Polit Behav DOI 10.1007/s11109-015-9325-5 ORIGINAL PAPER
The Dead Hand of the Past? Toward an Understanding of ‘‘Constitutional Veneration’’ James R. Zink1 • Christopher T. Dawes2
Ó Springer Science+Business Media New York 2015
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. Keywords Constitutional veneration Constitutional amendment Constitutional change Ballot measures Status quo bias Existence bias Constitutionalism
Electronic supplementary material The online version of this article (doi:10.1007/s11109-015-93255) contains supplementary material, which is available to authorized users. & James R. Zink
[email protected] Christopher T. Dawes
[email protected] 1
Department of Political Science School of Public and International Affairs, North Carolina State University, 212 Caldwell Hall, Campus Box 8102, Raleigh, NC 27695-8102, USA
2
The Wilf Family Department of Politics, New York University, 19 W 4th St., 2nd Floor, New York, NY 10012, USA
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Introduction With just 27 amendments in the nearly 225 years since its ratification, the U.S. Constitution stands as one of the oldest and least changed constitutions in existence today. One reason for this is that the amendment process outlined in Article V makes the Constitution among the hardest in the world to amend (Lutz 1994). But some argue that a culture of ‘‘constitutional veneration’’ among the public acts as an additional, psychological barrier to constitutional change: citizens’ reverence for the Constitution renders them reluctant to support proposed changes to it, sometimes even when they prefer or would benefit from the policy embodied in the proposal (see, e.g., Levinson 1990, 2006; Levinson and Balkin 2009; Sabato 2007; Seidman 2013). There is at least some evidence supporting this claim. A series of recent polls show Americans overwhelmingly believe the Constitution is ‘‘an enduring document that remains relevant today’’ without any further changes.1 Moreover, this attitude may influence the way many citizens view constitutional reform. The electoral college, for example, has long been the subject of criticism, but this method of presidential selection remains, despite decades of consistent public support for reform, not to mention a brush with constitutional crisis in the aftermath of the 2000 presidential election.2 Aside from this kind of indirect evidence, however, the assumption that the symbolic significance individuals attach to a constitution can act as an obstacle to constitutional change has not been directly tested. The question remains, then, does something like ‘‘constitutional veneration’’ exist and, if so, does it make individuals less likely to support proposals that would effect constitutional change? Drawing on existing behavioral research and insights gleaned from American political thought, we seek to better conceptualize ‘‘constitutional veneration’’—or what we more neutrally refer to as constitutional status quo bias—and examine its effects on individuals’ willingness to support constitutional change. Extant research in social psychology and behavioral economics offers many plausible explanations for why individuals may resist changing a constitution that have little to do with ‘‘reverence’’ for it, such as general status quo bias (Samuelson and Zeckhauser 1988;Kahneman et al. 1991;Ritov and Baron 1992) or risk aversion (Kam and Simas 2010;Kam 2012;Kam and Simas 2012;Eckles et al. 2014). But we report the results of two studies that find evidence of a specific bias in favor of the constitutional status quo. In Study 1, we used Amazon Mechanical Turk to administer a survey experiment that examines respondents’ willingness to support hypothetical state and federal constitutional amendment proposals. For Study 2, we ran similar experiments in Michigan and California during the week leading up to the November 2012 general election, using the proposed state constitutional amendments and statutes on which respondents would actually vote on election 1
See the AP-National Constitution Center Poll, August 2012, accessed 11/22/14, http://goo.gl/5NLzDe. For the years 2008 through 2012, the percentage of respondents endorsing the statement ‘‘The United States Constitution is an enduring document that remains relevant today’’ were, respectively, 70, 75, 74, 74, and 69 %.
2
‘‘Americans Would Swap Electoral College for Popular Vote,’’ Lydia Saad, Gallup Politics, October 24, 2011, accessed 11/26/14, http://goo.gl/f1j5aC.
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day.3 The results for both experiments support the notion that individuals’ attachment to a constitution disposes them to reject constitutional amendment proposals, even when accounting for alternative explanations such as individuals’ political and policy preferences, knowledge of the proposal (Lupia 1992;Lupia 1994b;Bowler and Donovan 1998;Christin et al. 2002;Kriesi 2007), and risk orientations (Kam and Simas 2010;Kam 2012;Kam and Simas 2012;Eckles et al. 2014). To be clear, these results are perhaps attributable in part to factors such as status quo bias, but as we shall explain in what follows, they cannot be reduced to these other explanations—our findings suggest that, in addition to the reasons individuals resist change in general, there is something about constitutions per se that biases individuals against proposals that would result in constitutional change. Our findings at the federal level, though consistent with conventional wisdom, are important insofar as they mark the first attempt to disentangle the otherwise observationally equivalent psychological and institutional obstacles to constitutional change and establish the bases of constitutional status quo bias as a specific phenomenon. It is much more surprising that we find effects at the state level, where the different nature and purpose of a constitution, the public’s lack of knowledge about state constitutions, and the relative ease and frequency of constitutional change should make for a much harder test. As we explain in our concluding discussion, our analyses suggest that constitutional status quo bias at the state level is weaker and thus easier to overcome, but it nonetheless can have significant consequences both for how individuals perceive and how elites frame constitutional proposals. Finally, although our findings ultimately do not speak directly to the complex, interrelated questions of whether the people should have more or less control over a constitution and when and how a constitution should change, they provide important context for these normative and practical debates, a matter to which we will return in our concluding remarks.
Conceptualizing Constitutional Status Quo Bias Constitutional scholar Sanford Levinson, one of the most vocal contemporary critics of the U.S. Constitution, has argued that nearly 225 years of constitutional stasis prove Americans revere the Constitution too much, to the point that they are blind to its profound structural flaws and unwilling to consider much needed constitutional reforms (Levinson 1990, 2006, 2012). He places blame for our religious-like respect for the Constitution squarely on James Madison, who famously argued in Federalist 49 that citizens’ ‘‘veneration’’ of a constitution promotes political stability by encouraging a basic wellspring of support and respect for the laws and institutions of society. The Madisonian notion that the Constitution should be an object of reverence has become an entrenched part of our political culture, Levinson argues, which in turn has made us complicit in our own continuing political dysfunction: ‘‘To the extent we continue thoughtlessly to venerate, and therefore not subject to 3
We conducted the experiments in Study 2 before those in Study 1, but we have chosen to present the studies in logical order rather than the order in which they were administered.
