Geoffrey Stone pens an interesting Op-Ed for the Times today on why “original intent” is kind of hooey.
So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review — the power to hold laws unconstitutional — in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority.
He basically argues that courts exist to protect rights–specifically those of the minority. I like this argument for its simplicity. I would further assert that “intent” is something that’s impossible to gauge, as the text of the constitution is a compromise from the intents of many individuals, but I realize that may be a bit more difficult pill for some to swallow.
via Op-Ed Contributor – Our Fill-in-the-Blank Constitution – NYTimes.com.