Science has an enormous role to play in constitutional cases. Oddly, this scientific function has been largely overlooked by both courts and commentators; there has been little systematic analysis of how science has been, and how it should be, integrated into constitutional decision making. Yet, even the most casual inspection of constitutional cases quickly reveals the overwhelming presence of scientific hypotheses — ordinarily in the form of factual assertions — that are amenable to empirical test. Indeed, many of the most famous constitutional decisions contain robust scientific questions worthy of intensive study. Does segregated schooling contribute to psychological injuries and lowered self-esteem among black school children? (Brown v. Board of Education of Topeka). At what point-in-time in a pregnancy does a fetus become "viable," that is, able to survive outside the mother's womb? (Roe v. Wade). These examples are merely the tip of an enormous empirical iceberg.
Prof. Faigman's talk focused primarily on why judges and constitutional scholars appear so uninterested in the scientific premises that underlay their constitutional judgments. The answer appears to involve a number of factors, including an overwhelming lack of training in science and its methods (particularly statistics); a fetishistic attachment to the normative, historical, and philosophical underpinnings of constitutional doctrine; and an intense fidelity to a jurisprudence of continuity, which rejects the implicit promise of progress inherent in science. He also explored what this profound lack of scientific curiosity and fundamental innumeracy has meant for constitutional doctrine. Using specific examples, Prof. Faigman considered the empirical hypocrisy that pervades much of constitutional law, ranging from Abrams v. United States to Young v. American Mini Theatres. Finally, he asked what is to be done. Is it possible, and is it desirable, to have a scientifically rational and empirically sophisticated constitutional jurisprudence?