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by f154hfds
1460 days ago
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This isn't convincing to me because jurisprudence is about having a principled and _consistent_ approach toward deriving meaning from laws. Of course your point about stare decisis (precedent guiding decisions) is a good one! No argument there. The challenge typically is when there is no great precedent to draw from, or the original precedent was based on faulty reasoning (as you admit might be rampant in today's decisions!) How does a textualist derive such a meaning in a reproducible way without originalism? If stare decisis always beats textualism and we can't derive the meaning of laws without understanding the legislature's intent how do we not end up with a super-legislature? |
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The difficulty of many recent legal controversies is not that they are legally difficult to resolve using typical jurisprudence but that the outcomes of the case are controversial. If that's what you mean about becoming a super-legislature, then the issue is probably with the nature of judicial review rather than how it's being done.
Legislative intent is frequently applied by scholars who subscribe to different legal philosophies but not necessarily tell the original intent of a law. Debates within a legislative body are probably better evidence than second hand sources, but on the other hand -- legislatures are typically made up of lots of individuals who don't speak with a unified voice, and there may be differing interpretations of the law.