The contours of constitutional approval.

Author:Stephanopoulos, Nicholas O.
Position::Abstract through III. Descriptive Exploration E. Constitutional Congruence, p. 113-152
 
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ABSTRACT

Scholars and judges agree on the importance of constitutional approval--that is, people's subjective support for their constitution. The Supreme Court has asserted that it owes its very legitimacy to popular backing for its decisions. Academic luminaries have concurred, while also connecting constitutional approval to constitutional compliance and durability, as well as the easing of the countermajoritarian difficulty.

Until now, though, no information has been available on either the levels or the causes of constitutional support. In this Article, we rectify this shortcoming by presenting the results of a nationally representative survey that we conducted in late 2014. The survey asked respondents about their approval of the federal Constitution and of their state constitution, and about several potential bases for support. We also supplemented the survey by coding dozens of features of state constitutions. This coding allows us to test hypotheses about the relationship between constitutional content and constitutional backing.

What we find is illuminating. First, people highly approve of their constitutions--the federal charter more so than its state counterparts. Second, approval is unrelated to what constitutions say; it does not budge as their provisions become more or less congruent with respondents' preferences. Third, approval is only weakly linked to respondents ' demographic attributes. And fourth, the most potent drivers of approval are constitutional familiarity and pride in one's state or country. To know it--and to be proud of it--is to love it.

These results unsettle several literatures. They mean that people form opinions about constitutions differently than about other institutions. They also mean that comparativists may be going down a blind alley as they focus ever more intently on constitutional design. But perhaps our study's clearest implication is for leaders who value popular support for their constitution. Our advice to them is to forget about constitutional change, and instead to try to build the public's knowledge and appreciation of the charter. Constitutional approval, like statecraft, is ultimately a project of soulcraft.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. Theory 1. Meaning 2. Consequences 3. Causes B. Empirics II. METHODOLOGY A. Survey Design B. Congruence Scores C. Non-Substantive Features III. DESCRIPTIVE EXPLORATION A. Overall Levels B. Geography and Demography C. Civic Knowledge D. Institutional Attitudes E. Constitutional Congruence F. Non-Substantive Features IV. EXPLANATORY ANALYSIS A. Demographic Attributes B. Civic Knowledge C. Institutional Attitudes D. Constitutional Congruence E. Non-Substantive Features V. DISCUSSION A. Institutional Comparisons B. Domestic Prescriptions C. Additional Literatures D. Future Research CONCLUSION INTRODUCTION

Justice Kennedy concluded his opinion with a flourish in a landmark 2005 case. "Over time, from one generation to the next," he declared, "the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people." (1) But has it? Do Americans actually feel "high respect" and "veneration" for their federal Constitution? And if so, what about their other constitutions--the charters that structure the governments of the fifty states? Do Americans prize them too?

Justice Kennedy also offered an intriguing explanation for the support (allegedly) enjoyed by the federal Constitution. Its "doctrines and guarantees"--federalism, the separation of powers, the Bill of Rights, and so on--are "essential to our present-day self-definition and national identity." (2) "Not the least of the reasons we honor the Constitution, then, is because we know it to be our own." (3) But is this, in fact, why we honor it? Does our allegiance stem from its congruence with our values, or from something else entirely? And even if Justice Kennedy is right about the cause of federal constitutional approval, does his claim hold for the states as well?

In this Article, we begin to answer these questions. We do so not just because they are prompted by Justice Kennedy's ruminations, but also because support for the constitution is a critical--and critically understudied--concept. Luminaries from the bench and academia have argued that it is a key driver of constitutional legitimacy: that is, the loyalty a charter commands from its constituents. These observers also have linked it to constitutional compliance, durability, and status as law, as well as the easing of the countermajoritarian difficulty. (4) But to date, no one has tried to measure it, to determine what the levels and causes of constitutional approval actually are. This empirical project is the linchpin of this Article.

Our methodology is straightforward. (5) To find out whether and why people support their constitutions, we simply asked them. In October 2014, we carried out a nationally representative survey with roughly 2,000 respondents, two questions of which were to what extent people approve of the federal Constitution and of their state constitution. The survey also included questions about an array of potential bases for support: demographic attributes (gender, age, race, education, and income), civic knowledge (about the constitution specifically and the news generally), and institutional attitudes (toward one's state, country, and party).

In isolation, though, the survey would have been unable to test some of the most salient hypotheses about constitutional approval--such as Justice Kennedy's claim that it follows from consistency with people's preferences. We therefore supplemented the survey by coding many of the features of the fifty state constitutions. We tracked whether or not they contain twenty-nine substantive provisions, as well as their age, length, and amendment frequency. The latter three variables slide directly into our analyses, while we pair the former with questions from our poll to create a measure of congruence. That is, we compare the provisions that each respondent wants in her state constitution with the provisions actually in the document, and so determine how closely it reflects her views.

We find, first, that Americans generally back their constitutions, though to different extents at the federal and state levels. The federal Constitution achieves an average approval score of 7.8 out of 10, while state constitutions earn a somewhat lower rating of 6.7. Constitutional support also does not vary much geographically. The federal Constitution is most popular in Idaho and least popular in Vermont, while Wyoming residents are happiest with their state constitution and Mississippians are least pleased with theirs. None of these state-level averages diverges very far from the national mean. (6)

But the existence of constitutional approval is less interesting than its explanations. To identify them, we build regression models in stages for both federal and state constitutional support. (7) We add, in turn, each of our five sets of hypotheses, involving (1) demographic attributes, (2) civic knowledge, (3) institutional attitudes, (4) constitutional congruence, and (5) non-substantive constitutional features. (The last two of these apply only at the state level since there is only one federal Constitution, and so no federal constitutional variation.)

Perhaps our most surprising finding, in light of Justice Kennedy's (and others') predictions, is that how closely a constitution corresponds to a respondent's preferences essentially has no impact on her approval of the document. Congruence fails to rise to statistical significance in any of our models, and varying it from its minimum to its maximum barely budges support. Our results for non-substantive constitutional features are equally unimpressive. Our respondents appear entirely unmoved by their charters' age, length, and amendment frequency.

The demographic story is somewhat more complicated. Gender, education, income, and most racial categories either fail to attain significance, or have small and inconsistent effects on approval. But older respondents reliably rate their constitutions more favorably than their younger peers. And unique among racial groups, African Americans consistently are less constitutionally satisfied, even controlling for other demographic and socioeconomic factors. America's familiar black-white cleavage thus extends to people's sentiments toward their charters.

A clearer picture emerges for civic knowledge and institutional attitudes. At both the federal and state levels, respondents who are more familiar with their constitutions, and who follow current events more closely, are more supportive of the documents. Similarly, at both levels, respondents who are prouder of where they live are stauncher constitutional advocates. In fact, the results for constitutional knowledge and jurisdictional pride are the most robust generated by our models. As these variables go from their minimums to their maximums, about a three-point spike in approval ensues (on a ten-point scale).

The most important implication of our findings is that constitutional support cannot be won through constitutional refinement. Since neither charters' substantive content nor their non-substantive features influence approval, constitutional design is effectively useless as a tool for increasing public backing for the document. This is a sobering truth for constitutional drafters, many of whom hope that their handiworks will reshape society in fundamental ways. Constitutions may have all kinds of consequences, but contra Justice Kennedy, earning the people's "high respect" and "veneration" is not one of them. (8)

Another insight from our analysis is more sanguine. Leaders who want their constituents to back their constitution are not powerless to bring about this outcome. But the right strategy is not to tweak the document to make it more attractive, but rather to boost people's...

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