If we define an "originalist" as someone who agrees with Robert Bork that the "only" legitimate modality is original understanding, then there is an obvious problem with adhering to precedents that violate the original understanding. Indeed, as I have argued elsewhere, the only way of making sense of Bork's promised fidelity to New Deal precedents (or to Bolling v. Sharpe) is that he in fact believes in non-Article V constitutional amendment, because he clearly does not believe that these decisions were legitimate at the time they were issued. So they must have become part of "the Constitution" through a process of what Hart & Sachs might have deemed "institutional settlement," a fine theory but one that obviously plays havoc with strict originalism that is willing to override "100 years of error."
sandy
