I submit, that with all the debate surrounding what is and what isn't fundamental, and with all the hubbub around Gay marriage, etc., it mightn't be a bad idea for Congress to do something about it other than bitch and moan.
Congress has the power to enact laws pursuant to the Constitution. Is there any reason why it couldn't pass a "Fundamental Rights Act" that might provide a definitive source for what is a fundamental right? If it's enacted to define what is fundamental under the 5th Amendment's due process, then it's subsequent to the Constitution, so it could arguably be Constitutional.
Right now, from my notes, I have the following as recognized fundamental rights:
v. Access to courtsA hard-charging freshman Congressman should be able to draft up a quick bill defining what these rights entail and what other rights might currently be considered fundamental. The Congressman could then finish the proposed bill with a statement to the effect of "The enumeration in this Act, of certain fundamental rights, does not include ALL fundamental rights, and as future rights become recognizable, may be incorporated into the Act." This would alleviate the stress of having a one-size-fits-all bill... Additionally, since it would be enacted under the Constitution, it would fit under Art. VI's Supremacy Clause, which would hold those activist judges to what's written...
What do you guys think? Am I way off target here?