Empirical Analysis and Originalism

Originalism is an approach to Constitutional interpretation. Although it comes in many forms, the basic idea is that the meaning of the Constitution was set at the time that it was written, and that the Supreme Court ought to be bound by that meaning. In this essayGary Lawson observes that Originalists can benefit from empirical studies. Here’s the abstract:

Professor Jim Fleming’s new book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, purports to critique all forms of originalism from the perspective of Professor Fleming’s “moral reading” of, or “philosophic approach” to, the Constitution. I propose a somewhat different opposition: empirical reading versus moral reading. Empirical reading is necessarily originalist, but it focuses directly on the need to ground interpretation in theories of concepts, language, and communication. In this short comment, I outline the research agenda for a theory of empirical reading, explore the extent to which empirical readings and moral readings of the Constitution are compatible (spoiler alert: it’s an empirical question), and situate empirical reading within the development of originalist theory.

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