Originalist Ideology and the Rule of Law
Ian C. Bartrum
University of Nevada, Las Vegas, William S. Boyd School of Law
September 12, 2012
Journal of Constitutional Law Heightened Scrutiny, Vol. 15, 2012
UNLV William S. Boyd School of Law Legal Studies Research Paper Series
This essay contends that one of the basic tenets of the "New Originalism" -- the so-called "contribution thesis" -- compromises our underlying commitment to the rule of law. By locating some binding substantive content of constitutional language in a historical record beyond the text itself, originalism undermines the fundamental concepts of formal legality and public accessibility. With these issues in mind, the essay concludes that originalism is not a philosophical account of how the Constitution has meaning in our legal system, but is instead a judicial ideology intended to promote the constitutional policy judgments of an earlier generation.
Number of Pages in PDF File: 11
Keywords: Originalism, Rule of Law, Contribution Thesis, Solum, Whittington, Barnett, Tamanaha, Sean WilsonAccepted Paper Series
Date posted: October 1, 2012 ; Last revised: April 3, 2013
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