Richard Primus (The University of Michigan Law School) has posted Double-Consciousness in Constitutional Adjudication on SSRN. Here is the abstract:
Constitutional theorists are familiar with epistemic and consequentialist reasons why judges might allow their decisionmaking to be shaped by strongly held public opinion. The epistemic approach treats public opinion as an expert indicator, and the consequentialist approach counsels judges to compromise legally correct interpretations so as not to antagonize a hostile public. But there is also a third reason, which we can think of as constitutive. In limited circumstances, the fact that the public strongly holds a given view can be one of the factors that together constitute the correct answer to a constitutional question. In those circumstances, what the public thinks must be an ingredient in the judge’s own view of the right answer.
And here is a bit more of the text:
Several constitutional doctrines often reproduce this phenomenon. One thing a court might be doing when it asks whether the defendant had a reasonable expectation of privacy is asking whether most people would have expected privacy under the given set of circumstances.10 One way to decide whether a punishment is cruel or unusual is to ask whether most people would deem it so.11 One way to decide whether printed matter is obscene is to apply a community standards test.12 To be sure, judges might mistake their own senses of privacy, cruelty, or obscenity for those of the community. But the aspiration to track the community’s standards shows that the law can make its requirements depend on what the public thinks.
In the foregoing examples, public opinion helps to constitute, rather than simply indicating, the content of constitutional law. Note, however, that it does not play that constituent role by virtue of some independent authority that it has as public opinion. Instead, it shapes constitutional law at the invitation of a different kind of constitutional authority like text or judicial doctrine. For example, the judge who consults public opinion to give content to the Cruel and Unusual Punishments Clause is acting on the authority of the text of the Eighth Amendment. That text, as he understands it, directs him to consult public opinion, but public opinion is only salient on the point because the text makes it so. If the text said “Only punishments inflicted in Virginia in 1789 shall be inflicted,” then public opinion would be of no consequence. Public opinion is here a constituent factor in constitutional adjudication, but it is a second-order constituent factor.
Primus’s article reacts to Cass Sunstein’s If People Would Be Outraged by Their Rulings, Should Judges Care? forthcoming in the Stanford Law Review. Highly recommended!