Designing Democracy: What Constitutions Do / Edition 1

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Overview

"In modern nations, political disagreement is the source of both the gravest danger and the greatest security," writes Cass Sunstein. All democracies face intense political conflict. But is this conflict necessarily something to fear? In this provocative book, one of our leading political and legal theorists reveals how a nation's divisions of conviction and belief can be used to safeguard democracy.

Confronting one explosive political issue after another, from presidential impeachment to the limits of religious liberty, from discrimination against women and gays to the role of the judiciary, Sunstein constructs a powerful new perspective from which to show how democracies negotiate their most divisive real-world problems. He focuses on a series of concrete concerns that go to the heart of the relationship between the idea of democracy and the idea of constitutionalism. Illustrating his discussion with examples from constitutional debates and court-cases in South Africa, Eastern Europe, Israel, America, and elsewhere, Sunstein takes readers through a number of highly charged questions: When should government be permitted to control discriminatory behavior by or within religious organizations? Does it make sense to govern on the basis of popular referenda? Can the right to have an abortion be defended? Can we defend Internet regulation? Should the law step in if children are being schooled in discriminatory preferences and beliefs? Should a constitution protect rights to food, shelter, and health care?

Disputes over questions such as these can be fierce enough to pose a grave threat. But in a paradox whose elaboration forms the core of Sunstein's book, it is a nation's apparently threatening diversity of opinion that can ensure its integrity.

Extending his important recent work on the way deliberation within like-minded groups can produce extremism, Sunstein breaks new ground in identifying the mechanisms behind political conflict in democratic nations. At the same time, he develops a profound understanding of a constitutional democracy's system of checks and balances. Sunstein shows how a good constitution, fostering a "republic of reasons," enables people of opposing ethical and religious commitments to reach agreement where agreement is necessary, while making it unnecessary to reach agreement when agreement is impossible.

A marvel of lucid, subtle reasoning, DESIGNING DEMOCRACY makes invaluable reading for anyone concerned with the promises and pitfalls of the democratic experiment.

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Editorial Reviews

From the Publisher
"Sunstein takes the reader on a nuanced but spirited journey across a broad terrain of constitutional issues, from race discrimination to religious rights and presidential impeachment. Designing Democracy is a welcome change from the many books on constitutional law that sink under the weight of hermetic debates about interpretive methods. ...this approach brings a fresh perspective to many of the well-worn but still vital issues of American constitutional debate."—New York Times Book Review

"One of our finest constitutional thinkers, Cass Sunstein develops here a powerful new understanding of a constitution's purpose and resources. In this important book, Professor Sunstein discusses the way a democratic constitution can turn a nation's political differences, however sharp, into a constructive force."—William Jefferson Clinton, former president of the United States

"A powerful, persuasive critique of the conditions that distort [democratic] deliberation."—Washington Post Bookworld

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Product Details

  • ISBN-13: 9780195158403
  • Publisher: Oxford University Press, USA
  • Publication date: 12/1/2002
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 292
  • Product dimensions: 9.10 (w) x 6.10 (h) x 1.00 (d)

Meet the Author

Cass Sunstein is Karl Llewellyn Distinguished Service Professor at the University of Chicago Law School and Department of Political Science. His many books include Republic.com, One Case at a Time: Judicial Minimalism on the Supreme Court, Free Markets and Social Justice, Democracy and the Problem of Free Speech, and The Partial Constitution. He has advised many nations on constitution-making and law reform initiatives, including Ukraine, South Africa, China, Bosnia, Israel, Russia, and Poland. A former law clerk to Justice Thurgood Marshall and a former Attorney-Advisor in the Department of Justice, he has testified before Congress on many issues, including free speech in the media, separation of powers, discriminations against gays in the military, and presidential impeachment. He served on the President's Advisory Committee on the Public Service Obligation of Television Broadcasters and is a frequent contributor to The New Republic and The New York Times Book Review.

