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Published online by Cambridge University Press: 05 August 2009
It has recently been argued in this Review that public opinion research tends to favor the expert authority of elite institutions such as the courts, over the democratic authority of the people as a source of law or constitutional interpretation. In this article we introduce an alternative survey construction that allows the public to be considered as a possible source of constitutional knowledge Using this survey, we find that most respondents can clearly articulate their position on the constitutionality of abortion, and offer and recognize reasons to ground both support and opposition to their position. We argue that these findings suggest that further work with alternative survey constructions may more firmly establish public knowledge in constitutional debates, thereby forming the basis to reclaim a democratic constitutional politics.
This research was aided by a grant from the Office of Research and Sponsored Programs at Ball State University, and the Research Incentive Program in the Graduate School at the University of Wisconsin - Milwaukee. We are also grateful to the Social Science Research Facility at the University of Wisconsin - Milwaukee and the Social Science Research Center at Ball State University for their assistance in conducting this research.
1. Brigham, John, “Bad Attitudes: The Consequences of Survey Research for Constitutional Practice,” Review of Politics 52 (1990): 582.CrossRefGoogle Scholar
2. See, for example, Stouffer, Samuel, Communism, Conformity, and Civil Liberties (New York: Doubleday, 1955)Google Scholar; Mcclosky, Herbert, “Consensus and Ideology in American Politics,” American Political Science Review 58 (1964): 361–82CrossRefGoogle Scholar; Mcclosky, Herber and Brill, Alida, Dimensions of Tolerance: What Americans Believe About Civil Liberties (New York: Russell Sage Foundation, 1983)Google Scholar; Gibson, James L. and Bingham, Richard D., “Skolde, Nazis, and the Elitist Theory of Democracy,” Western Political Quarterly 33 (1983): 33–47Google Scholar; and Gibson, James L. and Bingham, Richard D., Civil Liberties and Nazis: The Skokie Free-Speech Controversy (New YorkPraeger, 1985).Google Scholar
3. Brigham, “Bad Attitudes,” p. 582.
4. Ibid. Currently, elite or “expert” sources of authority, such as judicial authority, dominate constitutional politics. A more democratic constitutional practice would, at the very least, counterbalance judicial authority with legislative or popular authority (i.e., democratic sources of constitutional interpretation). As a consequence, the Constitution might be understood as something more than “what the judges say it is”. Constitutional authority would be separated from judicial authority and democratic authority would be strengthened. Historically, these arguments have been made by prominent public officials ranging from Thomas Jefferson to Edwin Meese. On this latter point see Burgess, Susan R., Contest For Constitutional Authority: The Abortion and War Powers Debates (Lawrence, KN: University Press of Kansas, 1992), pp. 1–7.Google Scholar
5. Goldwin, Robert, “What Americans Know About the Constitution,” Public Opinion (1987): 9–10.Google Scholar
6. Cooper v. Aaron 358 U.S. 1,17(1958). The Court declared itself the “ultimate interpreter” of the Constitution in Baker v. Carr [369 U.S. 186,208 (1962)], as well as in Powell v. McCormack [395 U.S. 486,549 (1969)], and U.S. v. Nixon [418 U.S. 683 703 (1974)]. Taken together, the Court explicitly declared supremacy over the states, Congress, and the Executive in these cases. Also see Colorado v. Connelly 474 U.S. 1050, 1053 (1986); Northern Pipeline Construction Co. v. Marathon Pipe Line Company and U.S. v. Marathon Pipeline Co. 458 U.S. 50, 62 (1982); and Nixon v. Administrator of General Services 433 U.S. 425,503 (1977).
7. Many scholars who advocate either judicial activism or judicial selfrestraint accept judicial supremacy as a permanent feature of the American constitutional system. See, for example, Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review, (Cambridge, MA: Harvard University Press, 1980), p. 4Google Scholar; Perry, Michael, The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982), pp. 135–36Google Scholar; and Berger, Raoul, Government By Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, MA: Harvard University Press, 1977), pp. 296,320–21.Google Scholar
8. Nagel, Robert, Constitutional Cultures: The Mentality and Consequences of Judicial Review (Berkeley: University of California Press, 1989), p. 2.Google Scholar
9. This literature explores (1) whether the Court shapes public attitudes, (2) whether public attitudes shape Court decisions, and (3) what the level of public support is for the Courts. For recent reviews of this literature see Marshall, Thomas, Public Opinion and the Supreme Court (New York: Longman, 1988)Google Scholar; Marshall, Thomas, “Public Opinion Polls and the Courts: What We Know, What We Don't, What We Should,” Law, Courts, and Judicial Process Section Newsletter 8 (1991): 2–3Google Scholar; Caldeira, Gregory A, “Courts and Public Opinion,” in The American Courts, ed. Gates, John and Johnson, Charles (Washington, D.C.: CQ Press, 1991): 303–334Google Scholar; For examples of recent studies that explore the aforementioned questions see Caldeira, Gregory A., “Public Opinion and the Supreme Court FDR's Court-packing Plan,” American Political Science Review 83 (1987): 1139–54CrossRefGoogle Scholar; and Franklin, Charles and Kosaki, Liane, “The Republican Schoolmaster The Supreme Court, Public Opinion, and Abortion,” American Political Science Review 83 (1989): 752–72.CrossRefGoogle ScholarPubMed
10. This survey was commissioned by the Hearst Corporation, constructed by Professor Louis Henkin of Columbia University, and conducted by Research and Forecasts, Inc. The sample size was 1004, with a margin of error of +/-3.2%. The survey, results, and analysis can be found in Bennack, Frank A. Jr., The American Public's Knowledge of the U.S. Constitution: A National Survey of Public Awareness an Personal Opinion (1987): 1–37.Google Scholar