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truly critical examination, our Constitution, we are in the position of the battered wife who continues to profess the ‘essential goodness’ of her abusive husband’’ (Levinson 2006, p. 20). Other scholars, however, argue that widespread reverence for the Constitution reinforces its power as a shared symbol that serves as a focal point for agreement among the citizenry (Strauss 1996, pp. 915–916). On this view, reverence does not necessarily preclude constitutional change, but rather it helps stabilize and structure the process and rate of change (Holmes 1993). These competing contemporary perspectives on constitutional veneration and change generally track founding era debates over the appropriate citizen attitude toward a constitution. Thomas Jefferson, for example, famously warned that if citizens accept a constitution as something that is ‘‘like the arc of the covenant, too sacred to be touched,’’ they effectively cede their authority to a founding generation that, however great, could not have anticipated changing circumstances or changes among the people that arise naturally out of the ‘‘progress of the human mind’’ (letter to Samuel Kercheval, July 12, 1816, in Jefferson 1904, [12:11-12]). Jefferson eventually recommended a sunset scheme that would have provided for the expiration of laws and reconsideration of the constitution at the turnover of each generation (every 19 years, by Jefferson’s calculation), thus forcing citizens to frequently scrutinize the constitutional status quo, even if they ultimately decide against changing it. Madison’s comments in Federalist 49 indicate he did not think much of Jefferson’s proposal to organize frequent constitutional conventions for the purpose of reviewing the entire constitution, but he certainly did not think constitutional veneration should serve as a barrier to constitutional amendment.4 Even Madison, therefore, offered reasons to be wary of constitutional veneration: under circumstances where a constitution is deficient in some important way, citizens’ reverence for it might compound the problem by disposing them to resist the required changes (Bailey 2012). Although these past and present constitutional commentators take somewhat different views on the desirability of constitutional veneration, they all highlight the power of a constitution as a reference point that anchors citizens’ perspectives on politics, for better or worse. Moreover, the mechanisms they implicitly describe find indirect support in existing research on status quo bias and other types of referencedependent decision-making. A substantial body of research suggests that individuals often make decisions relative to a specific reference point, and altering the reference point can change the option they select from an otherwise identical choice set (Apesteguia and Ballester 2009;Tversky and Kahneman 1991). In particular, simply framing a choice as the status quo or ‘‘default’’ option renders individuals more likely to choose that option than they would if no status quo or default reference point were specified (Samuelson and Zeckhauser 1988; see also Eidelman and Crandall 2012; Fernandez and Rodrik 1991; Kahneman et al. 1991; Ritov and Baron 1992; Thaler and Sunstein 2003).
4
In fact, as Bailey (2012, 735) notes, Madison only two years earlier privately expressed sympathy for Jefferson’s 1783 proposal for periodic constitutional review—that is, the same proposal he rejected in Federalist 49.
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These studies highlight a number of reasons why individuals may be inclined to resist constitutional change. In some circumstances, it may be rational for individuals to adhere to the status quo if the alternatives involve uncertainty and/ or transaction costs (Fernandez and Rodrik 1991;Samuelson and Zeckhauser 1988). Additionally, or alternatively, they may not be willing to incur either the cognitive costs involved in counterfactual thinking (Roese 1997) or the actual costs associated with change (Pichert and Katsikopoulos 2008). Moreover, loss aversion may induce individuals to irrationally choose an option that has been framed as the status quo, as individuals tend to overweight potential losses and underweight potentials gains associated with choosing an alternative (Tversky and Kahneman 1991). For any or all of these reasons, individuals rely on the status quo to make sense of complicated political issues and choices. Many citizens vote for incumbents, for example, because they lack information about the challenger or, even if they know the challenger’s policy positions, they remain uncertain what the challenger will do once in office (Morgenstern and Zechmeister 2001). Individuals’ risk orientations also make them more or less susceptible to status quo bias. For instance, Kam and Simas (2012) find that risk-averse individuals are more likely to support candidates for political office that exhibit qualities consistent with the status quo, such as stability, certainty, experience, and governing competence (see also Eckles et al. 2014). Similarly, Eckles and Schaffner (2011) observe that risk-averse individuals are less supportive of proposed military interventions when they have been primed with subtle hints about the risks associated with involvement. Individuals thus may resist constitutional change for the reasons they resist any kind of political change, but aside from issues of uncertainty and risk surrounding a policy or choice scenario, is there something specific about a constitution that makes individuals reluctant to change it? We think one tendency in particular is relevant for understanding the processes underlying individuals’ deference to the constitutional status quo. Some research suggests the nature of the policy or choice under consideration invests the status quo with normative qualities that dispose individuals to resist change. Eidelman et al. (2009) find that under some circumstances individuals often attach inflated normative value to existing states (see also Crandall et al. 2009). This ‘‘existence bias’’ inclines individuals to remain with status quo conditions because they assume the existence of the status quo is evidence of its normative goodness, a tendency that is stronger the longer the status quo has been in place (Eidelman et al. 2010). Drawing on these studies, we suggest that, among other things, a proposed policy involving constitutional change highlights the symbolic dimension of the constitution and imbues the constitutional status quo with normative significance, thus disposing individuals to resist the proposal. This constitutional status quo bias is consistent with the citizen psychology implicitly described in past and present accounts of constitutional veneration. Returning to Federalist 49, for example, Madison emphasized constitutional reverence or veneration—something that in part taps the affective dimension of human psychology—precisely because he thought appeals to reason alone would be inadequate for encouraging a sense of civic responsibility among the citizenry: ‘‘A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as
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little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side’’ (Hamilton et al. 2003, p. 312). The arguments regarding constitutional veneration generally accept that, beyond its practical significance as a legal instrument, a constitution reflects or articulates the highest, most enduring values and goals of the political community, and as such it acts as an important symbol to citizens (Elkins et al. 2009, pp. 38–40). The symbolic significance citizens attribute to a constitution, in turn, can facilitate an attachment to it or a ‘‘prejudice’’ in its favor, thus entrenching the constitution as a reference point for citizens when they think about politics. A proposal that implicates constitutional change, therefore, can prime this sense of constitutional attachment and make the constitutional status quo salient to individuals as they consider the proposal. Under these circumstances, individuals are disposed to resist the proposal not simply out of risk aversion or uncertainty, but also out of a specific deference to the constitutional status quo. Finally, the nature and extent of individuals’ sense of constitutional attachment is shaped by the institutional context: if a constitution provides for relatively difficult amendment and revision procedures, changes to the constitution will be infrequent; if the constitution is seldom changed, citizens will be more inclined to view it as something that should not be changed; this view that it is normatively undesirable to change the constitution makes it even less likely the people will use the amendment process to change the constitution, and on and on. Thus, consistent with research that shows individuals are more attached to the status quo the longer it has been in place (Eidelman et al. 2010; Eidelman and Crandall 2014), individuals’ resistance to constitutional change becomes self-reinforcing: deference to the constitutional status quo solidifies its endurance over time, which in turn inclines individuals to value the constitutional status quo even more.
