The Dead Hand of the Past? Toward an Understanding of “Constitutional Veneration”

Abstract

Some observers argue that excessive veneration of the U.S. Constitution has blinded Americans to its flaws and made them reluctant to consider necessary reforms. In this paper, we test the assumptions that underlie these claims. We report the results of two survey experiments that examine the existence and effects of constitutional status quo bias at both the state and federal levels. Our findings support the notion that a proposed policy involving constitutional change imbues the constitutional status quo with normative value and, in turn, disposes individuals to resist the proposal. These results hold even at the state level. In addition to the institutional obstacles to constitutional amendment, therefore, we find evidence of another, psychological barrier to constitutional change that is based specifically in a sense of constitutional attachment.

The Role of Periodic Conventions in Generating and Undermining Constitutional Loyalty

“…Public support for the federal Constitution is indeed widespread, with state constitutional charters enjoying similar, albeit less extensive, support. On average, Americans rate their federal Constitution a "7.8 out of 10, while [their] state constitutions earn a somewhat lower rating of 6.7" (Stephanopoulos and Versteeg 2016, 116; see also Zink and Dawes 2016). Such support is necessary, argued James Madison, in maintaining a constitution's legitimacy; popular support for the laws ensures continued obedience to them.…”

“…For instance, if periodic conventions reinforce status quo biases, then opponents need only highlight how past conventions have been defeated. The role of periodic conventions affecting constitutional support is even more important at the state level given the weaker status quo biases exhibited (Zink and Dawes 2016). Relatedly, there is much to be gained by having a better grasp of what encourages greater levels of citizen specific and, more importantly, diffuse support.…”

“…The first concerns the idea that habit breeds obedience, generating both constitutional approval and loyalty. Constitutional support becomes self-reinforcing: the longer a charter goes without being replaced or changed, the more likely any proposed change will be rejected (Zink and Dawes 2016). This is often termed Aristotelian support since Aristotle argued that the law's strength lies in the habitual obedience it inspires within citizens.…”

“…5 Collectively, these studies explore two broad themes: (1) whether a constitutional status quo bias exists and (2) what factors generate or influence constitutional approval (specific support). Public attitudes toward both the federal and state constitutions tend to be positive, with the federal charter enjoying greater approval than state constitutions (Stephanopoulos and Versteeg 2016;Zink and Dawes 2016). Zink and Dawes (2016) attribute this finding to the lower status quo bias that exists at the state level, finding that a strong degree of constitutional attachment, or existence bias, exists in Americans despite their ideological, political/policy preferences, risk orientations, and constitutional knowledge.…”

“…Given the knowledge that a constitution could be fundamentally changed and was/was not, how do feelings on its legitimacy vary (if at all)? Conceptualized this way, Blake and Levinson's (2016) analysis is closer to measuring constitutional loyalty, 6 while Zink and Dawes (2016) demonstrate how the same policy framed as a constitutional amendment enjoys less support than when characterized statutorily.…”