Originalist Ideology and the Rule of Law

Journal of Constitutional Law Heightened Scrutiny, Vol. 15, 2012

UNLV William S. Boyd School of Law Legal Studies Research Paper Series

11 Pages Posted: 1 Oct 2012 Last revised: 3 Apr 2013

Ian C. Bartrum

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: September 12, 2012

Abstract

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

Suggested Citation

Bartrum, Ian C., Originalist Ideology and the Rule 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. Available at SSRN: https://ssrn.com/abstract=2155207

Ian C. Bartrum (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

HOME PAGE: http://https://law.unlv.edu/faculty/ian-bartrum

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