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In 1980, Stanford Law School Professor Paul Brest wrote his famous article, “The Misconceived Quest for An Original Understanding,” in which he defined “originalism” as an “approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters.” Brest concluded that originalism failed to deal adequately with two fundamental problems: the multiple intentions of different parties, and the danger of constitutional obsolescence attributable to changed circumstances.
Brest’s skeptical view of originalism was quickly championed by other writers, most notably the legal scholar Ronald Dworkin, who advocated a “moral reading” of the Constitution. In his book Freedom’s Law, Dworkin treats the text as the basis for understanding key constitutional conceptions like liberty, equality, and dignity, which judges, lawyers, and citizens have to flesh out under some ideal normative theory.
This anti-originalist approach has generated a strong backlash from scholars like Georgetown’s Randy Barnett, who argues that the detour into moral theory gives modern judges carte blanche to read every fashionable idea into the Constitution, until different constitutional moralists have reduced the stature of the Constitution from the supreme law of the land into a pitiable Tower of Babel. Hence the constant originalist refrain that constitutional terms have to be interpreted in accordance with their established public meaning.