Academic journal article
By Somin, Ilya
William and Mary Law Review , Vol. 45, No. 2
In recent years the world has seen a massive wave of constitutional change, most notably in Eastern Europe, Latin America, and South Africa. As this Article goes to press, the United States and its allies are beginning the process of creating a new constitution for Iraq. Here at home, there is an ongoing debate over how best to structure change in our own constitutional system.
Yet our understanding of the processes of constitutional change remains in many ways inadequate. (1) A particularly poorly understood issue is the role of voter knowledge. This Article represents the first effort to determine empirically whether voter knowledge increases during periods of constitutional change, thereby enabling voters to impose heightened constraints on political elites. (2) The answer to this question is important, not only for the empirical study of constitutional change, but also for the ongoing normative debate over how such change should be structured. As discussed more fully below, the problem of voter knowledge has crucial implications for the longstanding debate between those constitutional theorists who claim that Article V of the U.S. Constitution should be the sole legal means of constitutional change and those--now led by Bruce Ackerman and Akhil Amar--who contest this proposition. (3)
In all democratic nations that undergo constitutional change, voters are given a role in constitutional development. For both normative and empirical reasons, it is obviously important to understand how they play that role. Numerous political philosophers have argued that voter control of government is intrinsically valuable. (4) Even many who do not share this view believe that voter control is instrumentally valuable as a check on the power of political elites. (5) Robert Dalai, perhaps the most influential analyst of democracy among modern scholars, asserts that "a key characteristic of a democracy is the continuing responsiveness of the government to the preferences of its citizens." (6)
An essential element of voter participation in constitutional change, as in "normal politics," (7) is that the electorate be adequately informed. (8) Without adequate knowledge, voters cannot monitor and control the actions of their elected representatives. Voter knowledge is perhaps even more important in constitutional decision making than in normal politics. Almost by definition, a change in constitutional structure is difficult to reverse. On the other hand, an ordinary policy failure brought on by voter ignorance can potentially be rectified by voting out the government that sponsored the policy in the next election--a process epitomized by the concept of "retrospective voting." (9) In constitutional politics, by contrast, it is much more important that voters "get it right" the first time around, as another opportunity may not arise for many years, if at all.
Unfortunately, decades of voter-knowledge research has shown that knowledge levels are usually shockingly low. (10) Most citizens lack even basic political information, (11) and close to one-third are so completely ignorant that one leading scholar categorizes them as "know-nothings." (12) Thus, it is essential to know whether this dismal pattern holds true in periods when fundamental constitutional change is on the political agenda.
The issue of voter knowledge and its relationship to constitutional change has implications for two other important strands of scholarly literature: theories of the growth of government and normative theories of constitutional change. Many theories of government growth point to the ability of governments to exploit periods of crisis--especially periods of crisis massive enough to engender constitutional change--to expand their powers beyond what is necessary to resolve the crisis at hand. (13) What these writers fail to explain is why voters allow political leaders to expand their power to such an extent, sometimes even to expand it in ways that do not address the crisis at all. …