Testing Constitutional Status Quo Bias The logic of constitutional status quo bias described above suggests two related expectations. First, our most basic expectation is that individuals’ abstract sense of attachment to constitutions will dispose them to resist a proposed amendment to a constitution. This expectation reflects the central assumption of the arguments for and against constitutional veneration: that citizens’ reverence for a constitution can develop into a settled deference to the constitutional status quo that counterbalances and even overrides their policy preferences. Second, we also expect that the extent of individuals’ resistance to constitutional change is influenced in part by the institutional context. Past and present accounts of constitutional veneration share the assumption that citizens accept a constitution as an important symbol that is worthy of reverence. For individuals to perceive a constitution as special, however, it must actually be treated differently than ordinary law or other routine matters of government. The amendment process is an important factor in this regard: the relative ease of constitutional amendment can affect the
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rate of constitutional change, and the rate of change over time in turn can influence the extent to which citizens differentiate between a constitution and ordinary law. The differences between state and federal constitutions in the U.S. federal system allow us to compare the existence and relative strength of constitutional status quo bias within different institutional contexts. The federal Constitution is by far the most high profile constitution in the U.S., but each state also has its own constitution. Unlike the federal Constitution, however, most state constitutions today are much easier to amend and, consequently, are more frequently amended, revised, or altogether replaced. A primary reason for this is that the state constitutions necessarily evolved to serve many different purposes and deal with more matters of government than the federal Constitution, which required that they allow for greater flexibility in accommodating the constitution to changing circumstances within the state (Dinan 2000; Lutz 1982; Tarr 2000). Thus, while state constitutions are similar to the federal Constitution in that they also presume to serve as a sort of symbol to citizens, the relative frequency of constitutional amendment and change at the state-level may make them seem less ‘‘constitutionlike’’ in the eyes of citizens. If there is a link between constitutional attachment and the ease and frequency of constitutional change, then we expect the effects of constitutional status quo bias to be weaker or nonexistent at the state level. Study 1 To test the plausibility of our basic expectations, we used Amazon Mechanical Turk (MTurk) to administer a survey experiment to a national convenience sample of adults. Several recent analyses across a variety of disciplines have validated the MTurk subject pool (Berinsky et al. 2012; Buhrmester et al. 2011; Paolacci et al. 2010; Sprouse 2011) and it is increasingly used as a recruitment tool by studies published in top political science journals (Huber et al. 2012; Grimmer et al. 2012). We ran two versions of the experiment on different sets of subjects, one testing the effect of hypothetical proposals to amend the state or federal constitution and a follow-up survey testing the effect of hypothetical proposals to alter statutory law at the state or federal level. Together, these surveys allow us to isolate the effects of constitutional status quo bias and differentiate it from general resistance to legal change. Our sample is comprised of 2088 participants that were at least 18 years old and residents of the United States at the time of the survey. We recruited workers that had an MTurk rating of 70 % or above and participants were paid $1 to complete the survey. Respondents who participated in the first version of the study were blocked from participating in the second version of the study. More details about the sample, including summary statistics, are included in the Online Appendix. Our surveys asked each respondent about their willingness to support proposals relating to two substantive issues, collective bargaining rights and a policy that would require a legislative supermajority to approve tax increases. We chose these specific issues to retain issue-consistency with Study 2 (below), which involved actual constitutional amendment proposals on the same issues in Michigan’s 2012
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general election. Using these issues provides a common reference point that allows for a more direct comparison between Study 1 and Study 2. Respondents for both versions of the survey were randomly assigned to one of four basic conditions—federal control, federal treatment, state control, or state treatment—in which they were asked about both issues. For both versions of the survey, an individual assigned to the federal control condition received both of the following questions (in randomized order): Would you favor a federal policy that grants public and private employees across the country the right to organize and bargain collectively through labor unions? Would you favor a federal policy that requires a 2/3 majority vote of the U.S. House of Representatives and the U.S. Senate in order for the federal government to impose new or additional federal taxes on taxpayers or to increase the rate of federal taxation? The state control conditions were the same as their federal counterparts except we refer to a ‘‘state policy’’ and similarly change other language to clearly indicate the state context. In the constitution version of the experiment, those assigned to the treatment conditions were asked about the same substantive policy proposals as those in the control, but the proposals instead were framed as amendments to the state or federal constitution. For example, a respondent assigned to the federal constitutional change treatment received both of the following questions in randomized order: Would you favor an amendment to the United States Constitution that grants public and private employees across the country the right to organize and bargain collectively through labor unions? If approved, this amendment would change the United States Constitution to reflect the new policy. Would you favor an amendment to the United States Constitution that requires a 2/3 majority vote of the U.S. House of Representatives and the U.S. Senate in order for the federal government to impose new or additional taxes on taxpayers or to increase the rate of federal taxation? If approved, this amendment would change the United States Constitution to reflect the new policy. The questions for those assigned to the state constitution treatment condition used the same basic wording except that we referred to the subject’s state constitution. Similarly, those assigned to the treatment conditions in the ordinary law version of the experiment were asked their views on the same issues as their counterparts in the control condition, except the proposals were described as changing state or federal law. Thus a respondent assigned to the federal ordinary legal change treatment received the following questions in randomized order: Would you favor a measure that grants public and private employees across the country the right to organize and bargain collectively through labor
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unions? If approved, this measure would change federal law to reflect the new policy. Would you favor a measure that requires a 2/3 majority vote of the U.S. House of Representatives and the U.S. Senate in order for the federal government to impose new or additional taxes on taxpayers or to increase the rate of federal taxation? If approved, this measure would change federal law to reflect the new policy. The state law treatment condition was the same except that we referred to state law. The exact wording of all questions is presented in the Online Appendix. Across both versions of the experiment, a total of 1013 subjects were assigned to the state conditions (511 control, 240 constitution treatment, 262 law treatment) and 1075 were assigned to the federal conditions (535 control, 250 constitution treatment, 290 law treatment). Results Based on the logic of constitutional status quo bias, we expect to find the following results. First, for the version of the experiment highlighting constitutional change, we expect that respondents assigned to the federal or state constitutional change treatment will exhibit greater opposition to the proposal than those in the corresponding control group, all things equal. Second, we expect a smaller effect Table 1 Average treatment effects for hypothetical propositions
Support the status quo Control
Treatment
Difference
Collective Bargaining Federal constitution Federal law State constitution State law
0.281
0.528
0.247
(N ¼ 278)
(N ¼ 250)
(p\0:01)
0.241
0.303
0.062
(N ¼ 257)
(N ¼ 290)
(p ¼ 0:10)
0.250
0.396
0.146
(N ¼ 240)
(N ¼ 240)
(p\0:01)
0.273
0.324
0.051
(N ¼ 271)
(N ¼ 262)
(p ¼ 0:20)
2/3 Majority Federal constitution Federal law Support for the status quo is coded as ‘‘0’’ if the respondent supported proposal and ‘‘1’’ if they opposed proposal. p-Values are associated with two-tailed t-tests
State constitution State law
0.374
0.580
0.206
(N ¼ 278)
(N ¼ 250)
(p\0:01)
0.393
0.426
0.033
(N ¼ 257)
(N ¼ 290)
(p ¼ 0:43)
0.412
0.512
0.100
(N ¼ 240)
(N ¼ 240)
(p ¼ 0:03)
0.351
0.424
0.073
(N ¼ 271)
(N ¼ 262)
(p ¼ 0:08)
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0.4
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0.2 0.1 -0.1
0.0
Average Treatment Effect
0.3
Federal Constitution Federal Law State Constitution State Law
Collective Bargaining
2/3 Majority
Fig. 1 Average treatment effects and 95 % confidence intervals (from a two-tailed t-tests) for hypothetical propositions
size for the state constitution treatment compared to the federal constitution treatment. Third, for the version of the experiment that emphasizes ordinary statutory legal change, we do not expect to find any significant effect for the legal change treatments at the state or federal level. Table 1 and Fig. 1 present the average treatment effects for the constitutional and ordinary legal change treatments for each of the four hypothetical proposals (federal collective bargaining, state collective bargaining, federal taxation, state taxation).5 For each of the constitution scenarios at both the state and federal levels, our treatment highlighting constitutional change resulted in a significant effect, consistent with our first expectation. In contrast, none of the four ordinary legal change treatments is statistically significant, which is consistent with our third expectation. Moreover, those effect sizes are small in magnitude (between about 3 and 7 %) relative to their corresponding constitutional change treatments, which suggests that respondents are much more willing to change statutory law than the constitution, holding the issue constant. For three of our four issues—the federal taxation scenario (p\0:01 one-sided) and the state (p ¼ 0:05 one-sided) and federal (p\0:01 one-sided) collective bargaining scenarios—the effects of our constitutional change treatments are significantly larger than those for the ordinary legal
5
Results from regression analyses including several control variables are presented in Online Appendix Table 2 and Fig. 1.
