The Normative Force of Constitutions: Experimental Evidence from the Pandemic

Abstract

For many people around the world, their national constitution is more than just a set of legal rules. It is a venerated institution, an independent source of normative values and legal wisdom. And because people may be less supportive of policies that would harm this institution, a constitution’s venerated status may ensure that the boundaries it sets will be upheld.

These straightforward empirical claims are central to modern constitutional theory; there is just not much direct evidence that they are true. This is, in part, because governments in established constitutional systems are unlikely to enact policies that are wildly out of step with public sentiment. If policies that violate the constitution are unpopular, governments are thus unlikely to pursue unconstitutional policies. As a result, there is little systematic evidence using observational data on whether the constitutionality of a policy affects public support for it.

To study the normative pull of constitutions, we conducted a series of survey experiments in the first weeks of the COVID-19 pandemic. These experiments were administered between March and May 2020 to nationally representative samples of the public in the United States, Israel, Japan, South Korea, Taiwan, and China. At a time when people were worried about their safety and little was known about the constitutionality of potential policies, we asked respondents if they supported nine potential liberty-restricting COVID-19 policy responses. We then randomly manipulated whether respondents were informed that these policies may be unconstitutional. These experiments allow us to directly measure if constitutions exert normative force in a situation where the stakes were high.

These experiments produced three core findings. First, across the six countries, a large majority of respondents supported all nine of the liberty-restricting policies. Second, being prompted to consider the constitution reduced support for only a few of the most extreme policies in just three countries. Moreover, the small normative force the constitution did exert was never enough to make a majority of respondents oppose a policy. Third, the results were similar for respondents who approved or disapproved of the national leader. Taken together, these findings suggest that, at least in times of crises, a constitution may not be such an important institution that its normative force presents an obstacle to constitutional violations.

Keywords: COVID-19, Civil Liberties, Constitutional Law, Public Opinion