The Volokh Conspiracy

Thank you for the chance to post here over the past week. Given how much work it is I don’t know how the regular conspirators have time to do anything else. I have now sifted through the 200 or so comments my posts have generated and thought it might be worth responding to them as best I can in this limited space. Responses to about half of the comments, particularly those related to public attitudes toward specific issues and concerns about question wording or levels of public knowledge and coherent thinking about these issues, can be found in Public Opinion and Constitutional Controversy. But in this post I will deal with the meta question that several of you have raised: What’s the point of studying public opinion on these topics?

I get this a lot. The short answer is I find the study of public attitudes on constitutional questions to be interesting, regardless of its relevance or instrumental benefits. As one who spends most working hours with elites who spend an unnatural amount of time thinking about these questions and doing so in a particular way, I find public opinion surveys a useful way to get a more representative assessment about how different people think about topics that I find interesting. Beyond that, I also think this type of research joins three debates that constitutional scholars have been having for some time.

The first concerns the countermajoritarian difficulty and the justifications offered for judicial intervention to overturn policy supported by the political branches or the mass public. To understand the magnitude of that difficulty, if it is one, it is helpful to understand when the courts are out of step with the public. Analysis of public opinion surveys can constitute an important step in that direction.

This relates to the second debate, the one concerning popular constitutionalism, which seems all the rage these days. There are those, such as Barry Friedman in his new book, who make the argument that the Court often follows or responds to public opinion on constitutional questions. To evaluate that argument one needs to have some sense as to what the public actually thinks about these questions –to the extent the public has attitudes that can be discerned and measured (which will vary considerably according to the issue domain). Moreover, for those popular constitutionalists that make a normative argument about how the task of constitutional interpretation should not be the exclusive province of courts, popular conceptions of constitutional meaning ought to be relevant (even if far from determinative) to that pluralistic view of constitutional meaning. If one is going to make an argument about how “The People Themselves” should play a dominant role in determining constitutional meaning, then finding out what the people themselves think about these issues would seem to be important.

Finally, systematic, over-time analysis of public attitudes on constitutional issues sheds light on the impact of events, such as court decisions, on shifts in public thinking on these issues. This bears on the arguments that scholars such as Gerald Rosenberg and Michael Klarman have been making about the utility (or futility) of courts as engineers of social change. The truth is, as our book makes clear, very complicated. In the vast majority of contexts, court decisions are not salient or too complicated, or the public already holds strong views on an issue, so a court decision has no effect on mass attitudes. In a few contexts, however, the public, either in the aggregate or as identifiable subgroups, does shift in its beliefs. In different contexts, courts have sometimes led the public (“legitimation”), sometimes produced a backlash, and sometimes polarized the public on an issue even if no aggregate shift in attitudes can be discerned.

When we say that court decisions lead to a change in attitudes, though, we are not suggesting that court decisions themselves cause such changes. Court decisions, we argue, are events like any other that elevate issues onto the national agenda. They “tee up” the issue for elite discussion. The nature of the subsequent shift in attitudes following a court decision will depend on the volume and character of the signals that elites (broadly defined as anyone who can communicate opinions to a mass audience) then send to the mass public. It will also depend on the salience of the issue and the solidity of preexisting attitudes among the mass public. In short, for a court decision to have an effect, some share of the public must be paying attention and must be movable in its attitudes. That dynamic is present for only a small but very interesting category of constitutional questions.

Thank you again for reading my posts over the past week. I look forward to more such virtual conversations in the near future.

(coauthored with Stephen Ansolabehere and crossposted)

Upon the initiative of my colleague Jamal Greene who has been writing about the popularity of originalism, our July survey included several questions concerning judicial methodology. As cautious as we might be generally about measuring opinion on constitutional questions, our concerns about question wording, issue complexity, and non-salience are heightened in this context. Nevertheless, recognizing those limitations, we sought to examine attitudes on several questions concerning interpretive methodology that other polling firms and scholars have asked, as well as some new ones, such as the appropriateness of empathy in Supreme Court decisionmaking.

We began with the following question that has been asked by the Quinnipiac poll for the last six years:

Which comes closer to your point of view?
1) In making decisions, the Supreme Court should only consider the original intentions of the authors of the Constitution.
2) In making decisions, the Supreme Court should consider changing times and current realities in applying the principles of the Constitution.