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change treatments.6 Only on the state taxation issue do we fail to find a statistically significant difference between respondents’ resistance to constitutional change and their reluctance to change ordinary law (p ¼ 0:30 one-sided). Figure1 also provides a comparison of the strength of the federal and state constitutional treatments. Consistent with our second expectation, the effect of our treatment is larger in the federal conditions than in the state conditions. The difference between the state and federal constitutional change treatments is significant for the collective bargaining (p ¼ 0:05 one-sided) and taxation (p ¼ 0:04 one-sided) scenarios. Respondents consistently demonstrate greater opposition to changes to the federal Constitution than to their state’s constitution, which supports the notion that the relative ease and frequency of constitutional amendment can affect the extent to which individuals are biased against constitutional change. These results are consistent with our expectations and provide provisional evidence of constitutional status quo bias, but it is important to consider them in light of other well-known biases that might offer somewhat different interpretations of the treatment effects. One straight forward alternative explanation of the results is that they simply reflect status quo bias rooted in risk aversion or uncertainty surrounding policy change. But the fact that we do not observe significant effects for most of the law treatments, along with the difference in effect sizes between the state and federal constitutional change treatments, strongly suggest that these results are not reducible to ordinary status quo bias. If respondents opposed the proposals simply out of a bias against change, then we would not expect them to distinguish between changes in statutory law and changes to the constitution at either the federal or state level: they should be as reluctant to change ordinary law as they are to change a constitution, holding the issue constant. Moreover, we would not expect to find a difference in the size of effect between the state and federal constitutional change treatments on the same issues. Finally, because risk averse individuals are more susceptible to status quo bias (Kam and Simas 2012; Eckles et al. 2014), we would expect our treatment effects to be especially pronounced among risk averse respondents if our results were driven simply by status quo bias. Yet our treatment effects do not significantly differ based on respondents’ risk orientations (see Online Appendix Table 3). That we find significant effects at the state level also indicates our results are not driven entirely by the age of the constitutional status quo. Because individuals are inclined to the value the status quo more—and thus less likely to change it—the longer it has been in place (Eidelman et al. 2010; Eidelman and Crandall 2014), it may be that our treatment effects have little or nothing to do with constitutions per se and instead reflect respondents’ general reluctance to change any long-standing status quo condition. It is possible that respondents are unwilling to change the U.S. 6
To compare average treatment effects we used a bootstrap procedure. We drew 1000 samples of support for the status quo in the treatment and control group for both the constitution and law conditions and calculated the difference in means for each sample. We then compared the distribution of mean differences for the constitution and law conditions. The p-value for the test of the hypothesis that the treatment effect associated with the constitution condition is larger than that for the law condition is the number of negative mean differences divided by 1000. We follow the same procedure to compare the federal and state constitutional treatments.
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Constitution in part because they know it is old, but most individuals know very little about the age of their state’s constitution or, indeed, if their state even has a constitution.7 Thus our state level results offer evidence that there is something specific about constitutions aside from or in addition to age that biases individuals against proposals that would effect constitutional change. Perhaps our results are nonetheless attributable to this longevity bias in a more indirect way: maybe respondents assume—either correctly or incorrectly—their state’s constitution is old and conclude based on this assumption that it should not be changed simply because it has endured over time. Even if this is the case, however, it only offers further evidence that individuals are inclined to automatically attribute to constitutions a bundle of venerable characteristics. That is, in this case it is significant not so much that individuals are reluctant to change their state’s constitution because they assume it is old, but rather that individuals assume their state’s constitution is old because it is a constitution. Finally, the results could be interpreted as evidence that individuals do not suffer from any ‘‘bias’’ at all, but instead they behave rationally and deliberately weigh the benefits expected from a policy change against the heightened uncertainty associated with amending a constitution. Any policy change involves a degree of unpredictability, and because constitutions usually are more difficult to change than ordinary law, the costs of unintended consequences are much higher when dealing with constitutional amendments. Respondents in our study, therefore, simply may have engaged in an explicit and rational calculation: they expressed opposition to using constitutional means to effect a policy change because they know it is more difficult to undo the change should it have unforeseen negative consequences. Moreover, the difference in the sizes of our treatment effects can be interpreted as consistent with this possibility: just as respondents are more reluctant to change their state’s constitution because it is harder to change than ordinary state law, they are more reluctant to change the U.S. Constitution than their state’s constitution because it is much harder to change the former than the latter. While it is unlikely respondents know the exact institutional threshold for amending their state’s constitution, it is at least plausible that they assume it is relatively easier to amend than the U.S. Constitution. To address this last possibility, we conducted a follow-up experiment on MTurk using the federal collective bargaining scenarios from the original experiments. In the follow-up study, respondents were randomly assigned to one of four conditions. Three of the conditions—the control, federal statutory change treatment, and federal constitutional change treatment—were exactly the same as in the original study. To these, we added a fourth—a ‘‘certainty’’ scenario that asked: 7
The Advisory Commission on Intergovernmental Relations (ACIR) found that in 1991 only 52 % of the population knew that their state had a constitution, with 11 % asserting definitively that their state did not have a constitution, and 37 % expressing uncertainty on the matter (accessed on May 15, 2013, http:// www.library.unt.edu/gpo/acir/Reports/survey/S-20.pdf). Although we did not include any state constitutional knowledge questions in either version of the original experiment, we did include one in the Mturk follow-up study, described below. Following on the ACIR study, we simply asked respondents if their state had a constitution: 53 % correctly answered ‘‘yes,’’ 2 % answered ‘‘no,’’ and 45 % indicated they did not know whether or not their state had a constitution.
