Scrat wrote:joefromchicago wrote:As I mentioned before, it is impossible for a jurist to adhere to a consistent jurisprudence of original intent.
Why? (I'm not trying to be obstinate here. I just don't see the basis for this claim of yours.)
Apart from the inherent difficulty in actually ascertaining intent (e.g., there are a
lot of people who, over the course of the ratification process, vote on an amendment -- whose intent controls?), there are judicial rules that inevitably conflict with any kind of original intent analysis. The most important of which is
stare decisis, which requires courts to follow relevant precedents.
Taking the
Gore v. Bush example: an original intent analysis would clearly show that the drafters of the Fourteenth Amendment had no intent to make states adopt a "one man, one vote" rule. Yet the supreme court's "one man, one vote" decisions such as
Reynolds v. Sims and
Baker v. Carr rested on an equal protection analysis of the Fourteenth Amendment. Thus, in
Gore v. Bush, an "original intent" justice like Scalia faced a choice: go with original intent and repudiate over 60 years of supreme court jurisprudence, or stick with
stare decisis and ignore the obvious original intent of the drafters.
Well, as it turned out, the majority did neither: it just thoroughly botched the decision. But clearly there is an irresolvable tension between original intent and
stare decisis, as well as with well-established judicial rules of statutory construction (I won't bother you with all of them). A judge simply cannot ignore those rules and go solely with original intent: it would not only be practically impossible, it would be judicially improper.
