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Lawrence Rosenthal: An Empirical Inquiry into the Use of Originalism
Michael Ramsey

Lawrence Rosenthal (Chapman University, The Dale E. Fowler School of Law) has posted An Empirical Inquiry into the Use of Originalism: Fourth Amendment Jurisprudence During the Career of Justice Scalia (Hastings Law Journal, forthcoming) on SSRN.  Here is the abstract:

There is likely no methodological question of greater importance to constitutional law than whether adjudication should be based on the original meaning of the Constitution’s text, or instead reflect an evolving understanding in light of felt experience. Little effort, however, has been made to test empirically the claim of originalists that their methodology offers an effective vehicle for constitutional adjudication. 

This study is the first to assess the extent to which original meaning, in practice, proves able to resolve constitutional litigation. To do so, it examines Fourth Amendment jurisprudence during the career of a self-proclaimed originalist, Justice Antonin Scalia. Cases involving the Fourth Amendment’s prohibition on “unreasonable searches and seizures” were selected because stare decisis poses no apparent obstacle to the use of originalism in this area of constitutional law, and because the Fourth Amendment is typical of the kind of constitutional text likely to generate litigation.

The study found that originalism played a small role in Fourth Amendment jurisprudence during the study period; less than 14% of the opinions of the Court addressing a disputed question of Fourth Amendment law during Justice Scalia’s service were originalist. Despite Justice Scalia’s professed commitment to originalism, he voted on originalist grounds in only 18.63% of cases. The Court’s other professed originalist, Justice Clarence Thomas, voted on originalist grounds in only 15.71% of cases. If anything, this study’s coding methodology likely overstates the prevalence of originalism during the study period. Voting patterns were not markedly different for justices who do not profess fealty to originalism. These results appear to reflect not a lack of commitment to originalism on the part of Members of the Court or the effects of nonoriginalist precedent, but rather the difficulty in applying original meaning in contemporary constitutional adjudication. This difficulty is likely generalizable to other areas of constitutional law, and casts doubt on the utility of originalism as an adjudicative methodology.

I think Professor Rosenthal is one of the most interesting and challenging academic critics of originalism, along with (just to name a few others) Eric Segall, Jamal Greene, Mitch Berman and Thomas Colby.