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Federal law
Difference
Federal constitution
Difference
Federal constitution ? certainty
Difference
0.248
0.281
0.034
0.454
0.207
0.387
0.139
(N ¼ 202)
(N ¼ 199)
(p ¼ 0:44)
(N ¼ 207)
(p\0:01)
(N ¼ 194)
(p\0:01)
Support for the status quo is coded as ‘‘0’’ if the respondent supported proposal and ‘‘1’’ if they opposed proposal. p-Values are associated with two-tailed t-tests
Would you favor an amendment to the United States Constitution that grants public and private employees across the country the right to organize and bargain collectively through labor unions, as long as the amendment were written so that it would not alter the basic structure of federal labor law or fundamentally interfere with the ability of employers to manage their workers? If approved, this amendment would change the United States Constitution to reflect the new policy. By conditioning the hypothetical amendment proposal on the promise that it will be written carefully so it does not materially affect the status quo in labor law and employer-employee relations, the new condition effectively gives permission to support the proposal to those individuals who are troubled by policy uncertainty. Our sample for the follow-up study is comprised of 802 respondents in total (202 assigned to the control, 199 to the federal legal change condition, 207 to the federal constitutional change condition, and 194 to the ‘‘certainty’’ constitutional change scenario). As with the original study, we recruited workers who were at least 18 years old and residents of the United States at the time of the survey and had an MTurk rating of 70 % or above, and participants were paid $1 to complete the survey. Respondents who participated in any of the original versions of the Study 1 were blocked from participating in this follow-up. More details about the questions and the sample, including summary statistics, are included in the Online Appendix. Table 2 and Fig. 2 present the average treatment effects for this follow-up study.8 Consistent with the original study, we find no significant difference between the control group and the ordinary legal change treatment group. In contrast, we find a large and statistically significant difference between the control and the basic constitutional change treatment—the 20.7 % difference we observe in the follow-up study is comparable in size to the difference between the control and the constitution treatment for the federal collective bargaining scenario in the original experiment (24.7 %). The difference between the control and the new ‘‘certainty’’ constitution treatment groups is also large and statistically significant (0.139, p\0:01), although it is not as large is the effect for the basic constitutional change treatment. This suggests that some of our treatment effect may be attributable to the heightened uncertainty surrounding the relative difficulty of constitutional change, 8
Results from regression analyses including several control variables are presented in Online Appendix Table 5 and Fig. 2.
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0.3 0.2 0.1 -0.1
0.0
Average Treatment Effect
0.4
Polit Behav
Federal Law
Federal Constitution
Federal Constitution + Certainty
Fig. 2 Average treatment effects and 95 % confidence intervals (from a two-tailed t-tests) for hypothetical propositions
but not all of it is. Individuals remain strongly resistant to changing the constitution even when we reassure them that the change will not substantially alter the policy status quo. Study 2 For our second study, we sought a test of constitutional status quo bias that does not rely on hypothetical constitutional amendments. Accordingly, we administered survey experiments to convenience samples of 613 Michigan and 495 California voters during the week leading up to the November 6, 2012 general election. This setting is a useful counterpart to Study 1 because it provides us with a realistic environment, one in which the immediacy and real-world impact of the choice voters confront represents a truer test of constitutional status quo bias than scenarios involving hypothetical constitutional amendments. Moreover, the variety of substantive issues involved in these elections help guard against the possibility that respondents receiving our treatment questions oppose a proposal not out of a bias against constitutional change, but rather simply because they do not think the issue that is the subject of the proposal is serious enough to warrant an amendment.9 9
Although our Michigan and California surveys test constitutional status quo bias across a range of substantive issues, one could argue that all of the issues involved are partisan policy issues that most of our respondents would view as too ephemeral or not important enough to warrant a constitutional amendment. As Dinan (2014) notes, however, citizens across the United States frequently approve policyoriented amendments to their state’s constitution and are not generally any more biased against policy amendments than other amendment types. We thank the anonymous reviewer who drew our attention to this matter.
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Our Michigan survey asked each respondent about six items—five proposed constitutional amendments and one state law referendum—that would appear on the November 6 ballot. Subjects were randomly assigned to one of two conditions for the measure that would have amended Michigan’s constitution to protect collective bargaining rights (Proposal 2).10 Respondents assigned to the control condition were asked the following question: ‘‘On November 6, Michigan voters will decide on a ballot measure that would grant public and private employees the right to organize and bargain collectively through labor unions. Do you favor or oppose this ballot measure?’’ Respondents assigned to the treatment condition received the same information as those in the control, with an additional sentence noting the measure’s constitutional effect: ‘‘If approved, the ballot measure would amend Article I of Michigan’s state constitution by adding Section 28 to reflect the new policy. Do you favor or oppose this ballot measure that would change the state constitution?’’ The control and treatment questions for the remaining amendment proposals took the same basic form. In the case of Proposal 1, the one measure relating to ordinary law, the control and treatment questions were similar except respondents receiving the treatment were explicitly informed that the measure would change state law if it were approved. The complete questions are included in the Online Appendix. For a comparative perspective, we also administered our study in California, a state with a potentially different political culture that may attenuate the effects of constitutional status quo bias. Although both states’ constitutions provide for very similar amendment procedures, California voters approve state constitutional amendments much more frequently than Michigan voters.11 Californians’ apparent comfort with changing the state constitution suggest they generally view it more as a practical legal instrument rather than a symbolic one, in which case we would expect the effects of constitutional status quo bias to be relatively weak or nonexistent in our California survey. Our California survey asked each respondent about two items—one proposed constitutional amendment that would increase taxes to fund education (Proposition 30) and one proposed state statute that would abolish the death penalty (Proposition 34)—that would appear on the November 6 ballot. The wording of the control and treatment conditions took the same form as those administered in Michigan— respondents in the control conditions were simply asked if they favored the proposition and they received no information about the legal effect of the measure, while those assigned to the treatments were explicitly informed that the proposition would change the state constitution (Proposition 30) or state law (Proposition 34) if it were approved. The control and treatment questions are included in the Online Appendix. For both surveys, we contracted with the firm Qualtrics (www.qualtrics.com) to solicit subjects and administer our surveys online. Both surveys were conducted in 10 The initial random assignment for the collective bargaining proposal determined whether respondents received treatment or control questions for the other five proposals. 11
Since its current constitution went into effect in 1964, Michigan voters have considered 75 proposed constitutional amendments, ultimately approving 32 of them (43 %). During about the same timeframe, California voters have approved 171 of 263 proposed constitutional amendments (65 %). NCSL Ballot Measure Database, accessed 11/20/13, http://goo.gl/m2YZ8i.
