“Why should the views of the 18th and 19th century be used to resolve issues that confront modern society and were wholly unimaginable at the time the Constitution was approved? ”

Because words have meanings. If you don’t like the words in the Constitution, or don’t think they apply, the solution is right there in the form of Amendment.

This is a red herring argument. Because X didn’t exist when the 1st Amendment was ratified, we have to “interpret” the amendment. No, look to the intent and determine if it fits the meaning as commonly understood. If it does, great, use it. Otherwise, amend the Constitution.

Sunstein’s “minimalism” is a sham. Read his other work (The Partial Constitution, especially) and you find what he is pushing and wants judges to force is POSITIVE rights into the Constitution, whether the language is there are not (for example, reading the due process clause to REQUIRE that everyone be given a home at government expense!) This is minimalism?

From his “constitution in exile” movement (which he was later forced to admit he made up see The Myth of the “Constitution-in-Exile” Movement http://legalaffairs.org/webexclusive/debateclub_cie0505.msp) outside of a single comment in a single law review article which he dug up to tar anyone who didn’t swallow in wholesale lots his views.

You are right. And the solution was to amend the Constitution. Not to get judges to do it for you.

Sunstein’s book makes some points, but he makes a hash of what “fundamentalists” are really trying to do.

Getting a fair assessment of what Thomas or Scalia is trying to do (or THINK they are trying to do and what their though processes are) from a man who has publically expressed hate and contempt for them (professional and personally) is highly unlikely.