Constitutional Adjudication in the Post-Truth Era : The Constitutional Court as a Facilitator of Truth-Finding

Abstract

Constitutional adjudication increasingly depends on empirical assessments of risks, regulatory effects, and the actual impact of restrictions on constitutional rights. As a result, the Constitutional Court’s epistemic discretion has expanded, while the post-truth environment and the spread of generative artificial intelligence have weakened both the conditions for reliable factual verification and the Court’s epistemic authority. This article reconceptualizes the Constitutional Court as a facilitator of truth-finding. Rather than claiming a monopoly on truth, the Court should create conditions in which competing factual claims and expert knowledge can be adequately presented and subjected to critical scrutiny, and should then determine which factual premises may legitimately ground constitutional judgment and explain the reasons for that determination. This role rests on an epistemological separation of powers, which differentiates the production and evaluation of knowledge from the authority and responsibility to make public decisions, while distributing epistemic roles among academic communities, political institutions, participants in constitutional proceedings, and the Court. This framework entails the Court’s epistemic responsibility to conduct adequate factual inquiry, rigorously scrutinize factual claims and expert knowledge, and publicly justify its factual assessments. To institutionalize this responsibility, the article proposes the early identification of factual issues, the effective use of experts, notice of materials obtained ex officio and opportunities to contest them, standards for evaluating factual materials and addressing uncertainty, and enhanced personnel and organizational capacity. Ultimately, the epistemic authority of the Constitutional Court in the post-truth era rests not on a monopoly on truth, but on organizing reliable procedures for approaching truth and opening its own factual assessments to criticism and verification.