"Constitutional originalism is all the rage...." So begins Jeffrey Rosen's Week in Review article (New York Times, January 9. 2011) about political thought in the Tea Party era.
Actually, "originalism" has, of course, been hotly debated for more than two decades. It is just one of many theories which judges, lawyers and academics have used in an effort to find principled limits on the Supreme Court's paradoxical power to invoke the Constitution in invalidating legislative, regulatory or executive rules promulgated by other, more democratically accountable governmental institutions. (For a description of the issues in the context of Citizens United see "Supreme Paradox", The Atlantic, January 24, 2010.)
The motive behind such efforts is that Court decisions, regardless of their arcane legal reasoning, can have consequential and controversial impacts on our national life: the practice of religions; the reach of economic regulation; our degree of privacy; the power of the States to regulate immigrants ... and on and on.
Such theories limiting Supreme Court discretion have been sought by "liberals" when a "conservative" court struck down Progressive and New Deal era social and economic legislation using, for example, the Due Process or Contracts Clauses. Similarly, "conservatives" seek such limiting theories when a "liberal" court uses the Bill of Rights to expand individual liberties (e.g. protecting the privacy right to reproductive choice) in the face of Federal or State restrictions. There is the direct if inconsistent flip side when, at other times, both liberals and conservatives, now in the majority rather than the minority, are not concerned about limitations on judicial action but on finding authority in the Constitution to strike down legislative or regulatory restrictions on social, political or economic liberty of persons or organizations.