The problem with a lot of legislation these days is that it is vague. It seems to be written, in many cases, to invite court challenges. In addition, in many cases the law is written to say, "the executive agency shall draw up rules to enforce this act" or some such, inviting suits by those who disagree with the enforcement provisions, or lack thereof. The lines between the branches get blurred and the courts, in many cases, have to sharpen up what the legislation means over time. To do otherwise - "We can't decide this case because the legislation is too vague. Congress should change the law and make it clearer" - is to invite even more gridlock in the courts and in government.
I think Mike goes a little overboard when arguing against Original Intent. It's a fairly standard part of judging a case to look at the legislation as it was written, look at the arguements presented for and against the legislation at the time, etc. That doesn't mean that court decisions since the legislation was passed are ignored, or that subsequent amendments aren't relevant. But OI supporters present it as if it's a black-and-white approach to making rulings, and it is not. There's always a balancing act between the states and the federal government, between the individual and society, between privacy and public discourse and the free flow of information, between property rights and society's needs. Using OI still involves judgements because society changes and the law must as well. (E.g. the Constitution doesn't say anything about cloning.)
It's a balancing act. One person's Legislating from the Bench is another person's applying Original Intent. Was court-ordered busing LftB or applying the equal-protection laws? When a court makes rulings on a function of local government (e.g. overseeing the [link|http://www.kansas.com/mld/kansas/news/10893340.htm|school budget in Wichita, KS]), is that LftB?
One could probably make the argument that judges LftB every time they decide a civil case that involves another branch of government in some way. I think there are cases when judges do LftB, but more often than not it's a code word for rulings that go against one faction or another.
Is it black and white, or is it gray? It's both. :-)
My $0.02.
Cheers,
Scott.