Empirical Constitutional Law: A New Theoretical and Methodological Approach

Introduction

Constitutional law worldwide suffers from an empirical deficit: although evidence is needed to apply the law to concrete conflicts, constitutional analysis is dominated by high-level value judgments and pays little attention to empirical evidence. Unlike other fields of law, there are almost no empirical studies regarding constitutional controversies, and most courts, legislatures, and executives have no adequate procedures for establishing facts or reviewing evidence in constitutional matters.

Consequences of the Empirical Deficit

The empirical deficit of constitutional law has detrimental consequences. It:

• Generates unpersuasive decisions
• Brings about inadvertent societal consequences
• Breeds accusations that constitutional decisions are subjective and biased
• Lets unvalidated facts influence decisions in the absence of proper procedural safeguards

Project Overview

EmpiriCon will develop a new approach that offers to rejuvenate constitutional law as an evidence-based field of law. This will be achieved through:

1. A comprehensive theoretical analysis of the empirical gaps in constitutional law (WP1)
2. Six multi-method empirical studies of key constitutional gaps (WP2)
3. Eight survey experiments that examine the implications of rigorous fact-finding for public trust in constitutional decision making (WP3)

Methodological Development

I will develop a new theoretical and methodological approach (WP4), showing that empirical constitutional law is not only theoretically justified but also methodologically feasible and concretely valuable. This approach will:

• Ground constitutional reasoning in transparent methodology
• Improve the quality of constitutional decisions
• Potentially increase public trust

Risks and Limitations

Simultaneously, the shift to empiricism involves risks, such as data manipulation, and has inherent limitations. I will:

• Incorporate the limitations
• Map out the risks
• Propose ways to tackle them

Conclusion

If successful, the project will transform constitutional law, with far-reaching implications for scholars, legislatures, executives, courts, and litigants.