Originalism as the New Legal Standard? A Data-Driven Perspective

63 Pages Posted: 13 Sep 2023 Last revised: 16 Feb 2024

See all articles by Kevin Tobia

Kevin Tobia

Georgetown University Law Center; Georgetown University - Department of Philosophy

Neel U. Sukhatme

Georgetown University Law Center; Georgetown McCourt School of Public Policy

Victoria Nourse

Georgetown University Law Center

Date Written: August 25, 2023

Abstract

Conventional wisdom holds that today’s Supreme Court has embraced originalism in cases from religion to abortion to guns. Has originalism always been the Court’s practice? Justice Scalia claimed that in the past, “originalism was orthodoxy.” Some critics, however, contend that the Court’s originalism is new; other critics claim that even the Court’s current practice is not really originalist.

The question underlying these debates is critical and seemingly simple: What theory of constitutional interpretation does the Court use? Yet, there is no data-driven answer. This Article is the first to inform this question with a unique database of over 200,000 source documents, including the text of 27,767 cases reaching back to the Founding. We search judicial opinions for hundreds of original sources that originalists identify as central to their methodology, over the entire universe of cases beginning in 1791. We find that for much of Supreme Court history, conventional indicators of originalist practice did not exist as often as originalists might predict—raising questions about originalism’s past orthodoxy. The data show that originalist practice grows in the Rehnquist Court (the late 20th century), but even today the Court’s practice is not consistently originalist. The Article elaborates the implications of these findings for both descriptive and normative debates in constitutional law.

Keywords: originalism, empirical legal studies, constitutional law, Supreme Court

Suggested Citation

Tobia, Kevin and Sukhatme, Neel U. and Nourse, Victoria, Originalism as the New Legal Standard? A Data-Driven Perspective (August 25, 2023). Georgetown University Law Center Research Paper No. 2023/15, Available at SSRN: https://ssrn.com/abstract=4551776 or http://dx.doi.org/10.2139/ssrn.4551776

Kevin Tobia (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

HOME PAGE: http://www.law.georgetown.edu/faculty/kevin-tobia/

Georgetown University - Department of Philosophy

37th and O Streets, N.W.
Washington, DC 20007
United States

Neel U. Sukhatme

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Georgetown McCourt School of Public Policy ( email )

Old North, Suite 100
37th & O Streets NW
Washington, DC 20057
United States

Victoria Nourse

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
357
Abstract Views
942
Rank
151,648
PlumX Metrics