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Read an Excerpt


Chapter One


Deliberative Trouble


The differences of opinion, and the jarrings of parties in [the legislative] department of the government ... often promote deliberation and circumspection; and serve to check the excesses of the majority.
Alexander Hamilton, The Federalist


In everyday life the exchange of opinion with others checks our partiality and widens our perspective; we are made to see things from the standpoint of others and the limits of our vision are brought home to us.... The benefits from discussion lie in the fact that even representative legislators are limited in knowledge and the ability to reason. No one of them knows everything the others know, or can make all the same inferences that they can draw in concert. Discussion is a way of combining information and enlarging the range of arguments.
John Rawls, A Theory of Justice


Each person can share what he or she knows with the others, making the whole at least equal to the sum of the parts. Unfortunately, this is often not what happens.... As polarization gets underway, the group members become more reluctant to bring up items of information they have about the subject that might contradict the emerging group consensus. The result is a biased discussion in which the group has no opportunity to consider all the facts, because the members are not bringing them up.... Each item they contributed would thus reinforce the march toward group consensus rather than add complications and fuel debate.
Patricia Wallace, The Psychology of the Internet


Consider the following events:


* Affirmative action is under attack in the state of Texas. A number of professors at a particular branch of the University of Texas are inclined to be supportive of affirmative action; they meet to exchange views and to plan further action, if necessary. What are these professors likely to think, and to do, after they talk?
* After a nationally publicized shooting at a high school, a group of people in the community, most of them tentatively in favor of greater gun control, come together to discuss the possibility of imposing new gun control measures. What, if anything, will happen to individual views as a result of this discussion?
* A jury is deciding on an appropriate punitive damage award in a case of recklessly negligent behavior by a large company; the behavior resulted in a serious injury to a small child. Before deliberating as a group, individual jurors have chosen appropriate awards, leading to an average of $1.5 million and a median of $1 million. As a statistical generalization, how will the jury's ultimate award tend to compare to these figures?
* A group of women are concerned about what they consider to be a mounting "tyranny of feminism." They believe that women should be able to make their own choices, but they also think that men and women are fundamentally different and that their differences legitimately lead to different social roles. The group decides to meet every two weeks to focus on common concerns. After a year, is it possible to say what its members are likely to think?


    Every society contains innumerable deliberating groups. Church groups, political parties, women's organizations, juries, legislative bodies, regulatory commissions, multimember courts, faculties, student organizations, people participating in talk radio programs, Internet discussion groups, and others engage in deliberation. It is a simple social fact that sometimes people enter discussions with one view and leave with another, even on political and moral questions. Emphasizing this fact, many recent observers have embraced the aspiration to deliberative democracy, an ideal that is designed to combine popular responsiveness with a high degree of reflection and exchange among people with competing views. But what are the real-world consequences of deliberation? In a constitutional democracy, how can deliberation be made to work well? When and why does it work poorly?

    The standard view of deliberation is that of Hamilton and Rawls, given in the epigraph. Group discussion is likely to lead to better outcomes, if only because competing views are stated and exchanged. Aristotle spoke in similar terms, suggesting that when diverse groups "all come together ... they may surpass—collectively and as a body, although not individually—the quality of the few best.... When there are many who contribute to the process of deliberation, each can bring his share of goodness and moral prudence; ... some appreciate one part, some another, and all together appreciate all." But under what circumstances is it really true that "some appreciate one part, some another, and all together appreciate all"?

    My principal purpose in this chapter is to investigate a striking statistical regularity—that of group polarization—and to relate this phenomenon to underlying questions about the role of deliberation in the "public sphere" of a heterogeneous democracy. In brief, group polarization means that members of a deliberating group predictably move toward a more extreme point in the direction indicated by the members' predeliberation tendencies. Thus, for example, members of the first deliberating group are likely to become more firmly committed to affirmative action; the second group will probably end up favoring gun control quite enthusiastically; the punitive damages jury is likely to come up with an award higher than the median, perhaps higher than the mean as well, and very possibly as high as or higher than that of the highest predeliberation award of any individual member; the group of women concerned about feminism is likely to become very conservative indeed on gender issues. Notably, groups consisting of individuals with extremist tendencies are more likely to shift, and likely to shift more; the same is true for groups with some kind of salient shared identity (like Republicans, Democrats, and lawyers, but unlike jurors and experimental subjects). When like-minded people meet regularly, without sustained exposure to competing views, extreme movements are all the more likely.

    Two principal mechanisms underlie group polarization. The first points to social influences on behavior and in particular to people's desire to maintain their reputations and their self-conceptions. The second emphasizes the role of reasons in deliberation—in particular, the limited "argument pools" within any group, and the directions in which those limited pools lead group members. An understanding of the two mechanisms provides many insights into democratic institutions. It illuminates a great deal, for example, about likely processes within multimember courts, juries, political parties, and legislatures—not to mention ethnic groups, extremist organizations, criminal conspiracies, student associations, faculties, institutions engaged in feuds or "turf battles," workplaces, and families.

