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Lee Epstein
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Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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Foreword: Testing the Constitution
Published in 2015. In the NYU Law Review

Lee Epstein
Barry Friedman
Geoffrey R. Stone

From the Introduction (footnotes excluded)

We live in the age of empiricism, and in that age, constitutional law is a relative backwater. Although quantitative methods have transformed entire fields of scholarly inquiry, reshaping what we ask and what we know, those who write about the Constitution rarely resort to quantitative methodology to test their theories. That seems unfortunate, because empirical analysis can illuminate important questions of constitutional law. Or, at least, that is the question to be tested in this Symposium.

We brought together a terrific group of scholars with a unique assignment. We paired distinguished constitutional thinkers with equally accomplished empiricists. We asked the law scholars to identify a core question, assumption, or doctrine from constitutional law, and we asked the empiricist to take a cut at answering it, or at least at figuring out how one might try to answer it. We understood that their answers might be preliminary at best, that the questions might be resistant to easy answers. This is so, in part, because empiricism is as much a means of refining questions as it is a way of answering them.

The balance of this Foreword is, in a sense, an introduction to the idea that more serious empirical analysis can further both constitutional law scholarship and constitutional law decisionmaking. Hence our title: Testing the Constitution.

Part I of this Foreword describes the empirical turn in law. We wish to make two points: (1) A lot of empirical work is coming out of law schools these days, but (2) it’s not being done by constitutional law scholars.

This is unfortunate because constitutional law is shot through with empirical questions, the answers to which have the potential to influence the way we teach and write about constitutional law and the way lawyers make constitutional arguments. Drawing on the papers from our Symposium and other examples, we make these points in Part II.

The potential influence of empirical work in law also extends to judges. As we show in Part III, the Supreme Court increasingly relies on data in its constitutional jurisprudence. This suggests a role for empirical scholarship beyond the confines of the faculty commons. So too academics can and should push judges to pay more attention to the empirical assumptions underlying their opinions. Although some judges seem interested in laying an empirical foundation for their work in the realm of constitutional law, they are the exceptions.

By way of example, we consider the Supreme Court’s recent decision in Florida v. Harris, which held that a canine alert constitutes presumptive probable cause to justify a police search, so long as the dog has a “satisfactory performance in a certification or training program.” The decision was unanimous, and the Court was quite confident about its conclusions. Although the opinion made reference to empirical studies, the reference was glancing, and—as we show—ignored an important body of empirical work that should have given the Court pause.

Which returns us to our central reason for this gathering: to uncover the use of empiricism in constitutional doctrine, with the hope of advancing legal scholarship, lawyering, and judging. We think there is much to uncover and much to advance.

Still, amid all this talk of empiricism, we want to emphasize that we are firm believers in diverse methodological approaches to constitutional law. Theoretical and doctrinal studies have long been the stuff of constitutional law scholarship, and we certainly do not disparage this work; all three of us do it! Our only point is that constitutional law would benefit from a dash of data too, in much the same way as have many other fields in law. In the Conclusion, we reiterate this message and point to some paths of inquiry for constitutional law scholars interested in moving in an empirical direction.

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