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the week leading up to the 2012 general election and subjects were compensated for their participation. The summary statistics for the Qualtrics samples are presented in the Online Appendix. Results We expect to find the following results for Study 2. First, with regard to the proposed constitutional amendments (Proposals 2 through 6 in Michigan and Proposition 30 in California), we expect that respondents assigned to the constitutional change treatment will exhibit greater opposition to the proposal than those in the control group, all things equal. Second, we expect there to be little or no significant difference between the control and treatment groups for the Michigan emergency powers proposal (Proposal 1) and the California death penalty proposition (Proposition 34), the two proposals that relate to ordinary statutory law rather than the state constitution. Table 3 and Fig. 3 present the average treatment effects for each of the eight proposals.12 Consistent with our first expectation, we find significant treatment effects for all six constitutional amendment proposals, with respondents in each treatment group demonstrating stronger opposition to the proposal than their counterparts in the control group. In line with our second expectation, we find that respondents are not as reluctant to change ordinary law: the treatment effect for Michigan’s emergency powers proposal is small and not statistically significant, and the treatment effect is negative and not significant for the California death penalty proposition. We wish to focus on the Michigan results, particularly Proposal 2, the collective bargaining proposal. It is especially noteworthy we find such sizable treatment effects for that proposal, something worth closer examination. Pre-election polls indicated that support for Proposal 2 was correlated with party identification, with Democrats largely supporting the measure and Republicans opposing it.13 Yet, as illustrated in Fig. 4 and Table 4, we find large and significant treatment effects even among strong Democrats (see also Online Appendix Table 9 and Fig. 4). This is notable not just because they would have been strongly inclined to favor the proposal on substantive grounds, but also because in principle they would have been among the least concerned about uncertainty surrounding the consequences of the proposal if it were approved. The impetus behind Proposal 2, at least as articulated by its supporters, was to protect the existing state of labor law in Michigan against the dramatic wave of change sweeping its neighbors.14 At the time, neighboring states Indiana, Ohio, and Wisconsin all either had become ‘‘right to work’’ states or were considering right-to-work legislation, and a constitutional amendment was 12 Results from regression analyses including several control variables are presented in Online Appendix Table 8 and Fig. 3. 13 Dawson Bell, ‘‘Poll: Michigan Voters Skeptical about Collective Bargaining, Bridge Proposals,’’ Detroit Free Press, September 16, 2012, accessed 3/9/14, http://goo.gl/QlBK0l. 14
See ‘‘Protect Our Jobs!’’ campaign website, https://goo.gl/bJj2jO.
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Polit Behav Table 3 Average treatment effects for Michigan and California propositions
Support the status quo Control
Treatment
Difference
Michigan Emergency powers Collective bargaining Renewable energy Healthcare workers 2/3 Majority Canada bridge
0.503
0.558
0.055
(N ¼ 288)
(N ¼ 319)
(p ¼ 0:18)
0.410
0.628
0.218
(N ¼ 290)
(N ¼ 323)
(p\0:01)
0.453
0.539
0.055
(N ¼ 289)
(N ¼ 319)
(p ¼ 0:03)
0.360
0.465
0.106
(N ¼ 289)
(N ¼ 318)
(p ¼ 0:01)
0.375
0.523
0.148
(N ¼ 288)
(N ¼ 321)
(p\0:01)
0.366
0.547
0.181
(N ¼ 287)
(N ¼ 318)
(p\0:01)
California Education tax Death penalty
0.394
0.481
0.087
(N ¼ 231)
(N ¼ 264)
(p ¼ 0:05)
0.522
0.488
-0.034
(N ¼ 247)
(N ¼ 248)
(p ¼ 0:45)
0.4
Support for the status quo is coded as ‘‘0’’ if the respondent supported proposal and ‘‘1’’ if they opposed proposal. p-Values are associated with two-tailed t-tests
0.2 0.1 0.0 -0.1
Average Treatment Effect
0.3
Constitution Amendment Statutory Change
MI MI MI Collective Renewable Healthcare Bargaining Energy Workers
MI 2/3 Majority
MI Canada Bridge
CA Education Tax
MI Emergency Powers
CA Death Penalty
State Propositions
Fig. 3 Average treatment effects and 95 % confidence intervals (from a two-tailed t-tests) for Michigan and California propositions
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0.3 0.2 0.1 0.0
Average Treatment Effect
0.4
Polit Behav
Strong Democrats
Democrats MI Collective Bargaining
Fig. 4 Average treatment effects and 95 % confidence intervals (from a two-tailed t-tests) for Democrats and strong Democrats for Michigan’s collective bargaining proposition (Proposal 2)
seen by proponents of the measure as the only way to prevent Michigan from adopting similar laws. From the standpoint of the proposal’s supporters, therefore, a vote in favor of Proposal 2 would have been a vote in favor of certainty and the status quo; conversely, a vote against the proposal would have been a vote for a brand new labor landscape that could have uncertain consequences even for nonunion workers. Given these circumstances, Democrats should have been strongly inclined to favor Proposal 2 on both substantive and certainty grounds, but simply highlighting the constitutional effect of the proposal was enough to turn many Democrats away. Additional analysis lends further support to the notion that our results are at least in part attributable to a specific bias in favor of the constitutional status quo. Proposal 2, for example, was the focus of intense campaigning and was probably the highest profile proposal on Michigan’s November 2012 ballot. Combined, both sides of the collective bargaining fight raised over $46 million dollars, the most ever in state history,15 and increased campaign spending on a measure generally increases awareness of and information about it (Bowler and Donovan 1998, 2002). In principle, then, our respondents would have been well informed about the proposed constitutional change and would have had settled attitudes about it at the time we administered the survey, which was within a week of the election. As such, they should have been less susceptible to our treatment and more inclined to vote in line with their preferences, but the treatment highlighting constitutional change 15 See report by the Michigan Campaign Finance Network based on data compiled from the Michigan Bureau of Elections, http://goo.gl/m9a8jq.
