Andrew Koppelman: (Northwestern University School of Law) has posted Why Do (Some) Originalists Hate America? (42 pages) on SSRN. Here is the abstract:
Imagine a regime whose fundamental law is only to be found in ancient archives, whose mysterious contents take years to unearth, layer by layer. Each new discovery brings about a revolution, as large bodies of established law are unexpectedly discarded and others, previously rejected, spring back into life as the scholars revise earlier conclusions. The operations of government are in constant confusion and disarray. And this state of affairs is likely to persist indefinitely.
That doesn’t sound attractive, does it? But that is where some prominent strands of modern originalist constitutional theory would lead us. This essay explores the methodological steps, each of which in themselves had a certain plausibility, that brought us here.
Well, it doesn't sound so bad to me, at least not compared with a system in which 5 lawyers decide what our fundamental law is based on what seems best to them at the time (if we are to have a battle of straw men).
UPDATE: At Legal Theory Blog, Larry Solum has a brief observation on the article with which I entirely agree.
Posted at 6:52 AM