IX. It states:
"The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Does this not settle the debate between the Borks of the world who say that if a right isn't specifically stated it does not exist v. the DFQ's of the world who say that the presumption shall be that the individual rights do exist absent extraordinary or exigent circumstances? Of course it does.
Conservatives will then try to find some quotes or examples from the Founding Fathers to nullify the Bill of Rights but this argument is disingenoous since the Bill of Rights was AMENDED to the Constitution by state legislatures. So are we supposed to discern the mind of EVERY state official in 1791 to garner their interpretation of these Bill of Rights?
What was the original intent of the Founding Fathers? To me on economic laws it was their original intent to have the Courts rarely intervene to strike down a law that in any way, shape or form, could conceivably have a nexus to commerce. Prior to the Civil War, the Supreme Court declared a grand total of 2 laws unconstitutional. Compare that to Scalia, Thomas, and Rehnquist who have the three highest percentages of declaring laws unconstitutional in the history of American jurisprudence.
On the civil liberty issues, the Constitution is clearly on our side. And how to interpret those issues is etched in stone in our Constitution via the 9th Amendment.
So the next time you hear talk about strict constructionism or original intent, recognize the BS. And then go tell the person to actually read the Constitution.