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03/05/2017

Lee Strang: How Big Data Can Increase Originalism’s Methodological Rigor
Michael Ramsey

In the current issue of the UC Davis Law Review, Lee J. Strang (University of Toledo College of Law) has the article How Big Data Can Increase Originalism’s Methodological Rigor: Using Corpus Linguistics to Reveal Original Language Conventions (50 UC Davis L. Rev. 1181 (2017)).   Here is the abstract:

Big Data is everywhere. The Big Data revolution is not only the collection of information; it is also the use of that data to disclose new, previously unknown information about us and our lives.

Originalism is on the cusp of its own Big Data revolution. For the first time, both a body of data of the Constitution’s original meaning and the technology to effectively utilize that data are available. In this Article, I argue that originalism should embrace its own Big Data transformation and that doing so will help originalism achieve greater methodological rigor. I argue that originalists who embrace a Big Data transformation will be able to reliably and accurately reveal original language conventions.

In this Article, I bring together a widely observed phenomenon — the theoretical move toward original meaning originalism — with an emergent phenomenon — the use of computer-assisted research technologies and techniques (“CART”) in originalism. I argue that originalists’ conceptual move toward original meaning originalism, when coupled with their adoption of CART, will reduce the force of the Inaccuracy Critique — the claim that originalism’s reliance on history makes any resulting constitutional law inaccurate.

Originalism rests on the premise that it is able to ascertain the Constitution’s meaning with reasonable accuracy. A recurring criticism of originalism is that, on the contrary, originalism leads to inaccuracy in constitutional law. Originalism leads to inaccuracy because it depends on an activity — the recovery of the Constitution’s meaning via the methods of history — that cannot bear the weight. Unlike criticisms that originalism leads to normatively bad constitutional interpretations, the Inaccuracy Critique contends that originalism fails on its own terms — that its methodology is flawed.

In response to this criticism, many originalists made a major conceptual move: they rearticulated originalism as original meaning originalism in place of original intent originalism. In this Article, I build on that conceptual move, and I tie it to a modification to the method of historical research for originalism that will make the process more accurate. In particular, I argue that original meaning originalism’s focus on the text’s original conventional meaning, coupled with now-widely available CART, blunts the Inaccuracy Critique. By harnessing the power of Big Data, originalism moves toward a more rigorous methodology. Computer assisted research techniques will increase originalism’s methodological rigor by introducing the techniques of the empirical sciences and producing testable and reproducible results.

(See also this Corpus Linguistics article by Jennifer Mascott).