To be sure, the question framing is unfair to the originalist position, presents a false dichotomy, and has a host of other problems. Nevertheless, the results have been remarkably consistent, the split shows that there is not lopsided support for either option even given the phrasing, and very few people refuse to express an opinion on the question. On average, 42% identify with the “original intentions” option, 51% identify with the “current realities” option, and only 8 percent “don’t know.” (Since 2003, the share supporting the “original intentions” option has ranged from 39% to 44%. Our survey from July found 40% supporting that option.)

Our survey decided to delve further and asked a battery of questions developed by Jim Gibson at Wash. U., and added a question about “empathy” as well, given its salience to the Sotomayor nomination.

The survey asked: “How important would you say it is for a good Supreme Court judge to…..”

The numbers following each response correspond to the share who say Very important, Somewhat important, Not very important and Not important at all

Strictly follow the law no matter what people in the country may want? 39 42 14 4
Feel empathy for the people involved in a case? 17 41 26 14
Protect people without power from people and groups with power? 52 34 8 5
Respect the will of the majority of people in the U.S.? 34 40 17 9
Stay entirely independent of the President and Congress? 57 31 8 3
Follow his or her conscience or sense of morality? 31 43 15 9
Respect existing Supreme Court decisions by changing the law as little as possible? 30 47 16 5
Uphold the values of those who wrote our constitution two hundred years ago? 53 37 7 2

Apologies again for the my inability to figure out how to insert a table.  As seen in this battery, which does not force respondents to choose among them, every option finds majority support deeming that criterion to be “very” or “somewhat important.” The response patterns range from 90 percent who consider it very (53%) or somewhat (37%) important to “uphold the values of those who wrote our constitution two hundred years ago,” to 58 percent who consider it very (17%) or somewhat (41%) important for a judge “to feel empathy for the people involved in a case.” The only options that a majority considers very important are “stay entirely independent of the President and Congress” (57%), which is no surprise given the relatively low ratings the political branches, rather than the courts, tend to receive from the mass public; “uphold the values of those who wrote our constitution” (53%); and “protect people without power from people and groups with power” (52%), which surprised me a bit given the patterns on the other options.

We are just beginning to delve into the more interesting and important questions as to who identifies with which option – that is, what demographic characteristics and responses to other questions in the survey are associated with attitudes toward interpretive methodology. Here is one finding that seems particularly robust: even when controlling for all the usual demographic characteristics and a range of measures for political conservatism, moral traditionalism, libertarianism, religiosity etc., attitudes toward Roe v. Wade and attitudes toward federal recognition of same sex marriages where it is legal are powerful predictors of the choice of “original intentions” in the Quinnipiac question.

It seems pretty clear that the public opinion trends concerning freedom of expression are pointing in a more libertarian direction. We can see that in responses to questions regarding flag burning, hate speech, and indecent speech. The State of the First Amendment (SOFA) Survey has been asking questions related to these issues for a decade, and the results from the survey Stephen Ansolabehere and I conducted in July (with some questions on these topics added by my colleague Jamal Greene) seem consistent with responses on those surveys.  [Please forgive some of the alignment problems in the tables below; novice blogger that I am, I cannot figure out how to make the columns line up.]

Our survey did not include a flag burning question but the issue is covered in Public Opinion and Constitutional Controversy. At the time of Texas v. Johnson (1989), between 64 and 78 percent of the population supported a constitutional amendment prohibiting flag burning, according to various polls. Most recent polls show a population either split on the issue or with a majority opposing the amendment. The 2009 SOFA survey, for example, found that 60 percent oppose an amendment.

Our survey included the same hate speech questions that the SOFA surveys have included for the past decade. Below are the questions with the results from the 2008 and  2000 SOFA survey for comparison:

“In general, do you agree or disagree that people should be allowed to say things in public that might be offensive to racial groups?”

2009      SOFA 2008       SOFA 2000

Strongly agree                          20%                 24%                 15%
Mildly agree                               28%                 19%                  17%
Mildly disagree                         23%                 12%                  15%
Strongly disagree                     28%                  42%                52%

“In general, do you agree or disagree that people should be allowed to say things in public that might be offensive to religious groups?

2009     SOFA 2008      SOFA 2000

Strongly agree                      25%                   32%                22%
Mildly agree                           29%                   23%                 24%
Mildly disagree                     21%                    12%                 15%
Strongly disagree                 23%                   30%                 38%

Our results are close to recent SOFA surveys in terms of total “agree” versus “disagree”, but their sample seems to show greater numbers at the extremes. The trends seems pretty clear from all available surveys on offensive speech of this character, though. A narrow majority approves allowing offensive speech against religious groups but opposes allowing such speech against racial groups. The support for allowing speech of either class has gone up considerably over the past decade.

