Published online by Cambridge University Press: 05 August 2009
Following World War II, survey researchers taught a generation of Americans that ordinary people were not to be trusted on fundamental rights because their attitudes were reactionary, intolerant, and generally bad. The article examines this research and its influence on constitutional politics. It proposes that this attitude perspective fostered elite domination in matters of fundamental right and an orientation away from economic rights. The article also suggests that by turning from public opinion to public knowledge we may reclaim a democratic constitutional practice.
1. Stouffer, Samuel, Communism, Conformity, and Civil Liberties (New York: Doubleday, 1955).Google Scholar
2. Shapiro, Martin, “The Supreme Court's ‘Return’ to Economic Regulation,” Studies in American Political Development (New Haven: Yale University Press, 1986).Google Scholar
4. Houseman, Gerald L., “Civil Liberties and the American People: Toward an Understanding of a Lack of Understanding,” Research in Law and Policy Studies 2 (1988): 199–218.Google Scholar
5. Adorno, T. W. et al. , The Authoritarian Personality (New York: Harper and Bros., 1950).Google Scholar
8. The dramatic impact of The American Voter, ed. Converse, Philip E., Miller, Warren E., and Stokes, Donald E. (New York: Wiley, 1960),Google Scholar on the conception of productive political science was to make prediction of a public's propensity to choose one way rather than another on a narrow range of issues an important focus of research.
14. Sullivan, John L. et al. , Political Tolerance and American Democracy (Chicago: University of Chicago Press, 1982);Google Scholar but see Jackman, Robert W., “Political Elites, Mass Publics, and Support for Democratic Liberties,” Journal of Politics 34 (1972): 753–73;CrossRefGoogle Scholar and “Much Ado About Nothing,” Journal of Politics 39 (1977): 185–92.CrossRefGoogle Scholar
15. Ginsberg, Benjamin, The Captive Public: How Mass Opinion Promotes State Power (New York: Basic Books, 1986);Google Scholar Paul Sniderman et al., “The Fallacy of Democratic Elitism: Elite Competition and Commitment to Civil Liberties” (Paper delivered to the Annual Meeting of the Law and Society Association, Madison, Wisconsin, 1989).
16. McClosky, Herbert and Brill, Alida, Dimensions of Tolerance: What Americans Believe about Civil Liberties (New York: Russell Sage, 1983).Google Scholar
18. David Barnum and John L. Sullivan, “The Measurement and Comprehension of Opinion-Policy Linkages on Civil Liberties Issues” (Paper delivered to the Annual Meeting of the Law and Society Association, Madison, Wisconsin, 1989).
20. Sullivan et al., Political Tolerance.
24. Kesselman, Mark, “Conflictual Evolution of American Political Science,” in Public Values and Private Power in American Politics, ed. Greenstone, J. David (Chicago: University of Chicago Press, 1982).Google Scholar
25. McConnell, Grant, Decline of Agrarian Democracy (Berkeley: University of California Press, 1953).Google Scholar
28. Genovese, Eugene, Roll, Jordan, Roll: The World the Slaves Made (New York: Vintage Books, 1974).Google Scholar
29. Gusfield, Joseph, The Culture of Public Problems (Chicago: University of Chicago, 1981).Google Scholar
33. Caldeira, Gregory, “The Supreme Court and Public Opinion,” Law and Society Review (1976).Google Scholar
37. As Joel Grossman pointed out to me in comments on an earlier draft of this article.
38. Brigham, John, The Cult of the Court (Philadelphia: Temple University Press, 1987), p. 214.Google Scholar
39. See also Johnson, Charles A. and Canon, Bradley C., Judicial Policies (Washington, D. C: Congressional Quarterly Press, 1984),Google Scholar for attention to the authoritative populations of “interpreters and implementers” who link elite positions to the Supreme Court.
40. Nagel, Robert F., Constitutional Culture: The Mentality and Consequences of Judicial Review (Berkeley: University of California Press, 1989), p. 1.Google Scholar
41. Marie Provine, note to the author. I am grateful for this commentary, although it cuts rather deeply into my analysis.
42. Tribe, Laurence, American Constitutional Law (Mineola, NY: Foundation Press, 1975), p. 1063.Google Scholar
44. Horowitz, Donald, The Courts and Public Policy (Washington, D. C: Brookings Institution, 1977).Google Scholar
45. Morgan, Richard E., Disabling America: The ‘Rights’ Industry in Our Time (New York: Basic Books, 1984).Google Scholar
48. This is part of a much larger psychological reorientation that began as the discipline matured in the early part of the twentieth century. At one time, the psychology of ownership, possession, and property were central to the discipline (Rudman, Floyd, “Psychology of Ownership, Possession, and Property: A Selected Bibliography Since 1890,” Psychological Reports 58 : 859–69).CrossRefGoogle Scholar
50. This is popularly described by Fred Friendly as “defending the thought that we hate” (Friendly, Fred and Elliot, Martha J., The Constitution: That Delicate Balance [New York: Random House, 1984]).Google Scholar
51. Sniderman et al., “Fallacy of Democratic Elitism”; Barnum and Sullivan, “The Measurement and Comprehension of Opinion-Policy Linkages on Civil Liberties Issues.”
52. Taylor, D. Garth, Public Opinion and Collective Action (Chicago: University of Chicago Press, 1986).Google Scholar
53. That is, to have a belief about something like whether wealth in America is unfairly distributed posits a relationship to the world while having an opinion about whether Communists should be allowed to speak does not say anything about the world.
54. Because the individual remains the unit of analysis.
55. Hochschild, Jennifer, What's Fair? American Beliefs about Distributive Justice (Cambridge, MA: Harvard University Press, 1981), p. 29.Google Scholar
57. Paradoxically, given its sensitivity to silenced voices.
59. Elman, Richard M., The Poorhouse State: The American Way of Life on Public Assistance (New York: Pantheon, 1966).Google Scholar
60. Richard Elman's ethnographic study of the lower east side of Manhattan, Poorhouse State, and my research in Chico, California, and Holyoke, Massachusetts, are the basis for describing the public's property.
61. (New York: Vintage, 1985).
62. (Philadelphia: Temple University press, 1986).
63. (Chicago: University of Chicago, 1990).
64. (Lexington, KY: D. C. Heath, 1987).
66. Brigham, John, Property and the Politics of Entitlement (Philadelphia: Temple University press, 1990).Google Scholar
68. In The Civil Rights Society (Baltimore: Johns Hopkins University press, 1988), Kristin Bumiller builds on critical legal scholarship to indicate some problems with this framework.Google Scholar
72. Nagel, Constitutional Culture; Brigham, Cult of the Court.
78. “Praxis” was described in terms of the seeming irrationality of the legal system in the late Middle Ages. An account by Douglas Hay, interpreting attempts to put the legal system on a more secure footing by making punishment sure and efficient, points out the advantage of die pardons, the grace controlled by the gentry, as an affirmation of their hegemony.
79. Respondent, W., Disabled and the Law, Chico, CA, 20 June 1988.
80. Respondent, J., Welfare Department, Holyoke, MA, 28 July 1988.
81. Flyer dated 2–6–89 on file with the author.
82. Sniderman et al., “Fallacy of Democratic Elitism.”
84. The attitude perspective is similar to the “many voices” framework of some contemporary interpretive research on law analyzed by Catharine A. MacKinnon (MacKinnon, , Feminism Unmodified [Cambridge, MA: Harvard University Press, 1987], pp. 35–37).Google Scholar
85. The word itself reflects an earlier professional movement to make cleanliness a standard of social acceptability.