11. Ibid., p. 23 (Table 21), Emphasis added.
12. Ibid., (Table 23).
13. Ibid., p. 8.
14. See, for example, Agresto, John, The Supreme Court and Constitutional Democracy (Ithaca: Cornell University Press, 1984)Google Scholar; Barber, Sotirios, On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984)Google Scholar; Brigham, JohnCult of the Court (Philadelphia: Temple University Press, 1987)Google Scholar; Susan R. Burgess, Contest For Constitutional Authority; Jacobsohn, Gary J., The Supreme Court and the Decline of Constitutional Aspiration (Totowa, NJ: Rowman and Littlefield, 1986)Google Scholar; an Murphy, Walter, “Who Shall Interpret? The Quest For the Ultimate Interpreter,” Review of Politics 48 (1986): 401–23.CrossRefGoogle Scholar
15. Kammen, Michael, A Machine That Would Go Of Itself: The Constitution in American Culture (New York: Alfred A. Knopf, 1986), p. xvi.Google Scholar
16. Ibid., p. 386.
17. Bennack, , “The American Public's Knowledge,” p. 2.Google Scholar
18. On this point see, for example, Kuhn, Thomas, The Structure of Scientific Revolutions (Chicago: University of Chicago Press), p. 112Google Scholar; and Brigham, , “Bad Attitudes,” p. 592.Google Scholar
19. Bennack, , ‘The American Public's Knowledge,” pp. 7–8.Google Scholar
20. See, for example, the manner in which Congress challenged judicial supremacy during the 1981 Human Life Bill hearings or the 1985 Abortion Funding Restriction Act debates. In addition, several quite visible grassroots groups have continually challenged the Court's understanding of the constitutionality of abortion since the announcement of Roe v. Wade in 1973. For an analysis of these, and other challenges to judicial supremacy, see Burgess, Contest For Constitutional Authority.
21. 410 U.S. 113 (1973).
22. One could argue that these arguments should not count as constitutional knowledge, as they do not make specific, textual reference to the Constitution, or use technical, legal jargon. Yet, most of the arguments offered by respondents are similar to those offered by elites in their debates on abortion. Furthermore, as Robert Gold win argues, citizens who lack a command of legal jargon may nevertheless possess an adequate understanding and knowledge of constitutional principles: “Some ignorance of the text of the Constitution can be compatible with a sound understanding of it, and a deep and loving dedication to its principles.” See Goldwin, , “What Americans Know,” p. 10.Google Scholar
23. General Social Survey, Cumulative Codebook 1972–81, pp. 235–37.
24. For an ethnographic approach that is contemporaneous with the seminal Stouffer study, see Lane, Robert, Political Ideology: Why the American Common Man Believes What He Does (New York: Free Press, 1962).Google Scholar
25. These surveys were conducted from 11–22 February 1990 at the Social Science Research Facility, University of Wisconsin-Milwaukee, Milwaukee, Wisconsin and from 10–26 April 1990 at the Social Science Research Center, Ball State University, Muncie, Indiana. The sample was generated from random digit dialing in the Milwaukee County SMSA and the Delaware County (Indiana) SMSA. Unanswered numbers were called back once. If the number remained unanswered, interviewers moved to the next number.
26. Caldeira, , “Courts and Public Opinion,” p. 324.Google Scholar
27. Note that these are the same three awareness questions that were asked earlier of those favoring the fetus' perspective.
28. Note that these are the same three questions that were asked earlier of those favoring the women's perspective.
29. See Burgess, , Contest For Constitutional Authority, pp. 121–26.Google Scholar
30. If the Supreme Court overturns Roe, this hypothesis can be tested further. At that point, arguments supporting the unconstitutionality of abortion may attain dominant status, and arguments supporting the constitutionality of abortion may revert to challenger status.
31. Brigham, , “Bad Attitudes,” p. 582Google Scholar. For Brigham, a more democratic constitutional practice entails taking public knowledge seriously as a basis of authoritative constitutional interpretation. He states: “Popular experience… including the conventionality of daily life, is the natural foundation for rights in a democratic system” (Ibid.., 583). Also see footnote 4.