Bryan Caplan  

How Constitutions Might Matter

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Many economists hold the view that constitutions don't affect policy. The argument goes roughly like this: "If most people want to do X, no sentence on a musty piece of parchment is going to stop them." Even if this argument is correct, however, constitutions might work anyway. How? By changing what people want.

Lots of people believe whatever the Bible says; maybe some people prefer whatever the Constitution recommends. Looking over the General Social Survey, I noticed a rather striking example.

There are two related questions on the GSS. Question #1 reads:

Under the First Amendment guaranteeing free speech, people should be allowed to express their own opinions even if they are harmful or offensive to members of other religious or racial groups.

Question #2 reads:

People should not be allowed to express opinions that are harmful or offensive to members of other religious or racial groups.

There is one superficial difference: The first question asks people if they agree with free speech, and the second asks people if they agree with censorship. Maybe that matters too, but the big difference is that the first question mentions the Constitution and the second does not. The results are below.

Question 1 Question 2
Strongly Agree 21% 10%
Agree 43% 32%
Neither 11% 12%
Disagree 20% 35%
Strongly Disagree 4% 10%

Support for free speech is plainly higher in Question 1. More strikingly, the median response to Question 1 is different, too. The median person agrees with free speech if you link it to the Constitution. Otherwise, the median person could take it or leave it.

I bet examples like this would be easy to multiply. I suspect, for example, that the Supreme Court's rulings against regulation during the Lochner era not only restrained majority excesses; they also probably reduced the majority's support for regulation. No wonder political activists spend so much time in seemingly fruitless quarrels about "what the Constitution really means." While many people seem to think that the Constitution always favors whatever policy they prefer, there are actually quite a few people who prefer whatever policy they think the Constitution favors.


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TRACKBACKS (3 to date)
TrackBack URL: http://econlog.econlib.org/mt/mt-tb.cgi/326
The author at The Club for Growth Blog in a related article titled Friday's Daily News writes:
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The author at Will Wilkinson / The Fly Bottle in a related article titled Constitutional Principles and the Cognitive Division of Labor writes:
    At EconLog Bryan argues that one reason constitutions matter is that the content of the constitution has an affect on what people will endorse. He cites a poll showing that more people like free speech if the language of the... [Tracked on August 5, 2005 9:17 AM]
The author at Conjectures and Refutations in a related article titled Written Constitutions as Schelling Points writes:
    Appropos of the previous post, a few days back Bryan Caplan pointed out an interesting quirk in public opinion data. Read the post if you want the actual numbers, but the jist is as follows. As part of a general social survey, people were asked to rat... [Tracked on August 9, 2005 12:34 AM]
COMMENTS (5 to date)
Sudha Shenoy writes:

1. Isn't this, rather, simply a response to the term 'Constitution'? Given the numbers supporting state censorship, when it was put plainly to them: suggests that _anything_ with 'constitution' attached to it will be automatically supported.

2. The US is the _only_ country in which its constitution plays the role it does. Free speech is found in numerous countries, as well as _support_ for the principle: _without_ any US-style constitution. This suggests that in these areas, people actually pay attention to the principle itself -- as distinct from any label attached to it.

John T. Kennedy writes:

The people answering question 2 had the same constitution as those answering question 1, didn't they?

The difference between the two cases would seem to be based on whatever has wandered through their field of perception while the question was being asked, not the constitution.

Ivan writes:
Sudha Shenoy:

The US is the _only_ country in which its constitution plays the role it does. Free speech is found in numerous countries, as well as _support_ for the principle: _without_ any US-style constitution.

You'd be hard-pressed to find another country with as few legal restrictions on speech as the US. Virtually all other democratic countries prohibit various kinds of hateful or offensive public speech, with the definitions of illegal speech constantly broadening in the recent years (the newest trend being the criminalization of anti-religious speech, which is, as far as I can tell, not even argued by anyone half-serious in the US).

Similarly, the governments of other English-speaking countries have either completely outlawed gun possession in recent years (UK, Australia) or taken clear steps towards outlawing it in the future (e.g. Canada). Again, the US is an exception, and it's hard to believe that its uniqueness in having the constitutional guarantee for the right to bear arms has nothing to do with it.

I believe Prof. Caplan is right in his conclusion. However, I might add that besides the actual contents of the constitution, another important factor is its status in the national culture. Political beliefs of people are mostly shaped on superficial emotions and prejudices, and the patriotic reverence for the constitution can certainly be a powerful generator of emotions and prejudices. But in the countries that have seen many regime changes in recent history, each bringing a new constitution, or where constitutions are amended and changed easily and frequently, such reverence is nonexistent and the accusation of unconstitutionality bears little, if any emotional weight, unlike in the US.

Sudha Shenoy writes:

1. Bearing arms is a specifically _American_ issue. So _non-American_ countries are non-American on this issue. So what? Britain has had close state supervision over arms for a long time. So has Australia. Neither country could be described as unfree. They can be described as being unlike America, yes.

2. What 'changes in constitutions'? Where? The English-speaking countries? Scandinavia? Western Europe? Even France hasn't had that many new constitutions -- the last dates from 1958.

3. Precisely because the terms 'constitutional' & 'unconstitutional' carry such a strong emotional charge, the response is most likely to be to the term itself, & not to what else might be attached to it. Hence the approval of both free speech & censorship.

Ivan writes:
Sudha Shenoy writes:

1. Bearing arms is a specifically _American_ issue. So _non-American_ countries are non-American on this issue. So what?

It is a specifically American issue precisely because in the US it is a constitutional issue. This can be interpreted as another data point confirming that the constitutions can significantly influence the public opinion, which is obviously relevant for the topic of the article. Where such influence don't exist, the governments didn't have a hard time strictly regulating or even totally banning gun possession.

2. What 'changes in constitutions'? Where? The English-speaking countries? Scandinavia? Western Europe? Even France hasn't had that many new constitutions -- the last dates from 1958.

Are you kidding? :-) Since the ratification of the US constitution in 1791, France has had something like FIFTEEN different constitutions (from 1791, 1793, 1795, 1799, 1802, 1804, 1814, 1815, 1830, 1848, 1852, 1875, 1946, and 1958, to be precise). The last one from 1958 has been amended 17 times already -- compare that with 17 amendments to the US constitution in the last 200+ years since the Bill of Rights.

The example of France is by no means unique, although it is one of the more extreme ones. However, it is an undeniable fact that the level of reverence for the constitution in the US -- both formal and cultural -- is hard to find elsewhere. I can't even think of any other country that has no legislative means of rewriting the entire constitution, or even changing any of its original text (as opposed to just appending new amendments).

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