Oh come on trap, you know me better than that. The very reason that I dismiss the notion of any real "originalism" is precisely because I know and can construct exactly that sort of arguement despite fully being aware of how much my CONTEMPORANEOUS cognition cannot be eschewed. Secondly you also know that the discussion here is whether or not Scalia and Thomas are actually originalists (perhaps imperfect ones) - as you contend, or whether they are simply "activists" from the conservative world view side.

To determine that question one has to make the so called "originalist" analysis first as best one can, and to compare Scalia's and Thomas' ruling patterns in those cases where the "originalist" analysis goes contrary to conservative thought. Because logically you would expect them to vote their "legal framework" if that was their basis. Alternatively if their vote can be predicted from their espoused conservative world views, then the case is clearly made for "conservative activist". (You also must have read me stating multiple times that a CONTEMPORARY UNDERSTANDING of "original intent" is one part of the decision making process)

Now I must have been unclear in my writing, but I don't see how you could consider "Terry" being antithetical to mainstream conservatism. It is completely consistent with the GovernmentOverIndividualRights approach to "Law and Order" that is mainstream conservatism. So is Hiibel, so is Raich. And yet each of those are pretty clear violations of any sort of "textualist" or "originalist" analysis of search, regulatory or detention powers ceded in The Constitution.

Thus it is precisely the votes of Thomas and Scalia in these and numerous other cases that demonstrates that their "originalism"/"textualism" is at best an ala carte approch, if not simply a dishonest smoke screen.

It is this smoke screen that is the issue, not their actual activism. After all, if The Federalist Society came out and said

"We are conservatives who want to see conservative activist judges seated on the courts"

Its pretty clear that their future pronouncements would be met with the justified skepticism reserved for partisan advocates. Instead we have yahoos who periodically roll into here (and elsewhere on legal blogs) who talk about how there is no "right to abortion" written into the Constitution (despite Am4,5,6,9 and 13) and that therefore it is "liberal activist judges" that "make law out of nothingness". Were they required to face the honest assessment that Raich, Terry, Hiibel, Exxon, BushVGore etc. all actually gave The Government powers that the US Constitution never ceded to The Government, then perhaps we could actually have a discussion as to how justices SHOULD be selected.