The problem in our legal system is not on a tactical level, it is at a strategic one. There are a couple of philosophical principles which go to the core of current judicial activism:
Post-modern solipsism: The concept that there is no truth external to the individual and his own experience - only personal perception exists. As a result, there is no "truth" or "original meaning" to be protected in our founding documents, there is only the value of our PERCEPTION of that meaning. These documents become only frameworks to serve us as we thrash out their meaning in the courts, by the second, and following, pervading concept:
Aristotilian, dualistic defining philosophy in law: The idea here is that universal truth, meaning, and principles can only be arrived at by dealing with, defining, or organizing all of the individual cases around us. In other words, in court, deal with all the particular, individual problems on a particular issue and you will eventually build enough case law to form a universal law.
The problem with BOTH philosophies is that they essentially reject either the existence or validity of principled law - as in Locke's concept of "natural rights" which he based, in a secular form, on Rutherford's concept of "higher law" from God. Agreeing with Rutherford and Witherspoon, the founding fathers stated that the rights set forth in the Constitution and Bill of Rights were pre-existing, devinely-mandated rights.
Judicial activism and case-law-precident-based law definition are AT ODDS with the concept of principled laws. From this philosophy you find springing the notion that anything not specifically mentioned in a law is permissable.
If you ask me, one of the most pivotal and dangerous moments in our modern time was in the 1980s when the congress (constitutionally tasked with creating law) secretly sent a copy of a proposed piece of legislation over to the Supreme Court (constitutionally tasked with applying to individuals the law created by the congress) for approval before passing it, so they could be guaranteed it wouldn't be ruled unconstitutional by the Supreme Court. In that act, in all practical terms, they forfeited their constitutional autonomy and equality with the judicial system and became subjugated to it.
Bobbalouie
Whaddya think?