The absence of neutrality and objectivity in constitutional decision-making has vexed scholars and courts. In this Article, the author describes and analyzes "constitutional empiricism," a trend instituted by the Rehnquist Court, which is characterized by judicial reliance in constitutional review on empirical and scientific conventions and processes. Courts have generally relied upon traditional sources, such as text and history, to interpret consititutional powers and rights. In its search for neutrality and objectivity, however, the Court has recently turned not only to social science and other data, which are fast becoming common sources of interpretation, but also to the precepts and methods of scientific and empirical inquiry. Constitutional empiricism is a
method of constitutional interpretation which seeks to imitate scientific inquiry. Empiricism boasts, for example, the ability to distinguish, by reference to empirical observation, "real" from sham legislative predicates. It is used to empirically test legislative hypotheses, predictions, theories, and causal claims. Beyond this, empiricism is also manifested in the Court's efforts to "quantify" normative constitutional provisions as disparate as the Due
Process Clause, the Establishment Clause, and the Cruel and Unusual Punishments Clause, among others. Drawing upon ongoing debates in the philosophy of science discipline, the Author argues that constitutional empiricism does not provide long-sought neutral methods and principles for constitutional interpretation. Empiricism is based upon a host of subjective
choices that affect not only which questions will be answered empirically, but also the collection, categorization, and ultimate interpretation of data. Thus, the precepts of empiricism do not, as would appear, function as a set of "neutral principles. " In fact, the Author argues, far from propelling constitutional interpretation into the twenty-first century, empiricism has been utilized, thus far, to draw attention away from a return to the sort of formalism and conceptualism that characterized early eras of constitutional interpretation. More generally, the Author contends that empirical methods are ill-suited to the discovery of constitutional meaning. Because it filters evidence, fails to provide standards for separating "good" empirical results from "bad" results, and demands that hypotheses be legally "correct," constitutional empiricism does not advance constitutional knowledge in the same manner that
empirical methods advance scientific knowledge. The Author argues that perhaps the most disturbing issue is that finding constitutional truths empirically threatens to further sterilize and compress constitutional discourse.

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82 North Carolina Law Review 115-221 (2003)

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