In Gonzales v. Raich, a bit of judicial activism would have been constitutionally correct and would have also increased our liberties, but the judges took a pass and went with the will of the majority.
For precedent, they relied on Wicard v. Filburn, or the “Every move you make affects interstate commerce” decision from the New Deal era.
Finding a right to abortion tucked away in a penumbra might be a stretch. Finding, nearly 150 years after the fact, that a single line in a list of enumerated powers grants Congress unlimited authority over the people and renders the entire rest of the list completely redundant and insignificant is… well, whatever it is, the abortion penumbra pales to insignificance, nay complete invisibility next to it.
Seriously, under any theory of Constitutional interpretation that doesn’t assume that the Founders were all higher than a treeful of monkeys on nitrous oxide, can anyone possibly conclude that any rational interpretation of a list of enumerated powers could find this meaning:
Congress shall have power
– to do A
– to do B
– to do C
– to do R
– to pass any other laws concerning any activity whatsoever including growing vegetables in your backyard, given that anything you do might affect someone’s decision to buy or sell something across state lines.
All you folks screaming about Bush’s supposed efforts to destroy civil liberties should note that the Democrats are the ones employing every tool they can get their hands on to preserve this sort of jurisprudence, and Bush is the one trying to inject a few judges that see the New Deal reasoning as the thinly-veiled power grab it is. (Of course, in your world, it seems that “civil liberties” don’t apply to Americans buying stuff and selling stuff, but only to Muslims allegedly trying to blow up stuff. Which do you think is a greater threat to society?)