Thanks for your thoughtful post. But I need to ask: Do you agree that a great Supreme Court is one which looks first and foremost at the literal text of the Constitution and then applies the Federalist Papers and other original Constitutional Convention debating records to that text in order to determine the intent of the framers, and only THEN falls back on stare decisis in order to arrive at a proper ruling?
Or do you agree with the likes of Breyer, Ginsburg, Souter, and the Democrats who view the Constitution merely as a "guideline" - - a "living" document - - and the mechanism which it includes for its own amendment as nothing more than an antiquated flourish?
Thank you, and best regards,
LH
" Do you agree that a great Supreme Court is one which looks first and foremost at the literal text of the Constitution and then applies the Federalist Papers and other original Constitutional Convention debating records to that text in order to determine the intent of the framers, and only THEN falls back on stare decisis in order to arrive at a proper ruling?"
I agree that the text is the first and foremost authority. I don't think much of using the framers' "intent" because:
(1) the real intent of the framers might have been "..if I vote for this, Harry will let me in on that great deal on land in Georgia..." or "damn, these seats are hard. let's get this over with..."
(2) it seems to me the "intent" of the state constitutional conventions is as important as that of the drafters and we don't know much there.
(3) I have never found an argument based on historical "intent" that could not be countered with some opposite "intent".
Sure if you cannot figure it out from the text, go to the intent of the framers, but I would favor a lot greater effort to figure it out from the text, and a little more willingness to amend, rather than looking at intent.
I think that makes me a bit more of a "textualist" than a "originalist" in theory terms.