Fact-Finding in Constitutional Cases

Abstract

The United States Constitution is most often associated with stirring ideals, such as liberty, equality, and due process. It is not typically thought of as being defined by the empirical world in which it operates, or in which it has operated. However, both the interpretation and functioning of the Constitution require courts to identify relevant facts and to evaluate empirical evidence that supports—or fails to support—the Constitution’s meaning and application. Examples abound, including whether minors are developmentally mature enough to be executed under the Eighth Amendment, or predictions of violence are sufficiently valid to civilly commit someone under the Due Process Clause, or segregation is “inherently unequal.” In virtually every constitutional case, the soaring language of the Constitution is brought down to earth by plain facts. Because facts play such an integral role in constitutional cases, there is a need for an empirically sophisticated judiciary. However difficult the task, judges cannot fulfill their constitutional responsibilities if they do not critically understand the methods of fact-finding, whether involving history or histology. Unfortunately, courts have yet to rise to this need. This Chapter brings procedural order to the reception and use of facts in constitutional decision making. Specifically, it defines and describes the functions of three types of constitutional facts—doctrinal, reviewable, and case-specific. Doctrinal facts are relevant to interpreting the meaning of the Constitution and thus affect the definition of the rules or standards used to implement the Constitution. Reviewable facts, like doctrinal facts, are general in nature; reviewable facts become relevant under some particular interpretation of the Constitution and must be found pursuant to some applicable rule or standard. Case-specific facts, as the name implies, are relevant only to the respective cases in which they arise. This taxonomy offers a framework that judges can use to gain the needed understanding of the empirical world and apply that empirical awareness to the inspirational ideals embedded in the Constitution. Without such an understanding, those ideals will be left untethered and without effect.