Originalist Ideology and the Rule of Law
Journal of Constitutional Law Heightened Scrutiny, Vol. 15, 2012
11 Pages Posted: 1 Oct 2012 Last revised: 3 Apr 2013
Date Written: September 12, 2012
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.
Keywords: Originalism, Rule of Law, Contribution Thesis, Solum, Whittington, Barnett, Tamanaha, Sean Wilson
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