For the last fifteen years or so, Justice Antonin Scalia and his sympathizers within and outside the academy have dominated discussion and debate over how best to interpret the Constitution. Their preferred methodology, "originalism," shorn for the moment of complications, essentially requires courts to follow the original meaning of constitutional text. Courts should accordingly determine how the provisions were understood at the time they were ratified, and that understanding should guide decisions. The justification for this approach appears, at first glance, as simple and sensible as the methodology itself: applying the text as originally understood is the only method by which courts can claim to be applying the law, rather than the individual preferences of those sitting as judges.

Most champions of originalism, though not all, currently reside on the right side of the political spectrum, and thus originalism has become inextricably associated with politically conservative judges and commentators. The claim that originalism is the only "lawful" way to interpret and apply the Constitution, moreover, readily translates into the ubiquitous accusation from the right that nonoriginalists tend to be unprincipled and activist, happy to enshrine their personal views into the Constitution. This charge is repeated in various forms in the political arena by those who claim that only conservative judges can be trusted to follow the law and refrain from legislating from the bench.