Concluding Thoughts on Public Opinion and Constitutional Law

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.

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