The same could be said regarding allowing offensive speech in other contexts, such as indecency and pornography. Since 1997 the SOFA survey asked about agreement or disagreement with the statement: “Musicians should be allowed to sing songs with lyrics that others may find offensive.”

1997     2008

Strongly agree                                              23%      42%
Mildly agree                                                   28%      23%
Mildly disagree                                             16%         9%
Strongly disagree                                         31%      24%

However, our survey found a relatively even split on a different question, which may have more to do with people’s attitudes toward television stations than free speech more generally:

“Do you think that the government ought to be able to fine a television network or station if it broadcasts a live interview or live performance where a person uses certain foul language or dirty words?” Yes 46%  No 53%

For what it is worth, a 2005 Time poll found that only 28% thought that the government should fine CBS for Janet Jackson’s nudity during the Super Bowl halftime show.  The General Social Survey also has also shown for some time that most Americans would not favor laws prohibiting  sale of pornography to adults, with a slight shift in a more libertarian direction in the last decade.

The GSS asks: “Which of these statements comes closest to your feelings about pornography laws? There should be laws against the distribution of pornography whatever the age. There should be laws against the distribution of pornography to persons under 18. There should be no laws forbidding the distribution of pornography.”

In 1998, 38% said laws against whatever the age, 57% said laws against for persons under 18, and 4% said no laws.  In 2008, 32% said laws against whatever the age, 64% said laws against for persons under 18, and 3% said no laws.

(coauthored with Stephen Ansolabehere and crossposted)

As part of our national survey of attitudes toward courts and the Constitution performed by Knowledge Networks this past July, we included several items related to election law and voting rights. We wanted to assess public opinion on some contemporary controversies, such as photo ID laws and election-day registration, while also examining classic controversies, such as literacy tests, poll taxes and one person, one vote.

The survey included (among others) the following questions regarding voting rights:

“Below are a list of voting procedures that are or have been used in the United States.
We’d like to know whether you would approve of each of the following in your state.

Require that all people show that they can read in order to vote
55% approve; 44% disapprove

Require that all people show photo identification when they vote
84% approve, 14% disapprove

Require that all voters pay a $5 fee
3% approve; 95% disapprove

Allow people to register on Election Day if they can prove their residency and citizenship
62% approve; 37% disapprove”

On the classic controversies: our poll shows majority support (55%) for literacy tests. This might seem surprising, but this figure is consistent with results from two polls conducted by CNN in June 2006 and October 2007, which asked “Do you think people who cannot read or write English should be permitted to vote, or not?” One concern about those earlier polls was that using the word English might have primed respondents to think about this issue in the context of the contemporaneous debate over immigration, but our poll, which gets the same results, simply says “Require that all people show that they can read in order to vote.”

The same cannot be said for poll taxes, which seem to be almost universally opposed. Only 3 percent support paying a fee in order to vote. Perhaps if the survey had said the fee would be used to pay for elections or public schools (as classic poll taxes did) the figure might be higher, since it seems reasonable to assume that people are generally against abstract fees unconnected to any purpose.

With respect to contemporary controversies, our survey asked about photo ID requirements and Election Day registration. As with most surveys, we found overwhelming support (84%) for photo ID requirements. To be sure, the question did not limit itself to “government issued photo ID,” as many of the challenged laws do, but surveys on photo ID generally find substantial support. Unlike some other surveys that ask about Election Day registration (EDR), we added the qualification “if they can prove their residency and citizenship” and 62 percent of respondents supported EDR when so phrased. Adding that qualification might alter the share supporting EDR (as was our unfounded suspicion with the CNN literacy test questions) by capturing some respondents who focus, in particular, on the citizenship requirement and think the question is asking about raising the barriers to voting rather than lowering them.

It has been a while since surveys have asked about one-person one-vote, and redistricting is a topic most respondents might have difficulty understanding. Recognizing these challenges, we sought to gauge general acceptance of one-person one-vote today. In 1966, a Harris Poll asked: “Another decision of the U.S. (United States) Supreme Court was to… rule all Congressional Districts had to have an equal number of people in them so each person’s vote would count equally. Do you personally think that decision of the U.S. Supreme Court was right or wrong?” 76% said “right” and 24% said “wrong”. In 1969, a Gallup Poll asked: “The U.S. Supreme Court has required states to change their legislative districts so that each member of the lower house and each member of the upper house represents the same number of people. Some people would like to return to the earlier method of electing members of the upper house according to counties or other units regardless of population. Would you favor continuing the present equal districting plan or returning to the earlier plan? 52% said continue present plan; 23% said earlier plan; and 25% had no opinion.

