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Originalism and Big Data

Big Data makes the past more present. Recently, a website provided a virtual tour of a picture exhibition that Jane Austen saw in 1813. This site demonstrates how information technology, including big data, can make us closer to the past than ever before. Indeed, we are becoming in some sense closer to past than the denizens of the past themselves. Few people in 1813 attended this famous exhibition, but everyone today is only a click away from a virtual tour. This increasing capacity has large implications in subjects as diverse as literary criticism and constitutional interpretation.

For instance, another example of our capacity to get closer to the past would be our ability to map all the uses of a word (like commerce) at the time that word was used in a document (like the Constitution). Few people could attend the 1813 art exhibition but no one in 1789 could systematically catalog all the uses of a word.

A virtue of originalism is that it embeds legal interpretation in a world of empirical fact and the availability of more data can help us be more certain of what those facts were. And big data may also encourage originalists to use more sophisticated empirical methods to determine what proffered meanings fit the facts. Such empiricism helps create the kind of dispassion in which originalism is most likely to thrive. Ultimately, originalism will gain more ascendancy in the courts, if that kind of culture can be created in the academic world.

Some might argue that, even if helpful, big data cannot replace the intuitive sense that lawyers of the past may have for the meaning of law of their time. There is some reason to doubt this claim. Everyone, including lawyers, had their own experiences and understandings of the world, to be sure, but that is a small subset of the experiences of all the people at the time. Indeed, their local experience may be a source of bias. Because of limitations of information technology, they lacked access to the universe of relevant information about the public meaning of a provision and the accepted rules of interpretation.

To be sure, being father way from the time in which the Constitution was enacted may also mean that the legal issues jurists deal with are generally likely to be more distant from those that the Framers of the Constitution had in mind. That distance does not mean the Constitution is not applicable: as Chief Justice John Marshall said, it was written to last indefinitely and its principles can be applied to situations its enactors never imagined. But the application of those principles may be more difficult, as our world becomes more different from that of the Framers. These problems of constitutional interpretation, however, make it all important that originalists today make effective use of the ever more abundant data to avoid mistakes of empirical fact.

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