The Supreme Court and Obscenity: An Exercise in Empirical Constitutional Policy-Making

This Article analyzes the Supreme Court's approach to obscenity. The author suggests that, during this century, constitutional interpretation has been marked by a shift from a formal, deductive approach toward one that is more empirical and instrumental in character. The author analyzes this approach as reflected in the Supreme Court's attempt to devise a constitutional policy on obscenity. The author isolates five empirical propositions underlying the attempt and analyzes them in terms of the empirical evidence that was presently available.

The author finds little empirical substantiation for those propositions, casting doubt on the Court's policy and suggests a skeptical view of empirical constitutional policy-making.