Our survey asked:
“Do you think all legislative districts in your state should have the same number of people per district or is it okay for some to have more people than others?”
Districts should have equal populations – 32%
It’s okay for district populations to differ somewhat – 53%
It’s okay for some districts to have many more people than other districts. – 12%

“Currently all state legislative districts have equal numbers of people. An alternative is to have districts with equal numbers of people in one house of the state legislature but give each county one representative in the other chamber, even though counties have different numbers of people.”
Which way do you think is better?
It is better to have districts with equal populations in both chambers. 54%
It is better to have one seat for each county in one chamber and equal population districts in the other chamber. 40%

The results suggest majority support for something like the current rule of rough population equality for state legislative districts (as opposed to the strict equality rule for congressional districts), but with a substantial share supporting the “federal model” allowing for county representation in one house of a legislature.

First of all, let me take this opportunity to thank Eugene for allowing me to guest blog this week about the survey research I have been conducting with Steve Ansolabehere. We hope to conduct a similar survey annually and are seeking to share the costs and content with interested law professors, along the lines of the Cooperative Congressional Election Survey, in which 30 universities now participate. Interested law professors should contact me if they would like their institution to participate in future versions of this survey.

About two thirds of the survey we conducted in July covers questions that have been asked before, such as the abortion, same-sex marriage and gun rights questions mentioned in my earlier post. This allows us to assess change over time, even if, as many recognize, each question has problems with its wording or framing (e.g., what do respondents mean when they say Roe v. Wade should not be overturned, when few people know what Roe actually said and many of those same respondents would support banning abortions under certain circumstances where Roe and Casey would protect abortion rights?). These concerns are discussed at length in Public Opinion and Constitutional Controversy.

Take for example, the death penalty question that we (and other surveys) asked: “Should the government be allowed to apply the death penalty in any of the following cases:

An adult convicted of murder (77% say yes)
A mentally retarded person convicted of murder (19% say yes)
Someone under 18 convicted of murder (42% say yes)
A person convicted of raping a child (67% say yes)
A person convicted of treason against the US (61% say yes)”

When a survey offers the respondent the option of death penalty or life without parole, aggregate support for the death penalty for an adult convicted of murder drops by about 15 to 20 percentage points. (Incidentally, we see a similar phenomenon with respect to same-sex marriage when a civil union option is provided in the question: the share of the respondents supporting same-sex marriage goes down by ten percentage points or so and the share supporting no legal recognition is about ten points lower than is the anti-marriage response in a two-option question. See here.) However, when pressed, even those who chose life without parole would allow executions in certain circumstances – 1/5 of those preferring life without parole nevertheless opted for the death penalty for Timothy McVeigh, for example, in a CBS poll that pressed the question in 2001. As compared to other recent surveys, ours seems to be at the high end of support for the death penalty. Although substantial majorities historically and today support the death penalty, most observers noticed the trend reversing slightly beginning in the mid 1990s. See here.

As long as I am on the topic of morbid survey items sensitive to question wording, our survey asked the following familiar question concerning the “right to die”: “When a person has a disease that cannot be cured and is living in severe pain, do you think doctors should or should not be allowed by law to assist the patient to commit suicide if the patient requests it? 57 percent said “doctors should be allowed,” and 42 percent said “doctors should not be allowed.” As Joshua Green and Matthew Jarvis explore in their chapter in our book, the response patterns to euthanasia questions will often differ based on framing. Framing that refers to “severe pain” and “physicians” will often lead to higher support for ending the patient’s life, while including the word “suicide” will dramatically lower support. Larger majorities, unsurprisingly, support a terminally ill patient’s right to refuse life-prolonging medical treatment than would support active euthanasia or physician-assisted suicide. With all these caveats, it seems pretty clear that support for euthanasia is substantially greater today than it was thirty years ago, but it is difficult to discern any consistent pattern over the last decade. Several polls show growing support while others suggest support has reached a plateau or slightly reversed.

