No one in the United States thought that we had come to such a pass during the heyday of American leadership in the field of human rights, which began right after World War II and continued through at least the end of the Cold War era.  Our strong national commitment to individual rights, however, depended during that period and continues to depend on several crucial constitutional understandings that have always had their critics, and more recently have come under sharper attack. [FN121] Those understandings include the following: (1) broad language may legitimately be interpreted broadly, in a manner informed by evolving notions of a decent society; (2) as a matter of federal constitutional law, some liberties are beyond the power of any governmental entity to deny; (3) most parts of the Bill of Rights, in particular through the doctrine of selective incorporation, apply to state action as well as to federal action; (4) constitutional principles can be inferred from sources such as the structure of the overall document and preconstitutional understandings. I will elaborate on these points in order.

First and most important is the idea that we should take seriously the fact that the text of the Constitution tends to reflect broad principles, not specific prescriptions.  Neither James Madison, for whom this lecture is named, nor any of the other Framers of the Constitution, were oblivious, careless, or otherwise unaware of the words they chose for the document and its Bill of Rights.  The papers they left behind leave no doubt that they hoped to be writing for the ages.  There is no more reason to think that they expected the world to remain static than there is to think that any of us holds a crystal ball. The only way to create a foundational document that could stand the test of time was to build in enough flexibility that later generations would be able to adapt it to their own needs and uses.

That is exactly what the Framers did.  Rather than spelling out every last detail of the structure of government and of the way that government would relate to individual citizens, they chose to enshrine only the broadest principles in the Constitution.  Whether they were doing so for lofty reasons or, as appears to be the case in some instances, out of political expediency, hardly matters; what does matter is the language that was ultimately adopted.  One need not write in this way, of course, and we can see the alternative approach reflected in the constitutions of some states.  Perhaps the ultimate example of this is the Constitution of Texas, which today runs more than two hundred pages long, and, as of 2003, has been amended 432 times (out of a total of 606 possible amendments passed by the Texas legislature). [FN122] Had the Federal Constitution followed that model, it would undoubtedly by now contain a comparable number of amendments. It is even possible that those amendments would protect the very same individual rights that have emerged instead through constitutional interpretation. But there was no need to burden the Federal Constitution with endless amendments, because it was supple enough to accommodate this growth without them.

I Agee with BTD here.  For me, the touchstones of "activism" in the 5 to 4 conservative/Republican majority SCt include Bush v Gore (wherein longstanding precedent would have meant the Court avoiding the obvious "political thicket" when confronted with an election issue typically decided by a State's highest court); Citizens United (wherein the Court departed from longstanding precedent to define a corporation as a "person"); and--looking at the line of questioning as to the Commerce Clause--there may well be every reason to believe the Court will jettison longstanding interpretation of the breadth & scope of the Commerce Claue.  Admittedly, I am projecting a bit about the last example--tho in keeping with Scalia's broccoli remarks as well as his shifting recently of his own position on the Clause.