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Notes -
I think that's a colorable argument. The reason it is not my argument is that I learned growing up that the Constitution was a set of rules that we all had to follow, and then discovered in adulthood that the Constitution is whatever five justices say it is.
"Unconstitutional" in my childhood meant "a violation of one of the basic rules we and our parents and their parents have all agreed to live by, whose operation be fairly well reasoned out in advance according to basic logic." "Unconstitutional" now very clearly does not mean that any more. I am not deluded enough to think that reading the Constitution and familiarizing myself with the state of current precedent will allow me to predict what will and will not be considered "Constitutional" or "Unconstitutional" ten years from now. On the other hand, if you tell me who is appointed, I think I can predict what is and is not "Constitutional" ten years hence with much better accuracy than blind chance.
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