That is what the whole debate comes down to. The sharpshooter vs the Shotgun. As I said, unfortunately SDP isn't the only "tool" that can be wielded in a reckless manner, nor the only way that judges can usurp the legislature and create new rights.

Unfortunately, I think the use of the 1st amendment to cover child pornography and nazi rallies, among other things has been more in the shotgun vein than the sharpshooter. It doesn't mean that I think the 1st amendement is illegitimate or that it's merely a way for judges to create new rights and be activist.I have, and I'm sure you do as well, serious disagreement with how the remainder of the bill of rights has been applied in cases like Mapp v Ohio, Miranda, Roper, Furman, Maryland v Craig, etc...

But that does not mean I 100% reject what those amendments stand for. Much like my views on SDP, I think that they gave to be applied fairly and properly or else there is a grave danger that they can be abused. Surely, the Kelo decision represented a judicial power grab and has been roundly condemmed by both liberals and conservatives, it has nothing to do with SDP.

Justice Thomas said that "THE MOST IMPORTANT"(emph added) case decided since Brown was Morrison v Olson and that it represented the worst kind of judicial activism. Morrison v Olson has NOTHING to do with SDP and instead or even the Bill of Rights. So abominable decisions can happen in all cases and judges can abuse and disregard the Constitution in ways that are far removed from SDP.

I guess I question the idea that SDP is the sine qua non of judicial activismn(broadly defined) and that if only we'd do away with it, the constitution would be restored to some idyllic, utopian state that existed before Bill Douglas and Bill Brennan made a mockery of it.Even if SDP were eliminated tomorrow, judges would still find ways to create new rights and since the SC is the final authroty on constitutional matters, absent an amendment the people wouls still be powerless to stop them from doing so.

Judges would find new and equally outrageous ways to reach decisions like Roe, Lawrence, etc... that utilize SDP. As many liberals have argued, Roe and Lawrence for that matter could have been grounded in the equal protection clause rather than through SDP. If that had happened would that have rendered the equal prtection clause illegitimate simply because certain judges perverted its meaning?

The key is to participate in democracy, to vote, and to use the power of the democratic gift the Constitution provides us with to elect Presidents that will appoint judges that won't abuse SDP. If for example, Justice Stevens and/or Justice Ginsburg steps down, we'd a solid majority of 5 judges who are as skeptical of SDP as you are, then you wouldn't have to worry about it being abused. If a solid conservative wins the in 2008, we might be able to have 6-7 vote conservative majority that would ensure that SDP is rendered impotent for the next 20-25 yrs.

The SCOTUS is ultimately a reflection of the nation as a whole. The commerce clause had a very specific meaning until the nation deiced they wanted it to have a more expansive meaning and to allow the govt greater latitude in regulation and thus reelected FDR who stacked the SCOTUS with Justices who would ensure that his view of the constitution won out. It's up to us to affect a similar change by electing a President and a Senate who share our view of the Constitution and thus will nominate and confirm justices who will ensure that our view wins out and that the abuses we decried in the past do not occur in the future, and where possible, can be rolled back or outright reversed.