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The argument for actual intent is based on how it was sold to voters when the laws were first enacted. I think it's perfectly legit to judge patents on these terms.

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Patents are in the Constitution, so they weren't "sold to voters" per se. In any case,like a lot of old legal things, they were conceived at a time when we didn't understand economics. It's perfectly legitimate to reinterpret old legal concepts in light of advances in economic theory.

Tort law, for example, predates the U.S., but today we have an economic understanding of what purpose it serves (addressing the negative externalities of risk-creating activities). It's perfectly legitimate to look at those modern economic models to decide how we interpret (and evolve) these existing laws. With regards to patents, we can understand them as a solution to free-rider problems. Regardless of what intuitive understandings motivated them in the first place, the laws should be interpreted with the economic model in mind today.

If our primary interest is stating what the law should be, then how the law was originally sold to voters is a minor point. Very charitably, it might be argued that my views are different to the average voter, and so in a democracy I should argue for laws that reflect the opinions of voters. But if we were to reform the laws, the voters would be asked to make another choice, and I so would rather spend my effort in convincing lawmakers and voters based on all the arguments and evidence available.

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