    One of my largest purposes is to evaluate the social role of enclave deliberation, understood as deliberation within small groups of like-minded people. I suggest that enclave deliberation is, simultaneously, a potential danger to social stability, a source of social fragmentation, and a safeguard against social injustice and unreasonableness. As I will show, group polarization helps explain an old point, with clear foundations in constitutional law in many nations, to the effect that social homogeneity can be quite damaging to good deliberation. When people are hearing echoes of their own voices, the consequence may be far more than mere support and reinforcement.

    Group polarization is naturally taken as a reason for skepticism about enclave deliberation and for seeking to ensure deliberation among a wide group of diverse people. But there is a point more supportive of enclave deliberation: Participants in heterogeneous groups tend to give least weight to the views of low-status members—in some times and places, women, African Americans, less educated people. Hence enclave deliberation might be the only way to ensure that those views are developed and eventually heard. Without a place for enclave deliberation, citizens in the broader public sphere may move in certain directions, even extreme directions, precisely because opposing voices are not heard at all. The ultimate lesson is that deliberating enclaves can be breeding grounds for both the development of unjustly suppressed views and for unjustified extremism, indeed fanaticism. Group polarization thus explains why and when many groups—including legislative majorities, political dissenters, hate groups, and civil liberties organizations—go to extremes.


Social Influences and Cascades


In General


People frequently think and do what they think and do because of what they think (relevant) others think and do. Employees are more likely to file suit if members of the same workgroup have also done so; those who know other people who are on welfare are more likely to go on welfare themselves; the behavior of proximate others affects the decision whether to recycle; a good way to increase the incidence of tax compliance is to inform people of high levels of voluntary tax compliance; broadcasters tend to follow one another'; and students are less likely to engage in binge drinking if they think that most of their fellow students do not engage in binge drinking, so much so that disclosure of this fact is one of the few successful methods of reducing binge drinking on college campuses.

    Social influences can lead people to go quite rapidly in identifiable directions, often as a result of "cascade" effects, involving either the spread of information (whether true or false) or growing peer pressure. Sometimes cascade effects are highly localized and lead members of particular groups, quite rationally, to believe or to do something that members of other groups, also quite rationally, find to be silly or worse. Thus local cascades can ensure that different groups end up with very different, but entrenched, views about the same issues and events. With the rise of the Internet, local cascades are sometimes dampened, but they continue to be an extremely important phenomenon.

    Social influences affect behavior via two different mechanisms. The first is informational. What other people do, or say, carries an informational externality; if many other people support a particular candidate, or refuse to use drugs, or carry guns, observers, and particularly observers within a common group, are given a signal about what it makes sense to do. The second mechanism is reputational, as group members impose sanctions on perceived deviants, and would-be deviants anticipate the sanctions in advance. Even when people do not believe that what other people do provides information about what actually should be done, they may think that the actions of others provide information about what other people think should be done. People care about their reputations; hence they have an incentive to do what (they think) other group members think they should do. Reputational considerations may, for example, lead people to obey or not to obey the law, urge a certain view in group discussions, buy certain cars, drive while drunk, help others, or talk about political issues in a certain way. A concern for reputation exerts a ubiquitous influence on behavior, including that of participants in democratic debate, who often shift their public statements in accordance with reputational incentives.


Some Classic Experiments


In the most vivid experiments involving group influences, conducted by Solomon Asch, individuals were apparently willing to abandon the direct evidence of their own senses. In the relevant experiments, a certain line was placed on a large white card. The task of the subjects was to "match" that line by choosing, as identical to it in length, one of three other lines, placed on a separate large white card. One of the lines on the second white card was in fact identical in length to the line to be matched to it; the other two were substantially different, with the differential varying from an inch and three-quarters to three-quarters of an inch. The subject in the original experiments was one of eight people asked to engage in the matching. But unbeknown to the subject, the other seven people apparently being tested were actually there as Asch's confederates, serving as part of the experiments.

