Joe Sobran has a good article, originally written in 1998, but as relevant today as then, dealing with legislative tyranny. I know Sobran can be a bit of a bigoted crackpot at times (more on that later), but he makes sense here (maybe it's because he is praising the late Henry Hazlitt, a libertarian). From his article:
In a democracy, where all sorts of groups demand legislation favoring themselves, laws are easy to pass and nearly impossible to repeal.
“Since its beginning,” Hazlitt observes, “Congress has enacted more than 40,000 laws. It is a fair assumption that most of these are still operative in some form.” He cites a 1968 study by a congressional staff that concluded that “no one, anywhere, knows exactly how many federal programs there are.”
The rate of legislation and spending is always accelerating to meet the demand for special favors. Hazlitt quotes Frédéric Bastiat’s dictum: “The State is the great fiction by which everybody tries to live at the expense of everybody else.”
The logic of the situation dooms us to constantly encroaching tyranny, not Stalin-style, but (I paraphrase Hazlitt loosely here) pain-in-the-butt style. The piling up of petty laws and regulations is bound to continue indefinitely, gradually choking off freedom of action — and eventually even freedom of speech and thought.
If you are one of those people who think it's "activist courts" and decisions like Lawrence or those protecting hard core pornography which are the primary threats to freedom and self government, then, pardon my French, you are a damn fool who can't see the forest for the trees.
It's the legislatures (expressing "the will of the people") who are the true threats to freedom, stupid, who "pil[e] up petty laws and regulations...bound to continue indefinitely, gradually choking off freedom of action — and eventually even freedom of speech and thought." In many of these supposed "activist" decisions, we have nothing more than the court striking down (or nullifying) a stupid law that impinges on liberty. Personally, I would defend the constitutional integrity of such decisions; but even if they are wrong, even if the court is acting "unconstitutionally" in striking down such legislation, the net outcome is no ones liberty is diminished and someone's liberty is advanced. Unquestionably, much of what the Federal legislature does is every bit as unconstitutional (from an originalist perspective). And the end result of the legislature acting unconstitutionally is many peoples' liberties are greatly diminished.
Now, it's possible for the Court to act in such a way that limits liberty, just as the legislature does. This is when the Court commands the other branches of government or orders the people to do or not to do X. Cass Sunstein, I do believe, has argued for this type of jurisprudence. The closest the Court, acting affirmatively, ever got to this was in the forced-busing cases. That's when the people really felt their liberty inconvenienced (metaphorically speaking, their pockets picked or their legs broken). And there was outrage, which most likely provoked the Court into giving up on such a fruitless quest.
However, the Court has through passive action (or restraint) has too often allowed for Congress to behave in such an unconstitutional manner (see Wickard and everything after it).
So what we need is 1) Congress to know its constitutional limits and not pass laws which violate the Constitution or repeal laws that otherwise do; 2) the President to know constitutional legislative limits and to veto any unconstitutional bill Congress tries to pass; and 3) (if we should get to step 3), the Court striking down such actions of Congress as unconstitutional. We need more judicial decisions striking down legislative laws, not less. In short, we need a more active judiciary.