Mediated Popular Constitutionalism

Abstract

At present many theorists advocate some version of popular constitutionalism. Although commentators differ, and not all theories are well-defined, the central idea is that constitutional meaning should reflect popular understandings. This paper explores the relationship between popular opinion and judicial review, with special attention to the social science literature that bears upon the topic. In light of that literature, this paper argues that we have a system of popular constitutionalism that is mediated through politics and media coverage of the courts. The paper begins with a sketch of a normative argument in which popular opinion is relevant to the exercise of judicial review. It then turns to social science to determine if this is the case. Social science studies suggest that public opinion constrains judicial behavior, and that judicial outcomes typically fall within a range of popular acceptance. There also is a prominent social science theory of diffuse support which holds that even when the public does not approve of judicial decisions, they will - within a range of tolerance - support the idea of judicial review. The diffuse support hypothesis in particular is important to assessing the range of independence enjoyed by the judiciary. This paper explores the ramifications for normative theories of judicial review of social science understandings regarding the relationship between popular opinion and judicial review. The paper concludes by explaining how public opinion can be manipulated, potentially undermining the workings of this system of mediated popular constitutionalism.

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