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60 B.U. L. Rev. 204 (1980)
The Misconceived Quest for the Original Understanding

handle is hein.journals/bulr60 and id is 216 raw text is: THE MISCONCEIVED QUEST FOR THE ORIGINAL UNDERSTANDINGt PAUL BREST* By originalism I mean the familiar approach to constitutional adjudi- cation that accords binding authority to the text of the Constitution or the intentions of its adopters.' At least since Marbury, in which Chief Justice Marshall emphasized the significance of our Constitution's being a written document,2 originalism in one form or another has been a major theme in the American constitutional tradition. The most widely accepted justifica- tion for originalism is simply that the Constitution is the supreme law of the land.3 The Constitution manifests ihe will of the sovereign citizens of the United States-we the people assembled in the conventions and legislatures that ratified the Constitution and its amendments. The in- terpreter's task is to ascertain their will.4 Originalism may be supported by more instrumental rationales as well: Adherence to the text and original understanding arguably constrains the discretion of decisionmakers and assures that the Constitution will be interpreted consistently over time. The most extreme forms of originalism are strict textualism (or literalism) and strict intentionalism. A strict textualist purports to con- strue words and phrases very narrowly and precisely. For the strict inten- tionalist, the whole aim of construction, as applied to a provision of the Constitution, is ... to ascertain and give effect to the intent of its framers and the people who adopted it.5 Much of American constitutional interpretation rejects strict originalism t @ 1980 by Paul Brest. An earlier version of this article was presented as a lecture at Boston University School of Law on February 22, 1979. Work on the article was supported by a grant from Project '87. I am grateful to colleagues at Stanford and elsewhere who commented on various drafts of the manuscript: Bruce Ackerman, Iris Brest, William Cohen, Owen Fiss, Lawrence Fried- man, Paul Gewirtz, Thomas Grey, Gerald Gunther, Thomas Heller, Mark Kelman, Arthur Leff, and Michael Moore; and to my research assistants, Bruce MacEwen, Michael Ryan, and Marcia Speziale. Lest they be held responsible for my errors, I should note that almost everyone has disapproved of some aspect of the article. * Professor of Law, Stanford University. A.B., Swarthmore College, 1962; LL.B., Harvard Law School, 1965. 1 John Ely uses the term interpretivism to describe essentially the same concept. J. H. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW, chs. 1-2 (1980). At the cost of proliferating neologisms I have decided to stick with originalism. Virtually all modes of constitutional decisionmaking, including those endorsed by Professor Ely, require interpre- tation. The differences lie in what is being interpreted, and I use the term originalism to describe the interpretation of text and original history as distinguished, for example, from the interpretation of precedents and social values. 2 Marbury v. Madison, 5U.S. (1 Cranch) 137 (1803). 3 Id. at 175-80. 4 In a somewhat modified form of the theory, the sovereign people are our contem- poraries, and it is their will that officials be bound by the text and original understanding. See pp. 225-26 infra. I Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 453 .(1934) (Sutherland, J., dissenting).

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