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Originalist Ideology and the Rule of Law
U. Pa. J. Const. L. Height. Scrutiny (2012)
  • Ian C Bartrum

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.

  • Originalism,
  • Rule of Law,
  • Contribution Thesis,
  • Solum,
  • Barnett,
  • Whittington,
  • Tamanaha,
  • Sean Wilson
Publication Date
Fall September 26, 2012
Publisher Statement
Draft only, please cite to published version.
Citation Information
Ian C Bartrum. "Originalist Ideology and the Rule of Law" U. Pa. J. Const. L. Height. Scrutiny Vol. 15 (2012)
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