The tempting of originalism
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This thesis analyzes competing theories of constitutional interpretation. Originalism as traditionally understood maintains that proper constitutional interpretation involves consulting the historical record for what the words meant at the time of ratification. This position is in stark opposition to moral reading, which views certain constitutional provisions as embodying broad philosophical principles that must be interpreted according to the best understanding of our constitutional commitments. Originalism seeks historical truths of constitutional meaning whereas moral reading aims primarily toward ethical adjudication and constitutional perfection. I track the origins of originalism and its development in American legal scholarship while analyzing the interpretive shortcomings and ethical dilemmas the theory poses. I ultimately reject originalisms as traditionally conceived as antithetical to American constitutional ideals, as blind to the teachings of this Nation’s jurisprudential history, and as more theoretically problematic than the moral reading it attempts to combat. I further contend that the newest wave of originalist thinking, which recognizes broad constitutional commitments, is no more than moral reading in disguise. I conclude that moral reading is a more defensible theory of constitutional interpretation and that new originalists ultimately agree.