Friday, November 13, 2009

Unpopular Constitutionalism

Nate Persily

[Thank you to Jack for inviting me to contribute to Balkinization. These first few posts will describe the results of an ongoing project on public opinion and the Constitution that I have begun with Stephen Ansolabehere of Harvard’s Government Department. This past summer we conducted a national public opinion survey, building on the work in my coedited volume, Public Opinion and Constitutional Controversy (Oxford 2008). That book examines public attitudes over time on a dozen constitutional issues and speculates as to the effect of Supreme Court decisions on attitudinal shifts. We have aspirations of expanding the survey, conducting it every year and sharing its costs with any law faculty that wishes to participate. The model for this is the Cooperative Congressional Election Survey, in which thirty universities now participate. Interested law professors should contact me to discuss the terms of participation.

The debate over popular constitutionalism is one motivator for these projects. Readers of this blog need no introduction to the family of descriptive and normative arguments that fall under that rubric. Although public opinion (as opposed to elite political action or social movements) is not necessarily the principal agent of constitutional change for the theory’s adherents, several popular constitutionalists suggest that constitutional meaning either is or should be informed by popular conceptions about the Constitution. Much has also been written recently on whether the Supreme Court tends to follow or adjust to public opinion through a continuing dialogue or interchange with the public on high salience constitutional questions. Our survey seeks to shed light on those questions. Here are a few tidbits as to where the public stands on some of these questions:]

[Abortion: Our survey, like most described in Public Opinion and Constitutional Controversy, finds strong support both for the Supreme Court's decision in Roe v. Wade (37% strongly agree; 24% agree somewhat), but also for 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%).

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.

Death penalty: On a simple yes or no question on the death penalty for those convicted of murder, we find 78% support. (See the book for what happens when a "life without parole" option is added.) We find 19% support for execution of a mentally retarded person and 43% for those under 18 convicted of murder. 68% are willing to execute someone for raping a child and 62% for those convicted of treason

Terror and Torture: We asked an original torture question that did not include, as is often the case, a qualification about seeking information to prevent future attacks. When asked, "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." We also 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."

In subsequent posts, I will present the data on affirmative action, physician assisted suicide, school prayer, eminent domain, issues in election law, and questions concerning interpretive methodology (for example, support for original intent and empathy). Of course, question wording and order always have important effects, but those concerns can only be discussed in sufficient length in the book.]

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