One question that quite fascinates me is whether the original meaning of the Constitution is “the law” — in the sense that it describes the positive law of the United States. Mike Rappaport has a pair of posts exploring this question: here’s the first, here’s the second. Ultimately, he concludes that originalism is not against the law, but he remains skeptical that originalism is the law:
I am open to the argument for originalism being the law, but at present find the arguments undeveloped. If one day someone makes a persuasive argument, I would, of course, welcome it. But, at present, I believe the best argument is based on the normative soundness of the Constitution and the problems with judicial updating of the Constitution …
I have been working on developing an argument like this (as has my friend Steve Sachs) but I entirely agree with Rappaport that the current work on this is extremely underdeveloped.