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Polit Behav Table 4 Average treatment effects for Michigan’s collective bargaining proposition (Proposal 2) Support the status quo Control Strong Democrats All Democrats
Treatment
Difference
0.164
0.393
0.229
(N ¼ 61)
(N ¼ 84)
(p\0:01)
0.195
0.446
0.251
(N ¼ 113)
(N ¼ 130)
(p\0:01)
Support for the status quo is coded as ‘‘0’’ if the respondent supported proposal and ‘‘1’’ if they opposed proposal. p-Values are associated with two-tailed t-tests
nonetheless dampened support for the proposal. Indeed, the treatment effects on Proposal 2 and all of the other Michigan constitutional amendment proposals do not significantly differ based on respondents’ level of knowledge about the proposals. This indicates our results are not simply driven by uninformed respondents who cautiously default to the status quo because they lack sufficient knowledge of the proposals to make an informed choice.16 The treatment effects also do not significantly differ based on respondents’ risk orientations, which implies that the results are not simply attributable to general status quo bias rooted in risk aversion and uncertainty.17
Discussion Our analyses support the notion that citizens’ attachment to a constitution can leave them resistant to proposed changes to it. We consistently find evidence of this bias in favor of the constitutional status quo across a variety of substantive issues and in different political contexts, even when accounting for alternative explanations. Our results at the federal level are perhaps unsurprising, but they are illuminating nonetheless in that they provide more direct evidence of ‘‘constitutional veneration’’ as a specific phenomenon. That we found any evidence of constitutional status quo bias at the state level is much more surprising and worth further consideration. Our findings—and the real-world fact that state constitutions across the United States are frequently amended—indicate that constitutional status quo bias is weaker at the state level and thus easier to overcome. It is easier to overcome, first, at the individual level. As Study 1 indicates, our treatment effect is smaller at the state level, holding the issue constant, which indicates that competing considerations can more easily overpower an individual’s bias in favor of the constitutional status quo when contemplating a proposed change to her state’s constitution. This 16
Uninformed voters in particular rely on the status quo as a reference point since they generally know more about the status quo than the uncertain and risky policy alternatives (Lupia 1994a, 1992; Bowler and Donovan 1998). 17 For the full regression analyses examining treatment effects across risk orientations and knowledge of the proposals, see Online Appendix Table 10.
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bias is easier to overcome, second, at the aggregate level within the states. Since most states only require a simple majority of the popular vote to ratify a proposed amendment to the state constitution, far fewer individuals must be convinced that changing the constitution is a good idea. Constitutional status quo bias can act as an obstacle to constitutional change at the state level, then, but other factors also play a role in deciding the fate of any given amendment proposal. For example, the path an amendment proposal takes to the ballot appears to substantially affect its likelihood of success: proposals that appear on the ballot after approval by the state legislature enjoy a much higher success rate than those that take the citizen initiative route to the ballot.18 One possible explanation for this disparity is the strategic and information advantages legislators usually have over groups using the initiative process: legislators often are in a better position to evaluate the costs and benefits associated with seeking policy change via constitutional amendment and to more accurately gauge the likelihood of an amendment proposal’s success (Damore et al. 2012). In fact, since most states require the approval of a super-majority in both legislative chambers to refer an amendment to voters, the mere presence of a legislatively referred amendment on the ballot often is indicative of a unified legislature attempting to achieve more enduring policy accomplishments by submitting the amendment for approval to the very same voters who elected them in such large numbers in the first place. Conversely, since the initiative process is a much costlier way to achieve policy goals than legislative means, groups’ reliance on the initiative process often is evidence of their weak political position in the legislature or among the electorate. Additionally, the legislature’s position on an amendment proposal may have effects at the individual level: the legislature’s referral of or failure to refer an amendment proposal can signal to voters important information about how they might benefit from the proposal or how it aligns with their personal preferences (Boehmke and Patty 2007). Thus while not all states have an initiative process, in those that do the nature of an amendment proposal’s path to the ballot may weaken or enhance bias against constitutional change. More generally, extant research suggests that information about the citizen groups or organized interests that have sponsored a ballot proposal or similar cues—e.g., the identity of groups, elected officials, celebrities, or media outlets who have endorsed or spoken out against a proposal— can help voters make informed choices (Bowler and Donovan 1998; Lupia 1994b, a; Banducci 1998; Nicholson 2003; Lewkowicz 2006; Bowler and Donovan 2002). It is possible these cues can provide voters with information not only about the policy implications of a proposal, but also about the value of using constitutional means to implement the proposal. These other factors provide important context for our state level findings, but they do not contradict them. Constitutional status quo bias may be easier to overcome at the state level, but it sometimes may be the difference between the success and failure of a proposal. Even legislatively-referred amendment proposals, 18 The annual reports provided by the Book of States (http://goo.gl/MHnBdk) show that between 1968 and 2013, about 73 % of all legislatively-referred amendments were approved compared to just about 40 % of all initiated amendment proposals.
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which enjoy all of the advantages outlined above, frequently fail. To provide some additional context for Study 2, for example, just 22 out of 44 total legislativelyreferred constitutional amendments have been approved in Michigan since 1964, when Michigan’s current constitution went into effect (50 %).19 This is higher than the 32 % success rate (10 out of 31) of amendment proposals placed on the ballot by initiative during the same time frame, but overall these numbers evince a general unwillingness of Michigan voters to change their constitution. Political actors implicitly acknowledge that constitutional status quo bias exists at the state level, for they often try to enlist this reluctance to change constitutions to help them fight proposals they oppose. Indeed, constitutional status quo bias may have played a role in the 2012 Michigan election, our subject in Study 2. For example, a business coalition fighting the pro-union constitutional amendment proposals organized under the name ‘‘Citizens Protecting Michigan’s Constitution,’’ thus clearly suggesting to the public that votes in favor of the amendment proposals are votes against the Michigan constitution, almost as if that fact alone is a sufficient argument against the proposals. At least one advocacy group argued these sorts of appeals were effective in turning voters against the proposals—they reminded voters ‘‘that constitutions, even more malleable state constitutions, should not be altered lightly’’—and that groups must change their strategies in the future to account for citizens’ attachment to the constitution.20 The group’s analysis cites as evidence the difference between the level of support for the proposals in preelection polls and the actual election results. An EPIC-MRA poll in September 2012 found that at least three of the five amendment proposals enjoyed the support of over 50 % of Michigan voters.21 The renewable energy proposal (Proposal 3), for example, registered 55 % support in September, with 34 % expressing opposition and 11 % undecided. In the end, however, the proposed amendment was easily defeated 62–38 %. Arguments highlighting the sacred or fundamental status of the state constitution will not register with every voter on every issue and they will not always prove decisive even for those who ordinarily are susceptible to such appeals. On close votes, however, they may help tip the balance against a proposed amendment. Constitutional status quo bias also may shape political elites’ strategies in deciding whether and how to pursue constitutional change at the state level. North Carolina’s May 2012 vote on Amendment 1, the ultimately successful constitutional amendment that barred legal recognition of same-sex marriages and civil unions in the state, offers an illustration. Although existing state law already prohibited samesex marriages, conservative legislators pushed for the amendment to make it much more difficult to overturn the statutory ban. In speaking about the amendment, thenN.C. House Speaker Thom Tillis conceded that same-sex marriage rights were an inevitability, especially since younger generations are much more accepting of 19
See Michigan Bureau of Elections report on initiatives and referenda, accessed July 16, 2015, http:// goo.gl/eYWThx, updated to include May 2015 election. 20
Dan Ferber, ‘‘Why Michigan’s Renewable Energy Amendment Failed,’’ Midwest Energy News, November 13, 2012, accessed 3/9/14, http://goo.gl/6Jr6YC .