    Asch's experiments unfolded in the following way. In the first two rounds, everyone agreed about the right answer; this seemed to be an extremely dull experiment. But the third round introduced "an unexpected disturbance." Other group members made what was obviously, to the subject and to any reasonable person, a clear error; they matched the line at issue to one that was obviously longer or shorter. In these circumstances the subject had the choice of maintaining his independent judgment or instead yielding to the crowd. A large number of subjects ended up yielding. In ordinary circumstances, subjects erred less than 1 percent of the time; but in rounds in which group pressure supported the incorrect answer, subjects erred 36.8 percent of the time. Indeed, in a series of twelve questions, no less than 70 percent of subjects went along with the group, and defied the evidence of their own senses, at least once.

    Notably, susceptibility to group influence was hardly uniform; some people agreed with the group almost all of the time, whereas others were entirely independent in their judgments. Significantly, a small variation in the experimental conditions made a big difference: the existence of at least one compatriot, or voice of sanity, dramatically reduced both conformity and error. When just one other person made an accurate match, errors were reduced by three-quarters, even if there was a strong majority the other way. By contrast, varying the size of the group unanimously making the erroneous decision mattered only up to a number of three; increases from that point had little effect. Opposition from one person did not increase subjects' errors at all; opposition from two people increased error to 13.6 percent; and opposition from three people increased error to 31.8 percent, not substantially different from the level that emerged from further increases in group size.

    More recent studies have identified an important feature of social influence, directly bearing on group behavior in democracies: Much depends on the subject's perceived relationship to the experimenters' confederates and in particular on whether the subject considers himself part of the same group in which those confederates fall. Thus conformity—hence error—is dramatically increased, in public statements, when the subject perceives himself as part of a reasonably discrete group that includes the experimenter's confederates (all psychology majors, for example). By contrast, conformity is dramatically decreased, and error is also dramatically decreased, in public statements, when the subject perceives himself as in a different group from the experimenter's confederates (all ancient history majors, for example). Notably, private opinions, expressed anonymously afterward, were about the same whether or not the subject perceived himself as a member of the same group as others in the experiment. There is a big lesson here about both the risk of inaccuracy and insincerity of public statements of agreement with a majority view, when relevant speakers closely identify themselves as members of the same group as the majority.

    Both informational and reputational factors lead people toward errors. In Asch's own studies, several people said, in private interviews, that their own opinions must have been wrong. On the other hand, these statements may have been an effort to avoid the dissonance that would come from confessing that the statement was false but made only to protect reputation. Experimenters find some reduced error, in the same basic circumstances as Asch's experiments, when the subject is asked to give a purely private answer—a point suggesting that reputation is what is producing mistakes. And note that in the study described in the immediately preceding paragraph, people who thought that they were members of the same group as the experimenter's confederates gave far more accurate answers, and far less conforming answers, when they were speaking privately.

    In a statement of direct relevance to constitutional democracies, Asch concluded that his results raised serious questions about the possibility that "the social process is polluted" by the "dominance of conformity." He added: "That we have found the tendency to conformity in our society so strong that reasonably intelligent and well-meaning young people are willing to call white black is a matter of concern." Asch's experiments did not involve deliberation, for people were not exchanging reasons; indeed, we might expect that reason-giving, on the part of Asch's confederates, would have severely weakened his results. What reasons could have been given for incorrect matches? But the existence of substantial numbers of mistakes, as a result of mere exposure to the incorrect conclusions of others, raises questions about whether and when deliberation within groups and institutions will lead people in the right directions.


Social (and Law-Related) Cascades


Societies are vulnerable to cascade effects, in which law, policy, opinion, and behavior shift rapidly in one or another direction. Consider issues involving race and sex equality, global warming, capital punishment, AIDS, the filing of lawsuits, or presidential candidates. Indeed, Asch's work demonstrates considerable individual susceptibility to cascade effects. What is striking about such effects is their epidemic-like nature, or the quality of apparent contagion. Group polarization is sometimes, but not always, a product of cascade effects. It will be useful to understand the former against the background of the latter.


Informational cascades. A puzzling question here is why individuals and social groups move so rapidly. A useful starting point is that when individuals lack a great deal of private information (and sometimes even when they have such information), they rely on information provided by the statements or actions of others. If B does not know whether abandoned waste sites are in fact hazardous, he may be moved in the direction of fear if A seems to think that fear is justified. If A and B both believe that fear is justified, C may end up thinking so too, at least if she lacks reliable independent information to the contrary. If A, B, and C believe that abandoned waste dumps are hazardous, D will have to have a good deal of confidence to reject their shared conclusion.

