Randy Barnett [*] comes up with an interesting argument for one version of Constitutional originalism.
But he seems to gloss over one small point. If he’s right, then the Constitution we have actually been living under for the couple of centuries differs in important ways from the Constitution as drafted, which he claims is the only real Constitution because only an unchanging text can bind officials.
So what are we supposed to do now, throw out all the precedents and start fresh? How is anyone supposed to know what the law is if the judges ignore precedent? Even if it were true that living by a document of unchanging meaning is the only guard of liberty, it’s hard to see how to get there from here.
Barnett also needs to explain how it is that a country living under (on his account) effectively no Constitution at all has done so well for itself.
Update Barnett responds.