You’re make the same assumption, while claiming that you’re making no such assumption. You think the text has determinate meaning. And then you invoke an example and cite “text, history, and structure.”

To quote the very next sentence in Marbury, after the one I quoted: “Those who apply the rule to particular cases must, of necessity, expound and interpret that rule.” (Marbury, 5 U.S. 137, 177). Yes, we have a written constitution. It has to be interpreted and applied. Much in the same way that we have written scriptures, which have to be interpreted and applied. For me, as a Catholic, it’s pretty obvious that every answer to every question I may have about faith and morals will not be found explicitly spelled out in the Bible. Thank God for the Church and her Tradition.

Once again, you say: We can all agree that the Constitution’s text has meaning and Supreme Court decisions can (and often are) unfaithful to that meaning.

Yes, we can argue that way. And arguing that way, we’re being dishonest, either with each other or with ourselves (or both). I interpret the Constitution to say X. The Court says the Constitution means not X. The Court is being unfaithful to the meaning of the Constitution! No, the Court is being unfaithful to my interpretation of the Constitution.

That is not to deny that there may be more strongly supported interpretations, depending on our chosen criteria (text, history, structure, evolving standards, a decent respect to the opinions of mankind, what Big Bird thinks, whatever). But notice the Constitution itself doesn’t prescribe any particular methods or criteria for interpreting it.

And for what it’s worth, I absolutely agree that the notion that certain rights are incorporated against the states through the due process clause of the 14th Amendment is balderdash. I’m with Hugo Black on this one: the entire Bill of Rights (well, except for the 9th and 10th Amendments, of course) is incorporated by the 14th Amendment.

I’ve been driving maybe 20 years maybe at least two times a day. That’s 14,600 drives I’ve taken and I’ve had I think two accidents. that’s just about in line with “about three out of every 5,000 laws passed by Congress and state legislatures every year”

So maybe we should consider just exactly what we mean by courts strking down laws. The impression above is that its an error checking process, like your spell check on your email program. You’re happy it catches more errors! But maybe its not so happy. Maybe its more like a car accident. The fewer you have the better. And the courts aren’t so fun. To challenge a law you have to have standing so it means you had to have been harmed in some way by the law. That means a very time consuming and stressful process of filing, pleading, appealing and so on. If this unconstitutional law has put you in jail, taken your house or money away, or put you on death row then its not so harmless as, say, spell check. Even if you win at the end, well wouldn’t you have rather not played?

So maybe the founders set the system up not wanting to see many unconstitutional laws passed….so they generally made it hard to pass an unconstitutional law. Sort of like highways are genreally ‘idiot proof’ to min. the chance of accidents, even though lots of really stupid people will drive down them. Of course that doesn’t mean it isn’t hard to pass a stupid law, a poorly thought out one, or one with really crappy consequences. It does mean that the system channels most of the competiting political pressures in such a way to ensure that most laws that end up making it are within Constitutional bounds.

The relevant metric then should be how many laws are stuck down after their Constitutionality is actually challenged in a court case.

Anonsters, I am not sure what you mean by this, but there most certainly is (or at least should be) a standard for deciding what does and does not pass constitutional muster. It is called “the Constitution.” Yes, in Marbury justice Marshall wrote that it is the province of the judiciary to say what the law is. I would, however, urge you to take another look at the case, and you will see that the fundamental bedrock of the opinion is Marshall’s opinion is his observation that the U.S. has adopted a “written constitution.” Surely Marshall’s observation would be meaningless and the program of judicial review he envisioned set adrift if the judiciary were not strictly bound by the text of the written document to which Marshall referred.

And I do not take Mr. Carter to be relying on an “extra-judicial” meaning of the Constitution. We can all agree that the Constitution’s text has meaning and Supreme Court decisions can (and often are) unfaithful to that meaning. That is what I understand Mr. Carter to be referring to by “judicial activism.” So he is not appealing to an “extra-judicial” meaning of the text by which to discern whether a court has engaged in activism. He is appealing to the plain old everyday ordinary meaning of the text.

Here’s an example. The court says that the due process clause of the 14th Amendment “incorporates” some (but not all) of the Bill of Rights and makes the favored provisions applicable to the states. Balderdash. It does no such thing. The decision is utterly unsupportable by text, history and structure of the Constitution. It is a judicial power grab plain and simple. I don’t need an “extra-judicial” standard to judge it so. All I have to do is look at the text of the Constitution to condemn the power grab.