    People typically have different "thresholds" for choosing to believe or do something new or different. Some people will require very convincing reasons to change their view; other people will require much less. As those with low thresholds come to a certain belief or action, people with somewhat higher thresholds will join them, possibly to a point where a critical mass is reached, making groups, possibly even nations, "tip." The result of this process can be to produce snowball or cascade effects, as small or even large groups of people end up believing something—even if that something is false—simply because other people seem to believe that it is true. There is a great deal of experimental evidence of informational cascades, which are easy to induce in the laboratory; real-world phenomena also seem to have a great deal to do with cascade effects. Consider, for example, smoking, participating in protests, voting for third-party candidates, striking, recyling, using birth control, rioting, buying stocks, choosing what to put on television, even leaving bad dinner parties.

    The same processes influence views on political, legal, and moral questions; we can easily find political, legal, and moral cascades. Suppose, for example, that A believes that affirmative action is wrong and even unconstitutional, that B is otherwise unsure but shifts upon hearing what A believes, and that C is unwilling to persist in his modest approval of affirmative action when A and B disagree; it would be a very confident D who would reject the moral judgments of three (apparently) firmly committed others. Sometimes people are not entirely sure whether capital punishment should be imposed, whether a president should be impeached, whether the Constitution protects the right to have an abortion, whether it is wrong to litter or to smoke. Many people, lacking firm convictions of their own, may end up believing what (relevant) others seem to believe. Even judges are vulnerable to cascade effects.

    The same process is sometimes at work in the choice of political candidates, as a fad develops in favor of one or another—a cascade "up" or "down," with sensational or ruinous consequences. We can easily imagine cascade effects in the direction of certain judgments about the appropriate course of government regulation, environmental protection, or constitutional law. Note that a precondition for an informational cascade is a lack of much private information on the part of many or most people; if people have a good deal of private information, or are confident about their own judgments, they are unlikely to be susceptible to the signals sent by the actions of others.


Reputational cascades. Thus far the discussion has involved purely informational pressures and informational cascades, where people care about what other people think because they do not know what to think, and they rely on the opinions of others to show what it is right to think. But there can be reputational pressures and reputational cascades as well.

    The basic idea here is that people speak out, or remain silent, or even engage in certain expressive activity partly in order to preserve their reputations, even at the price of failing to say what they really think. Suppose, for example, that A believes that hazardous waste dumps pose a serious environmental problem; suppose too that B is skeptical. B may keep quiet or (like some of Asch's subjects) even agree with A, simply in order to preserve A's good opinion. C may see that A believes that hazardous waste dumps pose a serious problem and that B seems to agree with A; C may therefore voice agreement even though privately she is skeptical or ambivalent.

    It is easy to see how this kind of thing can happen in political life with, for example, politicians expressing their commitment to capital punishment (even if they are privately skeptical) or their belief in God (even if they are privately unsure). People will typically have different thresholds for yielding to perceived reputational pressure; some people will follow perceived pressure only when it is very severe (for example, because a large number of people impose it, or because they care a great deal about those people who impose it), whereas others will follow when it is mild (for example, simply because a few relevant others impose it). Here too the consequence can be cascade effects—large social movements in one direction or another—as increasing numbers of people yield to a pressure that they simultaneously impose, eventually reaching a critical mass. At that stage a large number of people eventually appear to support a certain course of action simply because others (appear to) do so.


Excerpted from DESIGNING DEMOCRACY by CASS R. SUNSTEIN. Copyright © 2001 by Oxford University Press. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.


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Table of Contents

Introduction: Tales of Democracy and Law 3
1 Deliberative Trouble 13
2 Constitutional Principles without Constitutional Theories 49
3 Against Tradition 67
4 What Should Constitutions Say? Secession and Beyond 95
5 Impeaching the President 115
6 Democracy and Rights: The Nondelegation Canons 137
7 The Anticaste Principle 155
8 Homosexuality and the Constitution 183
9 Sex Equality vs. Religion 209
10 Social and Economic Rights? Lessons from South Africa 221
Conclusion: Democracy's Constitution 239
Notes 245
Acknowledgments 261
Index 263
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