It has recently been argued in this Review that public opinion research tends to favor the expert authority of elite institutions such as the courts, over the democratic authority of the people as a source of law or constitutional interpretation. In this article we introduce an alternative survey construction that allows the public to be considered as a possible source of constitutional knowledge Using this survey, we find that most respondents can clearly articulate their position on the constitutionality of abortion, and offer and recognize reasons to ground both support and opposition to their position. We argue that these findings suggest that further work with alternative survey constructions may more firmly establish public knowledge in constitutional debates, thereby forming the basis to reclaim a democratic constitutional politics.

Robert Bork's 1987 confirmation event generated a debate that continues to divide judicial scholars and commentators. Some contend that those hearings mark a pivotal change in the Senate confirmation process. They claim that by focusing on Bork's constitutional theories instead of his professional competence or his personal character, the Senate altered the criteria by which it assesses Supreme Court nominees. Others disagree, claiming that the confirmation process remains essentially unchanged. Conceding that Bork's experience was unique, they explain the uniqueness by pointing to either the distinctiveness of the nominee, or to the political element that regularly surfaces in controversial nominations.