Author Archive | Nathaniel Persily, guest-blogging

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 [...]

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Originalism in the American Mind

(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 [...]

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Public Opinion and Free Speech

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 [...]

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Public Opinion and Election Law Controversies Past and Present

(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. [...]

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Terror, Torture, and Death in Public Opinion

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 [...]

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Guns, God and Gays: Public Opinion on Gun Rights, Abortion and Same-Sex Marriage

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, 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 . 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
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

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 [...]

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