I dig much of what you're saying, but it is interesting that your second paragraph seems to define "liberal" as "deviating from original intentions," to the point that "conservative" scholars are being "liberal" when they twist meanings. It seems to me that if intention twisting goes both ways (and since we love to simplify everyting to just two possible sides, which I doubt we can reasonably do), it is a bit sophistical to label it "liberal" or "conservative," even if one side seems to do it more.
Speaking of one side doing it more, I also question the notion that "twisters" (which I'll use instead of either team label) believe they are twisting. Now, I'll defer somewhat to Matt's experience; maybe you personally know self-avowed "liberals" who get together and say "let's try to bend the meaning of the words from what was originally intended," but I've never met one. Whenever I hear people of any political stripe talk about the Constitution, they all think they are upholding the spirit of the document, if not the peculiar personal intentions of Rufus King or Richard Dobbs Spaight. For example, I have no problem with interpreting the Constitution to allow gay marriage. This is not because I've said, "yeah, why not try to squeeze out some really wacky interpretation to shake things up," but because I've read and read and re-read the Constitution and find nothing to preclude the possibility. Moreover, all of the "spirit of the Constitution" arguments invariably have to tap into "spirit of Marriage" appeals, which have nothing to do with the Constitution. I know James Madison probably never intended gay marriage, but he probably never thought of it at all. Many of our sacred, holy Founding Fathers could never imagine a woman voting or a Black man becoming Secretary of State, so if we worry too much about what the guys "really meant" (as opposed to what they wrote), we may not always reach a happy conclusion. Finally, I simply can't believe "the original meaning and intent of the framers is in large part settled," any more than Christ's intentions (or Paul's, for that matter) are "settled", or we wouldn't still be arguing about it. If you think it's already carved in stone, that's because you're talking people who already think the same thing you do.
Lastly, I have some questions on the nature of words, and laws, in particular. The articles and amendments are laws, written words. It seems written laws are meant to take the place of somebody's judgment to some extent. Here's what I mean. If I am the king and somebody makes a claim against somebody else, I have the power and obligation to decide what to do to make it right (though rulers' versions of "right" have frequently been anything but). To simplify things for the next time, or to make sure my intentions are carried out in my absence (when I'm dead or off killing the neighboring tribe), I write them down for other people to read (thanks, Hammurabi). The trick, though, is that the words I leave about my intentions are not the same thing as my intentions. As Socrates warns Phaedrus, words are not trustworthy memory aids; the are only impoverished shadows of what I actually meant. Now, my point here is not the same as Derrida's (though he adds yet another layer of difficulty to the problem). Once I, the king, am dead, the people cannot ask me what I "really" meant, they can only consult the words I left. (We can quibble about extratextual evidence [letters Jefferson wrote, napkins Madison doodled on, what Franklin did after he signed the thing, etc.], but those are not really part of the text under consideration and are beside the point here). So, interpreters of my words have the following job: determing the range, the limits of meaning for the words I left (since the words are slippery and indeterminate) and reach a reasoned conclusion within those limits. I don't say the because that would be really naive. Moreover, isn't this what lawyers do for a living? Neither prosecutor nor defender questions what the law says, but stretches (and I don't mean that in a negative way) the words' range of meaning just far enough so their interpretation fits safely inside. Neither lawyer would say he is "twisting" the law or the intent behind the law. Rather, they both think they are elucidating a legitimate interpretation of the semi-reliable written words. On the other hand, it is always "the other guy" who is twisting the law...I would never do something like that...I'm just upholding what the law says! Also notice that nobody calls to the stand the state senator who voted yes on the law when it was a bill, or the little old lady who collected signatures for the referendum to see what they really intended the law to mean--we have the law, and that is what we have to work with.
Dang, this got long. My point here isn't to pick on you "conservatives" or exonerate "liberals" (though it was interesting to hear a law professor on talk radio the other day praise Alito as a "good, conservative, activist jurist"). I want nothing to do with either of you. However, I see this business of "originalism" vs. "activism" as another talking point based partly on an actual problem of interpretation that affects everyone. Discuss.
P.S. I generally think Bork is a douche bag, but I agree with the argument you cite about Roe.
