Objection!
Scalia is not an originalist; no originalist would say that it is ‘Foolish’ to have the supreme court decide if NSA wiretapping is unconstitutional
. Moreover, no constitutionalist (originalist or textualist) can support the War on Drugs, which is predicated on vast expansions of federal power (contrary the 10th and 9th Amendments). This expansion is essentially the affirming of the USSC's ability to amend the Constitution by deriving from Wickard v Filburn the principle that the ability to issue interstate regulations includes the ability to issue intrastate regulations. Scalia played a part in further expanding the engine of our enslavement (the commerce clause) in Gonzales v. Raich so it includes even non-commerce — it is unforgivable for a jurist to issue concurrence with the logical nullity that the Congress can issue valid laws regarding non-commerce matters through the power to regulate commerce.
In the first paragraph of his dissent, Thomas said:
Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.(My emphases.)
Scalia is most definitely an originalist. The totality of his opinions support that description.
By the way, you've taken Scalia's comment completely out of context. Here is the context of what he said.
“The institution that will decide that is the institution least qualified to decide it. We know nothing about the degree of the risk. The executive knows. The Congress knows. We don’t know anything, and we’re going to be the one to decide that question?When Kalb asked if data collected qualifies as "effects" under the 4th Amendment, Scalia said, "I think so."
Historically, Scalia has said - and I'm paraphrasing - that Congress should make clear the intent of its legislation so the Supreme Court can interpret whether or not the law is constitutional instead of what the court thinks Congress intended.
Congress had a duty to explicitly state that the NSA shall not collect the "effects" of American citizens without a proper warrant. When expanding the power of the Executive branch, Congress should do so narrowly. Unspecified scope always leads to broad interpetations.
http://www.freerepublic.com/focus/news/3146423/posts?page=70#70
https://www.youtube.com/watch?v=z0utJAu_iG4&app=desktop