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 say they like free speech if the language of the question ties it to the Constitution.
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.
Is this empirical evidence for Rawls’s claim that constitutions create a basis for public deliberation and justification? Well, maybe. Here is, at least, a possible explanation/justification for the phenomenon Bryan observes.
The fact that a principle appears in the constitution implies that it was the outcome of an earlier political consensus. A citizen can reasonbably assume that there was some good reason why consensus settled on this principle, and so the principle has some support simply in virtue of being embedded in the constitution. In the absence of evidence that a constitutional principle is causing a problem, the rationally ignorant citizen is correct, ceterus paribus, to give more weight to a priciple appearing in the constitution than a principle not appearing in the constitution. Since rationally ignorant folk won’t know what principles are in the constitution, a poll question that tells them that a principle is, while asking them if they agree with it, is likely to enjoy a more positive response.
This is just a specific example of the general principle that it is epistemically rational for cognitively limited agents to respect the cognitive division of labor and defer to epistemic authority. If you’re shooting in the dark for epistemic authorities (identifying them is itself an epistemic problem) framers of constitutions and supreme court judges are good guesses.
I think you’re basically right, though the part about consensus may be overkill. Respected authorities always lend credibility to a position, and the Constitution may very well be the most universally respected authority in this country. I’d bet most people wouldn’t even think about consensus, though they might consider the wisdom of the “founding fathers” when thinking about policies linked to the constitution. They’re still letting someone else do the cognitive work for them.
I think you’re right, but just a tangent on style here: Will, do you notice that if you take all instances of the word “epistemic” out of that last paragraph, it retains the same meaning? Excessive jargon is the bane of good prose.
It doesn’t retain the same meaning. ‘Authority’ would be ambiguous between religious, political, moral, etc. Likewise with ‘problem’. Anti-jargonists are the bane of people who like jargon.
I dunno people. If I can trust my high school teachers the principles in the Constitution were instantiated as they were (including with the electoral college and, lets not forget the 3/5 compromise) largely because of a compromise between the representatives of creditors (remember Beard) and slaveholders. The former were a small minority and the latter were morally reprehensible. Of course Lochner was about the 14th amendment, but see below…
So I wouldn’t say:
“The fact that a principle appears in the constitution implies that it was the outcome of an earlier political consensus [among those in the state legislatures, upper class types elected by Christian property-owning males]. A citizen can reasonbably assume that there was some good reason [like worrying about whether the south would be able to keep slavery and on what terms revolutionary war bonds would be repaid] why consensus settled on this principle, and so the principle has some support simply in virtue of being embedded in the constitution.”
Of course if you’re talking about VERY abstract principles like the separation of powers or representative government that may be a different thing. But unless you look at how these principles were actually instantiated and the public’s actual knowledge, then your explanations of how constitutional principles achieve cognitive or any other benefits will amount to nothing more than “the public swallowed this rhetoric about constitutional principle without having any idea what it really meant in practice and, so, they went along.” Hardly a convincing justification.
And how do these principles truly play out in practice? Wouldn’t Bryan’s argument prove that now people are rational to reject Lochner and accept the constitutionality of labor regulations?
Okay Will, I’ll concede those two for the sake of explicitness, though I don’t think anyone would have been confused given the context. But nonetheless, “epistemically rational” says with eight syllables what could be said with three.
[/pedantry]
Bill, I’m talking about the rationally ignorant avrerage citizen, not peculiarly well-informed people who are exceptionally intellectual even for graduates of Harvard Law School. The point is that almost no one remembers high school social studies, much less Beard, almost no one has never heard of Lochner, and most don’t even know what’s in the constitution, aside from the fact that states have two senators, you have to be 35 to be president, and maybe bits of the first and second amendments.
Bryan’s argument may not “prove” that it is rational to reject Lochner, just that it for most people, it is more reasonable to agree to defer to courts than to dissent.
Will: I think that all my points were going to (as you say) what a “citizen can reasonably assume”. The questions are (1) how much ignorance is rational and (2) in our ignorance, should we put a lot of stock in what people say about what the constitution says.
I think you’re basically right, though the part about consensus may be overkill. Respected authorities always lend credibility to a position, and the Constitution may very well be the most universally respected authority in this country. I’d bet most people wouldn’t even think about consensus, though they might consider the wisdom of the “founding fathers” when thinking about policies linked to the constitution. They’re still letting someone else do the cognitive work for them.
I think you’re right, but just a tangent on style here: Will, do you notice that if you take all instances of the word “epistemic” out of that last paragraph, it retains the same meaning? Excessive jargon is the bane of good prose.
It doesn’t retain the same meaning. ‘Authority’ would be ambiguous between religious, political, moral, etc. Likewise with ‘problem’. Anti-jargonists are the bane of people who like jargon.
I dunno people. If I can trust my high school teachers the principles in the Constitution were instantiated as they were (including with the electoral college and, lets not forget the 3/5 compromise) largely because of a compromise between the representatives of creditors (remember Beard) and slaveholders. The former were a small minority and the latter were morally reprehensible. Of course Lochner was about the 14th amendment, but see below…
So I wouldn’t say:
“The fact that a principle appears in the constitution implies that it was the outcome of an earlier political consensus [among those in the state legislatures, upper class types elected by Christian property-owning males]. A citizen can reasonbably assume that there was some good reason [like worrying about whether the south would be able to keep slavery and on what terms revolutionary war bonds would be repaid] why consensus settled on this principle, and so the principle has some support simply in virtue of being embedded in the constitution.”
Of course if you’re talking about VERY abstract principles like the separation of powers or representative government that may be a different thing. But unless you look at how these principles were actually instantiated and the public’s actual knowledge, then your explanations of how constitutional principles achieve cognitive or any other benefits will amount to nothing more than “the public swallowed this rhetoric about constitutional principle without having any idea what it really meant in practice and, so, they went along.” Hardly a convincing justification.
And how do these principles truly play out in practice? Wouldn’t Bryan’s argument prove that now people are rational to reject Lochner and accept the constitutionality of labor regulations?
Okay Will, I’ll concede those two for the sake of explicitness, though I don’t think anyone would have been confused given the context. But nonetheless, “epistemically rational” says with eight syllables what could be said with three.
[/pedantry]
Bill, I’m talking about the rationally ignorant avrerage citizen, not peculiarly well-informed people who are exceptionally intellectual even for graduates of Harvard Law School. The point is that almost no one remembers high school social studies, much less Beard, almost no one has never heard of Lochner, and most don’t even know what’s in the constitution, aside from the fact that states have two senators, you have to be 35 to be president, and maybe bits of the first and second amendments.
Bryan’s argument may not “prove” that it is rational to reject Lochner, just that it for most people, it is more reasonable to agree to defer to courts than to dissent.
Will: I think that all my points were going to (as you say) what a “citizen can reasonably assume”. The questions are (1) how much ignorance is rational and (2) in our ignorance, should we put a lot of stock in what people say about what the constitution says.