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.
Originalism played a small role in Fourth Amendment jurisprudence during the study period, with less than 14% of the opinions of the Court addressing a disputed question of Fourth Amendment law 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. Voting patterns were not markedly different for Justices who do not profess fealty to originalism. These results seemingly reflect the difficulty in applying original meaning in contemporary constitutional adjudication, rather than a lack of commitment to originalism. This difficulty is likely generalizable to other areas of constitutional law, and casts doubt on the utility of originalism as an adjudicative methodology.
An Empirical Inquiry into the Use of Originalism: Fourth Amendment Jurisprudence During the Career of Justice Scalia,
70 Hastings L.J. 75
Available at: https://repository.uchastings.edu/hastings_law_journal/vol70/iss1/3