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Constitutional Law in an Age of Alternative Facts

New York University Law Review, Forthcoming

William & Mary Law School Research Paper No. 09-371

81 Pages Posted: 9 Sep 2017 Last revised: 10 Nov 2017

Alli Orr Larsen

William & Mary Law School

Date Written: September 6, 2017

Abstract

Objective facts – while perhaps always elusive – are now an endangered species. A mix of digital speed, social media, fractured news, and party polarization has led to what some call a “post truth” society: a culture where what is true matters less than what we want to be true. At the same moment in time when “alternative facts” reign supreme, we have also anchored our constitutional law in general observations about the way the world works. Do violent video games harm child brain development? Is voter fraud common? Is a “partial birth abortion” ever medically necessary? Judicial pronouncements on questions like these are common, and – perhaps more importantly – they are being briefed by sophisticated litigants who know how to grow the factual dimensions of their case in order to achieve the constitutional change that they want.

The combination of these two forces – fact-heavy constitutional law in an environment where facts are easy to manipulate – is cause for serious concern. This article explores what is new and worrisome about fact-finding today, and it identifies constitutional disputes loaded with convenient but false claims. To remedy the problem, we must empower courts to proactively guard against alternative facts. This means courts should push back on blanket calls for deference to the legislative record. Instead I suggest re-focusing the standards of review in constitutional law to encourage fact-checking. It turns out some factual claims can be debunked with relative ease and I encourage deference when lower courts rise above the fray and do just that.

Keywords: fact, Constitution, constitutional, amicus, legislative fact, social fact, fact-finding

Suggested Citation

Larsen, Alli Orr, Constitutional Law in an Age of Alternative Facts (September 6, 2017). William & Mary Law School Research Paper No. 09-371. Available at SSRN: https://ssrn.com/abstract=3033038

Alli Orr Larsen (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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