Originalism as the New Legal Standard? A Data-Driven Perspective
63 Pages Posted: 13 Sep 2023 Last revised: 16 Feb 2024
Date Written: August 25, 2023
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
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