A Unified Theory of Constitutional Facts


Facts play an essential role in constitutional cases, ranging from giving meaning to the text’s words to giving those words operational effect. Yet the Supreme Court does not take facts seriously, preferring to see them as a constituent part of doctrine. The Court does not find facts, it interprets them to conform to, or buttress, conclusions reached on other grounds. This constructive view of facts has the salutary effect of consistency, in that doctrine need not change as facts, or our knowledge of the facts, change. This consistency comes at a cost, however, for doctrine built on erroneous factual premises lacks legitimacy. In this Article, I provide a theoretical justification for an empirically enlightened constitutional jurisprudence and a framework through which such a jurisprudence might be practiced. Along the way, I set forth a taxonomy of constitutional facts, consider how different kinds of constitutional facts might be proven, and examine the responsibilities and capacities of different constitutional fact-finders, including juries, Congress, and the Supreme Court. The Constitution was framed on the principles of the enlightenment, but the Court continues to employ a pre-scientific view of the empirical world. It is about time that the Court joins the scientific age.


Constitutional Law

Date of this Version

March 2006