In addition to these often asked questions, we included some original ones on our survey as well, specifically to test how different frames might affect response patterns. For example, we asked the following question about torture: “Do you think the U.S. military should be allowed to torture those who may have been involved with acts of terror?” 36% said “yes” and 62% said “no.” This rate of response is consistent with other surveys with more qualified wording, such as the Gallup question: “Would you be willing or not willing to have the U.S. government do each of the following to combat terrorism? How about torture known terrorists if they know details about future terrorist attacks in the United States? 39% said yes in 2005; 45% said yes in October 2001. See here. Despite the absence of words and warnings like “known terrorist” or “future attacks”, the response patterns appear similar in our survey.

That division in the population was reversed for the other terrorism-related question we asked: “Should non-citizens suspected of terrorism and detained in U.S. military prisons be allowed to challenge their detentions in the U.S. civilian court system?” 38% said “yes” and 60% said “no.” Given the recent announcement of the impending trial of Khalid Sheikh Mohammed I suspect we will soon see similar polls, and it will be interesting to see whether the salience of the issue shifts opinion one way or the other.

The survey Stephen Ansolabehere and I placed in the field this past July included many questions on so-called “moral values” issues. Most of the book, Public Opinion and Constitutional Controversy, http://www.amazon.com/exec/obidos/ASIN/0195329422/thevolocons0d-20/ which I edited with Pat Egan and Jack Citrin, also covers these issues. The trajectories of opinion in this category of issues do not seem to be following a consistent pattern, and it is interesting to speculate why. I will focus in this post on gun rights, abortion, and same sex marriage.

First, guns: It is well known that support for stricter gun laws has been going down for some time. See http://www.gallup.com/poll/123596/In-U.S.-Record-Low-Support-Stricter-Gun-Laws.aspx . Our survey included the question: “In general, do you agree or disagree that an individual should have a right to have a registered handgun at home?” 52% strongly agreed, 30% agreed somewhat, 10% disagreed somewhat, and 7% strongly disagreed. This is also consistent with polls concerning views of the Second Amendment, where over 70 percent view gun ownership as an individual right. See http://www.gallup.com/poll/105721/Public-Believes-Americans-Right-Own-Guns.aspx
It appears that support for gun rights has increased during Obama’s first year in office, although the trajectory seems to be a continuation of a trend that began during the last years of the Bush Administration. See http://www.pollingreport.com/guns.htm

Next, abortion: Our survey asked the traditional question: “In general, do you agree or disagree with the 1973 Roe v. Wade Supreme Court decision that established a woman’s right to an abortion?” 37% strongly agreed, 24% agreed somewhat, 13% disagreed somewhat, and 25% strongly disagreed. Majorities also support various restrictions, such as a 24-hour waiting period (79% favor), parental consent (74%), a ban on late term abortions (74%), and requirement for doctors to inform women of alternatives (90%). Several surveys have suggested that trends in the last year have been moving in a pro-life direction, See http://www.gallup.com/poll/122033/U.S.-Abortion-Attitudes-Closely-Divided.aspx , although not all polls are pointing in that direction and the differences are probably not large enough yet to make firm conclusions. See http://www.pollingreport.com/abortion.htm . As Sam Luks and Michael Salamone detail in our book, aggregate opinion on abortion has moved up and down a little since Roe, but not in any consistent trajectory. In short, most Americans favor abortion rights, although not for all reasons, and they also favor many restrictions.

Finally (until the next post) gay rights: Like several recent surveys we find 41% of respondents support legalization of same-sex marriage, but find that 48% support federal government recognition of same sex marriages where they are legal. As compared to other surveys we find a much higher level of opposition (70%) to state bans on sex between two people of the same gender. As Pat Egan and I have written elsewhere,
http://www.pollingreport.com/penp0908.htm , the trend in favor of same-sex marriage suggests a majority will support it within five years. Much of this is being driven by cohort replacement rather than attitudinal change – that is, opponents of same-sex marriage are older and when they die off, younger respondents with more liberal attitudes on gay rights take their place. Although the public, in the aggregate, backlashed against same sex marriage in the wake of Lawrence v. Texas and the Goodridge decisions in Massachusetts, that backlash ended sometime after the 2004 election and reversed by 2005. Since then, the pro-marriage equality position has grown by about 1.7 percentage points per year. The trend has been relatively uniform across states: states that have legalized or illegalized same sex marriage, by court decision, referendum or legislation, do not exhibit a trajectory different from other states. Although states differ greatly in their level of support, they all appear to be moving in the same direction and events since 2004 appear to have had no effect.