21 Dawson Bell, ‘‘Poll: Michigan Voters Skeptical about Collective Bargaining, Bridge Proposals,’’ Detroit Free Press, September 16, 2012, accessed 3/9/14, http://goo.gl/QlBK0l.
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same-sex relationships. But he nevertheless defended the measure and acknowledged it was intended in part to make legal recognition of same-sex marriage in North Carolina a long and difficult journey.22 That is, not only would the amendment prevent ‘‘activist’’ state judges from overturning the state’s law prohibiting same-sex marriage, but, more important, it also would leave future generations of North Carolinians less disposed to extend marriage rights to samesex couples. If constitutional status quo bias makes citizens reluctant to change a constitution in the first place, it also inclines them against repealing a measure once it has worked its way into the constitution. Of course, the sponsors of the amendment had to succeed in getting voters to approve it in the first place, which is why they scheduled the vote on the amendment for the May 2012 primary election rather than placing the measure on the November general election ballot. Holding the vote during a relatively low-salience election in which Republican voters would decide their party’s presidential candidate (and Democrats would not) made it likelier that conservative activists inclined to support the amendment would turn out in much higher numbers than opponents of the amendment. To the extent citizens’ tendency to defer to the constitutional status quo might have presented an obstacle to passing Amendment 1, therefore, conservative legislators minimized its potential effects by strategically timing the vote. Overall, this study also provides context for the normative debates surrounding questions of constitutional veneration and popular constitutionalism, especially insofar as our findings highlight how constitutional status quo bias might affect popular constitutionalism at different levels of government. At the federal level in particular, our findings indicate that many individuals implicitly accept the U.S. Constitution as something that is, to use Jefferson’s words, ‘‘too sacred to be touched.’’ To some, this is precisely why constitutional attachment is so problematic. As Levinson (1990, 2459-60) notes, this bias ‘‘has led not to few amendments’’ over time, ‘‘but rather to a process of surreptitious and unacknowledged amendment’’ by judicial fiat or other similar means outside of those prescribed in Article V. From critics’ perspective, then, reverence for the Constitution subtly encourages citizens to cede their authority to change the Constitution to the very government officials the Constitution is meant to constrain. Whether bias against constitutional change is good or bad ultimately is a matter of perspective, but even if we accept that this bias is problematic at the federal level, encouraged in part by a high amendment threshold that already makes constitutional change difficult enough, our findings show it may serve as a useful ballast for popular constitutionalism at the state level. We conclude by highlighting important avenues for future research. We have sought to establish the existence of ‘‘constitutional veneration’’ and distinguish it from the most plausible alternative explanations for why individuals might resist constitutional change. The combined results of our experiments offer strong evidence that constitutional status quo bias exists, and while we think demonstrating this is an essential first step, additional questions remain about why individuals defer 22 Jim Morrill, ‘‘N.C. House Speaker Thom Tillis: Gay Marriage Ban Likely to be Reversed,’’ Charlotte Observer, March 28, 2012, accessed November 12, 2012, http://goo.gl/Ad4cvm.
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to the constitutional status quo. In particular, why might individuals exhibit constitutional status quo bias at the state level when many cannot even say for sure whether their state has a constitution? Our surveys do not allow us to directly address this question, but we speculate that our findings are a ‘‘warmglow’’ effect resulting from the symbolism many citizens attach to the U.S. Constitution. That is, our results are not necessarily an indication of individuals’ attachment to their state’s constitution, but instead may be evidence that the symbolic nature of the U.S. Constitution translates into a more generalized, abstract attachment to constitutions in the United States. When individuals are cued to the constitutional effects of a proposal, it activates this more diffuse sense of constitutional attachment and disposes them against a measure that would effect a change to their state’s constitution. But this possibility must be tested more directly. We also note that our study investigates constitutional status quo bias in the United States only. We assume it is a phenomenon rooted in a combination of the emphasis historically attached to written constitutions in the U.S., the frequent invocation of the U.S. Constitution to legitimize arguments in our public discourse, and socialization in the ‘‘higher law’’ constitutional tradition, among other things. However, this study can be extended to examine constitutional status quo bias comparatively across different national-constitutional contexts, which not only would speak to whether it is a phenomenon peculiar to the United States, but also would offer further insights into the interrelationship among constitutional design, citizen psychology, and constitutional change. Finally, we think important questions remain about the normative implications of this study. We have established that constitutional status quo bias can act as an obstacle to change. But even if we accept critics’ view that this generally is problematic, at least at the federal level, there exists another, more encouraging possibility that deserves further investigation: the anchoring effect of constitutional status quo bias may entrench important ideals that can serve aspirational purposes or act as a rallying point whenever political practice departs from constitutional promise. ‘‘Federal Farmer,’’ one of the most vocal opponents of the proposed Constitution as it originally emerged from the Convention, articulated the logic of this possibility in his argument for attaching a bill of rights to the Constitution: We do not by declarations change the nature of things, or create new truths, but we give existence, or at least establish in the minds of the people truths and principles which they might never otherwise have thought of, or soon forgot.... What is the usefulness of a truth in theory, unless it exists constantly in the minds of the people, and has their assent:—we discern certain rights...which the people of England and of America of course believe to be sacred, and essential to their political happiness...while the people of some other countries hear these rights mentioned with the utmost indifference.... The reason of the difference is obvious—it is the effect of education, a series of notions impressed upon the minds of the people by examples, precepts and declarations. (Federal Farmer, 1787, in Storing 1981, 2:369–370) In other words, attachment to a written constitution becomes attachment to the principles and values enshrined in that constitution, and those constitutional values
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in turn comprise—to use Martin Luther King, Jr.’s language—a ‘‘promissory note’’ that even the most deprived citizens can call upon government to honor. If constitutional attachment translates into attachment to constitutional principles in this way, the potential benefits may outweigh the costs of constitutional stasis. Acknowledgments We thank Bill Boettcher, Mike Cobb, Kim Ebert, Alan Gibson, Gregory Huber, Cindy Kam, David Peterson, John Scott, Frederick Solt, Andy Taylor, Jennifer Wilking, John Zumbrunnen, the Stony Brook University Center for Behavioral Political Economy, and three anonymous reviewers for their helpful comments and suggestions. We are especially grateful to John Dinan, who helped us navigate the data in the Book of States. This collaboration was facilitated by the Visiting Young Scholars Program organized by the School of Public and International Affairs and the Department of Political Science at NC State University. Replication data for this paper will be posted no later than March 2016 at https://dataverse.harvard.edu/dataverse/polbehavior.
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