[ISiddiqui]

Originally Posted by Brian Swartz

We can no longer speak of the rule of law, because it doesn't rule at all - it is impotent and what really rules is the whim of the moment, precisely what law is meant to restrain.

This is a very peculiar way to speak of the legal system of the United Kingdom (since roughly the Norman Conquest of 1066) and of much of the United States (Louisiana, IIRC, uses the Napoleonic Code as its basis - a Civil Law system that conforms more to your desire for the law). Especially in the vast majority of cases a lot of us know how the Supreme Court will rule on a law due to precedential decisions.

The ones that we don't know, or that change, are generally due to the fact that words are ambiguous and intentions when it comes to new facts are hard to suss out (imagine having a conversation with George Washington about gay marriage).

Second, as to the origins of our legal system, here are a few people who I think would take issue with your assessment. In this matter I think their opinions are more important and relevant than either of ours.

A judicial branch with no force or will. Oh, how I wish it were so.

All politicians who were fine with the English common law being in use. Most (aside from Jefferson and probably Madison) who were fine with the Supreme Court taking on decision making authority as to whether laws are unconstitutional (Marbury v. Madison) even though the Constitution does not that specifically say that it can (which was the reason Jefferson and Madison were pissed off).

In addition, their opinions matter to some extent, but not to others. The Supreme Court justices quoted were fine with common law jurisprudence when they were on the bench and would have likely said that was perfectly consistent with trying to find the intentions of the parties. With new facts come new considerations that the original law makers did not consider, so they must be applied differently.

(though as Justice Scalia would have pointed out, intent is fraught with peril as how can one know the intent of all the legislators who voted for a law and what happens when one group who voted for a law has a different intent than another group who voted for a law - Scalia, was an originalist who was strongly opposed to trying to suss out legislative intent).

Besides, they are all dead and we can't ask them what they meant. So we have to guess. There is also the view that the framers wrote the document in broad terms in order to create a living document. If they wanted it to be more strictly applied, they could have done what Napoleon did and wrote a far more specific code.