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70 Hastings L.J. 75 (2018-2019)
An Empirical Inquiry into the Use of Originalism: Fourth Amendment Jurisprudence During the Career of Justice Scalia

handle is hein.journals/hastlj70 and id is 75 raw text is: 












  An Empirical Inquiry into the Use of Originalism:

      Fourth Amendment Jurisprudence During the

                         Career of Justice Scalia


                              LAWRENCE ROSENTHAL


There is likely no methodological question of greater importance to constitutional law than
whether adjudication should be based on the original meaning of the Constitution's text, or
instead reflect an evolving understanding in light offelt experience. Little effort, however, has
been made to test empirically the claim of originalists that their methodology offers an effective
vehicle for constitutional adjudication.

This study is the first to assess the extent to which original meaning, in practice, proves able to
resolve constitutional litigation. To do so, it examines Fourth Amendment jurisprudence during
the career of a self-proclaimed originalist, Justice Antonin Scalia. Cases involving the Fourth
Amendment's prohibition on unreasonable searches and seizures were selected because stare
decisis poses no apparent obstacle to the use of originalism in this area of constitutional law,
and because the Fourth Amendment is typical of the kind of constitutional text likely to generate
litigation.

Originalism played a small role in Fourth Amendment jurisprudence during the study period,
with less than 14% of the opinions of the Court addressing a disputed question of Fourth
Amendment law were originalist. Despite Justice Scalia 's professed commitment to originalism,
he voted on originalist grounds in only 18.63% of cases. The Court's other professed originalist,
Justice Clarence Thomas, voted on originalist grounds in only 15.71% of cases. If anything, this
study's coding methodology likely overstates the prevalence of originalism. Voting patterns were
not markedly different for Justices who do not profess fealty to originalism. These results
seemingly reflect the difficulty in applying original meaning in contemporary constitutional
adjudication, rather than a lack of commitment to originalism. This difficulty is likely
generalizable to other areas of constitutional law, and casts doubt on the utility of originalism
as an adjudicative methodology.



      Professor of Law, Chapman University, Dale E. Fowler School of Law. The author is indebted for
comments on prior drafts to William Cuddihy, Tom Davies, Lauryn Goldin, Scott Howe, Donald Kochan,
Michael Mannheimer, Tracey Maclin, Orin Kerr, David Sklansky, George Thomas, Matthew Tokson, and the
participants at the works-in-progress workshop at the 2017 mid-year meeting of the American Association of
Law Schools. The author is also grateful to Joseph Hernandez and Kaylee Sauvey for their assistance in research
and coding opinions, and to Sherry Leysen and the staff of the Pinker Law Library.

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